Citation: [2016] NSWSC 364
Court: Supreme Court of New South Wales
Date: 31 March 2016
Judge: Bellew J
Background
This decision arose during a lengthy criminal trial, on day 40 of proceedings. The Crown sought to lead evidence from the officer-in-charge of the investigation, drawn from a statement the officer had made on 22 March 2016 and served on the accused's representatives shortly before the Crown case was due to close.
The proposed evidence concerned the alleged absence of any link between the deceased and a third party, Peter Hoang. The significance of Hoang had been flagged well before the current trial. In the opening address of an earlier trial (which had been aborted in July 2015), counsel for one of the accused had outlined a narrative in which the deceased told that accused he had given skimmed drug money to Hoang. The current trial commenced on 1 February 2016, and defence counsel opened to the jury on consistent lines shortly afterwards.
Critically, the police had known since late 2014, and had confirmed in February 2015, that there was no identified link between Hoang and the deceased. Despite this, no evidence on the point was served by the Crown between the discharge of the first jury and the opening of the present trial.
Legal Issues
- Whether the proposed evidence from the investigating officer should be excluded under section 137 of the Evidence Act 1995 (NSW) on the ground that its probative value was outweighed by the danger of unfair prejudice to the accused McNamara.
- Whether a relevant distinction could be drawn between information in the possession of the investigating police and information in the possession of the Crown Prosecutor, for the purposes of assessing the fairness of late disclosure.
- Whether the late service of the evidence had materially affected the forensic decisions made in the conduct of McNamara's defence.
Decision
Bellew J excluded the evidence under section 137 of the Evidence Act 1995 (NSW), which mandates exclusion in criminal proceedings where the probative value of prosecution evidence is outweighed by the danger of unfair prejudice to the defendant.
His Honour found the probative value of the evidence to be limited. The evidence from McNamara regarding the conversation with the deceased was to be led only to prove that the conversation occurred, not to prove the truth of what was said. Viewed in that way, the evidence was not truly necessary to "meet" a defence that McNamara had foreshadowed, as the Crown contended.
Bellew J rejected the Crown's submission that a meaningful distinction existed between knowledge held by the police and knowledge held by the Crown Prosecutor. The police had been aware of the relevant information since late 2014, well before the first trial commenced. His Honour had reached a consistent position in R v Rice (No 4) [2014] NSWSC 1525, and applied the same reasoning here.
The Court accepted defence counsel's submission, made in her capacity as an officer of the court, that different forensic decisions may have been made in the conduct of McNamara's defence had this material been disclosed earlier. Bellew J was careful to note that no criticism was directed at either the police or the Crown, acknowledging that late disclosure of material can arise for a variety of reasons in complex trials. However, the paramount obligation to ensure a fair trial required exclusion of the evidence.
Orders Made
• The evidence is excluded pursuant to s. 137 of the Act
Key Takeaways
- Under section 137 of the Evidence Act 1995 (NSW), a court must exclude prosecution evidence in criminal proceedings where its probative value is outweighed by the danger of unfair prejudice to the defendant; the provision is mandatory once that threshold is met.
- No meaningful distinction exists, for the purposes of assessing late disclosure, between material known to investigating police and material known to the Crown Prosecutor. Knowledge held by police engaged in the investigation is treated as effectively available to the prosecution.
- Where the prosecution is on notice from a prior trial's opening address of the basis on which the defence will be conducted, that notice is relevant in assessing whether late service of responsive evidence gives rise to unfair prejudice.
- The probative value of evidence is assessed by reference to the purpose for which it is actually to be led. Evidence tendered to rebut a factual assertion has reduced probative value where the defence itself will lead that evidence only to prove the fact of a conversation, not its truth.
- A trial court is entitled to accept, on the word of defence counsel as an officer of the court, that forensic decisions in conducting the defence may have been made differently had the Crown's evidence been disclosed in a timely manner, even without counsel disclosing the specific content of those decisions or instructions.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137 (exclusion of prejudicial evidence in criminal proceedings)
Cases
- Haoui v R (2008) 188 A Crim R 321; [2008] NSWCCA 209
- R v Rice (No 4) [2014] NSWSC 1525