Citation: R v Dwayne Anthony CARR (No 2) [2011] NSWSC 724
Court: Supreme Court of New South Wales
Date: 13 July 2011
Judge(s): Rothman J
Background
The accused was charged with manslaughter and, in the alternative, recklessly inflicting grievous bodily harm. The charges arose from an incident at a party on 25 November 2009, during which the accused pushed the deceased into a wall. The deceased later lost consciousness and died in hospital from two head injuries.
Police interviewed the accused on 28 April 2010 by way of an electronically recorded interview (ERISP). During that interview, the accused denied being at the premises on the night in question and denied knowing the deceased. He was arrested approximately six weeks later.
The Crown sought to tender the ERISP at trial. The accused objected to its admission on several grounds under the Evidence Act 1995.
Legal Issues
- Whether the ERISP was relevant and admissible as an admission under the Evidence Act 1995
- Whether the lie told in the interview was probative of consciousness of guilt
- Whether the Court should exclude the evidence under section 137 (probative value outweighed by danger of unfair prejudice)
- Whether the evidence should also be excluded under section 135(b) (substantial danger of the evidence being misleading or confusing)
- Whether, if admitted, the evidence's use should be restricted under section 136
Decision
Relevance and admission status: Rothman J accepted that the ERISP was technically admissible as an admission within the broad meaning given to that term under section 81 of the Evidence Act. The statement was not hearsay because it was not tendered for the truth of its contents, but rather for the fact that it was made.
Consciousness of guilt: The Crown's primary purpose in tendering the ERISP was to use the accused's denial of presence at the premises as evidence of consciousness of guilt. His Honour acknowledged that a deliberate lie can, in appropriate circumstances, support an inference of consciousness of guilt, following the High Court's approach in Edwards v R (1993) 178 CLR 193.
Section 137 exclusion: The court identified a critical contextual problem: nearly every other person present at the party had also initially denied being at the premises or knowing the deceased. The accused's partner told police she was in Wellington. Multiple other partygoers denied their presence. This made the accused's denial far from unique. By the time the Crown had effectively closed its case, there was no evidence before the jury of the same lie having been told by others. Presenting the accused's lie in isolation, without that context, would mislead the jury into treating it as distinctively incriminating. His Honour also noted that the accused had separate and powerful reasons to deny his presence, unconnected with guilt of the offence: his attendance would have breached parole conditions, and his partner was pregnant. These factors meant the danger of unfair prejudice substantially outweighed the probative value, and the ERISP was excluded under section 137.
Sections 135(b) and 136: His Honour further held that even if the evidence were not excluded under section 137, the probative value would need to be restricted under section 136 to prevent its use as consciousness of guilt evidence. Once stripped of that use, the remaining probative value was almost insignificant. The court also found that section 135(b) independently warranted exclusion, because the absence of any evidence about the other witnesses' lies created a substantial danger that the evidence would be misleading or confusing. Jury directions were considered but assessed as insufficient to overcome the danger in this particular trial context.
Orders Made
- The ERISP, or evidence of statements made in the interview, is inadmissible.
Key Takeaways
- A lie told by an accused can only properly support an inference of consciousness of guilt when it is considered in its full context, including whether others in the same situation told the same lie for innocent reasons.
- Where multiple witnesses told identical lies to police without being implicated in the offending, presenting only the accused's lie to a jury risks creating a misleading impression of its significance, engaging section 135(b) of the Evidence Act 1995.
- Under section 137, the existence of innocent explanations for a lie, particularly where those explanations are multiple and concrete, can reduce its probative value sufficiently that the danger of unfair prejudice prevails.
- The Supreme Court confirmed that jury directions are not always sufficient to cure prejudice; in some trial contexts, exclusion under sections 135 or 137 is the appropriate response even where directions could theoretically be given.
- An accused's separate and independent reasons to deny presence at a scene, such as breach of parole conditions, are relevant to assessing whether a lie reflects consciousness of guilt or merely a desire to avoid collateral consequences.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
- Law Enforcement (Powers and Responsibilities) Act 2002
Cases
- Edwards v R [1993] HCA 63; (1993) 178 CLR 193
- R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510
- R v Cook [2004] NSWCCA 52
- R v Esposito (1998) 105 A Crim R 27
- R v Horton (1998) 104 A Crim R 306
- R v Keli LANE (No 13) [2010] NSWSC 1540