[2006] NSWCCA 373
IMM v The Queen (2016) 257 CLR 300
[2016] HCA 14
Liberato v R (1985) 159 CLR 507
Source
Original judgment source is linked above.
Catchwords
[2006] NSWCCA 373
IMM v The Queen (2016) 257 CLR 300[2016] HCA 14
Liberato v R (1985) 159 CLR 507
Judgment (12 paragraphs)
[1]
Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Styles Law Solicitors (Carberry)
File Number(s): 2020/335222
[2]
Judgment
Saimone (Simon) Carberry is charged with the murder of Sayed Mousawi at Griffith on 11 September 2020. Prior to the commencement of his trial, Mr Carberry indicated an objection to certain evidence that the Prosecutor intends to lead against him. The evidence, as identified in a notice of motion seeking its exclusion, relates to around 14 minutes of closed-circuit television footage ("CCTV") recorded between 1:11am and 1:25am on 11 September 2020 at 2 Snaith Place Griffith. However, as the argument developed, the objection relates to one short passage (ten seconds or so) of the footage. In those moments, during which there is a time stamp indicating the time was around 1:19am, Mr Carberry can be seen placing or secreting something into the back of his pants.
Mr Mousawi died of two wounds to his chest and the prosecution case is that those wounds were caused by a knife produced by Mr Carberry. The objection to this evidence is that, whatever the Prosecutor might submit in their closing address, the jury may and probably will speculate that the item seen in the video was a knife. The CCTV lacks sufficient detail and clarity to make a rational finding that a knife can be seen. Further, Mr Carberry's case is that the item was in fact, his "Ice Pipe", which he used to smoke methamphetamine. If this portion of the CCTV is admitted in evidence, he may be forced to disclose to the jury that he was a user of this drug and the jury might conclude he is a person of bad character. He might also be forced to disclose that he put the pipe in his pants because he thought it was less likely the police would find it there unless they conducted a strip or pat down search. This too, according to the submission, has a capacity to create prejudice.
Mr Carberry submitted that the evidence is not relevant. If it has some relevance, its probative value is outweighed by its prejudicial effect.
The Prosecutor made two essential points in pressing the evidence. The first was that she did not intend to put to the jury that the item was a knife or invite the jury to infer that it was a knife. Rather, the prosecution intends to use the evidence to show that Mr Carberry had the opportunity during this period to arm himself with a knife. The second was that the kind of prejudice that might arise here was not as grave as that which has occurred in other cases, relied on by the defence, where similar objections have been upheld.
Some of the relevant evidence was tendered on the voir dire and both counsel filed helpful written submissions. After hearing oral submissions on Wednesday 15 February 2023, I reserved my decision and indicated that I would make a ruling on Friday 17 February 2023, with a view to commencing the trial proper on Monday 20 February 2023.
I have concluded the evidence is inadmissible. These are my reasons for that conclusion.
[3]
The prosecution case and an established timeline of events
The prosecution case is that Mr Mousawi was killed during a robbery committed by Mr Carberry and two co-offenders, Jye Honeysett and Tearna O'Hanlon. The plan was to take the victim's car and go joyriding in it. Both co-offenders gave interviews with police and have been sentenced for armed robbery or robbery in company. Mr Honeysett was to stand trial with Mr Carberry and various pre-trial issues in Mr Honeysett's case have been ventilated over the last two weeks, culminating in his plea of guilty to the alternative charge. He was sentenced on Tuesday. [1] He played little part in the planning but wielded a metal pole during the incident in which Mr Mousawi was stabbed.
Ms O'Hanlon is expected to give evidence at the trial. She was involved in the planning of the robbery and luring Mr Mousawi to the premises where the offence allegedly occurred.
While the thrust of the prosecution case was that the killing of Mr Mousawi arose out of a robbery which went tragically wrong, there is an alternative case theory when it comes to motive. There is expected to be evidence that Ms O'Hanlon and Mr Carberry were involved in an intimate relationship. In the period leading up to, and immediately before the killing, Mr Mousawi sent suggestive and sexually explicit text messages to Ms O'Hanlon. Mr Carberry was aware of this. Accordingly, part of the prosecution case will be that Mr Carberry was jealous and this played a part in his decision making.
