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District Court 9 November 2017

R v Krishnan

[2017] NSWDC 460

Sexual offences
CRIMINAL JUDGMENT ON ADMISSIBILITY OF EVIDENCE “COMMUNITY ACCOUNTABILITY MEETING” DIRECT OR INDIRECT ADMISSIONS IMPROPERLY OBTAINED EVIDENCE PROBATIVE VALUE

Citation: R v Krishnan [2017] NSWDC 460
Court: District Court of New South Wales
Date: 9 November 2017
Judge(s): King SC DCJ

Background

The accused faced five charges arising from an alleged incident on 23 January 2016 at Mona Vale: four counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 and one count of assault while committing an act of indecency under s 61L. All charges related to a single complainant.

Before reporting the matter formally to police, the complainant explored an alternative accountability process. On 9 January 2016, a gathering of approximately ten people, including the accused and the complainant, met at the Sydney University Law School. All attendees, including the accused, consented to the meeting being audio recorded. The meeting, described as a "Community Accountability Meeting," ran for nearly three hours. At its conclusion, the accused read a prepared agreement aloud for the recording and then signed it. During the course of the meeting, the accused made several statements capable of being characterised as direct or indirect admissions of guilt.

The defence brought a voir dire application to have the recording, its transcript, and the signed agreement excluded from evidence before the jury was empanelled.

  • Whether the admissions made during the meeting should be excluded under s 85 of the Evidence Act 1995, on the basis that the circumstances made it likely the truth of the admissions was adversely affected
  • Whether admission of the evidence would be unfair to the accused under s 90 of the Evidence Act 1995
  • Whether the probative value of the evidence was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995
  • Whether the evidence was improperly obtained such that it should be excluded under s 138 of the Evidence Act 1995

Decision

Section 85: The court accepted that s 85(1)(b) applied, because the complainant was a person the accused knew or reasonably believed could influence whether a prosecution was brought or continued. However, King SC DCJ found no basis for exclusion. The accused attended voluntarily, was not subjected to any threat, inducement, or particularly aggressive questioning, was approximately 27 years old, and was among people he knew as friends or acquaintances. There was no evidence of any relevant condition or characteristic that might have adversely affected the reliability of his admissions. The court was satisfied that the admissions were made in circumstances where it was unlikely the truth of those admissions was adversely affected.

Section 90: The court found nothing unfair in permitting the prosecution to use the admissions. The accused chose to attend, knew attendance was not compulsory, consented to recording, and elected at the end of the meeting to read the agreement aloud and sign it. His participation was entirely voluntary throughout.

Section 137: King SC DCJ held that the probative value of the evidence was not outweighed by the danger of unfair prejudice. The admissions bore directly on the central question of whether the alleged conduct occurred, and the circumstances of the meeting did not give rise to unfair prejudice of the kind s 137 is designed to address.

Section 138: The court found no impropriety in how the evidence was obtained. Nothing in the lead-up to the meeting or the accused's participation in it involved any contravention of Australian law or any conduct that could be characterised as improper. The evidence was therefore admissible on this ground as well. The court did note that some passages may need further consideration, for instance whether certain exchanges actually contained admissions at all, and flagged that references to the accused's drug use might warrant excision to avoid undue prejudice. Those matters were left for the parties to resolve.

Orders Made

• Evidence admitted
• Parties to resolve issues regarding which evidence should be tendered and whether any parts should be excised due to prejudiciality

Key Takeaways

  • The District Court held that a complainant can constitute a person "capable of influencing the decision whether a prosecution should be brought" for the purposes of s 85(1)(b) of the Evidence Act 1995, even where no formal prosecution had commenced and no formal statement had yet been made.
  • Under s 85(2), the critical inquiry is whether the circumstances of the admission made it unlikely the truth of the admission was adversely affected; voluntary participation without threat, inducement, or coercive questioning weighed strongly in favour of admissibility.
  • A fully voluntary and consensual participation in an informally arranged accountability process, where the accused agreed to audio recording and signed a written statement of his own accord, did not engage the unfairness discretion under s 90.
  • Sufficient probative value existed in admissions made during the meeting to defeat an exclusion application under s 137, with no finding that the danger of unfair prejudice outweighed that value.
  • Where only select passages of a lengthy recording are relied upon by the Crown, a court may flag for the parties the need to consider whether surrounding context should also be tendered, and whether any prejudicial but non-probative content requires excision.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 85, 90, 137, 138
- Crimes Act 1900 (NSW), ss 61I, 61L

Cases
- Parker v Controller General of Customs (2009) 83 ALJR 494