Citation: R v Cochran & Reihana [No. 2] [2017] NSWDC 369
Court: District Court of New South Wales
Date: 30 November 2017
Judge(s): Haesler SC DCJ
Background
Two accused stood trial on charges arising from an alleged incident on 31 January 2016 in which the complainant was restrained, beaten, and threatened, before being forced to perform a sexual act on a third person. That sexual act was allegedly recorded on an i-pad or mobile phone. When police executed a search warrant at the first accused's flat the following day, no i-pad or tablet was found, though one appeared visible in search warrant footage.
The first accused was arrested in late February 2016 and remanded in custody. In late March 2016, corrective services records showed he made a recorded telephone call from Long Bay gaol to his sister. The Crown sought to tender a transcript of that call as evidence that he had arranged for an i-pad to be removed from his flat and destroyed, and that he was anxious to confirm this had occurred.
The first accused's counsel objected to the call being admitted. The admissibility question was argued while the jury was absent, and the court delivered its ruling on 30 November 2017.
Legal Issues
- Whether the gaol telephone call constituted an admission by the accused within the meaning of the Evidence Act 1995 dictionary definition.
- Whether sufficient inferences could be drawn to connect the destruction of the i-pad to the offence charged, without circularity of reasoning.
- Whether, under section 137 of the Evidence Act 1995, the probative value of the call was outweighed by the danger of unfair prejudice to the accused.
- Whether section 90 of the Evidence Act 1995 provided an independent basis for exclusion.
Decision
Issue 1: Whether the call was an admission
The court accepted that the evidence was relevant to facts in issue and proceeded on the basis it was prima facie admissible (at [24]). However, the court found the call could not constitute an admission without further evidence connecting the destroyed i-pad to the offence in count 1 (at [35]). At the time of the call, police had already searched the flat and seized items of interest, giving the accused ample earlier opportunity to destroy relevant material (at [33]). Multiple alternative inferences explained the destruction, including the accused's drug supply activity and an unrelated arrest (at [46]). The court found that advancing the prosecution's theory required presuming the conclusion: circular reasoning that could not of itself found an inference (at [36]).
Issue 2: Probative value versus unfair prejudice under section 137
The court applied the section 137 balancing exercise, assessing probative value on the assumption the jury would accept the evidence and draw inferences urged by the prosecution (at [38]-[40]). Even taking the evidence at its highest, it possessed limited probative value once the jury was properly directed on consciousness of guilt reasoning, the requirement not to speculate on what the i-pad contained, and the need to avoid reasoning backwards from destruction to guilt (at [50]). On the other side of the balance, the risks of prejudice were substantial and not readily correctable by direction (at [51]).
Issue 3: Cumulative prejudice from required directions
The court identified that admitting the call would require multiple concurrent jury directions: cautions about the accused's bail status being revealed, about other uncharged offences, about drug use and supply, and, in the context of a joint trial, a strong direction that the call was evidence against the first accused only (at [53]-[54]). The court found the cumulative weight of those directions carried a significant risk of undermining the accused's right to a fair trial (at [54]). Section 90 was also engaged by the potential for misuse and the weaknesses in the evidence that a properly directed jury might not adequately assess (at [55]).
Orders Made
- Evidence of the gaol telephone call excluded from the trial.
Key Takeaways
-
A recorded statement cannot constitute an admission under the Evidence Act 1995 dictionary definition unless the inferences required to connect it to the charged offence are genuinely available without circularity: presuming the conclusion does not supply the missing inferential link (at [36]).
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Under section 137, where multiple competing inferences arise from proposed evidence and the prosecution theory depends on a chain of inferences each dependent on the last, the probative value of the evidence may be significantly reduced even when assessed at its highest (at [47]-[50]).
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The District Court applied the R v XY approach that the existence of competing inferences is relevant to the section 137 probative value assessment, finding that approach more apt than the IMM framework on these particular facts, where no issues of reliability or credibility arose and inferential reasoning was central (at [44]-[45]).
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Consciousness of guilt reasoning based on destruction of property carries particular dangers where the destruction has plausible alternative explanations unconnected to the charged offence, especially where police had already searched and seized material before the alleged destruction occurred (at [32]-[33], [46]).
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Cumulative jury directions, each individually adequate, can together create an unacceptable risk of unfair prejudice that supports exclusion under both section 137 and section 90 of the Evidence Act 1995 (at [54]-[55]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Evidence Act 1995
Cases
- DSJ v R [2012] NSWCCA 9 at [88] & [89]
- Edwards v The Queen (1993) 178 CLR 193
- IMM v The Queen (2016) 257 CLR 300 [2016] HCA 14;
- R v Armstrong [2010] NSWSC 801
- R v Cook [2004] NSWCCA 52 at [43]
- R v Hall [2001] NSWSC 827
- R v Lane [2011] NSWCCA 157
- R v XY (2013) 84 NSWLR 363, [2013] NSWCCA 121