Citation: R v Misiepo [2015] NSWSC 1533
Court: Supreme Court of New South Wales
Date: 16 October 2015
Judge(s): Hall J
Background
The accused faced a charge of murder arising from the death of a man stabbed in the early hours of New Year's Day 2014 at a unit in Port Macquarie. The Crown alleged the accused inflicted a fatal stab wound with intent to cause death or grievous bodily harm. The accused entered a plea of not guilty, and the trial was listed to commence at Coffs Harbour on 19 October 2015.
Before the trial began, the parties sought pre-trial rulings on the admissibility of four categories of evidence. The Crown sought to lead evidence of the accused's flight from the scene, photographs found on a mobile phone, a handwritten note recovered from his brother's house, and a knife found at Flynn's Beach approximately three weeks after the alleged offence.
The accused's counsel opposed several of these categories, primarily on the basis that the probative value of the evidence was outweighed by its unfair prejudicial effect under section 137 of the Evidence Act 1995, or that there was insufficient foundation to link the evidence to the accused or to the offence.
Legal Issues
- Whether evidence of the accused fleeing the scene, hiding in a motel, travelling to Coffs Harbour, and then running from police was admissible as evidence of consciousness of guilt
- Whether photographs on the accused's mobile phone, including "selfie" images of him posing with what proved to be a replica pistol, were admissible
- Whether a handwritten note found at his brother's residence, which appeared to reference the crime scene and key witnesses, was admissible as an admission against interest
- Whether a serrated knife found near Flynn's Beach approximately three weeks after the stabbing was admissible
Decision
Flight evidence: Hall J held that evidence of the accused's conduct after the alleged offence was admissible as consciousness of guilt evidence. This included his immediate departure from the scene through adjoining properties toward the beach, his Facebook messages seeking urgent help, his use of a motel room booked in another person's name, his travel to Coffs Harbour, and his flight from police on 7 January 2014, during which he discarded a mobile phone. The court applied the principles in R v Cook and R v Steer, noting that where an innocent explanation for flight exists (here, the accused's alleged breach of parole), the weight to be given to the flight evidence is a matter for the jury rather than a reason to exclude it. Appropriate jury directions could address the risk of unfair prejudice.
Photographs: The "selfie" images showing the accused posing with what was identified as a replica pistol were ruled admissible. Although the weapon was a replica, the court was satisfied that the probative value of the images was not outweighed by unfair prejudice under section 137 of the Evidence Act 1995. One image also showed the accused wearing a blue shirt which police had located at a relevant address and which allegedly bore DNA from both the accused and the deceased.
The note: The handwritten note discovered in a rear bedroom of the brother's house, which carried DNA matching the accused on an associated highlighter, was ruled admissible as an admission against interest. The note referenced key witnesses, mentioned one having made a full statement and another confirming the accused's presence at the scene, and included the address where the alleged offence occurred. Hall J was satisfied the note was capable of operating as an admission and that its probative value supported admission.
The knife: Evidence relating to a serrated knife found near the picnic area at Flynn's Beach on 20 January 2014 was ruled inadmissible. No DNA linked the knife to the accused or the deceased, no forensic evidence connected it to the stab wounds, and nothing placed the accused near that location on the date the knife was found. Hall J noted the knife was consistent with having been discarded by any member of the public visiting the area, and that there was no sufficient basis to link it to the accused or the offence.
Orders Made
No orders were made in this decision.
Key Takeaways
- Where an accused offers an innocent explanation for flight (such as a breach of parole), that does not automatically render flight evidence inadmissible; the evaluation of competing explanations is properly left to the jury, with appropriate directions.
- Under section 137 of the Evidence Act 1995, the unfair prejudice arising from photographs of an accused posing with a weapon does not automatically outweigh probative value, particularly where the images have independent relevance to the Crown case.
- A handwritten note referencing the crime scene, witness accounts, and the accused's presence can constitute an admission against interest and will be admissible where there is a sufficient evidentiary foundation connecting it to the accused.
- Exclusion of the knife evidence illustrates that real evidence found near a crime scene requires a meaningful connection to the accused or the offence before it will be admitted; proximity in geography alone is insufficient.
- The Supreme Court confirmed that jury directions remain an appropriate mechanism for managing the risk of unfair prejudice from flight evidence and from other potentially damaging material, rather than exclusion being the default response.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Evidence Act 1995 (NSW), s 137
Cases:
- R v Cook [2004] NSWCCA 52
- R v Steer [2008] NSWCCA 295
- R v Heyde (1990) 20 NSWLR 234
- Lau v R [2014] NSWCCA 179
- Ainsworth v Burden [2005] NSWCA 174
- R v Suteski (2002) 137 A Crim R 371
- Papakosmas v R (1999) 196 CLR 297
- R v Lucas [1981] 1 QB 720
- Blackwell v The Queen [2011] NSWCCA 93