Citation: [2018] NSWSC 210
Court: Supreme Court of New South Wales
Date: 14 February 2018
Judge(s): Harrison J
Background
The proceedings involved a criminal trial in which Mitchell Bentley and others faced charges connected to the disappearance of a man named Brendan Vollmost on 31 March 2015. A witness, Jordan Ferguson, was about to give evidence for the Crown. Ferguson and Bentley are cousins.
The Crown sought to tender a series of text messages exchanged between Bentley and Ferguson on 23 July 2015. In those messages, Ferguson asked whether a certain matter was why "oldmate got in trouble" owing Bentley money. Bentley replied telling Ferguson never to raise that topic again, and Ferguson apologised, saying he had thought the messages were safe and would never mention it again.
The Crown contended the jury could infer, from other evidence including paragraph 19 of Ferguson's statement, that the subject matter of the text exchange was Vollmost's disappearance. Defence counsel objected on the basis that admitting the messages would cause unfair prejudice to Bentley.
Legal Issues
- Whether the probative value of the text messages was outweighed by the danger of unfair prejudice to the accused
- Whether the text messages sufficiently identified their subject matter so as to permit a legitimate inference connecting them to the disappearance of the deceased
- Whether the jury might engage in speculation rather than proper reasoning if the messages were admitted
Decision
Admissibility of the text messages:
Harrison J rejected the Crown's application to tender the text messages. The central difficulty was that the messages did not, in their terms or by necessary implication, identify Vollmost or his disappearance as their subject matter (at [6]). Ferguson could not give evidence that he believed or understood the messages to concern Vollmost, and no basis existed for Bentley to be shown as having adopted that connection (at [6], [8]).
The Crown argued the jury could draw a reasonable inference, from surrounding evidence, that the messages related to Vollmost's disappearance (at [7]). Harrison J acknowledged that if Bentley had accepted that proposition, or had indirectly adopted it as fact, the messages would have been uncontroversially admissible (at [8]).
However, the court was concerned that admitting the messages created a real risk that the jury would move from applying common sense to engaging in speculation about what the messages referred to (at [10]). Defence counsel raised the concern that the jury might use extraneous but unrelated material to draw an inference that was not properly supported (at [9]).
Harrison J found the risk of unfair prejudice outweighed the probative value of the material in these circumstances and rejected the Crown's application to lead the text messages (at [11]).
Orders Made
- The Crown's application to tender the text messages was rejected.
Key Takeaways
- Where text messages do not identify their subject matter in terms, or by necessary implication, a court may exclude them if there is a real risk the jury will speculate rather than draw proper inferences (at [9]-[10]).
- Ambiguous communications may become admissible if the accused can be shown to have adopted or accepted the specific meaning the Crown attributes to them (at [8]).
- The Supreme Court drew a meaningful distinction between applying common sense to evidence and impermissible speculation about its subject matter, treating the risk of conflation as a basis for exclusion (at [10]).
- A witness's inability to give evidence about their own understanding of the subject matter of a communication was treated as a significant factor weighing against admissibility (at [6]).
- The fact that other evidence might support an inference does not, without more, render ambiguous communications admissible where the prejudice from jury speculation remains substantial (at [9], [11]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated