Citation: R v Scott (No 2) [2015] NSWSC 459
Court: Supreme Court of New South Wales
Date: 25 March 2015
Judge(s): Wilson J
Background
The accused was on trial for what appears to have been a homicide. A key Crown witness, referred to here as Ms Houston, was being held in courthouse cells at the same time as the accused during the trial.
The accused passed a letter to Ms Houston while both were in the holding cells. In it, he urged her to say the "right thing" so he could "beat the trial." Ms Houston wrote a reply expressing her intention to "always protect" the accused. Authorities intercepted her reply before it reached him.
The Crown sought to lead both letters as evidence of the accused's consciousness of guilt. Defence counsel objected on the basis that the prejudicial effect of the evidence outweighed its probative value.
Legal Issues
- Whether the letters were admissible as evidence of consciousness of guilt
- Whether the prejudicial effect of the letters outweighed their probative value, warranting exclusion under s 135 of the Evidence Act 1995
Decision
Wilson J found the probative value of the letters to be high. An attempt to influence a significant Crown witness during the trial, conducted in a monitored courthouse facility, was conduct strongly indicative of consciousness of guilt. Her Honour acknowledged the theoretical possibility that such conduct could reflect panic in an innocent person, but noted that assessment was properly a matter for the jury.
The letters also carried relevance beyond consciousness of guilt. They were capable of rebutting a self-defence case and any defence attributing responsibility to a third party (Hayley Orchard). They also provided context for evaluating Ms Houston's own evidence, particularly a notable improvement in her memory after she learned the letters had been discovered.
On the question of prejudice, Wilson J assessed the letters against a backdrop of telephone intercept evidence that had already been admitted without objection. That intercept evidence revealed the accused apparently attempting to interfere with other Crown witnesses, including alleged attempts to arrange for a witness to be killed (referred to as a "hot shot"). In that context, the letters were of a less dramatic character and introduced no materially greater prejudicial effect.
Her Honour concluded that the evidence was not unfairly prejudicial and declined to exercise the discretion to exclude it under s 135 of the Evidence Act 1995. The letters were admitted into evidence.
Orders Made
No orders were made in this decision.
Key Takeaways
- An accused's attempt to influence Crown witness testimony, even if potentially explained by panic, carries high probative value as evidence of consciousness of guilt and is capable of contributing to proof of the charge.
- The probative value versus prejudicial effect balancing exercise under s 135 of the Evidence Act 1995 requires the disputed evidence to be assessed in the context of all other evidence already before the jury, not in isolation.
- Where substantially similar or more prejudicial evidence has already been admitted without objection, a court may find that further evidence of the same nature adds no materially unfair prejudicial effect.
- Evidence of witness-tampering can serve multiple admissibility purposes simultaneously, including consciousness of guilt, rebuttal of specific defences, and providing a framework for assessing the credibility of the witness targeted.
- A witness's changed demeanour or improved memory after learning that authorities have discovered tampering correspondence is a circumstance the court may draw reasonable inferences from when weighing probative value.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 135
Cases cited: None cited in the judgment text.