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District Court 6 August 2014

R v Firebrace

[2014] NSWDC 274

Sexual offences
CRIMINAL LAW EVIDENCE UNRELIABLE EVIDENCE EVIDENCE NOT ADMITTED

Citation: R v Firebrace [2014] NSWDC 274
Court: District Court of New South Wales
Date: 6 August 2014
Judge: Cogswell SC DCJ

Background

The accused was charged with rape alleged to have occurred on 7 March 2013. He was not arrested until 11 March 2013. The central issue at trial was not whether sexual intercourse occurred, but whether it was consensual.

The prosecution sought to tender evidence from a witness who was a relative of the accused and had been drinking with him on the day of the alleged offence. On the voir dire (a preliminary hearing to assess admissibility, held in the absence of the jury), the witness recounted a conversation in which the accused had acknowledged he might be "in trouble" over "that young girl" and that they might have to go to court.

The prosecution's case was that this conversation took place before the accused's arrest, making it a pre-arrest acknowledgment of potential culpability amounting to an informal admission. Defence counsel objected to the evidence being placed before the jury.

  • Whether the probative value of the witness's evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW)
  • Whether the court should exercise its discretion to exclude the evidence under s 135 of the same Act
  • Whether the witness could be treated as giving unfavourable evidence or failing to make a genuine attempt to give evidence under s 38(1)(b), and what consequences that had for the admissibility question

Decision

The judge found that the witness's evidence about the timing of the conversation was deeply unreliable. After initially saying the conversation happened "probably two days later or something" after the alleged offence (which would place it before the arrest), the witness resiled and said it "could have been a week, it could have been four or five days, it could have been three days." His Honour formed the clear impression that the witness was being vague and evasive and was not making a genuine attempt to answer questions.

The prosecution acknowledged this difficulty. It pointed to a separate part of the witness's evidence suggesting the accused ended up "in lockup" shortly after the conversation, which would support the inference that the conversation predated the arrest. However, the judge considered this insufficient to rescue the evidence from its fundamental unreliability.

His Honour assessed the probative value of the evidence as low. The witness's credibility was already compromised, and whichever path the prosecution took at trial, either the witness giving the anticipated answer and being cross-examined on his prior inconsistencies, or the prosecution cross-examining the witness under s 38 leave, the jury would be confronted with a witness whose account shifted in ways that appeared connected to his loyalties as the accused's relative.

The judge also identified a second danger: the evidence risked distracting the jury from its primary task, namely assessing the complainant's evidence and the other material the prosecution intended to rely upon. On that basis, His Honour refused to admit the evidence under s 137, finding that its probative value was outweighed by the danger of unfair prejudice to the accused.

Orders Made

• Evidence tendered by Ms Knowles refused to be admitted under s 137 of the Evidence Act

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), a court must refuse to admit prosecution evidence where its probative value is outweighed by the danger of unfair prejudice to the accused; the obligation is mandatory, not discretionary.
  • Where a witness's account of a critical timing detail shifts substantially across different answers, the court may find that the overall probative value of the evidence is low even if one version of the account would, standing alone, support an inference favourable to the prosecution.
  • A witness's apparent evasiveness and perceived loyalty to the accused are factors a court may take into account when assessing the reliability, and therefore the probative value, of that witness's evidence at an admissibility stage.
  • The District Court identified a secondary form of prejudice relevant to s 137: the risk that disputed and peripheral evidence will distract a jury from the central factual question it must resolve.
  • Evidence that appears on its face to be an informal admission may still be excluded where the vehicle for that admission, the witness through whom it is proved, is so unreliable that the danger of the jury over-valuing the evidence cannot adequately be managed by cross-examination alone.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 38(1)(b), 135, 137

Cases cited:
None cited in the judgment.