Pintabona v R [2015] NSWCCA 201
Doney v R (1990) 171 CLR 207
[1990] HCA 51
JMR (1991) 57 A Crim R 39
R v Bilick and Starke (1984) 36 SASR 322
Source
Original judgment source is linked above.
Catchwords
Pintabona v R [2015] NSWCCA 201
Doney v R (1990) 171 CLR 207[1990] HCA 51
JMR (1991) 57 A Crim R 39
R v Bilick and Starke (1984) 36 SASR 322
Judgment (6 paragraphs)
[1]
The application for a directed verdict of acquittal
In his submissions, Mr Dalton accepted that the Crown may have an arguable circumstantial case that the vehicle seen in Thorpe Place transporting the shooter was the vehicle belonging to Younes. He did not base his application for a directed verdict on any submission that the evidence was not capable of establishing that fact beyond reasonable doubt.
Rather, Mr Dalton's application was based on a submission that, even if the jury accepted beyond reasonable that the vehicle was that of Younes, the evidence was not capable of establishing beyond reasonable doubt that the accused was in that vehicle in Thorpe Place at the relevant time. The evidence was not capable of showing he was either the shooter or the driver.
Turning first to the Crown case that the accused could have been the shooter, Mr Dalton noted that the descriptions of the eyewitnesses were inconsistent with the accused being the shooter. The evidence of Catherine Tomasetti was that the shooter was approximately 5'10", being the same height as her husband. Her son Nicola Tomasetti gave evidence that the shooter was approximately 6' tall, which was the same height as him. That evidence was not challenged by the Crown. It was not suggested to either of those witnesses that they could be wrong about their estimates, no doubt because there was no contrary evidence to put to them. The evidence is that the accused is 171cm in socks or approximately 173 cm in sand shoes (about 5'7").
Mr Dalton next addressed the evidence in relation to the descriptions of what the shooter was wearing. Both Mrs Tomasetti and her son described the clothing worn by the shooter. Mrs Tomasetti described the shooter as wearing dark clothing, including a jacket with a zipper, being all one colour and without any writing or motif on the front or back, with a very large hood. Mr Dalton noted that when the accused returned Younes' vehicle at approximately 10:30am, he is wearing a light to medium coloured jumper with no zipper and a motif and writing on the front.
Mr Dalton made application restricting the use that the Crown could make of the material derived from the CCTV footage at X Thorpe Place, which shows the shooter briefly. His submission was that the jury should not be permitted to compare the height of the shooter in that footage with the CCTV footage of the accused at 151 Wycombe Street. The application was based on the evidence of the witness Mr McCourt, whose expert opinion was that even an expert could not make such an assessment as it would necessarily be unreliable. Mr Dalton sought that the use of the material be limited pursuant to s 136 of the Evidence Act 1995 (NSW). He relied upon the decision of the Court of Criminal Appeal in R v Tang [2006] NSWCCA 167, in particular per Spigelman CJ at [120].
Mr Dalton submitted that there is no basis to find that the accused was the shooter. Turning to the Crown's alternative argument that the accused could be the driver, Mr Dalton submitted that there is no basis for the jury to be satisfied of this beyond mere speculation.
Even if the jury accepted that the vehicle used in the shooting was that belonging to Younes, that evidence in itself does not place the accused in the vehicle at the time of the shooting. Mr Dalton relied upon the fact that the last time the vehicle was seen prior to the shooting was outside the accused's premises with three men in it, not including the accused, at approximately 4pm on 11 July 2013. This was based on the evidence of Mr Yusef El Jammas.
Mr Dalton further submitted that the evidence showed that, if the vehicle in Thorpe Place was Younes' vehicle, it must have returned to the accused's premises at 5 Rock Street before it was driven to 151 Wycombe St by the accused at approximately 10:32am. This is because the telephone records show that the accused's 655 service was in Yagoona during the morning and was first used by the accused whilst in the Yagoona area at the same time he was dropping the car at 151 Wycombe Street at 10.31am - 10.32am. That this timing is correct is confirmed by the fact that the CCTV footage depicting the accused returning the car shows him to be looking at something that could be a mobile telephone.
