R v Bruce Gosen (No 2)
[2011] NSWDC 261
•28 December 2011
District Court
New South Wales
Medium Neutral Citation: R v Bruce GOSEN (No 2) [2011] NSWDC 261 Decision date: 28 December 2011 Before: Cogswell SC DCJ Decision: Application to admit evidence refused.
Catchwords: CRIMINAL LAW - Evidence - admissibility - evidence effectively coincidence evidence tendered for purpose of proof of system - refusal to admit evidence - probative value outweighed by unfair prejudice. Legislation Cited: Evidence Act 1995, s 137. 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
In the same case in which I have just given a judgment, R v Bruce GOSEN [2011] NSWDC 260, Mr McLachlan indicated that he wished to lead evidence about the reasons for travel of another traveller who was on the same flight as Mr Gosen. There was a man named Mr Baryer on the flight. The prosecution case is that Mr Baryer was effectively an overseer for Mr Gosen. Mr Baryer's job was to make sure that the drugs contained in Mr Gosen's luggage arrived and were dealt with safely.
When Mr Gosen was arrested he included amongst his reasons for travel - in explaining to the police his visit to Australia - catching up with a relative whom he had not met before and whom he had not been in direct contact with before leaving Canada. Mr McLachlan wished to lead evidence to the effect that Mr Baryer also proffered an explanation to the police that he was visiting a relative and that there was little else that he knew about the relative.
The evidence was put forward as what Mr McLachlan described as systems evidence, the argument being that the accused Mr Gosen and Mr Baryer and others were members of a syndicate that they "if all approached by law enforcement officers, have put forward a reason that they're travelling out here to visit a relative who they've never contacted, who they don't know us - the relative does not know the person who's travelling to Australia through any direct contact." Mr McLachlan wanted the evidence in order to found a submission that "this is what happens when operatives, that is people involved in the syndicate, are apprehended or intervened or in some way questioned by law enforcement authorities here in Australia".
Mr McLachlan indicated that the evidence was not tendered as tendency or coincidence evidence.
Mr Watts objected to this evidence and I rejected the evidence and indicated that I would give my reasons later.
Strictly speaking, because the evidence is not tendered as coincidence or tendency evidence, it may not be regarded as such evidence but, nevertheless, to my mind, it clearly has the character of coincidence evidence, namely that it was a remarkable coincidence that two persons on the same flight gave very similar and unlikely explanations for their visit to Australia. No notice was given of coincidence or tendency evidence because it was not tendered as such.
To my mind, however, there is a real prejudice or potential prejudice that the jury could use the evidence impermissibly as coincidence evidence. I regard its probative value - which although it had some significance - as being outweighed by the danger of the unfair prejudice to Mr Gosen which I have just described.
For those reasons I refused to admit the evidence tendered by Mr McLachlan under s 137 of the Evidence Act 1995.
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Decision last updated: 12 December 2013
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