[4]
Sexually charged text messages on 9-10 September 2020
Mr Mousawi sent (three) sexually suggestive texts to Ms O'Hanlon on 9 September 2020 between 0:34am and 0:43am. The texts asked if he could perform oral sex on Ms O'Hanlon ("Can I eat your pussy", "I would eat you pussy so good" and "Can I eat your pussy?").
On 10 September 2020 Mr Mousawi wrote, "Hey I'm home alone you wanna come over", and at 11:23pm he sent a text saying, "I'd love to eat you". At 11:36pm Ms O'Hanlon replied, "No", but Mr Mousawi persisted, writing at 11:50pm, "Please would you let me".
[5]
Timeline of events on 11 September 2020
A reasonably certain timeline can be established based on the CCTV footage from 2 Snaith Place (Exs VD-4 and VD-B) and the record of text messages on Ms O'Hanlon's 'phone (Ex VD-2, Tab 3(ii)). Exhibit VD-B was provided after the hearing and was marked as an exhibit in chambers. It is an unedited version of Ex VD-4. The edited version highlights, in a split screen with a circle around the object, the moment when Mr Carberry put the object down the back of his pants. The Prosecutor indicated the unedited version would be tendered in order for the moment not to be emphasised when the footage is played before the jury.
The timeline (with the impugned moment italicised) is as follows:
1:11:26am - Commencement of CCTV footage. Various people, including Mr Honeysett and one of the occupants of the premises, can be seen milling in the area in or near 2 Snaith Place.
1:19:45am - Mr Carberry can be seen on CCTV, apparently wearing gloves and holding an object. He appears to wrap the object in fabric and place it down the back of his pants.
1:23:51am - Ms O'Hanlon handed a head torch to Mr Carberry, who placed the torch on his head.
1:25:43am - Mr Carberry can be seen holding a cricket bat.
1:46am - Mr Mousawi sent a text message to Ms O'Hanlon saying, "Hey wyd" (apparently a kind of acronym meaning "what are you doing?").
1:47am - Mr Mousawi sent a text message to Ms O'Hanlon saying, "Can French kiss your down under" and "I would love to [emoji]". Ms O'Hanlon replied by saying, "Can I have a lift please".
1:48am to 2:12am - Mr Mousawi and Ms O'Hanlon exchanged a series of text messages arranging for Mr Mousawi to pick up Ms O'Hanlon from 11 Middleton Avenue. Mr Mousawi sent numerous messages to Ms O'Hanlon between 2:06 and 2:12am saying he had arrived at a nearby bus stand.
Sometime shortly after 2.12am, Mr Mousawi was killed. The evidence tendered on the voir dire does not establish the precise time of the stabbing or when emergency services were called.
The prosecution case is that Mr Carberry was aware of the text message at 1:47am and this caused him to be angry or jealous.
It is to be observed that the text message (at 1:47am) was received 27 minutes after Mr Carberry placed the item in his pants (1:19am). The Prosecutor indicated that it will not be suggested that there was any plan (to rob or harm Mr Mousawi) before the text message at 1:47am. [2]
The defence has foreshadowed that self-defence will be an issue in the trial. The Prosecutor submits the impugned evidence is relevant to rebut the suggestion that the accused thought it was necessary to do what he did in self-defence.
[6]
Relevance
Contrary to Mr Carberry's submission, the evidence of Mr Carberry placing the object in his pants is relevant, in the broad sense provided in s 55 of the Evidence Act 1995 (NSW). While the evidence cannot establish that the object in question was a knife, it demonstrates (as the Prosecutor submitted) that Mr Carberry had the opportunity to arm himself with a knife.
[7]
Probative value
However, "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" is limited. [3]
In undertaking the exercise required by ss 135 and 137 of the Evidence Act, the evidence must be taken "at its highest … unless the evidence is so lacking in credibility or reliability that it would not be open to a jury acting rationally and properly directed to accept it." [4] Even so, a proper analysis of "[t]he circumstances surrounding the evidence may indicate that its highest level is not very high at all." [5]
There are three matters in particular that limit the probative value of the evidence.
First, the evidence is not capable (rationally) of establishing that the object secreted by Mr Carberry was a knife.
