Citation: R v Rodney Paterson (No 1) [2014] NSWSC 29
Court: Supreme Court of New South Wales
Date: 6 February 2014
Judge(s): Bellew J
Background
The accused faced trial on charges of murder and aggravated sexual assault arising from the death of a woman whose body was found in the Royal National Park near Bundeena on 1 February 1992. The Crown alleged that the deceased, a Filipina woman who earned income from prostitution, was driven to a remote location, sexually assaulted by the accused and at least one other man, and then killed by blunt force trauma to the head. The case lay dormant for many years before advances in DNA technology led investigators to connect the accused and a co-accused to biological material recovered from the deceased's body.
Prior to trial, the accused's legal team objected to three pieces of evidence the Crown sought to tender. Bellew J heard argument on each piece of evidence and was asked to rule on their admissibility before the jury was empanelled.
Legal Issues
- Whether evidence from a psychologist and a corrections officer (witnesses Innis and Fagg) should be admitted, including statements made by the accused on his admission to a correctional centre
- Whether parts of a recorded conversation from 10 August 2009, in which the accused allegedly discussed a prior instance of group sex, should be admitted as tendency evidence under the Evidence Act 1995 (NSW)
- Whether an entirety of a recorded conversation from 30 September 2011 should be admitted, including an alleged inference the Crown sought to draw from the accused's words about the sexual assault charge
Decision
Issue 1: Evidence of witnesses Innis and Fagg
Bellew J ruled that the evidence of witnesses Innis and Fagg would be admitted. The judgment does not set out the full reasoning on this point within the portions available, but the ruling is reflected in the final orders.
Issue 2: The 10 August 2009 conversation (group sex discussion)
The Crown sought to use portions of a recorded conversation in which the accused allegedly discussed a prior instance of group sex as tendency evidence, arguing it showed a tendency relevant to the charged conduct. Bellew J ruled that this portion of the conversation should be excluded. The court found that the evidence did not carry the significant probative value required under the Evidence Act 1995 (NSW) to justify its admission as tendency evidence, particularly given the risk that it would operate unfairly against the accused.
Issue 3: The 30 September 2011 conversation
The Crown argued that statements made during this conversation supported an inference that the accused had knowledge of his involvement in the deceased's death, and specifically in the sexual assault charge. Senior counsel for the accused submitted that the words used were more naturally interpreted as reflecting a mistaken belief by the accused that a limitation period applied to the sexual assault charge, rather than any admission of guilt.
Bellew J, having listened to the recording on multiple occasions, found considerable force in the accused's interpretation. Even accepting the Crown's reading of the words, the court held that the inference the Crown sought to draw was not reasonably open. The accused had denied committing the offence on two separate occasions during the same conversation, and those denials were inconsistent with any admission. The court characterised the Crown's proposed inference as impermissible speculation and excluded the entirety of that conversation.
Orders Made
- The evidence of witnesses Innis and Fagg will be admitted.
- The evidence of those parts of the conversation of 10 August 2009 in which there was discussion about the accused's involvement in a previous instance of group sex will be excluded.
- The evidence of the entirety of the conversation of 30 September 2011 will be excluded.
Key Takeaways
- Tendency evidence must meet the significant probative value threshold under the Evidence Act 1995 (NSW); evidence of prior sexual conduct will not be admitted merely because it bears a superficial resemblance to the charged offence.
- Where a recorded conversation contains clear denials of offending by the accused, those denials can render inadmissible any competing inference the Crown seeks to draw from other parts of that same conversation.
- An inference proposed by the Crown will be excluded if it amounts to impermissible speculation rather than a conclusion that is reasonably open on the evidence as a whole.
- Pre-trial rulings on contested evidence, determined before jury empanelment, serve an important case-management function in complex criminal trials, particularly where multiple categories of evidence raise distinct admissibility questions.
- Admissions made by an accused in a custodial or correctional setting (here, on admission to a correctional centre) may be admissible in appropriate circumstances, as the ruling in favour of the Innis and Fagg evidence demonstrates.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 NSW
Cases
- GBF v R [2010] VSCA 135
- KRI v R [2011] VSCA 127
- R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
- R v Ford [2009] NSWCCA 306
- R v PWD
- R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182
- R v Watkins (2005) NSWCCA 164
- Zaknic Pty v Svelte Corporation Pty Limited (1995) 61 FCR 171