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Supreme Court 23 June 2011

R v Smith [No 2]

[2011] NSWSC 727

Homicide
CRIMINAL LAW ADMISSIBILITY OF EVIDENCE INTERCEPTED BY POLICE

Citation: R v Smith [No 2] [2011] NSWSC 727
Court: Supreme Court of New South Wales
Date: 23 June 2011
Judge: Buddin J

Background

The accused stood charged with the murder of a man whose body was found in a Fairfield carpark in June 1995. The Crown alleged the accused had killed the deceased during a robbery, connecting him to the scene through DNA evidence found inside a discarded pair of Adidas shoes and on the deceased's jeans. The accused only came to police attention in 2009 after his DNA profile, uploaded to a national database in 2008, matched material from the crime scene.

On 6 June 2009, the day before his arrest, police visited associates of the accused making inquiries about him. The accused participated in three intercepted telephone conversations that day, during which he learned that police from the Unsolved Homicide Team were looking for him in connection with a serious incident in Fairfield in 1995. In the final call, the accused indicated by implication that the person he was speaking with should not disclose his whereabouts to police.

The Crown sought to tender all three conversations at trial. The accused objected to their admissibility.

  • Whether the intercepted telephone conversations were admissible as evidence of consciousness of guilt.
  • Whether the accused's remarks, particularly his implied request that his location not be revealed to police, constituted an implied admission capable of supporting the Crown case.
  • Whether, if the evidence had probative value, it should nevertheless be excluded under section 137 of the Evidence Act on the basis that unfair prejudice to the accused substantially outweighed that probative value.

Decision

Buddin J held that the three telephone conversations were not admissible. His Honour accepted that the Crown may, in appropriate cases, rely on post-offence conduct such as lies, false information, or flight as indicating consciousness of guilt. However, the accused's remarks did not fall neatly into any of those established categories, and the court examined whether the conversations nonetheless rose to the level of an implied admission.

The court found the evidence fell well short of constituting an implied admission. To treat the accused's reluctance to speak with police as evidence of guilt would require first assuming that he was guilty, a circular line of reasoning. His Honour noted the accused had a criminal history that spanned the 1980s and included appearances in both New South Wales and Queensland, though his contact with the courts had been limited in more recent years. A person with that kind of history could rationally be reluctant to engage with police about a serious matter from 14 years earlier, regardless of any involvement in the alleged offence.

Even if some probative value could be attributed to the conversations, Buddin J would have excluded them under section 137 of the Evidence Act. The risk of unfair prejudice was high. If the evidence were admitted, the accused would likely have been compelled, in attempting to explain his remarks innocuously, to reveal his prior adverse dealings with police. There was also a real risk that a jury might misuse the conversations as a basis for inferring guilt, a step that would involve an impermissible leap in reasoning.

Orders Made

  • The objection to the admissibility of the three intercepted telephone conversations was upheld.
  • The evidence was excluded.

Key Takeaways

  • Post-offence conduct can only support a consciousness of guilt inference where the evidence itself, assessed independently, rationally points toward guilt. An inference that rests on first assuming the accused's guilt involves circular reasoning and cannot support admissibility.
  • A person's reluctance to speak with police, even in the context of a murder investigation, is not necessarily indicative of guilt. Prior adverse contact with police may provide an innocent explanation for such behaviour.
  • Under section 137 of the Evidence Act, evidence must be excluded where the risk of unfair prejudice to the accused substantially outweighs its probative value. That balance is affected not only by the strength of the evidence but also by the practical consequences of admission, including whether the accused would be forced to expose damaging background information in attempting to explain the conduct.
  • Admitting evidence that a jury may misuse as a shortcut to an inference of guilt, without legitimate evidentiary foundation, is a recognised form of unfair prejudice warranting exclusion.
  • The decision turned on its specific facts and the particular content of the conversations. Buddin J did not articulate a general rule preventing the use of telephone intercepts in consciousness of guilt arguments; rather, the insufficiency of these particular calls was determinative.

Legislation and Cases Referenced

Legislation:
- Evidence Act (NSW), section 137

Cases:
- R v Cook [2004] NSWCCA 52