Citation: [2014] NSWSC 1603
Court: Supreme Court of New South Wales
Date: 18 February 2014
Judge(s): Rothman J
Background
The accused stood trial for murder. The Crown sought to lead evidence of the accused's conduct on a prior occasion, or around the time of the killing, that involved possession of a weapon similar to the one used at the crime scene, and placed the accused in the company of an alleged co-offender.
The accused applied to have that evidence excluded. At trial, the only direct evidence placing the accused at the scene was testimony from a witness, Ms Bas, about admissions allegedly made by the accused. The weapon evidence was not said to prove the accused was armed at the scene or that he used any weapon there.
Legal Issues
- Whether evidence of the accused's prior conduct involving weapon possession and discharge should be excluded under s 137 of the Evidence Act 1995
- Whether the probative value of that evidence was outweighed by the danger of unfair prejudice to the accused
Decision
The probative value of the evidence:
Rothman J found the probative value to be manifest. The evidence showed the accused had access to a weapon similar to one used at the scene, and placed him with a known alleged co-offender. This made it more rational that the accused was a party to the alleged joint criminal enterprise, and also lent indirect support to the credibility of Ms Bas's account of the accused's admissions.
The nature of unfair prejudice under s 137:
The court emphasised that the relevant inquiry is not simply whether evidence prejudices the accused's case or assists the Crown. Unfair prejudice, within the meaning of s 137, refers to prejudice that may cause the jury to reason improperly or to make decisions on a basis other than the proper use of the evidence before them. The mere fact that evidence assists the prosecution does not make it unfairly prejudicial.
Balancing probative value against unfair prejudice:
Rothman J held that any danger of unfair prejudice could be adequately addressed through specific jury directions. The court stated it would direct the jury that the weapon evidence could not be used to infer the accused was present at the scene of the crime. Its permitted use was limited to assessing whether the accused was a party to the joint criminal enterprise and to evaluating Ms Bas's evidence.
Orders Made
- Evidence of the possession of the weapon and its discharge is admissible in accordance with s 137 of the Evidence Act 1995.
Key Takeaways
- Under s 137 of the Evidence Act 1995, the test is whether probative value is outweighed by the "danger" of unfair prejudice, not whether unfair prejudice is established as a concluded fact.
- "Unfair prejudice" does not encompass all evidence that assists the Crown or harms the accused's case; it targets evidence that risks causing the jury to reason improperly or decide on an improper basis.
- Evidence can carry indirect probative value where, rather than directly proving a fact in issue, it makes another piece of evidence more rationally credible or coherent.
- Carefully framed jury directions can, in appropriate cases, reduce the danger of unfair prejudice sufficiently to preserve admissibility rather than require exclusion.
- The Supreme Court confirmed that prior conduct evidence placing an accused in company with an alleged co-offender and showing access to a similar weapon may be admissible in a murder trial, subject to strict limitations on how the jury is directed to use it.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Not stated