The police evidence is that the travelling time from 12 Thorpe Place to 151 Wycombe Street can take as little as 22 minutes at that time of day. The vehicle left Thorpe Place at 10:02am. This leaves a period of 28 minutes before the car is returned, sufficient time for it to have first travelled to 5 Rock Street around the corner from 151 Wycombe Street.
Mr Dalton submitted that had it been impossible, in terms of timing, for the car to have first travelled to 5 Rock Street before being driven to 151 Wycombe Street he would not have made the application for a verdict by direction. It is the fact that the journey must have been broken at the accused's premises that is the defect in the evidence.
In circumstances where the vehicle could have been used in the commission of the offence and then returned to 5 Rock Street by someone else before the accused drove it back to 151 Wycombe Street, the evidence cannot demonstrate that the accused was not at home during that period and only returned the vehicle to 151 Wycombe Street after the three other men had dropped the vehicle back to 5 Rock Street that morning.
The telephone record evidence shows that both of the accused's telephone services were in the vicinity of his premises at Yagoona during the morning.
Mr Dalton submitted that none of the other evidence in the Crown case is capable of demonstrating that the accused was in the car at the time of the murder. Mr Dalton submission is that the evidence with respect to the car is consistent with the vehicle having been used in the offence by someone else to whom the accused on-loaned the vehicle. This would explain his meetings with Mr Younes and Ms Bakhos after the offence.
The key point in his submission was that there was sufficient time for the car to return to Rock Street before it was returned to Wycombe Street at 10:30am.
He submitted that the Crown was, in effect, relying upon some form of the doctrine of recent possession. Not only is that doctrine not applicable it is not even the evidence in any event. The observations of there being three other people in the car at the last sighting of it prior to the shooting is consistent with there also being three people in the car at the time of the shooting. This is consistent with the evidence that the assailant left and returned from the rear passenger door of the vehicle.
All the Crown can prove is that the accused drove the car from Rock Street to Wycombe Street. It is mere suspicion that he was otherwise involved in the murder. He is not charged with being an accessory after the fact to murder. The Crown can prove that he had the opportunity but opportunity alone is insufficient.
Mr Dalton relied upon the decision of RS Hulme AJ in R v Josephine Pintabona (unreported, NSWSC, 28 May 2013) as being factually similar to this case. He handed up a copy of his Honour's ex tempore reasons directing a verdict of acquittal in respect of two murder charges brought against Pintabona and a copy of the judgment of the New South Wales Court of Criminal Appeal in Dicianni v R; Pintabona v R [2015] NSWCCA 201 for its summary of the facts.
Josephine Pintabonta was charged with two counts of murder. There was evidence at trial that, on 6 May 2009, her co-accused Dicianni killed the two deceased at their home in Rozelle and then walked around 200m along a street, through a park and a driveway, and along another street; the use of Luminol revealed a trail of bloodied footprints along the way. Dicianni then entered a car parked on the second street through its passenger-side door. There was evidence that the car belonged to Pintabona. She told police that she was the only driver of the car on 6 May 2009. A presumptive test for blood revealed the presence of blood on the passenger seat of the car. DNA analysis of that blood revealed a DNA mixture of originating from a combination of DNA types possessed by one of the deceased and his children.
In addition, there was evidence that Dicianni disguised himself as an old woman in order to gain access to the home of the deceased and to avoid detection by security cameras. A scarf found partly wrapped around the arm of one of the deceased men had on it a mixture of DNA from which the profiles of Pintabona and Dicianni could not be excluded.
Police spoke to Dicianni on 9 May 2009 under caution. On 11 May 2009, he made arrangements to obtain tickets to Italy for himself and Pintabona. They left Australia on 12 May 2009. Pintabona subsequently returned to Australia and spoke with police on 17 June 2009. She provided Dicianni with an alibi for the night of 6 May 2009.
The liability alleged against Pintabona for the murder of the deceased was on the basis that she was party to a joint criminal enterprise with her co-accused, Dicianni, to kill them. His Honour found that evidence permitted the conclusion that there was some prearrangement between Dicianni and Pintabona to meet at the car. The distance of the meeting place from the home of the deceased militated in favour of the view that Pintabona knew that something "untoward" was likely to happen. His Honour considered that the question was whether one could infer from the evidence that Pintabona picked Dicianni up after the offences and that, having regard to that fact, she therefore must have been a party to what he had done or planned to do. While his Honour harboured a "grave suspicion about the matter", he concluded that the evidence did not "permit of the conclusion that Ms Pintabona was a party to the murders as distinct from being an accessory after the fact."
In relation to the present case, Mr Dalton submitted that there has to be some positive evidence that puts the accused in the car at the time of the commission of the offence. He relied on the facts of R v Josephine Pintabona, submitting:
"DALTON: She could have driven the offender there. She perfectly had the opportunity to do that. Her evidence was about the return of the car and the case was that she drove him away from Leichhardt back to Liverpool to her house and she had a friend waiting for her who she didn't expect and the timing in relation to that was a key component of the Crown case. But that only went to show that she was an accessory after the fact. That couldn't put her in the car at the time the offence took place or that it couldn't make her the driver to the offence. There has to be something positive.
These are things after the event. They provide possibilities but they are not inferences properly drawn to demonstrate the actual involvement and knowledge of an offender."
[2]
Submissions on behalf of the Crown
The Crown Prosecutor commenced his submissions by drawing to the Court's attention the relevant authorities, including Doney v R (1990) 171 CLR 207; [1990] HCA 51. The principles are conveniently set out at [12] - [18] of the decision of the CCA in Regina v XHR.
The test is whether there is evidence that is capable of supporting the case that the accused was in the car in Thorpe Place on the morning of 12 July 2013, be it tenuous or inherently weak or vague, which the Crown does not concede. The Crown submitted:
"Even if your Honour thinks that there may be able to be formulated a reasonable hypothesis consistent with his innocence which the Crown has failed to exclude, it's very much a question for the jury, so it's a high bar for the accused to overcome."
The Crown Prosecutor then proceeded to enumerate the circumstances on which it relied to establish its case that the accused was in the vehicle at the relevant time.
First, he relied upon the fact that it was the accused who borrowed the vehicle on 10 July 2013, two days before the shooting, and it was the accused who returned it half an hour after the shooting. It was not returned to 151 Wycombe Street during that time.
The Crown Prosecutor accepted that this evidence was weakened by the evidence of the vehicle being seen with three people in it, not including the accused, the afternoon before the shooting. Nonetheless, the Crown Prosecutor submitted, it was the accused who returned the car the following day.
As for the clothing worn by the shooter, the Crown Prosecutor accepted that he could not assert that the clothing is the same. Despite this, the Crown Prosecutor submitted that it is not inconsistent with that clothing. He relied upon the evidence of Mr McCourt that the poor quality of the CCTV footage could distort the colour. He accepted that the jumper worn by the accused in Wycombe Street at 10:30am appears lighter than that worn by the shooter.
The Crown Prosecutor addressed the evidence of the descriptions given by both Mrs Tomasetti and her son Nicola. He submitted that the first description given by Nicola Tomasetti to the triple-0 call was in these terms, "He wasn't a big guy. I would say he was fit. I wouldn't say he was overweight". He noted that Nicola Tomasetti's stated that the hoodie was "a black hoodie, dressed in dull colours," and his later statement was, "I wouldn't be able to tell you exactly what colour the pants or jacket was, because I only saw the person for a few seconds." He noted that the eyewitnesses only had 15 seconds or so to observe the shooter.
