Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 209
Court: Supreme Court of New South Wales
Date: 14 February 2018
Judge(s): Harrison J
Background
The decision arose as a mid-trial ruling during a criminal prosecution involving four accused. The Crown sought to lead evidence from a witness, Ji Walsh, who was partway through giving evidence in chief.
The evidence in question related to an incident at a Windsor ice cream shop, during which one of the accused allegedly threw an ice cream at a passing car and then attempted to pull the driver from the vehicle. Defence counsel for that accused objected to the evidence being placed before the jury.
The issue was whether the witness could give evidence about the events described in paragraph 30 of his earlier police statement, or whether that evidence should be excluded.
Legal Issues
- Whether the proposed evidence had sufficient relevance or probative value to warrant admission
- Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused, particularly the risk that the jury would reason improperly that the accused had a tendency to commit violent acts
Decision
Issue 1: Relevance and Probative Value
Harrison J identified the Crown's purpose in leading the evidence: to corroborate anticipated evidence from another witness, Mr Moerig, about the same incident (at [5]). The corroborative purpose gave the evidence significant probative value, particularly in circumstances where that other evidence might itself be disputed (at [7]).
Issue 2: Unfair Prejudice
The defence argued the jury might use the evidence to reason improperly that the accused had a tendency toward violence (at [6]). Harrison J characterised the conduct depicted as minor or relatively insignificant in the context of the trial as a whole (at [7]). His Honour found that a non-tendency direction to the jury would be required if the evidence were admitted, and that, having regard to the Crown's stated purpose and the availability of that direction, no unfair prejudice arose (at [7]).
Conclusion
Harrison J ruled that the probative value of the evidence was significant and was not outweighed by any unfair prejudice to the accused (at [7]-[8]). The witness was permitted to give evidence in accordance with paragraph 30 of his statement, subject to any remaining objections as to form or the admissibility of individual questions (at [8]).
Orders Made
- The witness Ji Walsh may give evidence in or to the effect of the material in paragraph 30 of his police statement.
Key Takeaways
- The Supreme Court confirmed that evidence with a corroborative purpose can carry significant probative value even where its underlying subject matter appears relatively minor in the broader context of a trial (at [5], [7]).
- A non-tendency direction to the jury was identified as a relevant factor capable of mitigating the risk of unfair prejudice arising from evidence that might otherwise invite impermissible tendency reasoning (at [7]).
- Where the Crown identifies a specific, legitimate purpose for tendering evidence, such as corroboration of a contested fact, that purpose bears directly on the probative value assessment under the unfair prejudice balancing exercise (at [5], [7]).
- Admission of the evidence was granted subject to any remaining objections as to form or the admissibility of individual questions, preserving the defence's ability to contest the manner in which the evidence was elicited (at [8]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated