Citation: R v Spiteri-Ahern; R v Barber; R v Zraika (No 9) [2017] NSWSC 1331
Court: Supreme Court of New South Wales
Date: 28 September 2017
Judge(s): Rothman J
Background
Three accused faced a murder trial. The Crown sought to tender the transcript of Local Court proceedings arising from domestic violence related charges, including assault occasioning actual bodily harm, reckless wounding, and wounding with intent to cause grievous bodily harm.
The Crown's purpose in tendering the transcript was to establish that one accused, referred to here as the first accused, had a rationally-based and significant fear. That fear had allegedly been expressed to a witness, referred to as Ms Rice-Clarke, in conversations occurring in June or July 2013 and again in November 2013. The Crown contended this fear supported an inference of motive for the murder.
The cross-examination in the Local Court proceedings had occurred on 26 September 2013, several months after the fears had first been expressed. This timing created an apparent logical problem with the Crown's proposed chain of inference.
Legal Issues
- Whether the transcript of the Local Court proceedings was relevant and admissible as evidence capable of supporting an inference of motive for murder.
- Whether the transcript could rationally connect the first accused's expressed fears to events occurring in the Local Court proceedings on 26 September 2013, when those fears had been expressed months earlier.
- Whether, even absent the witness's evidence about the conversations, the transcript could independently support an inference of motive.
Decision
Rothman J analysed the Crown's proposed chain of inference with reference to the established principle that an inference is drawn by applying common sense: if facts A, B, and C exist, fact D may be inferred, but only where common sense would be defied by fact D's absence. His Honour drew on the Court of Appeal's articulation of this principle in Fabre v Arenales and the earlier statement by Jordan CJ in Carr v Baker. Critically, where two competing inferences are in equipoise, neither can be drawn.
The core difficulty identified was one of chronology. The first accused's expressions of fear to the witness arose in June or July 2013 and were confirmed in a telephone call on 21 November 2013. The cross-examination in the Local Court proceedings did not occur until 26 September 2013. Events that had not yet occurred could not have informed fears expressed earlier. The Crown effectively conceded, when pressed, that the transcript from 26 September 2013 could not rationally explain the fear expressed in June or July 2013.
Rothman J then raised, of his own motion, a separate and narrower question: could the transcript, taken in isolation from the witness's evidence entirely, support an inference of motive if it demonstrated that the proceedings had gone very badly for the first accused? His Honour had not yet heard submissions on this point, and defence counsel had only recently been made aware that the Crown intended to tender the material.
In those circumstances, Rothman J declined to rule finally on admissibility. The transcript was marked for identification, and the matter was adjourned to allow defence counsel adequate time to read the transcript in full and address the reformulated question.
Orders Made
No final orders were made in this decision. The transcript was marked for identification and the matter was stood over for further submissions from defence counsel.
Key Takeaways
- Rothman J confirmed the established principle that an inference is a matter of common sense: it may only be drawn where the inferred fact is supported by existing facts and where common sense would be defied by the contrary conclusion.
- Where two competing inferences are in equipoise, neither is capable of being drawn as a matter of law.
- A proposed chain of reasoning that depends on later events explaining earlier expressions of concern is logically defective; the Crown here was unable to establish that a cross-examination conducted in September 2013 could have informed fears expressed three to four months earlier.
- The Supreme Court raised, of its own motion, a distinct basis on which the transcript might yet be admissible, demonstrating that courts may reframe evidentiary questions beyond the terms put by the tendering party.
- Procedural fairness considerations led Rothman J to defer ruling, given that defence counsel had only recently been informed of the Crown's intention to rely on approximately 120 pages of transcript material.
Legislation and Cases Referenced
Cases:
- Fabre v Arenales (1992) 27 NSWLR 437
- Carr v Baker (1936) 36 SR (NSW) 301
Legislation: No specific legislation was cited in the judgment.