Citation: [2019] NSWSC 480
Court: Supreme Court of New South Wales
Date: 2 May 2019
Judge(s): Rothman J
Background
Two accused persons faced a criminal trial in the Supreme Court. One of the accused, referred to here as the accused, was the subject of an electronically recorded police interview (an ERISP, meaning an Electronically Recorded Interview of a Suspected Person). The Crown sought to tender this recording, including its video component, to demonstrate that the accused had told lies and to go to his credit.
The accused applied to exclude the video portion of the ERISP from the jury's view. His counsel argued that the visual footage would cause unfair prejudice, separate and above any probative value it carried.
Legal Issues
- Whether the video component of the ERISP should be excluded under s 137 of the Evidence Act 1995 (NSW), which requires a court to exclude evidence in a criminal proceeding if its probative value is outweighed by the danger of unfair prejudice to the defendant
Decision
The s 137 Application
The accused argued that seeing the footage would allow the jury to draw an adverse inference about his demeanour, particularly from conduct such as picking his ear or nose and slouching, which could lead a jury to conclude he was under the influence of drugs at the time of the interview (at [1]-[2]). His counsel also noted there was no other evidence in the trial that the accused used drugs (at [6]).
Rothman J identified the correct three-step task under s 137: assess probative value, identify any danger of unfair prejudice, and then determine whether the probative value is outweighed by that danger (at [3]). His Honour found that the video recording was the best, and likely only, evidence available to enable the jury to assess the accused's demeanour during the interview (at [7], [10]).
His Honour expressed a degree of scepticism about the degree of prejudice, noting that juries are generally capable of differentiating between directly relevant matters and matters that go only to credit, and that appropriate directions could address any residual prejudice (at [5], [10]). His Honour also drew on remarks by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) to reinforce the importance of visual evidence in assessing how a witness or accused person presents (at [8]).
Rothman J concluded that whatever unfairness might arise from the jury viewing the footage, it did not outweigh the probative value of the evidence, and any remaining danger of unfair prejudice could be managed through appropriate jury directions (at [10]). The application was refused.
Orders Made
- The application under s 137 of the Evidence Act 1995 (NSW) by the accused is refused.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a court in a criminal proceeding must exclude evidence only where the danger of unfair prejudice to the defendant outweighs the probative value of that evidence; the test does not require exclusion wherever some prejudice exists (at [3]).
- Where a recorded police interview represents the best or only means of placing the accused's demeanour before the jury, that consideration weighs significantly in favour of its probative value (at [7], [10]).
- Appropriate jury directions are a relevant factor in the balancing exercise under s 137, capable of reducing the weight given to the danger of unfair prejudice (at [10]).
- Juries are not assumed to be incapable of distinguishing between evidence going to direct relevance and evidence that bears only on credit, and courts should not underestimate that capacity when assessing claims of unfair prejudice (at [5]).
- Judicial observations in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) regarding the significance of visual evidence to the assessment of demeanour were applied in the context of criminal proceedings to support the admission of video evidence (at [8]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137
Cases
- State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588; [1999] HCA 3