Citation: Regina v Lodhi [2006] NSWSC 641
Court: Supreme Court of New South Wales
Date: 27 April 2006
Judge(s): Whealy J
Background
The accused faced four charges connected to alleged preparation for a terrorist act in Australia. The Crown sought to adduce evidence relating to Willie Brigitte, a French national who had been arrested and deported from Australia in October 2003, and who was alleged to have had a covert relationship with the accused. The evidence included witness identification of Brigitte, telephone records linking him to the accused, items seized from his premises, and evidence of meetings at a Sydney address.
The defence applied to exclude this body of evidence on two grounds: first, that it was not relevant under the Evidence Act, and second, that even if relevant, it should be excluded because the danger of unfair prejudice to the accused outweighed its probative value. The prejudice argument rested heavily on the intense and sensationalised media coverage that had surrounded Brigitte at the time of his arrest and deportation.
Legal Issues
- Whether the "Brigitte evidence" was relevant under s 55 of the Evidence Act (NSW) 1995, in circumstances where the Crown did not allege Brigitte directly participated in the specific physical acts charged against the accused
- Whether, if relevant, the evidence should nonetheless be excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice arising from prior media coverage of Brigitte
Decision
Whealy J held that the evidence was relevant within the meaning of s 55. The Crown did not need to show that Brigitte was directly involved in the specific offences charged. It was sufficient that the evidence, if accepted, could rationally affect the assessment of facts in issue, particularly the fault elements (knowledge and intention) in each charge. The evidence completed the circumstantial picture surrounding the accused's alleged conduct and provided context for the jury to assess his state of mind.
On the s 137 application, his Honour declined to exclude the evidence. The judge acknowledged that much of the media coverage was sensationalised and lacking in factual foundation. However, Whealy J was not persuaded that recollection of that material by jurors would create an unfair risk of misuse of the evidence at trial.
Three factors supported that conclusion. By the time of trial, approximately two and a half years had passed since Brigitte's arrest and deportation, and his Honour was satisfied that detailed memories would have faded in the minds of most potential jurors. The accused himself had not attracted the same level of adverse press attention as Brigitte. Finally, an appropriately worded jury direction could adequately address any residual risk, by directing jurors to confine their attention to the evidence actually placed before them at trial.
Orders Made
The court declined to exclude the Brigitte evidence; the application under s 137 of the Evidence Act (NSW) 1995 was refused.
Key Takeaways
- Circumstantial evidence does not need to establish a co-accused's direct participation in the physical elements of a charged offence to satisfy the relevance threshold under s 55 of the Evidence Act (NSW) 1995; it is sufficient that the evidence could rationally affect the assessment of a fact in issue, such as the accused's knowledge or intention.
- Under s 137 of the Evidence Act, the passage of significant time since prejudicial media coverage was a factor weighing against exclusion, as detailed public recollection was likely to have diminished.
- The Supreme Court confirmed that a carefully crafted jury direction remains an appropriate remedy for residual risks of prejudice arising from prior media publicity, rather than exclusion of otherwise admissible evidence.
- Where media coverage attached primarily to a third party rather than to the accused, the risk of unfair prejudice to the accused from that coverage is reduced.
- The distinction between evidence relevant to fault elements (such as knowledge and intention) and evidence going to physical elements of an offence is material to relevance arguments, but does not automatically defeat admissibility where the evidence forms part of a broader circumstantial case.
Legislation and Cases Referenced
Legislation
- Evidence Act (NSW) 1995, ss 55, 137
Cases
- Ahern v The Queen (1988) 165 CLR 86
- Masters, Richards & Wunderlich (1992) 59 A Crim R 445
- Smith v The Queen [2001] 206 CLR 650
- Papakosmos v The Queen (1999) 196 CLR 297
Secondary Sources
- Odgers, Uniform Evidence Laws (5th ed)