Citation: R v Smith (No.2) [2014] NSWSC 769
Court: Supreme Court of New South Wales
Date: 21 May 2014
Judge(s): Garling J
Background
The accused stood trial for the shooting and killing of the deceased, which occurred at approximately 1:30 pm on 20 January 2013. That evening, at around 9:30 to 10:00 pm, the accused had a conversation with a witness, Ms Asprogiannis, the details of which were recorded in her police statement. The Crown sought to lead evidence of that conversation, which included an admission by the accused.
Defence counsel objected to the admission of that evidence. The basis for the objection was that at the time of the conversation, the accused was allegedly significantly affected by drugs, rendering any admission unreliable and its admission unfairly prejudicial.
Legal Issues
- Whether the court should exercise its discretion under ss 135 or 137 of the Evidence Act 1995 to exclude the evidence of the accused's conversation with Ms Asprogiannis
- Whether the potential drug-affected state of the accused at the time of the conversation rendered the evidence unfairly prejudicial, such that its prejudicial effect outweighed its probative value
Decision
Garling J noted that, at the time of the ruling, there was no direct evidence that the accused had in fact taken drugs in the hours between the shooting and the evening conversation. Some earlier evidence from another witness suggested the accused may have been in a state consistent with drug use during the early afternoon, and Ms Asprogiannis's observations of the accused's demeanour were also potentially consistent with drug use. However, his Honour observed that the same demeanour could equally be attributed to the enormity of the events earlier that day.
His Honour accepted that the evidence had significant probative value and that, like much prosecution evidence, it was prejudicial to the accused's interests. He was careful to distinguish between evidence that is merely prejudicial and evidence that is unfairly prejudicial. The test under ss 135 and 137 requires unfair prejudice, not prejudice alone.
Garling J held that the real question surrounding the evidence was one of weight, not admissibility. It would be for the jury to assess the significance and reliability of the admission in light of all the surrounding circumstances, including any evidence that eventually emerged about the accused's drug-affected state at the time. On that basis, his Honour declined to exercise the discretion to exclude the evidence.
Orders Made
- Evidence contained in paragraph 13 of the statement of Ms Asprogiannis dated 23 January 2013 is allowed.
Key Takeaways
- Under ss 135 and 137 of the Evidence Act 1995, the relevant threshold is unfair prejudice, not prejudice in itself. All prosecution evidence is prejudicial to an accused; that alone does not ground exclusion.
- Where an accused's alleged drug-affected state at the time of making a statement is unproven at the point of the admissibility ruling, that matter goes to the weight of the evidence rather than its admissibility.
- The Supreme Court confirmed that assessing the reliability of an admission made in ambiguous circumstances is a function for the jury, to be determined against the full evidentiary backdrop of the trial.
- Ambiguity about the cause of an accused's demeanour (whether attributable to drug use or to the stress of prior events) does not, without more, establish unfair prejudice sufficient to enliven the exclusionary discretion.
- A court ruling on admissibility mid-trial may take into account the state of the evidence as it stands at that point, recognising that the picture may change as further evidence is led.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 135, 137
Cases:
- No cases were cited in the judgment.