Citation: R v Jones [2014] NSWSC 695
Court: Supreme Court of New South Wales
Date: 13 May 2014
Judge(s): Button J
Background
This decision arose during a criminal trial in the Supreme Court. The Crown sought to adduce evidence from the deceased's sister, who had made a telephone call to the deceased between 10 and 12 December 2012. During that call, she heard a male voice "yelling and screaming" and then heard the deceased say "Go away, leave me alone," before describing her as sounding "scared and worried."
The admissibility of this evidence was determined on a voir dire (a preliminary hearing held in the absence of the jury to decide a point of evidence). Defence counsel objected to paragraph 26 of the relevant witness statement, raising both relevance and unfair prejudice as grounds for exclusion.
Legal Issues
- Whether the proposed evidence satisfied the relevance threshold under s 55 of the Evidence Act 1995 (NSW)
- Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW)
- Whether objections under ss 59, 65, and 67 of the Act (concerning the hearsay rule and notice requirements) were maintained (these were ultimately not pressed)
Decision
Button J held that the evidence clearly passed the broad relevance test in s 55, having regard to the evidence already admitted and the openings made at trial. The judge found that the evidence carried discernible weight in the context of the proceedings, even though it did not directly implicate the accused.
On the question of unfair prejudice under s 137, His Honour was not persuaded that the risk was particularly high. Defence counsel retained the ability to cross-examine the witness and to address the jury directly on the absence of any evidence identifying the male voice as the accused. The judge noted that the lack of date clarity and the absence of corroborating phone records did not, of themselves, give rise to unfair prejudice.
The deceased's sister describing the deceased as sounding "scared and worried" gave Button J some pause, but he concluded this lay opinion could be tested in cross-examination. His Honour also noted the probative force that may attach to a lay opinion offered by a close family member rather than a mere acquaintance.
In the result, Button J was not satisfied that the probative value of any part of the evidence was outweighed by the danger of unfair prejudice to the accused, and the evidence was allowed.
Orders Made
• Evidence from paragraph 26 of the exhibit is admitted and allowed
Key Takeaways
- Button J confirmed that the s 55 relevance threshold is a broad one, and evidence need not directly implicate an accused to satisfy it, provided it has some bearing on the facts in issue in light of the overall trial context.
- Under s 137 of the Evidence Act 1995 (NSW), the danger of unfair prejudice must be assessed against the actual probative value of the evidence; a theoretical risk that a jury might draw an impermissible inference does not automatically warrant exclusion.
- The availability of cross-examination is a relevant consideration in weighing unfair prejudice, as it provides a mechanism by which the defence may expose the limitations and uncertainties in the proposed evidence.
- Lay opinion evidence as to a person's emotional state carries greater potential probative weight when offered by a close family member rather than a peripheral acquaintance, a distinction the court treated as relevant to the s 137 balancing exercise.
- Absence of corroboration from phone records and imprecision as to dates were treated as matters going to the weight of the evidence, not as sources of unfair prejudice to the accused.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 55 (relevance), 59 (hearsay rule), 65 (hearsay in criminal proceedings where maker unavailable), 67 (notice requirements for hearsay), 137 (exclusion where probative value outweighed by danger of unfair prejudice)
Cases cited: None cited in the judgment.