Citation: R v Rice & ors (No 4) [2014] NSWSC 1525
Court: Supreme Court of New South Wales
Date: 31 October 2014
Judge(s): Bellew J
Background
Four accused stood trial on an indictment alleging a conspiracy to murder a named individual between September and October 2007. The Crown's principal witness was an indemnified co-conspirator, referred to by the pseudonym Peter Taylor, whose credit was vigorously challenged in cross-examination by counsel for all four accused. Taylor's evidence was central to identifying one accused (referred to as Vukovic) as a person known by the nickname "Rashko," who allegedly participated in the conspiracy by driving Taylor to relevant locations and supplying a firearm.
Near the close of its case, the Crown sought to tender evidence of three intercepted telephone calls from October 2008. The calls included references to a person called "Rashko" performing gyprocking work at the mother's house of another accused (referred to as Popovic), and were offered to corroborate Taylor's evidence and to link Vukovic to the conspiracy. The material had been available within the prosecution's broader resources for a considerable period but had not been disclosed to the defence before this late stage.
Counsel for Vukovic objected to the admission of this evidence on several grounds. The principal objection was that the late tender, after the completion of Taylor's cross-examination, gave rise to unfair prejudice under section 137 of the Evidence Act 1995.
Legal Issues
- Whether evidence of three intercepted telephone calls, tendered near the close of the Crown case, should be admitted under the Evidence Act 1995.
- Whether procedural unfairness arising from late disclosure of evidence is capable of constituting "unfair prejudice" for the purposes of section 137 of the Evidence Act 1995.
- Whether the probative value of the tendered evidence was outweighed by the danger of unfair prejudice in the circumstances.
- Whether recalling the Crown's principal witness for further cross-examination would adequately remedy any prejudice to the accused.
Decision
Bellew J rejected the tender of the intercepted call evidence. His Honour found that the material, though only recently produced to the Crown, had been available for a considerable period and that the Crown had been on notice of the identification issue well before it was formally raised in correspondence on 25 October 2014. Taylor had made statements as early as 2012 referring to gyprocking with Vukovic, yet no steps had been taken to obtain corroborating material in an admissible form.
The Crown submitted that it had only become aware the identification of Vukovic was a live issue following correspondence with defence counsel late in the trial. Bellew J accepted that the material came into the Crown's possession only recently, but found this did not adequately explain the failure to pursue obvious corroborative evidence, particularly given Taylor was an indemnified co-conspirator whose evidence would attract a statutory warning under section 165 of the Evidence Act.
His Honour held that procedural unfairness is capable of giving rise to unfair prejudice within the meaning of section 137. Defence counsel had completed his cross-examination of Taylor without knowing this material existed, and the court was not privy to the forensic decisions that had shaped that cross-examination. The fact that counsel was now confronted with new evidence after that opportunity had closed was a significant source of prejudice.
Bellew J also rejected the proposition that recalling Taylor for further cross-examination would cure the prejudice. Such a course would in fact heighten the danger: it would require defence counsel to open a new line of questioning in circumstances where, for forensic reasons, that course had not been taken during the original cross-examination. The danger of unfair prejudice therefore outweighed any probative value the calls might have carried, and the evidence was excluded.
Orders Made
No formal orders in the traditional sense were made; the court ruled on the evidentiary objection and rejected the tender of the intercepted telephone call evidence.
Key Takeaways
- Procedural unfairness arising from the late disclosure of evidence is capable of constituting "unfair prejudice" for the purposes of section 137 of the Evidence Act 1995, at least where the late disclosure deprives defence counsel of the opportunity to make informed forensic decisions during cross-examination.
- Where the Crown is on notice of a contested issue, and corroborative material has been available for a significant period, a failure to disclose and tender that material in a timely fashion carries real evidentiary consequences.
- Courts will not readily accept that recalling a witness for further cross-examination neutralises the prejudice arising from late disclosure. In some circumstances, such a course can amplify rather than reduce the danger of unfair prejudice.
- Under section 137, the probative value of evidence must be weighed against the danger of unfair prejudice; that balancing exercise takes into account the full circumstances of the tender, including the timing and manner in which the evidence comes before the court.
- Where a Crown witness is an indemnified co-conspirator whose evidence will attract a warning under section 165 of the Evidence Act, the Supreme Court here observed that particular diligence in securing timely corroboration would be expected.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 137, 165
Cases:
- Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209
- Papakosmas v R (1999) 196 CLR 297