Citation: R v Purtill [2012] NSWSC 567
Court: Supreme Court of NSW
Date: 23 May 2012
Judge(s): Harrison J
Background
The accused stood trial for the murder of a man at Lennox Head in February 2010, with the Crown alleging the deceased was killed during a drug deal gone wrong. The Crown's case was that the accused cut the deceased's throat at his home. The accused's brother had already pleaded guilty to being an accessory after the fact and gave evidence that when he arrived, the deceased was already dead. The accused's position was that his brother, not he, had committed the killing.
As part of its case, the Crown sought to tender a transcript of a lawfully intercepted telephone conversation between the accused and his mother, recorded shortly before his arrest. The accused did not object to most of the conversation, which included statements blaming his brother for the killing. He objected only to one passage in which he told his mother he had spent two or three days with solicitors trying to "get this story straight."
The accused argued that this passage would unfairly suggest to the jury that he had been fabricating a version of events, thereby undermining the credibility of the parts of the conversation favourable to him.
Legal Issues
- Whether the disputed portion of the intercepted conversation should be excluded under s 137 of the Evidence Act 1995 on the ground that its probative value was outweighed by the danger of unfair prejudice to the accused
- Whether evidence that is open to more than one interpretation is, by reason of that ambiguity alone, unfairly prejudicial
Decision
The s 137 application:
Harrison J refused the application to exclude the disputed passage. His Honour identified the core probative question as whether the accused was telling his mother the truth when he said his brother committed the killing. The challenged passage was directly relevant to that question, because it bore on whether his account to his mother was a genuine recollection or a constructed story.
Ambiguity and unfair prejudice:
His Honour accepted that the passage was genuinely ambiguous. It was capable of being read as the accused truthfully trying to recall events before speaking to police, or alternatively as the accused spending three days with lawyers constructing a false exculpatory account. That ambiguity did not, however, render the evidence unfairly prejudicial within the meaning of s 137.
Applying the Court of Criminal Appeal's reasoning in R v SJRC [2007] NSWCCA 142, Harrison J held that the mere fact that evidence is open to competing interpretations, one of which is consistent with innocence, does not of itself demonstrate that probative value is outweighed by the danger of unfair prejudice. Resolving competing inferences from accepted evidence is a core jury function.
His Honour concluded that the jury should have the benefit of the whole conversation, including portions potentially favourable and potentially unfavourable to the accused. Determining what weight to give the evidence, and which inference to draw, was properly a matter for the jury.
Orders Made
- Application to exclude evidence dismissed
Key Takeaways
- Under s 137 of the Evidence Act 1995, evidence must be excluded where its probative value is outweighed by the danger of unfair prejudice, but if that threshold is not met there is no residual discretion to admit it, confirming the position established in R v Blick (2000) 111 A Crim R 326.
- Evidence that is genuinely ambiguous, being open to an interpretation consistent with the accused's innocence as well as one consistent with guilt, is not thereby rendered unfairly prejudicial; the existence of competing interpretations does not alone satisfy the s 137 exclusion test.
- Resolving which of several competing inferences to draw from admitted evidence remains a core jury function, and courts should not routinely pre-empt that function by excluding ambiguous evidence under s 137.
- The Supreme Court applied the Court of Criminal Appeal's reasoning in R v SJRC [2007] NSWCCA 142, confirming that the defence's ability to suggest an innocent interpretation of Crown evidence does not, without more, show that probative value is outweighed by unfair prejudice.
- Where disputed evidence is part of a larger conversation, a proper assessment of its meaning ordinarily requires the jury to consider the whole conversation rather than a curated portion.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326
- R v SJRC [2007] NSWCCA 142