Citation: R (Cth) v Petroulias (No. 7) [2007] NSWSC 16
Court: Supreme Court of New South Wales
Date: 30 January 2007
Judge(s): Johnson J
Background
The accused faced prosecution in the NSW Supreme Court for alleged offences under ss 29D, 70 and 73 of the Crimes Act 1914 (Cth), broadly involving conduct by a public official. The Crown sought to tender six telephone conversations, recorded pursuant to warrant under the Telecommunications (Interception) Act 1979 (Cth), for use at the forthcoming trial.
The six conversations took place between September and October 1999 and involved the accused speaking with various individuals, including a person identified only as "Judy," and named individuals John McLaren, Geoff Strong, and Nick Panos. The Crown contended that statements made by the accused in these conversations constituted admissions against interest, indicative of consciousness of guilt.
This ruling arose in pre-trial proceedings. At an earlier trial, Sully J had admitted three of the six conversations but rejected the remaining three as irrelevant. Johnson J approached the question afresh, not being bound by that earlier ruling.
Legal Issues
- Whether each of the six intercepted telephone conversations satisfied the relevance test under s 55 of the Evidence Act 1995 (NSW)
- Whether three of the conversations (those rejected by Sully J at the first trial) were relevant to the charged offences
- Whether any of the conversations, if relevant, should nonetheless be excluded under s 135(a) of the Evidence Act 1995 on the basis that their probative value was substantially outweighed by the danger of unfair prejudice to the accused
Decision
Johnson J concluded that each of the six conversations satisfied the relevance test in s 55 of the Evidence Act 1995. The section requires only that evidence, if accepted, could rationally affect the assessment of the probability of a fact in issue, directly or indirectly. His Honour regarded this as a test of wide import and found that the statements made by the accused across all six conversations met it, as they bore upon the alleged conduct underlying the charged offences.
On the question of admissions, Johnson J found that various statements made by the accused in the conversations constituted admissions within the meaning of the Evidence Act 1995 dictionary, being prior representations adverse to the accused's interests. The conversation with "Judy" was particularly notable, in which the accused discussed concerns about the Australian Taxation Office and made references to giving rulings on matters as a public official.
Regarding the s 135(a) discretion to exclude evidence where probative value is substantially outweighed by the danger of unfair prejudice, the accused argued that the Crown's decision not to call McLaren, Panos, and Strong as prosecution witnesses created an unfair situation with respect to three of the conversations. Johnson J rejected this argument. The court reiterated that relevant Crown evidence is inevitably prejudicial to an accused; s 135 is directed only at the risk that evidence will be misused by a jury in a way logically disconnected from the issues in the case. The accused remained free to call those witnesses in his own case.
Johnson J also noted that some things said by Panos and Strong in the recorded conversations were open to a construction that could assist the accused, further undermining the unfair prejudice argument. Ultimately, no basis was established for excluding any of the six conversations under the discretionary exclusion.
Orders Made
- Each of the six intercepted telephone conversations was admitted into evidence for use at the trial.
Key Takeaways
- Johnson J confirmed that a judge presiding over a retrial is not bound by admissibility rulings made by a different judge at an earlier trial, and must conduct an independent assessment of the material.
- The relevance threshold in s 55 of the Evidence Act 1995 is intentionally broad: the use of the phrase "directly or indirectly" means that evidence need not go directly to a fact in issue to satisfy the test.
- Under s 135(a), exclusion for unfair prejudice requires more than a showing that evidence strengthens the Crown case; the prejudice must involve a real risk that the jury will misuse the evidence in a way logically unconnected to the issues at trial.
- Admissions under the Evidence Act 1995 encompass any prior representation adverse to the accused's interests in the proceeding, including oral statements made in intercepted telephone conversations.
- The Crown's decision not to call witnesses whose names appeared in intercepted conversations did not, of itself, create unfair prejudice sufficient to warrant exclusion, particularly where those witnesses remained available to the accused and where some of their recorded statements could assist the defence.
Legislation and Cases Referenced
Legislation:
- Telecommunications (Interception) Act 1979 (Cth)
- Evidence Act 1995 (NSW), ss 55, 56, 58, 81-90, 135(a)
- Crimes Act 1914 (Cth), ss 29D, 70, 73
Cases:
- R v Petroulias (No. 1) [2006] NSWSC 788
- R v Serratore (1999) 48 NSWLR 101
- R v BD (1997) 94 A Crim R 131
- Papakosmas v The Queen (1999) 196 CLR 297
- Commonwealth of Australia v McLean (1996) 41 NSWLR 389
- Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike (No. 1) (Federal Court of Australia, Beaumont J, 1 September 1995)