Citation: R v Carberry [2023] NSWSC 102
Court: Supreme Court of New South Wales
Date: 17 February 2023
Judge(s): Hamill J
Background
The accused was charged with the murder of a man at Griffith on 11 September 2020. The prosecution alleged the accused stabbed the deceased during a robbery that went wrong, assisted by two co-offenders. Self-defence was foreshadowed as a live issue at trial.
CCTV footage from the scene captured the accused, at approximately 1:19am, apparently wrapping an unidentifiable object in fabric and placing it down the back of his pants. The prosecution sought to use this footage to show the accused had the opportunity to arm himself with a knife. The accused objected to the admission of that particular segment, which ran for roughly ten seconds.
The accused's position was that the object was an ice pipe used to smoke methamphetamine. His concern was that admitting the footage would force him either to leave a potentially damaging inference unchallenged, or to disclose to the jury his drug use and his reason for concealing the pipe, both of which carried their own prejudicial risks.
Legal Issues
- Whether the ten-second CCTV segment was relevant under s 55 of the Evidence Act 1995 (NSW)
- Whether the probative value of the footage was outweighed by the danger of unfair prejudice, requiring its exclusion under ss 135 or 137 of the Evidence Act
- Whether jury directions could adequately address any prejudice arising from admission of the evidence
Decision
Hamill J found the footage was technically relevant in the broad sense provided by s 55, because it could demonstrate that the accused had the opportunity to arm himself with a knife in the period before the deceased was killed. Relevance, however, was the threshold only; the real question was probative value weighed against prejudicial effect.
His Honour found the probative value to be slight. The footage was not capable of rationally establishing that the object was a knife. The inference that it was a knife could only be reached by speculation, not by the rational drawing of inferences from the footage itself. Further, the event occurred approximately 27 minutes before any plan to rob or harm the deceased was said to have been formed, and there could be no genuine dispute that the accused had the opportunity to possess a knife at some point that evening.
The danger of unfair prejudice was considerable. The accused faced an impossible dilemma: if he left the footage unchallenged, the jury might speculate the object was a knife; if he explained the object was an ice pipe, the jury would learn of his drug use and his deliberate efforts to conceal the pipe from police. Hamill J also noted a further risk that the jury might use its rejection of the accused's ice pipe explanation as a basis for concluding the object was a knife, which is a form of reasoning courts have treated as impermissible.
His Honour considered whether careful jury directions could remedy the problem, including a direction modelled on the principle in Liberato v R (which concerns how a jury should approach a conflict between the accused's evidence and other evidence). He concluded that such a direction would be likely to cause confusion and would highlight rather than resolve the difficulty. The evidence was excluded.
Orders Made
• The evidence is inadmissible.
Key Takeaways
- Relevance under s 55 of the Evidence Act is a low threshold, but a finding of relevance does not end the admissibility analysis; probative value must still be weighed against the danger of unfair prejudice under ss 135 and 137.
- Where an accused is forced to choose between leaving prejudicial footage unchallenged or disclosing separate damaging information (here, drug use and conduct suggesting consciousness of guilt), that dilemma itself contributes to the danger of unfair prejudice.
- A jury's rejection of an accused's innocent explanation for ambiguous footage cannot rationally be used to bolster an inference that the footage shows something incriminating; the Supreme Court treated this as a distinct and weighty prejudice concern.
- Probative value was assessed as low where the critical inference (that the object was a knife) required speculation rather than rational inference, and where the fact the prosecution sought to establish (that the accused had opportunity to arm himself) was not realistically in dispute.
- Jury directions, including a variant of a Liberato-style direction on a discrete factual dispute within the broader trial, were considered insufficient to cure the prejudice and were assessed as likely to generate confusion rather than clarity.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 135, 137, Dictionary
Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- Liberato v R (1985) 159 CLR 507; [1985] HCA 66
- Fantakis v R [2023] NSWCCA 3
- DPP v Preston [2015] VSC 397
- Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373
- R v Al Batat & Ors (No 14) [2020] NSWSC 1165
- R v Barakat (No 5) [2016] NSWSC 1313
- R v Cook [2004] NSWCCA 52
- R v Honeysett (No 2) (Sentence) [2023] NSWSC 103