The next evidence upon which the Crown relied was the non-use of either the 375 or 655 service by the accused that morning before 10am.
The Crown relied upon are the meetings between the accused and Younes (and Ms Bakhos) after police contact with one of them. These are on 6 August 2013 (after police put the formal demand on Younes), on 14 August 2013 (after Younes provided information to police) and on 16 October 2013 (after police spoke with Ms Bakhos).
The next evidence relied upon by the Crown is that when police searched for the jumper worn by the accused in the Wycombe Street footage at 10.30am on 12 July 2013, they were unable to find it. The evidence was that a number of jumpers were located, but not that particular one.
The Crown also relied upon the fact that the accused had access to two vehicles registered in his name at that time. The white Lexus driven by his wife and the dark blue Range Rover. The evidence of police was that the Range Rover was never seen outside the premises at 5 Rock Street during this time. The only sighting of that car was when it was driven by Fayaz Khan, to whom ownership of the vehicle was subsequently transferred.
The Crown also relied upon the text messages between the accused and Younes concerning the car. The evidence was that the accused used to borrow it from time to time, not just on this occasion. At 1am on 12 July 2013 a message from Younes' phone to the accused's phone states, "leave it on rex's tyre". This shows that Younes believed that the accused still had the vehicle at that time and was unaware that it had been on-lent.
The above evidence constituted the evidence relied upon to prove the Crown's circumstantial case that the accused was in the vehicle at Thorpe Place between 6.30 -10am on 12 July 2013.
The Crown Prosecutor submitted that it could not be said that there was no evidence to support an element of the offence, or from which an element of the offence can be inferred, whether or not there may be competing inferences.
The Crown Prosecutor accepted that that the issue for my determination turns on whether the matters relied upon the Crown go beyond merely establishing opportunity and are capable of actually proving the accused was in the car at the relevant time.
[3]
Relevant principles
The principles in relation to directing an acquittal at the close of the Crown case are well established. In Doney v R, the Court observed at 212 that there was:
"... no doubt that it is a trial judge's duty to direct [a verdict of acquittal] if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict."
The Court went on to observe at 214-215:
"... if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
In R v R (1989) 18 NSWLR 74, Gleeson CJ approved the following statement of principle in Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 at 415-416:
"The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies, J. explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt."
In JMR (1991) 57 A Crim R 39, at 44, Lee CJ at CL (Carruthers and Finlay JJ agreeing) accepted that R was authority for the proposition that a judge may not direct an acquittal in a case dependent upon circumstantial evidence:
"... if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be formulated ..."
In R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452, the Court was concerned with a no case application in respect of a circumstantial case. King CJ stated at 337:
"The case against the appellant Starke was circumstantial in character. The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt." (emphasis added)
His Honour went on to observe:
"Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct 'evidence' is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial Judge was required to answer in deciding on the submission of no case to answer." (emphasis added)
The NSW Court of Criminal Appeal (Beazley P, Hall and Campbell JJ agreeing) in Regina v XHR at [11] approved the passage from R v Bilick and Starke set out at [124] above.
In the Victorian decision in Attorney-General's Reference (No 1 of 1983), referred to at [119] above, it was submitted at the close of the Crown case that there was no case to answer. The trial judge found that there were "countervailing inferences which are capable of being drawn from the evidence, and with at least an equal degree of probability." The Attorney General referred two questions of law to the Court of Appeal, one of which is pertinent. The Court of Appeal stated (at 414):
"The second question in substance asks whether, if at the close of the Crown case inferences of fact could be properly drawn which were consistent with the innocence of the accused and other inferences of fact could equally properly be drawn which were consistent with the guilt of the accused, the trial judge is bound or entitled to direct the jury to acquit the accused…we should have thought that the question admitted of only one answer…The question asked should also be answered that as a matter of law the trial judge was neither so bound nor so entitled."