Secondly, there can be no doubt that Mr Carberry had the opportunity to arm himself at some time before the confrontation with Mr Mousawi. The visual image of him placing an object in his pants - unless it is established, without speculation, to be a knife - does little to affect an assessment of the issue of whether he was armed.
Thirdly, the timing of events reduces the potential probative value in a significant and important way. As the Prosecutor fairly acknowledges, it cannot be contended that there was any plan to assault (or rob) Mr Mousawi before Mr Carberry became aware of the text message at 1:47am. The action of placing an object down his pants would have more significance - that is, probative value - if it occurred between the time of the offensive text message and the time of the confrontation.
[8]
Potential for misuse
The powers to exclude otherwise relevant evidence under ss 135 and 137 of the Evidence Act involve an assessment of the "harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way". [6]
In R v Cook [2004] NSWCCA 52, Simpson J (as her Honour then was) said:
"[37] The balancing exercise required by s 137 cannot, however, be undertaken without an appreciation of any explanation an accused person might seek to advance in order to nullify the adverse inferences that would, absent explanation, arise. That was the purpose of the evidence given by the appellant in the voir dire. The effect of his evidence there was to put before the judge evidence of the response that the appellant would make, if the Crown evidence were admitted. This meant that the evidence of flight could be seen in its complete context. What the appellant told the judge was that his explanation for his flight would necessarily disclose to the jury a prior history of violence towards a female, disregard of the law and contravention of restraining orders serious enough to warrant his incarceration. There was no other way (on the appellant's case) that he could remove the sting from the flight evidence. But the explanation carried its own, serious, sting - disclosing his history of violence and breach of the law. The proposal by the Crown to adduce the evidence of flight presented to the appellant a dilemma. On the one hand, he could say nothing about the evidence, leaving the jury to draw the inevitable inference that he fled when the police approached because he was conscious of his guilt of the assault on the complainant; or he could explain it, which necessarily involved revealing prior criminality of a related kind. The prejudicial effect of the explanation was what s 137 required to be balanced against the probative value the Crown evidence would otherwise have had. That exercise was not explicitly undertaken by the trial judge. The s 137 exercise also called for consideration of directions that could be given to the jury in order to ameliorate the impact of the knowledge of the appellant's prior conduct."
See also, merely by way of examples of the application of principle in a variety of factual scenarios, Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373, DPP v Preston [2015] VSC 397, R v Barakat (No 5) [2016] NSWSC 1313 and R v Al Batat & Ors (No 14) [2020] NSWSC 1165.
The evidence on the voir dire included an affidavit sworn by Mr Carberry. It says that the item shown in the video is not a knife, but his ice pipe. He described the pipe as about 15cm long and said he did not put it in his "bum bag" because it was less likely to be located by police if it was down his pants.
I accept that there is some potential for unfair prejudice based on:
1. The jury speculating that the item is a knife. I doubt that a direction not to do so would do anything other than highlight the issue.
2. The accused being put in the position of choosing between either (i) leaving unchallenged the inference that the item is a knife or (ii) disclosing to the jury that he is a methylamphetamine user who has some understanding of police searching procedures.
[9]
Ms O'Hanlon's evidence and the Prosecutor's submissions
As I have said, the prosecution accepts that the CCTV footage is not capable of establishing that the item secreted by Mr Carberry is a knife. However, it seeks to put to the jury that the footage establishes that he had the opportunity to obtain a knife and his capacity to place it in his clothing. [7]
Since the accused's evidence on the voir dire was served, and it was disclosed that the item was said to be an ice pipe, a further statement (dated 14 February 2023) was taken from Ms O'Hanlon. [8] The statement refers to the fragility of such pipes (which are made of glass), to an occasion where she broke three such pipes in one day, and to Ms O'Hanlon's practice of storing her ice pipe in a bum bag. She stated:
"I have never stuck an ice pipe down the back of my pants or between my bum cheeks, because it would fall out too easily and how fragile it is."
Earlier statements of Ms O'Hanlon (dated 18 January 2023 and 1 February 2023) [9] indicated that she had watched the relevant potion of the CCTV footage depicting Mr Carberry putting something down his pants but that she "had no idea he did this". She also said she had no memory of seeing Mr Carberry with a knife before the incident and surmised she may have blocked this out as part of a trauma response.
