R v Bruce Gosen

[2011] NSWDC 260

District Court

New South Wales

Medium Neutral Citation:	R v Bruce GOSEN [2011] NSWDC 260
Decision date:	28 December 2011
Before:	Cogswell SC DCJ
Decision:	Evidence admitted.
Catchwords:	CRIMINAL LAW - Evidence - admissibility of screen shot from records of travel agent - inconsistent with case of accused and could be used as evidence of a lie by accused - document admitted - high probative value.
Legislation Cited:	Evidence Act 1995, s 137, s 165.
Category:	Principal judgment
Parties:	Commonwealth Director of Public Prosecutions (Crown) Bruce Edward Gosen (Accused)
Representation:	Counsel: I S McLachlan (Crown) J Watts (Accused)
File Number(s):	DC 2010/210250

Judgment

1. In this prosecution Bruce Gosen has been charged with importing cocaine into Australia. That is a Commonwealth offence and the Commonwealth Director of Public Prosecutions has briefed Mr I S McLachlan to prosecute the case on his behalf.

1. Mr Gosen's defence is that he knew nothing about the cocaine which was found in the suitcases which he brought into Australia. He acknowledges the presence of the cocaine but says that the clever secreting of the drugs was something he knew absolutely nothing about.

1. Mr Gosen's account included his trip being arranged by somebody else who had paid for his travel. When he was being interviewed by the Australian Federal Police, he made it clear that he has never owned a credit card himself and he confirmed that in his own evidence.

1. Mr McLachlan tendered in evidence Exhibit VDM which was a printout from the records of a travel agent in Vancouver. It showed that the travel had been paid by a credit card in the name of Mr Gosen. The document was described by Mr Jason Watts, who appears for Mr Gosen, as a screen shot from the records of the travel agent.

1. Mr Watts objected to the tender of VDM, relying upon s 137 of the Evidence Act 1995. Mr Watts argued that I have to refuse to admit this evidence because the probative value of the evidence is outweighed by the danger of unfair prejudice to his client, Mr Gosen.

1. I decided (at T 383) to admit the evidence. I made that decision on 14 December 2011 and I indicated that I would give my reasons later. The jury has retired to consider its verdict and I am now taking the opportunity to deliver my reasons.

1. Mr McLachlan argued that the probative value of the evidence was at least twofold. First, it was evidence of a lie told by the accused who had asserted that he owned no credit card. Secondly, it was inconsistent with the accused's case that the travel had been set up by others and he was essentially sent on his way by those others. This indicates that he himself had made a contribution to his own travel. It is, as Mr McLachlan argued, more consistent with the actions of a person who was himself expecting some benefit from the trip.

1. In articulating his objections, Mr Watts described VDM as a "flawed document". This was in a sense an accurate description because Mr Watts was able to point to several internal inconsistencies within the document itself. In other words, the document itself contained mistakes. Mr Watts' argument was that the exhibit, if admitted, would "assume a significance in the case which it does not warrant and that is where it may take a prejudicial effect". He pointed to the nature of the documents which were not business records sent by a business to other people, but documents generated by the business for its own use. It is, as he described it, "just a screen shot as it were, of their internal records. It's only reliable if it's entered properly." He then went on to point out that its reliability is compromised by the demonstrable errors which it contains. The disproportionate weight, he said, was that the jury might be led to adopt a line of impermissible reasoning of concluding that the document represented a lie and therefore "he must be guilty".

1. I admitted the document because I regarded its probative value as high. It could form the basis of an argument attacking the accused's credibility as being a possible lie. In addition it was, as Mr McLachlan argued, inconsistent with the assertion by the accused in his interviews that his travel was arranged by others and that he was simply sent on his way.

1. There is always a danger that a jury may use a lie, or at least an assertion which is argued to be a lie, impermissibly and rush to a conclusion. However, I must consider that risk in the light of directions which must accompany any argument about a lie. In this case those directions were formulated and given so that the jury were, so far as I am concerned, properly directed about the use which can be made of an argument asserting a lie as consciousness of guilt and affecting credibility.

1. So far as the reliability of the document is concerned, I regarded that as a factor which Mr Watts could use to argue in his address before the jury. He did this appropriately and in addition he invited me to give the jury a warning about the document under s 165 of the Evidence Act. I accepted that application and gave the jury a direction accordingly.

1. At the time of admitting the document I did not regard its probative value as being outweighed by the danger of any unfair prejudice to Mr Gosen. For those reasons I decided to admit Exhibit VDM, which became an exhibit in the proceedings.

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Decision last updated: 02 January 2015