In Regina v PL [2012] NSWCCA 31, Bathurst CJ, with whom Simpson J (as her Honour then was) and Adamson J agreed, confirmed that in a circumstantial case a judge cannot enter a verdict of acquittal if there is evidence in support of the Crown case on which the accused could be convicted even though a reasonable hypothesis consistent with innocence can be formulated (At [32]). It was held that the trial judge in that matter had erred by undertaking an evaluation of the weight of the evidence as distinct from considering whether taken at its highest it could support a verdict of guilty. Furthermore, the trial judge erred by reaching his conclusion after evaluating the alternative hypothesis open to the jury.
[4]
Consideration
There is no dispute in this trial that the deceased was murdered in Abbotsbury on 12 July 2013. There is no issue that the act of the shooter was voluntary, that whoever shot the deceased intended to either kill or inflict grievous bodily harm on him and that the actions of the shooter caused the death of the deceased.
The only issue in the trial is whether the Crown can prove beyond reasonable doubt that the accused was either the shooter or the driver in Thorpe Place in the early hours of 12 July 2013. The Crown case is that it can be inferred from the circumstances of the surveillance and the shooting that the shooter and the driver had formed an agreement to shoot the accused with an intention either to kill him or to inflict grievous bodily harm on him and that, by being the shooter and the driver respectively, they both took part in that enterprise
As stated above at [79], the Crown Prosecutor opened to the jury on the basis that there were two intermediate facts in this trial that must be established beyond reasonable doubt before the accused could be convicted of murder: first, that the silver Subaru WRX in Thorpe Place on 12 July 2013 was Younes' car; and secondly, that the accused was either the shooter or the driver in that car at that time. The Crown's position is consistent with what the High Court held in Shepherd v The Queen (1990) 170 CLR 573; namely, that where a fact relied upon by the Crown is fundamental to the process of reasoning to guilt, then it must be proved beyond reasonable doubt. Such a fact is referred to as an "intermediate fact" and a circumstantial case of this nature is referred to as a "link in a chain case".
Mr Dalton's application for a directed verdict of acquittal in this matter is based upon the absence of proof regarding the second of these two intermediate facts. It is not based on a submission that the evidence did not have the capacity to establish beyond reasonable doubt that the vehicle used in the shooting was Younes' car. Accordingly, I have considered this no case application on the basis that the jury could accept that the car used in the murder was in fact Younes' car.
Mr Dalton submitted that there was no evidence capable of establishing beyond reasonable doubt that the accused was either the shooter or the driver of the vehicle captured by CCTV footage in Thorpe Place, Abbotsbury between 6.30am and 10am on 12 July 2013. I note that, if it is assumed that the vehicle used was Younes' car, then the intermediate fact of whether the accused was either the shooter or the driver is in fact the ultimate issue in the trial; namely, whether the accused is guilty.
On the basis that it is to be assumed that the jury could find that the car used in the murder was Younes' car, there are eleven pieces of circumstantial evidence relevant to the question of whether the Crown case is capable of establishing beyond reasonable doubt that the accused was either the shooter or the driver on 12 July 2013. None of them are in dispute in the trial. They are as follows.
First, the accused borrowed Younes' silver Subaru WRX with registration BU51NU at 4pm on 10 July 2013.
Second, Younes' silver Subaru WRX was observed outside the accused's home at 5 Rock Street in Yagoona at 4pm on 11 July 2013 with three people in it, none of whom were the accused.
Third, information downloaded from the accused's mobile telephone shows that Younes sent him a text message at 1am on 12 July 2013 in these terms: "leave it on Rex's tyre". "Rex" is consistent with being a reference to Younes' Subaru WRX.
Fourth, a silver Subaru WRX (on the Crown case this was Younes' car) was observed by CCTV footage in Thorpe Place, Abbotsbury from 6.30am - 10am on 12 July 2013 and was involved in the shooting of the deceased.