The Prosecutor submitted that the issue was one that should be left for resolution by the jury. It was submitted, correctly as far as I can tell, that Mr Carberry himself was the only source of the assertion that the item was an ice pipe. This is a question of fact. Whether his explanation should be accepted should be left for the jury.
Further, it was submitted that the danger of unfair prejudice was not as potent as the situation pertaining in cases such as R v Cook. In R v Cook, to answer the evidence of flight, the accused was placed in a position of having to elicit evidence of his history of violence towards women in a case where he was alleged to have committed a sexual offence against a woman. The prejudicial impact of such evidence was "inevitable". By comparison, the evidence that Mr Carberry was an ice user was relatively benign. He would not be required to go into detail of his ice use or addiction.
Similarly, the accused in the present cases was not faced with "two unfair choices". [10]
Ultimately, the Prosecutor submitted that any potential for prejudice could be cured by direction.
[10]
Resolution and the balancing exercise required by ss 135 and 137
I have considered the issues which are to be litigated at the trial. This includes the fact that Mr Carberry will assert that he was acting in self-defence. Whether the accused was armed with a knife is potentially significant in resolving that issue. It is also relevant to issues of intention. However, as has been emphasised, the Prosecutor cannot contend that the CCTV footage establishes the accused was, in fact, armed with a knife.
I accept the Prosecutor's submission that the kind of prejudice that might arise in the present case is not as great as in cases such as R v Cook. However, there is undoubtedly a danger of unfair prejudice in disclosing that the accused is a user of methylamphetamine. It is simply not known what particular members of the jury might make of that or what moral judgments may be brought to bear if that fact is disclosed. It seems that the fact that a number of the participants in the event were ice users will not otherwise be disclosed in the trial.
Further, if this discrete issue is left for the jury to determine, a question arises as to how the jury might reason if it resolved the issue against Mr Carberry. If it rejects his explanation, there is a risk it might jump to a conclusion that the item in question is a knife. That factual conclusion is not one that is open on the evidence other than by way of speculation. In other words, there is a risk that the jury would reach an adverse factual finding (that the item is a knife) by bolstering an otherwise unavailable inference by its rejection of Mr Carberry's evidence that the item in question is his ice pipe.
Careful directions might alleviate or reduce the potential for prejudice, but it would not eliminate it. In some respects, the directions would highlight these issues.
The idea of providing a kind of "mini-Liberato" direction on this discrete issue, is unappealing and likely to cause confusion in the jury. [11] That is, directing the jury that it should not conclude the item is a knife simply because it rejects the accused's account that it is an ice pipe would do little to alleviate the prejudice of calling on the jury to resolve this discrete issue in a trial within the trial.
Putting aside the danger of unfair prejudice, the probative value of the evidence is slight. The secreting of the item took place well before any plan was hatched to rob or assault Mr Mousawi. The item cannot be identified in the CCTV footage and a conclusion that it is a knife is based on speculation rather than the rational drawing of inferences. [12] All the Prosecutor seeks to establish by the evidence is that Mr Carberry had the opportunity to possess a knife. I cannot imagine there could be any legitimate issue that he had such an opportunity.
The probative value of the evidence is outweighed by the danger of unfair prejudice.
Accordingly, the evidence is inadmissible.
[11]
Endnotes
R v Honeysett (No 2) (Sentence) [2023] NSWSC 103.
Tcpt, 15 February 2023, p 23(33).
See the definition of "probative value" in the Dictionary to the Evidence Act.
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56 at 103; [2018] HCA 40.
IMM v The Queen (2016) 257 CLR 300 at 315; [2016] HCA 14.
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56 at 93-94; [2018] HCA 40.
See MFI 10 - Submissions of the Crown Regarding Admissibility of CCTV Evidence at [2], [9] and [15], and the clarification of the Crown's position at tcpt, 15 February 2023, p 23.
Ex VD-3.
Ex VD-2, Tabs 2(i) and (ii).
DPP v Preston [2015] VSC 397 at [4] (Macaulay J).
Liberato v R (1985) 159 CLR 507; [1985] HCA 66.
Cf Fantakis v R [2023] NSWCCA 3 at [832] (Dhanji J).
[12]
Amendments
08 March 2023 - Trial concluded - publication restricted lifted.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 March 2023