Citation: [2018] NSWSC 93
Court: Supreme Court of New South Wales
Date: 13 February 2018
Judge(s): Harrison J
Background
Four accused were on trial in connection with events surrounding the death of Brendan Vollmost. A Crown witness, Joshua Carlino, was partway through his evidence in chief when an evidentiary dispute arose. Carlino had given police two statements describing what happened when he encountered all four accused sitting in a car near premises in Bligh Park, shortly after he had left a drug negotiation with the deceased.
According to his police statements, Carlino told the accused at that car meeting: "If you are here to do what you have got to do then just make sure nobody gets hurt. Also there are kids in the house." The Crown sought to elicit those words from Carlino in evidence.
All four defence counsel objected. Their argument was that Carlino's statement to the accused reflected an assumption or conclusion on his part, unsupported by anything he had actually been told, and that allowing the jury to hear it would cause unfair prejudice to the accused.
Legal Issues
- Whether the anticipated answer to the Crown's question had sufficient probative value to be admitted into evidence.
- Whether that probative value was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW), requiring the court to exclude the evidence.
Decision
Section 137 Objection: Probative Value versus Unfair Prejudice
Harrison J upheld the objection. His Honour reasoned that Carlino's statement to the accused carried little, if any, probative value in the circumstances as they stood at the time the question was asked (at [7]-[8]). Carlino had not yet given any evidence of a prior conversation with any of the accused in which harm to Vollmost was discussed or contemplated. Without that evidentiary foundation, his words to the accused in the car rested entirely on an unestablished assumption or conclusion (at [7]).
The danger of unfair prejudice identified by the court was that the jury might reason impermissibly from Carlino's assumption to a finding of actual fact, namely that the accused did intend to harm Vollmost (at [7]). Because no evidence had yet been led to support that assumption, allowing the statement into evidence risked the jury giving it weight it could not legitimately carry.
Harrison J acknowledged that the ruling was not necessarily final. Had Carlino given evidence of conversations with the accused in which harmful intentions were disclosed, the position might have been different (at [7]). Carlino's evidence in chief was unfinished, and the court left open the possibility that further evidence might later lay the necessary foundations for admissibility (at [7]).
Orders Made
- The Crown's question was rejected.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a court must exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the accused, even where the evidence is otherwise relevant (at [6], [8]).
- Where a witness's statement to an accused amounts to nothing more than an unsupported personal assumption about the accused's intentions, its probative value may be so low that it cannot survive a s 137 challenge (at [7]-[8]).
- The risk that a jury will reason impermissibly from a witness's assumption to an inference of actual fact constitutes a recognisable form of unfair prejudice under s 137 (at [7]).
- A s 137 ruling may be provisional rather than permanent: if further evidence is led that provides an evidentiary foundation for the impugned material, admissibility may need to be reconsidered (at [7]).
- The timing of an objection matters. The court assessed probative value against the state of the evidence as it stood at the moment the question was asked, not against what might theoretically be led later (at [7]-[8]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) s 137
Cases
- Not stated