Citation: R v Bruce Gosen [2011] NSWDC 260
Court: District Court of New South Wales
Date: 28 December 2011
Judge: Cogswell SC DCJ
Background
The accused faced a charge of importing cocaine into Australia, a Commonwealth offence. His defence was that he had no knowledge of cocaine concealed in suitcases he carried into the country, and that his travel had been arranged and paid for entirely by others.
Central to his account was his claim, made during an Australian Federal Police interview and repeated in his own evidence at trial, that he had never owned a credit card. The prosecution sought to tender a printout from a Vancouver travel agent's records showing that the accused's travel had in fact been paid for by a credit card bearing his name.
The accused's counsel objected to the document's admission, characterising it as a "flawed document" containing internal inconsistencies and arguing that any probative value was outweighed by the risk of unfair prejudice to the accused.
Legal Issues
- Whether the travel agent screenshot (Exhibit VDM) was admissible under the Evidence Act 1995, or whether it should be excluded under s 137 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused.
- Whether the internal inconsistencies in the document undermined its probative value to such a degree that admission would be unfair.
- Whether, if admitted, a direction to the jury under s 165 of the Evidence Act 1995 was warranted regarding the document's reliability.
Decision
His Honour admitted Exhibit VDM, finding its probative value to be high. The document served two distinct purposes for the prosecution: it was capable of forming the basis of a credibility attack on the accused as a possible lie about credit card ownership, and it was inconsistent with his account that others had arranged and funded his travel entirely.
The Defence argued the document's internal errors made it unreliable and that a jury might impermissibly reason from an apparent lie directly to guilt. His Honour acknowledged the risk that juries can misuse evidence of a lie, but considered that risk was adequately addressed by appropriate jury directions on the use of lies as evidence of consciousness of guilt and as affecting credibility. Those directions were formulated and given accordingly.
On the question of the document's internal inconsistencies, His Honour treated those imperfections not as a reason to exclude the document but as a matter for counsel to address in closing address before the jury. His Honour also accepted the defence application for a s 165 reliability warning and gave the jury a direction to that effect.
Balancing probative value against the danger of unfair prejudice, His Honour concluded that the probative value of Exhibit VDM was not outweighed by any unfair prejudice to the accused, and the document was admitted into evidence.
Orders Made
• Admit Exhibit VDM into evidence
• Give jury a direction under s 165 of the Evidence Act regarding the reliability of the document
Key Takeaways
- Under s 137 of the Evidence Act 1995, a court must exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant; the District Court found that a travel agent screenshot met this threshold for admission where its probative value was assessed as high.
- A document's internal inconsistencies do not automatically render it inadmissible under s 137; such flaws may instead be left for the opposing party to exploit in closing address and may support a s 165 reliability direction.
- Evidence capable of supporting an inference that the accused told a lie carries recognised probative value both as a credibility challenge and, potentially, as evidence of consciousness of guilt.
- The risk that a jury will reason impermissibly from an apparent lie to an inference of guilt does not necessarily tip the s 137 balance in favour of exclusion, provided the trial judge formulates and delivers appropriate directions on the permissible uses of lie evidence.
- A s 165 warning about the reliability of a particular document can operate alongside admission under s 137, allowing the jury to weigh the evidence with appropriate caution rather than treating unreliability as grounds for outright exclusion.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW/Cth), s 137 (exclusion of evidence where probative value outweighed by danger of unfair prejudice)
- Evidence Act 1995 (NSW/Cth), s 165 (warnings about unreliable evidence)
Cases
No cases were cited in the judgment.