Fifth, the accused's telephone records show that one of his two mobile telephone services was receiving texts and voicemail messages in the Yagoona area where he resides from about 2am until 10.31am on 21 July 2013 and the other appears to have been turned off or otherwise not transmitting during that time. Neither of his telephones could have been in Abbotsbury that morning. The evidence was consistent with their being at the accused's premises in Rock Street at the time of the shooting in Abbotsbury. The Crown relies upon this to show that the accused did not wish to be tracked through his mobile telephone usage and hence deliberately left his telephones at home.
Sixth, at 10.32am on 12 July 2013 the accused returned Younes' vehicle to 151 Wycombe St in Yagoona, around the corner from where he lives. In that footage he is looking at something in his hand that could be a mobile telephone. This is consistent with his call charge and reverse call charge records, which show him making calls/texts at 10:31am and 10:32am that morning. He is wearing clothing that appears to be different from that worn by the shooter as described by eyewitnesses in Thorpe Place.
Seventh, the evidence of police is that the route from 12 Thorpe Place, Abbotsbury to 151 Wycombe Street, Yagoona can take as little as 22 minutes obeying all traffic rules including the speed limit. On 12 July 2013, the vehicle left Thorpe Place at 10:02am and is next seen when the accused drops it off at 151 Wycombe Street at 10:32am.
Eighth, when the accused is seen on CCTV footage in Campsie at 11:30am, he is wearing different clothing from that seen when he drops the car off at 151 Wycombe Street.
Ninth, the accused already had access to two other vehicles: a white Lexus and a dark blue Range Rover.
Tenth, after the two occasions that investigating police spoke with Younes on 6 August 2013 and 14 August 2013 and also after the occasion that they spoke to Ms Bakhos on 16 October 2013, all three of them (Younes, Bakhos and the accused) met up.
Eleventh, police were unable to find the jumper worn by the accused in the 151 Wycombe St footage on 12 July 2013 when they searched the accused's premises on 30 October 2013. This is consistent with him having disposed of it as it was worn on 12 July 2013.
Although there is other evidence in the case as set out in detail above, much of that goes to establishing that the car used in the shooting was Younes' car.
It is to be noted that, although the Crown Prosecutor opened to the jury that the shooter was more likely to have been the accused, he had resiled from that position by the end of the Crown case given that the descriptions of the shooter did not match the height of the accused nor the clothing that he wore that day. I do not understand that the Crown Prosecutor still proposes to put to the jury positively that the accused was more likely to have been the shooter. I will approach my consideration on the basis that the Crown case is that he was either of the two men and, based on principles of joint criminal enterprise, it not necessary to prove which one.
The evidence in the Crown case described above is consistent with the accused being in possession of the vehicle at the relevant time. Mr Dalton does not dispute that the evidence shows that the accused had the opportunity to be involved in the murder. His submission is that opportunity alone is not capable of establishing actual presence beyond reasonable doubt. The question is whether the state of the evidence, taken at its highest, has the capacity to go beyond establishing that the accused had the opportunity to have been either the driver or shooter in Thorpe Place that morning such that it has the capacity to prove beyond reasonable doubt that he was in fact either the shooter or the driver in the car that day.
In determining whether the evidence has that capacity, I have had close regard to the relevant authorities and to the legal principles applicable to my determination. It is not for me as the trial judge to direct a verdict of acquittal if I am of the view that the evidence is very weak. Nor is the test whether I am concerned that a verdict would be unreasonable within the meaning of s 6(3) of the Criminal Appeal Act 1912 (NSW). I have had regard to the fact that the accused has been put in the charge of the jury and the case, no matter how weak, should be left to the jury unless the accused could not be lawfully be convicted on the evidence.
