Citation: R v Rice & ors (No 3) [2014] NSWSC 1522
Court: Supreme Court of New South Wales
Date: 30 October 2014
Judge(s): Bellew J
Background
The Crown was prosecuting four accused persons on charges relating to an alleged conspiracy to murder a man referred to throughout the judgment as "Duca" (Dusan Krstic). One of the accused, Zlatan Popovic, was the subject of the evidentiary rulings in this judgment.
The Crown sought to tender transcripts of two recorded telephone conversations involving Popovic. The first, from 19 September 2007, was between Popovic and an unidentified male. The second, from 18 October 2007, was between Popovic and a person identified as Vaso Davidovic. Both transcripts were marked as exhibits for voir dire (preliminary hearing) purposes.
The defence objected to both recordings being placed before the jury, raising challenges under the Evidence Act 1995 on the grounds of relevance and unfair prejudice.
Legal Issues
- Whether the first conversation (exhibit VD1) was relevant to any issue in the trial, within the meaning of s 55 of the Evidence Act 1995
- Whether the second conversation (exhibit VD2), accepted by the defence as relevant, should nonetheless be excluded under s 137 of the Evidence Act 1995 on the basis that the danger of unfair prejudice to the accused outweighed its probative value
Decision
Issue 1: Relevance of the first conversation (VD1)
The first conversation contained a remark by Popovic that "some idiot has placed a price over my head." The Crown contended that even though the allegation of a price on Popovic's head was not part of its case, the accused's belief that this was so was nevertheless relevant. Bellew J rejected this argument. His Honour was unable to identify any relevance the remark had to any issue in the trial, even applying the broad reach of s 55 of the Act. The Crown had not indicated it would argue that such a belief provided a motive for Popovic to enter the alleged conspiracy. The tender of the first conversation was refused.
Issue 2: Unfair prejudice outweighing probative value in the second conversation (VD2)
The second conversation recorded Popovic telling Davidovic that he and "Duca" had experienced what was described as "a bit of a tussle" some months earlier, though Popovic also indicated the two had agreed to go their separate ways without further conflict. The defence conceded relevance but argued exclusion under s 137 of the Act. Bellew J accepted the Crown's assurance that it would not submit to the jury that the exchange demonstrated a motive for Popovic to join the conspiracy. However, his Honour noted that this assurance did not fully address the risk. The jury could independently ascribe excessive weight to the conversation, particularly given that the two men had apparently resolved their disagreement and parted without incident. Bellew J was satisfied the probative value was outweighed by the danger of unfair prejudice, and the tender was also refused.
Orders Made
- The tender of the evidence in both conversations is rejected.
Key Takeaways
- The Supreme Court confirmed that even a broad reading of s 55 of the Evidence Act 1995 does not rescue evidence that cannot be connected to any fact in issue at trial: Popovic's belief that a price had been placed on his head was too remote from the conspiracy charge to be relevant.
- Under s 137 of the Evidence Act 1995, once a court is satisfied that the danger of unfair prejudice outweighs probative value, exclusion is mandatory, not discretionary.
- A Crown's undertaking not to advance a particular line of reasoning to the jury does not, of itself, neutralise the risk that jurors may independently apply an illegitimate or disproportionate chain of reasoning from the same evidence.
- Evidence of a prior disagreement between an accused and an alleged victim carries a heightened risk of misuse where the circumstances suggest the dispute had been resolved peaceably before the alleged offending occurred.
- Bellew J assessed the prejudice risk by reference to the evidence as a whole, reflecting the principle that individual pieces of evidence should not be evaluated in complete isolation from the broader trial context.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Not stated