Citation: R v Gatt (No 4) [2018] NSWSC 490
Court: Supreme Court of New South Wales
Date: 30 April 2018
Judge(s): Schmidt J
Background
The accused stood trial for the murder of a man shot in a car park in July 2013. The Crown's case was that the accused either fired the shot himself or participated in a joint criminal enterprise with his close friend and regular driver to do so. Both the accused and his co-participant were acknowledged to have been involved in drug supply in the local area at the time.
The accused accepted being present at the car park on the day of the shooting and acknowledged his involvement in drug dealing and possession of firearms, though he denied shooting the victim or being part of any plan to do so.
As part of its circumstantial case, the Crown sought to tender two telephone calls made by the accused to his co-participant in December 2013, while the accused was in custody on drug and firearm charges. At that point, neither man had been charged with murder. The calls were conducted guardedly, as both parties knew they were being monitored, and neither drugs nor firearms were directly mentioned.
Legal Issues
- Whether the two monitored telephone calls were relevant under sections 55 and 56 of the Evidence Act 1995 (NSW)
- Whether, even if relevant, the calls should be excluded under section 137 of the Evidence Act on the basis that their probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Schmidt J held that the telephone calls were relevant under section 55 and therefore admissible under section 56. The relevance of the calls did not depend on their capacity to prove anything in isolation. Instead, relevance had to be assessed in light of all the evidence to be received at trial and the issues identified by both parties. The calls shed light on the nature of the relationship between the accused and his co-participant, their respective roles, and aspects of the co-participant's credibility. The fact that it was the accused who initiated the calls from custody, before either man was charged with murder, was itself significant.
The contents of the calls, including warnings the accused gave his co-participant about loyalty and the consequences of his conduct, were capable of corroborating parts of the co-participant's evidence about their relationship and roles. That rational and logical connection to the issues in dispute satisfied the relevance threshold.
On the section 137 question, Schmidt J found that the probative value of the calls was not outweighed by the danger of unfair prejudice. The accused argued the calls were of marginal relevance and low probative value, and that their receipt risked the jury overvaluing them or reasoning improperly about the accused's criminal character. The court found, however, that the calls had real capacity to illuminate the relationship between the two men and to corroborate the co-participant's evidence on matters directly in issue. The fact that admission of the evidence made conviction more likely was not a basis for exclusion. What was required was a risk that the jury would use the evidence on a basis logically unconnected with the issues in the case, and no such risk was established here.
The court noted that the jury would receive careful directions limiting the use of evidence about drug dealing and firearms to background and context. Schmidt J was satisfied there was no real risk the jury would fail to understand or apply those directions, particularly given that the disputed calls contained no direct reference to drugs or firearms at all.
Orders Made
No orders were made in this decision.
Key Takeaways
- Relevance under section 55 of the Evidence Act does not require that evidence prove something by itself; it must be assessed in light of the totality of the evidence to be led and the issues as identified by both parties.
- Under section 137, the mere fact that admission of evidence increases the likelihood of conviction is not a sufficient basis for exclusion; what must be shown is a real risk that the jury will use the evidence on a basis logically unconnected with the issues in the case.
- Probative value for section 137 purposes is assessed predictively, as to what the jury could rationally make of the evidence once all the evidence is in, and cannot be finally determined at the point of the admissibility ruling.
- Context and background evidence, including evidence about the nature of a relationship between accused persons, can carry real probative value in a circumstantial case even where that evidence does not directly address the act charged.
- Jury directions limiting the use of evidence of prior criminal conduct to background and context can, in appropriate cases, adequately address the risk of unfair prejudice without requiring exclusion of the evidence.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 137
Cases
- DJV v R (2008) 200 A Crim R 206; [2008] NSWCCA 272
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37