Citation: R v Mehajer & Jacobs [2003] NSWSC 318
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 17 April 2003
Judge(s): Studdert J
Background
Two accused, Mazin Mehajer and John Jacobs, were charged with murder arising from a fatal assault during a robbery at a café on an industrial estate at Leumeah. A jury had been empanelled and the trial was underway when the Crown called a witness, Christian Painter, on the third day of proceedings. Counsel for Mehajer immediately applied to have Painter's evidence excluded, and the jury was discharged to allow a lengthy voir dire (a preliminary hearing to determine the admissibility of evidence) to be conducted.
Painter had come to the attention of investigators because a mobile phone stolen from the crime scene ended up in the possession of his girlfriend. He initially gave false accounts to police and to the NSW Crime Commission, denying any knowledge of the murder and fabricating a story about purchasing the phone from a stranger. It was only after further Commission proceedings, and following contact with his solicitor and discussions about a possible indemnity from prosecution, that Painter provided truthful accounts to investigators on 6 April 2001 and in a subsequent statement on 18 July 2001.
The application before the Court concerned whether Painter's evidence had been "obtained improperly" within the meaning of section 138 of the Evidence Act 1995, such that it should be excluded from the trial.
Legal Issues
- Whether the evidence obtained from Painter, including his statements of 6 April 2001 and 18 July 2001 and observations made at the crime scene on 28 July 2001, was obtained improperly or in contravention of an Australian law under section 138(1) of the Evidence Act 1995.
- Whether statements or conduct by the Crime Commission during its questioning of Painter, in particular remarks expressing a belief as to his role in the offence, constituted impropriety that tainted the subsequent evidence.
- Whether the manner in which the prospect of indemnity from prosecution was raised with Painter, or how it was pursued afterwards, amounted to impropriety in obtaining his evidence.
- If impropriety were established, whether the balancing exercise under section 138(1) would nonetheless favour admission of the evidence.
Decision
Studdert J conducted a detailed voir dire and examined the sequence of events leading to Painter's cooperation with investigators. His Honour found no impropriety in the way Painter was informed about the possibility of an indemnity from prosecution, nor in the steps taken after 6 April 2001 to pursue that indemnity application. The evidence Painter gave on that date, and in the subsequent statement of 18 July 2001, was not found to have been obtained improperly. Similarly, the crime scene observations made on 28 July 2001 were not tainted.
Because no impropriety was established, Studdert J held that it was unnecessary to conduct the balancing exercise prescribed by section 138(1), which requires a court to weigh the desirability of admitting the evidence against the undesirability of admitting evidence obtained in an improper manner.
His Honour did, however, address the balancing exercise in the alternative. Even if the Crime Commission had acted improperly in expressing a view about Painter's role in the offence during its questioning, the desirability of admitting the evidence would still have outweighed the undesirability. The factors informing that conclusion included the significant probative value of Painter's evidence, the seriousness of the charge of murder, and the circumstances in which Painter ultimately came to provide truthful accounts after taking independent legal advice. The Court noted that the Commission's remarks, as they appeared on the face of the transcript, amounted to urging the witness to tell the truth rather than anything more sinister.
Orders Made
- The evidence of Christian Painter is not to be excluded under section 138 of the Evidence Act 1995.
- The trial is to proceed accordingly.
Key Takeaways
- Studdert J confirmed that the threshold question under section 138 of the Evidence Act 1995 is whether evidence was obtained improperly or in contravention of an Australian law; only if that threshold is crossed does the court proceed to the statutory balancing exercise.
- Where no impropriety is found in the manner of obtaining evidence, the section 138 balancing exercise does not arise and the evidence is admissible without further analysis.
- Remarks made by a Crime Commission examiner urging a witness to tell the truth, without more, did not constitute impropriety in the obtaining of that witness's subsequent evidence, particularly where the witness then acted on independent legal advice before cooperating.
- Under section 138(3), the gravity of the charge (here, murder), the probative significance of the evidence, and the circumstances in which a witness came to provide truthful accounts after independent legal advice are all relevant considerations when weighing admissibility.
- A witness's earlier provision of false accounts to investigators does not, of itself, render their later truthful evidence improperly obtained within the meaning of section 138.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 138
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Cases:
- DPP v Carr (2002) 127 A Crim R 151