Citation: R v Rogerson; R v McNamara (No 39) [2016] NSWSC 358
Court: Supreme Court of New South Wales
Date: 31 March 2016
Judge: Bellew J
Background
Two accused faced trial for murder. The Crown sought to tender recordings of telephone conversations between one accused and his wife, made while the accused was in custody. Three separate calls were at issue, all taking place in mid-2014.
Defence counsel for the accused objected to specific passages from two of those conversations. The objections raised questions about relevance, litigation privilege, and whether the evidence should nonetheless be excluded under the discretionary and mandatory exclusion provisions of the Evidence Act 1995 (NSW). Counsel for the co-accused did not seek to be heard on the application.
The Crown's position was that the conversations, properly construed, were capable of placing the accused in the presence of the deceased on the day of the killing, and of showing consciousness of the strength of the evidence against him.
Legal Issues
- Whether two specific passages from a recorded conversation between the accused and his wife were relevant under s 55 of the Evidence Act 1995 (NSW)
- Whether a passage from the second conversation was protected by litigation privilege under s 119 of the Act
- Whether any admissible passages should be excluded under s 137 (probative value outweighed by danger of unfair prejudice) or s 135 (probative value substantially outweighed by danger of misleading or confusing the jury) of the Act
Decision
First conversation: passage one (excluded)
The first contested passage from the 24 June 2014 call contained a comment attributed to the accused that "you can do things and, you know" in the context of a discussion about a pending bail application. Bellew J accepted that even if relevant, the passage was too nebulous to carry meaningful probative value. The phrase was open to a wide range of interpretations, some of which could be highly prejudicial, and the court found that probative value was considerably outweighed by the danger of unfair prejudice under s 137. That passage was excluded.
First conversation: passage two (admitted)
The second passage from the same call appeared to reference the accused reading "the stuff," which the court found was reasonably capable of being construed as a reference to the brief of evidence. Bellew J acknowledged that competing inferences were available, but reaffirmed that the mere existence of alternative inferences does not render evidence inadmissible. The passage was found to be both relevant and probative, with its probative value not outweighed by danger of prejudice or confusion. It was admitted.
Second conversation: privilege claim rejected
In relation to the 7 August 2014 call, defence counsel argued the passage was protected by litigation privilege under s 119, submitted that it related to discussions about the bail application, and contended that references to "he" were to defence counsel rather than to the deceased. Bellew J rejected the privilege argument, finding on the available material that the conversation did not attract that protection. In an earlier ruling in the same proceedings (No 31), the court had already addressed the applicable principles.
Second conversation: admitted on probative value grounds
Bellew J found portions of the passage were clearly capable of being construed as referable to the events of 20 May 2014, the day of the killing. In particular, references to a man who "had the address," two individuals identified as Asian males remaining nearby, and a statement that the deceased had told those men "he'd be back in half an hour," were capable of sustaining an inference that the accused was present with the deceased in the storage unit while the deceased was still alive. That inference was properly a matter for the jury. The court found the probative value was high, that the evidence was not unfairly prejudicial within the meaning of s 137, and that there was nothing misleading or confusing about it for the purposes of s 135. The passage was admitted.
Orders Made
• Evidence of the conversation is admitted
• The evidence is not excluded under s. 119 of the Act
• The evidence is not excluded under s. 135 of the Act
• The evidence is not excluded under s. 137 of the Act
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), evidence is not excluded simply because it is damaging to an accused; the provision targets evidence that is unfairly prejudicial, and evidence that increases the likelihood of conviction is not automatically caught by that standard (citing Papakosmas v R (1999) 196 CLR 297).
- Where a recorded statement is capable of sustaining competing inferences, the existence of those competing inferences does not by itself warrant exclusion; determining which inference is correct remains a question for the jury (citing Saffron v DPP (1989) 16 NSWLR 397).
- A passage of low probative value that is open to a wide range of interpretations, some seriously prejudicial, may be excluded under s 137 even where some degree of relevance is assumed.
- Litigation privilege under s 119 of the Act requires the conversation to meet the relevant threshold; a bare assertion that the content relates to legal proceedings is insufficient where the available material does not support that characterisation.
- Bellew J drew a contextual distinction between two passages from the same conversation, admitting one and excluding the other, illustrating that admissibility assessments under ss 135 and 137 are conducted passage by passage rather than on a wholesale basis.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 119, 135, 137
Cases
- Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
- R v Rogerson; R v McNamara (No 31) [2016] NSWSC 195
- Saffron v The Director of Public Prosecutions; Allen v The Director of Public Prosecutions (1989) 16 NSWLR 397