Citation: R v Spiteri-Ahern; R v Barber; R v Zraika (No 7) [2017] NSWSC 1329
Court: Supreme Court of New South Wales
Date: 26 September 2017
Judge(s): Rothman J
Background
This decision arose during a judge-alone murder trial involving three accused persons. The Crown sought to adduce additional evidence concerning one of the accused, relating to her alleged association with members of the Rebels Outlaw Motorcycle Gang.
The specific material the Crown sought to tender included a photograph from the accused's Facebook account showing her receiving a kiss on the cheek from a known Rebels member, a police COPS entry (a police incident-reporting record), and a schedule of communications between the accused and that Rebels member, some of which occurred on the date of the murder.
The Crown did not allege that the murder itself was arranged through the Rebels, or that the shooter had any connection to the gang. Rather, the Crown argued that the association evidence made it more probable that a threat the accused was said to have uttered against the deceased was both made and intended seriously.
Legal Issues
- Whether the association evidence was relevant within the meaning of s 55 of the Evidence Act 1995 (NSW), which defines relevant evidence as material that could rationally affect, directly or indirectly, the assessment of the probability of a fact in issue.
- Whether, if relevant, the evidence should be excluded under s 137 of the Evidence Act 1995 (NSW), which requires a court to refuse prosecution evidence where its probative value is outweighed by the danger of unfair prejudice.
- Whether the proposed evidence amounted impermissibly to proof of guilt by association.
Decision
Issue 1: Relevance under s 55
Rothman J found that the association evidence did not satisfy the relevance test in s 55. The Crown's argument was that, because the accused associated with bikies who are said to be involved in violence, it became more probable she uttered a threat and did so seriously. His Honour found this reasoning was circular: the association evidence was relevant to the threat only if the threat was first accepted as having been made, and relevant to the seriousness of the threat only on the same condition (at [18]).
His Honour also noted that the very content of the alleged threat, which the complainant said expressly referred to bikies, could equally reflect the complainant's own knowledge of the accused's associations rather than confirming the threat was made at all (at [17]). The Crown conceded there was no bikie connection to the murder itself, and accordingly whatever probative value the evidence might carry was of "extraordinarily little weight" (at [19]).
Issue 2: Unfair prejudice under s 137
Even accepting any residual relevance, Rothman J held that the evidence's only real operation was prejudicial. Stripped to its core, the Crown's case asked the court to reason from the accused's association with a group said to be notoriously involved in violence to a greater likelihood of her guilt (at [20]). That is the reasoning pattern courts describe as guilt by association, and it is an impermissible use of evidence.
His Honour observed that, because this was a judge-alone trial, the risk of unfair prejudice was reduced compared to a jury trial, but did not eliminate the operation of s 137 entirely, particularly given the Crown's own suggestion that courts sometimes misapply the Act (at [9]-[10]).
Orders Made
- The Crown's application to adduce the association evidence was rejected on the grounds that its only relevance, or its overwhelming relevance, was unfairly prejudicial.
Key Takeaways
- Association evidence connecting an accused to a group known for criminal conduct carries a serious risk of inviting impermissible guilt-by-association reasoning, and the Supreme Court here rejected such evidence on that basis (at [20]).
- Under s 55 of the Evidence Act 1995 (NSW), evidence must be capable of rationally affecting the probability of a fact in issue; where the Crown's reasoning is circular, resting on the very fact yet to be established, the relevance threshold may not be met (at [18]).
- Section 137 of the Evidence Act 1995 (NSW) requires mandatory exclusion of prosecution evidence where probative value is outweighed by the danger of unfair prejudice; this obligation is not entirely displaced merely because the proceeding is a judge-alone trial (at [9]-[10]).
- Where the Crown expressly disavows any connection between an alleged criminal association and the charged offence, the probative weight of that association evidence is substantially diminished (at [19]).
- Evidence cannot reliably confirm that a threat was made or intended seriously when the very content of the alleged threat could itself be explained by the witness's independent awareness of the association (at [17]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995, ss 55, 135, 137
Cases
- Not stated