Citation: [2021] NSWSC 594
Court: Supreme Court of New South Wales
Date: 30 April 2021
Judge(s): Lonergan J
Background
The accused stood trial for the murder of her domestic partner at Walcha on 2 August 2017. The Crown alleged she sedated the deceased with drugs, including an animal sedative, then asphyxiated him by attaching a plastic bag to his head and pumping helium into it, staging the death to appear as a suicide.
Central to one aspect of the case was the accused's account to police: she said she discovered the deceased because smoke from a wood stove entered the lounge room and activated the smoke alarm, prompting her to check on him at around 2:00am. On 18 November 2017, over three months after the death, police attended the property with SES volunteers who inspected the chimney and recorded their findings on a DVD, observing a black tar-like substance (creosote) inside the flue.
The evidentiary dispute arose on day 20 of the trial. The defence sought to use the DVD recording and associated oral evidence from an SES volunteer about the chimney's condition as support for the accused's account, while the Crown submitted the evidence was inadmissible.
Legal Issues
- Whether a DVD recording of the chimney inspection conducted three and a half months after the death was relevant under ss 55 and 56 of the Evidence Act 1995 (NSW)
- Whether, if the evidence were admissible, the discretion to exclude it should be exercised under s 135 of the Evidence Act 1995 (NSW)
Decision
Issue 1: Relevance under ss 55 and 56 of the Evidence Act
Lonergan J ruled the DVD and related oral evidence did not satisfy the relevance test in s 55 of the Evidence Act. The fact in issue was whether smoke emanated from the fire at around 2:00am on the night of the death and activated the smoke alarm as the accused had described (at [12]). Her Honour held that nothing shown in the DVD about the chimney's condition three and a half months later could rationally affect, directly or indirectly, the probability of that fact (at [13]).
The evidence amounted to lay observation of the chimney in November 2017, including commentary that involved surmise and speculation, with no expert evidence linking the chimney's later state to its condition on the night of the death (at [14]-[15]). Without that explanatory connection, the evidence did not make it more probable that smoke had entered the lounge room when the fire door was opened on 1 to 2 August 2017 (at [16]-[17]).
Issue 2: Discretion to exclude under s 135
Even if the evidence had cleared the relevance threshold, Lonergan J indicated she would have exercised the discretion under s 135 to exclude it (at [18]). The evidence's probative value was assessed as very weak, and that weak value was substantially outweighed by the danger of unfair prejudice to the prosecution, as well as the risk that the evidence would be misleading, confusing, or cause an undue waste of trial time (at [18]).
Orders Made
- The DVD recording taken on 18 November 2017 is not admissible.
- The observations of Mr Carey made on 18 November 2017, as set out in his statement of 27 November 2017, regarding the chimney at the property are not admissible.
Key Takeaways
- Under s 55 of the Evidence Act 1995 (NSW), evidence must be capable of rationally affecting the probability of a fact in issue; lay observation of a physical condition at a location more than three months after the relevant event did not meet that standard without expert evidence bridging the temporal gap (at [13]-[15]).
- Where lay evidence incorporates surmise and speculation, and no expert opinion establishes the necessary inferential connection to the disputed facts, the evidence lacks the rational bearing on a fact in issue that relevance requires (at [14]-[15]).
- The Supreme Court confirmed that s 135 operates as an independent and alternative basis for exclusion, available even where the primary relevance question might be resolved in the tendering party's favour (at [18]).
- Weak probative value combined with the potential to mislead the jury, confuse the issues, and waste trial time can collectively satisfy the substantial outweighing requirement under s 135 (at [18]).
- The absence of creosote-related expert evidence was a critical gap: without it, the defence could not establish the inferential pathway from the chimney's observed state in November 2017 to the smoke alarm activation alleged on the night of the death (at [15], [17]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 56 and 135
Cases
- Not stated