Citation: R v Colless [2016] NSWSC 931
Court: Supreme Court of New South Wales
Date: 22 June 2016
Judge: Button J
Background
The accused faced criminal proceedings in which the Crown sought to lead evidence from a witness, Mr Max Harris, about events occurring before the alleged fatal incident. The particular passage in dispute was the third sentence of paragraph 11 of Harris's statement, which described the accused's conduct following an alleged harassment incident.
A voir dire (a preliminary hearing conducted in the absence of the jury to rule on the admissibility of evidence) was conducted to clarify a threshold question: whether the sentence was based on Harris's direct observation or on hearsay. Each party briefly examined Harris before Button J ruled on the objection.
Defence counsel accepted that the evidence cleared the relevance threshold under section 55 of the Evidence Act 1995 (NSW), but argued it should nonetheless be excluded because Harris could provide only an incomplete picture of what the accused said and did after the harassment incident.
Legal Issues
- Whether the evidence in paragraph 11 of Harris's statement was based on direct observation or hearsay, and how that characterisation affected admissibility.
- Whether the evidence satisfied the relevance test under section 55 of the Evidence Act 1995 (NSW).
- Whether the evidence ought to be excluded under section 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused.
Decision
Button J accepted that the evidence was relevant under section 55, consistent with both parties' position. The defence did not contest relevance outright but argued that admitting an incomplete account of the accused's post-incident conduct would create unfair prejudice, particularly in the context of Harris's reference to proposing to "sort it out."
Button J rejected the section 137 prejudice argument. His Honour reasoned that the incidents of alleged harassment before the fatal event were relevant to issues genuinely in dispute between the Crown and the accused, and that the accused's response to those incidents was likewise relevant. The incompleteness of Harris's account was not, in itself, a source of unfair prejudice warranting exclusion.
His Honour further noted that both parties would remain free to address the jury on whatever inferences could or could not be drawn from the incomplete version of events. That opportunity to address incompleteness through submissions adequately protected the accused's position without requiring the evidence to be rejected.
Orders Made
No orders were made in this decision.
Key Takeaways
- Button J confirmed that evidence does not become inadmissible under section 137 of the Evidence Act 1995 (NSW) merely because a witness can provide only a partial or incomplete account of events.
- A voir dire was used to clarify the foundational question of whether a witness's account rested on direct observation or hearsay, illustrating the procedural utility of that mechanism before ruling on admissibility.
- Where allegedly prejudicial gaps in a witness's account can be addressed through submissions to the jury, that avenue may be sufficient to avoid the section 137 exclusionary threshold being met.
- The court treated the accused's conduct in response to pre-incident events as relevant to issues joined between the Crown and defence, consistent with the broad relevance standard in section 55.
- Incompleteness in a witness's account goes to the weight a jury may attach to the evidence, and the parties' opportunity to make submissions on that incompleteness is a relevant consideration in the section 137 balancing exercise.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 55, 137
Cases cited: None cited in the judgment.