Furthermore, the test for directing an acquittal based on a defect in the Crown case is a very high test. Even if the evidence is "tenuous or inherently weak or vague", nonetheless the matter must be left to the jury if the evidence is capable of supporting a verdict of guilty. I may only direct a verdict of acquittal in this matter if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. In a circumstantial case, I consider the evidence at its strongest and assume that all inferences most favourable to the prosecution which are reasonably open are drawn.
The Crown relies upon the circumstances enumerated above to infer that the accused was in possession of the car at the time that it was in Thorpe Place. He relies upon the fact that he was the one who borrowed it and brought it back almost immediately after the shooting. On the Crown case the timing is key.
I accept Mr Dalton's submission that evidence that goes to more than opportunity alone is required, but I am satisfied that the evidence goes slightly beyond that because of the relevant timing. Taking the Crown case at its highest and assuming that it was established that Younes' car was the one used in the murder (as I must for the purpose of my determination), the undisputed evidence shows that the accused was the driver of the vehicle at 10:32am, almost immediately after the shooting. The fact that on the Crown case the accused must have picked up his phones from his home before returning the car makes the case weaker, but it could not be said there is no evidence to suggest he was the driver in Thorpe Place that day.
The Crown case is very weak. It is completely circumstantial with no direct evidence implicating the accused. Despite this, the test is not whether I am of the view that the jury would or should convict. I can only direct an acquittal if I form the view that the evidence does not have the capacity to establish beyond reasonable doubt that the accused was in the car in Thorpe Place that morning either as the shooter or the driver. This is not a matter where there is a defect in the evidence such that an element cannot be proven at law. This is a circumstantial case where I am being asked to assess evidence available in the case from which different inferences are capable of being drawn.
I have had regard to the decision of R v Josephine Pintabona upon which Mr Dalton relied. The reasons of RS Hulme J at first instance are brief (two pages) and do not set out any principle of law. The relevant facts are to be found in the subsequent Court of Criminal Appeal decision. Mr Dalton relies upon that case by way of analogy to submit, in effect, that if the evidence in that case, which was stronger than in the present case, was held to be insufficient to go to the jury then, a fortiori, so too must the evidence in this case. Although I accept that the directed acquittal in that matter was made in the face of a stronger case than the present matter, it was a very different case. Given the lack of any application of the facts to the relevant legal principles in that decision, it is not of any assistance to the matters I have to determine.
In light of all of the above I have formed the view that, although the Crown case is very weak, the evidence has the capacity to establish beyond reasonable doubt that the accused was in the silver Subaru WRX in Thorpe Place on the morning of 12 July 2013 as either the shooter or the driver.
Accordingly, I do not propose to direct the jury to enter a verdict of acquittal
[5]
ORDER
The application for a verdict by direction is refused.
[6]
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Decision last updated: 20 December 2016
On 7 September 2016, Mahmoud Barakat ("the accused") pleaded not guilty before me to an indictment charging that on 12 July 2013 at Abbotsbury he did murder Ali Jammas ("the deceased"). At the same time David Younes ("Younes") pleaded not guilty to being an accessory after the fact to that murder.
A number of pre-trial applications were heard and judgments given between 7 September 2016 and the empanelment of a jury on 20 September 2016. On 13 September 2016, prior to the jury being empaneled, the Director of Public Prosecutions directed that there be no further proceedings in relation to the count charged against Younes.
On 27 September 2016, the Crown closed its case. Mr Dalton SC then indicated that the accused would not be presenting a case. The jury was sent home with a view to closing addresses commencing the following day. Mr Dalton then made application for a verdict by direction. As Beazley JA (as her Honour then was) noted in Regina v XHR [2012] NSWCCA 247 at [10], such an application attracts the legal vernacular of a "no case to answer" submission. I use the expressions interchangeably in this judgment.
Although such an application is usually made at the end of the Crown case, rather than at the conclusion of both cases, I do not consider the timing of the application to be any bar to my consideration of it.