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Supreme Court 20 March 2023

R v Godfrey (No 2)

[2023] NSWSC 1313

Homicide
CRIMINAL PROCEDURE — TRIAL — VOIR DIRE S 137 EVIDENCE ACT 1995 (NSW) WHETHER REFERENCE BY ACCUSED TO CROSS EVIDENCE NOT ADMITTED

Citation: R v Godfrey (No 2) [2023] NSWSC 1313
Court: Supreme Court of New South Wales
Date: 20 March 2023
Judge(s): Cavanagh J

Background

The accused faced a charge of murder under s 18(1)(a) of the Crimes Act 1900 (NSW), arising from the death of the deceased on 4 April 2021. The accused raised self-defence, making his credibility a central issue at trial. Before the jury was empanelled, the court heard a voir dire (a preliminary hearing to determine whether certain evidence is admissible) on objections raised by the accused to portions of evidence the Crown proposed to lead.

The disputed evidence arose primarily from the accused's electronically recorded interview with police (an ERISP) conducted on the day of the death. Three discrete objections remained for the court's determination: statements by the accused about an Autism or Asperger's Syndrome diagnosis, a statement by a witness that he did not trust the accused, and two references by the accused during the ERISP to the possibility of being cross-examined.

  • Whether the Crown could adduce evidence of the accused's claims about an Autism or Asperger's Syndrome diagnosis to suggest those claims were lies, without effectively reversing the onus of proof, and whether admission would be unfairly prejudicial under s 137 of the Evidence Act 1995 (NSW)
  • Whether a witness's statement that he "did not trust" the accused constituted inadmissible opinion evidence under s 76 of the Evidence Act, or whether the s 77 exception applied because the opinion was relevant for a purpose other than proving the existence of the fact about which the opinion was expressed
  • Whether the accused's references to potential cross-examination in the ERISP should be excluded on the basis of danger of unfair prejudice to the accused

Decision

Autism and Asperger's Syndrome references: excluded

The Crown sought to use the accused's ERISP statements about being on the autism spectrum as evidence of lies, going to his credibility. The accused's mother gave evidence on the voir dire that no formal diagnosis of Asperger's Syndrome or Autism Spectrum Disorder had ever been made by any of the specialists she had consulted during the accused's childhood. However, the Crown's medical material showed a more complex picture, including references by teachers, a psychiatrist, and the accused's father to the possibility of Autism or Asperger's, even though no formal diagnosis was recorded. Cavanagh J found that admitting this evidence would, in practical terms, require the accused to prove that his statements were not lies, thereby reversing the onus of proof. The evidence was excluded.

Witness opinion that the accused "could not be trusted": admitted

The witness Mr Rae, who had been present with both the accused and the deceased on the night before the death, made a statement indicating he did not trust the accused. This raised a question under the opinion rule in s 76 of the Evidence Act, which generally excludes opinion evidence tendered to prove the truth of the fact asserted. Cavanagh J accepted the Crown's submission that s 77 provided an applicable exception: the statement was relevant not to prove the accused was untrustworthy as a fact in itself, but to explain why Mr Rae behaved as he subsequently did. On that basis, the evidence was admitted.

Cross-examination references: excluded

During the ERISP, the accused twice referred to the prospect of being cross-examined. The accused submitted that a jury might infer from this that he had prior experience of criminal proceedings. Cavanagh J expressed some scepticism about that reasoning, noting that in the current era most people would understand the concept of cross-examination from general knowledge or television. Nevertheless, the court accepted that a real danger of prejudice existed and that this danger outweighed whatever probative value the statements carried. The references were excluded.

Orders Made

• The statement by Mr Rae that he did not trust the accused should be admitted as evidence

• The references by the accused to cross-examination in the ERISP interview (Answers 490 to 491) are rejected

Key Takeaways

  • Admitting evidence of an accused's alleged lie carries a real risk of effectively reversing the onus of proof where the accused would, in practice, be required to disprove the lie to counter the Crown's case; in such circumstances, exclusion under s 137 of the Evidence Act 1995 (NSW) may be warranted.
  • Under s 77 of the Evidence Act, the opinion rule does not prevent admission of a witness's opinion where that opinion is relevant for a purpose other than proving the truth of the fact about which the opinion was expressed, such as explaining the witness's subsequent conduct.
  • A statement in a police interview that could suggest prior involvement in criminal proceedings may attract exclusion where the danger of prejudice to the accused outweighs its probative value, even if the court considers the prejudicial inference unlikely to be drawn by most jurors.
  • The court conducted all three rulings before the jury was empanelled, illustrating the utility of a pre-trial voir dire in resolving contested evidentiary issues in complex criminal trials.
  • Complexity in the underlying medical evidence, including partial or inconclusive references in clinical records, can inform the court's assessment of whether an accused's claim about a diagnosis or condition was demonstrably false.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Evidence Act 1995 (NSW), ss 76, 77, 135, 137

Cases
No cases were cited in the provided text of the judgment.