Citation: R v Pratten (No 24) [2015] NSWSC 1376
Court: Supreme Court of New South Wales
Date: 8 July 2015
Judge(s): Rothman J
Background
The accused was facing criminal prosecution before a jury. As part of the proceedings, the parties were preparing a joint tender bundle of documentary exhibits. A dispute arose concerning a single email that appeared four times across the tender bundle, at pages 173, 320, 467, and 555 of volumes A1 and A2.
The email related to instructions the accused had given about the disposition of certain assets in the event that a helicopter he was due to fly crashed. The Crown sought to tender the document as relevant to multiple charges, which explained its appearance at several locations in the bundle.
The accused objected to the repetition of the document, arguing that having it appear multiple times either added nothing to its probative value or created an unfair risk of prejudice that warranted its exclusion or limitation.
Legal Issues
- Whether the repeated appearance of the same document in a tender bundle was irrelevant within the meaning of sections 55 and 56 of the Evidence Act 1995, given that the document had already been tendered once.
- Whether the repetition of the document created a "danger of unfair prejudice" to the accused within the meaning of section 135 of the Evidence Act 1995.
- Whether, under section 137 of the Evidence Act 1995, the court was obliged to exclude the document because any danger of unfair prejudice outweighed its probative value.
- Whether redaction of the repeated instances was a preferable alternative to admission with directions.
Decision
Rothman J ruled that the document could be admitted in its repeated form across the tender bundle. His Honour accepted that there was a small danger of prejudice arising from the repetition, but was not persuaded that this prejudice was unfair in nature. The Crown could, in any event, refer to the document multiple times during its closing address by reference to each subject matter to which the email was relevant, meaning the repetition in the bundle did not materially worsen the accused's position.
The court drew an analogy with video evidence in cases involving children's testimony, noting that repetition becomes more problematic when the repeated form is more compelling than the original, such as where a video predominates over a written transcript. No equivalent concern arose here, as the repeated instances were identical documents rather than a more persuasive rendition of the same material.
His Honour also rejected the proposed alternative of redacting the document each time it appeared so as to limit its contents to the subject matter then under consideration. That approach would mean the jury never had the full document before them at any single point, which Rothman J considered potentially more harmful to the accused than simple repetition.
To the extent any residual unfair prejudice existed, the court was satisfied it could be adequately addressed by giving the jury clear directions at the time the document was tendered, explaining the fact of its repetition and how it should be approached.
Orders Made
No formal orders were extracted from the judgment text. The ruling was delivered ex tempore, with Rothman J determining that the repeated document was admissible and that appropriate jury directions would be given upon its tender.
• The document may be repeated in the way that it has been.
Key Takeaways
- Repetition of an identical document within a joint tender bundle does not automatically render the repeated instances irrelevant or inadmissible under sections 55 and 56 of the Evidence Act 1995.
- Under section 137 of the Evidence Act 1995, mandatory exclusion is triggered only where the danger of unfair prejudice outweighs probative value; a mere small or theoretical danger does not meet that threshold.
- Appropriate jury directions can, in some circumstances, be sufficient to overcome any danger of unfair prejudice arising from documentary repetition, without requiring exclusion or redaction.
- Redacting repeated instances of a document to limit their content to a specific subject matter may itself create greater unfairness, particularly where doing so would prevent the jury from ever seeing the document in its entirety.
- The court distinguished the present situation from cases involving repeated video evidence, where repetition in a more compelling form can give that evidence undue prominence over a transcript of the same material.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), sections 55, 56 (relevance), 135 (general discretion to exclude), 137 (exclusion where prejudice outweighs probative value)
Cases cited: None identified in the judgment text.