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Supreme Court 1 March 2018

R v Bentley; R v Davies; R v Thomas; R v Tilley

[2018] NSWSC 227

Homicide
CRIMINAL PROCEDURE CASE IN REPLY WHERE ACCUSED GIVES EVIDENCE EXAMINATION

Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2018] NSWSC 227
Court: Supreme Court of New South Wales
Date: 1 March 2018
Judge: Harrison J

Background

Four accused faced trial for the alleged murder of a man at a residential address in South Windsor in March 2015, together with the alleged disposal of his body. The Crown case included CCTV footage from the murder scene and evidence of a road trip to the Dorrigo area the following day, which the Crown contended was used to dispose of the body in a remote location.

After the Crown closed its case, one of the accused, referred to here as the accused person who gave evidence, entered the witness box. In evidence in chief, he described disposing of the deceased's body inside a metal toolbox at a car wrecking yard in Penrith, where he said he observed the toolbox and other material being crushed by machinery on site.

Following that evidence, police reviewed their investigation file and located CCTV footage from the relevant wrecking yard that had not been included in the Crown brief. The footage showed the accused making two visits to the yard carrying car parts consistent with a disassembled white Hyundai station wagon. The Crown then applied for leave to cross-examine the accused on that footage and to tender it in reply.

  • Whether the Crown should be granted leave to cross-examine the accused using CCTV footage that had not been served as part of the Crown brief prior to trial
  • Whether tendering that footage in reply would create irremediable and unfair prejudice to the accused, given that his decision to give evidence may have been influenced by the absence of that material from the Crown case
  • Whether a separate statement from a proprietor of the wrecking yard, addressing the absence of crushing facilities on site, raised a distinct and different question that warranted further argument

Decision

Harrison J rejected the Crown's application to tender the CCTV footage from the wrecking yard in cross-examination or as part of a case in reply. The court accepted the argument advanced on behalf of the accused that his decision to give evidence, and the content of that evidence, may have been influenced by the state of the Crown case as it stood at the close of the prosecution's case. Introducing materially significant footage at that stage, which had not been served on the defence, carried a real risk of unfair prejudice.

The principle underlying the ruling is that the accused's decision whether to give evidence, and what to say if he did, is taken against the backdrop of the known Crown case. Allowing the Crown to deploy undisclosed material in cross-examination after that decision has been made risks undermining the fairness of the trial, even where the accused may have chosen to give evidence that was false.

However, the court treated the statement from a proprietor of the wrecking yard as a separate matter. That statement indicated the yard had never operated a crusher or shredder. Harrison J reasoned that the accused's specific assertions about crushing machinery at the yard were entirely unpredictable and could not reasonably have been anticipated by the Crown before trial. On that basis, it was difficult to see how that material ought to have formed part of the original Crown brief. The application to lead evidence from the yard's proprietor was stood over pending further argument.

The judgment makes clear that the two categories of evidence, the CCTV footage and the evidence about crushing facilities, raised legally distinct questions that required separate analysis. The court's refusal of the CCTV application did not automatically determine the outcome of the second application.

Orders Made

  • The Crown's application to tender the CCTV footage of the Metalone Recycling premises at Penrith was rejected.
  • The Crown's application to lead evidence from the wrecking yard proprietor or other employees of Metalone Recycling was stood over pending further argument if thought necessary.

Key Takeaways

  • Harrison J confirmed that where an accused gives evidence after the Crown case closes, that decision is made by reference to the state of the evidence as disclosed in the Crown brief, and introducing undisclosed material in cross-examination at that point may constitute irremediable unfair prejudice.
  • The fairness concern was not diminished simply because the accused may have given false evidence: the procedural right to make an informed decision about whether to testify is not forfeited merely because the accused's account proves to be contradicted by other material.
  • A distinction exists between Crown material that ought to have been served before trial and material that only becomes relevant due to an entirely unpredictable assertion made by the accused in evidence. The latter may permissibly support a case in reply in circumstances where the former cannot.
  • Under the framework considered by the court (referencing ss 141, 142, and 146 of the Criminal Procedure Act 1986 (NSW)), the Crown's ability to lead evidence in reply is constrained, and the discretion to permit such evidence is exercised with close attention to fairness to the accused.
  • The Supreme Court treated the CCTV footage and the wrecking yard proprietor's statement as raising separate legal questions, declining to bundle them together and reserving the second question for further argument.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 141, 142, 146

Cases
- R v Spiteri (2004) 61 NSWLR 369; [2004] NSWSC 321