Citation: R (Commonwealth) v Mark William Standen [2011] NSWSC 1045
Court: Supreme Court of New South Wales
Date: 2 June 2011
Judge(s): James J
Background
The accused was on trial on criminal charges connected to his role at the NSW Crime Commission. The Crown alleged he had improperly disclosed confidential information to a person named Kinch, in breach of the Commission's informer management policy, which prohibited officers from trading information with informers.
Two emails exchanged on 21 March 2008 were already before the court. In one, the accused replied to Kinch with a reference to persons of Pakistani background being "in some trouble" at a Kings Cross office. The Crown sought to establish that this remark related to a search warrant executed the previous day in an operation known as Operation Magazine, targeting a money exchange business in Kings Cross operated by a person with a Pakistani name.
The Crown applied to adduce evidence that the search warrant had been executed in that operation, arguing it demonstrated the accused had disclosed operational information to Kinch in contravention of his duties.
Legal Issues
- Whether evidence of the search warrant execution in Operation Magazine was admissible, given it was disclosed to the defence only the day before the application
- Whether the probative value of the proposed evidence was outweighed by the danger of unfair prejudice to the accused under the relevant evidentiary balancing test
Decision
Issue 1: Relevance of the proposed evidence
James J found the evidence clearly relevant on two bases. First, it tended to establish that the accused had contravened the Crime Commission's informer management policy by disclosing operational information to Kinch. Second, it tended to illuminate the true nature of the relationship between the accused and Kinch.
Issue 2: Late notice and prejudice to the accused
The accused's counsel argued that notice of the Crown's intention to adduce the evidence had been given only the day before, despite the prosecution having had years to compile its case. Counsel submitted this placed the accused in the unfair position of being required to recall details of a specific operation at short notice.
James J gave limited weight to the prejudice argument for two reasons. The accused had himself been the officer-in-charge of Operation Magazine, meaning he was not a stranger to the operation in question. Additionally, the Crown indicated it was able and willing to provide the defence with the underlying documents upon which the proposed witness's evidence would be based.
Issue 3: Probative value versus unfair prejudice
James J concluded that the probative value of the evidence was strong and was not outweighed by any unfair prejudice to the accused. The application to exclude the evidence was rejected.
Orders Made
- Evidence admitted
Key Takeaways
- Where proposed evidence is clearly relevant to establishing both a contravention of duty and the nature of a key relationship in a criminal trial, a court will treat its probative value as significant in the balancing exercise against unfair prejudice.
- Late notice of an intention to adduce evidence does not automatically generate sufficient unfair prejudice to warrant exclusion, particularly where the accused has pre-existing knowledge of the subject matter through their own professional role.
- An offer by the Crown to provide underlying documents to the defence can be a material factor in reducing the weight given to a late-notice prejudice argument.
- The Supreme Court's reasoning demonstrates that courts assess prejudice in practical terms, including what the accused could reasonably be expected to know or recall given their own involvement in relevant events.
- Breach of an informer management policy by a law enforcement officer can constitute relevant evidence going to the substance of charges and to the character of a relationship central to the prosecution case.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated