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Supreme Court 7 March 2017

R v Brooks

[2017] NSWSC 188

Assault & violenceHomicidePublic order & justice offences
CRIMINAL LAW EVIDENCE POST OFFENCE CONDUCT CONSCIOUSNESS OF GUILT DISPOSAL OF WEAPON

Citation: R v Brooks [2017] NSWSC 188
Court: Supreme Court of New South Wales
Date: 7 March 2017
Judge: Hamill J

Background

The accused was charged with the murder of one man and the wounding with intent to cause grievous bodily harm of another, following a stabbing incident outside a hotel at Toukley in the early hours of 6 April 2015. The prosecution alleged the accused produced a knife during a confrontation outside the venue, stabbing the deceased in the chest and then pursuing and stabbing a second victim. The accused's brother was a co-accused but was remitted to the District Court for a separate trial.

Before the jury was empanelled, the accused raised multiple evidentiary objections to prosecution evidence. He also sought an advance ruling on whether the Crown could lead certain evidence if he chose to introduce evidence of an earlier assault he had suffered at the same hotel in February 2015, which he said was relevant to self-defence.

The voir dire (a preliminary hearing to determine admissibility) addressed a wide range of contested material, including post-offence conduct, intercepted telephone calls, CCTV footage, a recorded police interview, forensic photographs, and evidence relating to a threatened guilty plea.

  • Whether post-offence conduct (disposing of the weapon, washing shoes, telling lies) was capable of rationally demonstrating consciousness of guilt, or whether it was "intractably neutral" because it could equally reflect an attempt to distance oneself from events rather than guilt of the specific offence charged
  • Whether formal admissions made by the accused under the Evidence Act created a bar to the prosecution adducing evidence to prove the same facts
  • Whether a telephone intercept in which the accused discussed the possibility of pleading guilty was admissible as evidence of consciousness of guilt
  • Whether a telephone intercept discussing the absence of DNA evidence was admissible
  • Whether the Crown could lead evidence that the accused had threatened to stab his earlier assailant, in response to the accused introducing evidence of that prior assault to support a self-defence claim

Decision

Post-offence conduct and consciousness of guilt

Hamill J acknowledged a tension in the authorities between two propositions: that post-offence conduct such as disposing of weapons, washing clothing, and telling lies can be probative of guilt, and that such conduct may be "intractably neutral" where it is equally consistent with a desire simply to distance oneself from the incident. The court reviewed decisions including Edwards v The Queen, Baden-Clay v The Queen, and a series of NSW Court of Criminal Appeal decisions, concluding that the question is not resolved by a bright-line rule but by careful assessment of the particular circumstances and the live issues at trial. Where the accused had made formal admissions on certain factual matters, the court considered whether those admissions reduced the probative value of corresponding conduct evidence to the point where admitting it would be unfair or a waste of time.

Formal admissions and prosecutorial evidence

The court identified a conflict in authority over whether formal admissions under the Evidence Act entirely preclude the prosecution from adducing evidence going to the same facts. Hamill J concluded that admissions do not automatically bar such evidence, but that the existence of admissions is directly relevant to assessing probative value and whether admission of the evidence would cause unfair prejudice or undue waste of time under the balancing provisions of the Evidence Act.

The telephone intercepts

The intercept in which the accused and a witness discussed the possibility of a guilty plea was ruled inadmissible. Hamill J accepted that offers or discussions about a guilty plea carry significant risks of prejudice and do not straightforwardly demonstrate consciousness of guilt of the specific offence charged, particularly where the discussion could reflect tactical or other considerations. The intercept involving the accused's father and the discussion about the absence of DNA evidence was also addressed within the same framework of probative value and prejudicial effect.

Advance ruling on the February 2015 assault

The court ruled that the accused was entitled to introduce evidence of the earlier assault as relevant to self-defence. However, the Crown was not permitted to lead the security guard's evidence that the accused had threatened to stab his assailant on that earlier occasion. Hamill J found that threat was too remote from the events giving rise to the charges and that its admission in response to the self-defence evidence would be unfairly prejudicial.

Orders Made

• Evidence of statements made by the accused dated 3 and 22 October 2015 are not admissible
• Evidence that Madison Valentine spoke to the accused about "the guy" dying after "what happened at the Beachcomber" is admissible
• Evidence of Christopher Hughes as to clothing worn by the accused after the incident is admissible
• Electronically recorded interview with the accused on 7 April 2015 is admissible
• CCTV still images captured at 11:57pm on 5 April 2015 are admissible
• Telephone intercept between the accused and his father on 11 February 2016 is not admissible
• Photographs taken during the forensic procedure are not admissible
• Provisional ruling that photographs of items seized during search of Manoa Road premises are not admissible unless they depict items relevant to the incident on 5-6 April 2015
• Advance ruling under s 192A Evidence Act that the accused may introduce evidence of the incident of 27 February 2015 and the Crown may not introduce evidence that the accused threatened to stab the person who assaulted him

Key Takeaways

  • Post-offence conduct such as disposing of a weapon or washing clothing is not automatically admissible as consciousness of guilt evidence; its probative value depends on whether it can rationally affect the live issues at trial and whether alternative innocent explanations (such as a desire to distance oneself from an incident) render it neutral in the specific circumstances.
  • Formal admissions under the Evidence Act do not create an absolute bar to the prosecution adducing evidence going to the same facts, but their existence is a significant factor when assessing whether that evidence retains sufficient probative value to justify admission.
  • Evidence of discussions about a possible guilty plea does not straightforwardly establish consciousness of guilt and carries a significant risk of unfair prejudice, making it vulnerable to exclusion under the balancing provisions of the Evidence Act.
  • Where an accused introduces evidence of prior victimisation to support a self-defence case, the Crown is not automatically entitled to lead damaging responsive evidence; that evidence remains subject to ordinary admissibility assessment, and in this case the accused's prior threat to stab a different person was ruled inadmissible.
  • The decision illustrates that admissibility questions involving post-offence conduct require case-specific analysis of the trial's live issues rather than application of a fixed rule drawn from earlier authorities.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 418, 421
- Evidence Act 1995 (NSW), ss 55, 56, 184, 192A

Cases
- Baden-Clay v The Queen [2016] HCA 35; 334 ALR 234
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Stubley v Western Australia (2011) 242 CLR 374; [2011] HCA 7
- Yager v The Queen (1977) 139 CLR 28; [1977] HCA 10
- R v Smith [1981] 1 NSWLR 193
- R v Lucas [1981] 1 QB 720
- R v Cook [2004] NSWCCA 52
- R v Sievers [2004] NSWCCA 463; (2004) 151 A Crim R 426
- Steer v R [2008] NSWCCA 295; (2008) 191 A Crim R 435
- Gall v R [2015] NSWCCA 69
- Mulvihill v R [2016] NSWCCA 529
- Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170
- R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
- R v White [1998] 2 SCR 72
- R v JGW [1999] NSWCCA 116
- R v Taranto; R v Freeman [1999] NSWCCA 396
- R v Longford (1970) 17 FLR 37
- The Queen v Bridgman (1980) 24 SASR 278