R v Flentjar (No 4)

[2008] NSWSC 650

CITATION:	R v Flentjar (No 4) [2008] NSWSC 650
JUDGMENT DATE :	19 June 2008
JUDGMENT OF:	Buddin J
DECISION:	Objection upheld.
CATCHWORDS:	Objection to part of conversation of accused captured by listening device - application of s 137 of the Evidence Act
LEGISLATION CITED:	Evidence Act
CATEGORY:	Procedural and other rulings
PARTIES:	Regina Andrew Wayne Flentjar
FILE NUMBER(S):	SC 2007/1225
COUNSEL:	P Leask (Crown) J Stratton SC/P Pearsall (Accused)
SOLICITORS:	Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSWACT) Ltd (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

THURSDAY 19 JUNE 2008

2007/1225 REGINA v ANDREW WAYNE FLENTJAR

JUDGMENT – (No 4) Objection to one part of the conversations of the accused recorded by listening device (T 927)

1 HIS HONOUR: The Crown proposes to tender extracts from a number of conversations in which the accused participated with various members of his family. Those conversations were captured by means of an authorised listening device which had been placed in the accused’s home.

2 The parties have spent a considerable amount of time determining what parts of that material should be received into evidence. Those discussions originally took place before a co-accused, Kim Snibson changed her pleas several days into the trial. That turn of events led the parties to reconsider what material was properly admissible only in the trial of the accused. I was informed that they have reached agreement as to all but one aspect of that material.

3 Objection is taken by Mr Stratton SC, who appears for the accused, to a remark attributed to the accused in which he is recorded as saying “Sick fucks deserved it”. In its context, that is clearly to be taken as a reference to the deceased. The observation was made against the background of a discussion, in which the accused was involved with others, concerning the suggestion that the deceased were, or at least had been, child molesters. There is, I hasten to add, not a shred of evidence to suggest that either of them was. However, the evidence reveals that Ms Snibson informed the accused and his partner that they were. Moreover, they were told by her that the deceased couple had interfered with Ms Snibson’s daughter, who was best friends with the deceased’s daughter. In any event, it seems that the accused was particularly antagonistic towards persons whom he believed to be child molesters.

4 The case for the accused is that it was Ms Snibson’s request that he assist her in restraining the deceased couple in order that a video-tape depicting the sexual assault upon her daughter could be recovered, that prompted him to accompany Ms Snibson to the premises at 14 Calymea Street Nowra on the day on which the offences occurred. Indeed, the accused by his pleas of guilty to counts 1 and 3 in the indictment acknowledged that, whilst at those premises, he participated in the restraint of the deceased couple by tying them up.

5 His case however is that he then left the premises with Ms Snibson and that he did not thereafter return to them. In other words, he maintains, contrary to the case for the Crown, that he was not at the premises when the deceased were murdered. Mr Stratton contends that the listening device material supports his case insofar as it reveals the accused acknowledging his participation in the detention of the two deceased but denying that he participated in their murders.

6 In my view, the material to which objection has been taken should be excluded pursuant to s 137 of the Evidence Act. It is true that the remark passed by the accused could provide some indication as to his state of mind. The question however remains as to what it reveals about his state of mind and more particularly when he had that state of mind. Read in the context of the rest of the listening device material, the remark is likely to simply indicate the views, albeit expressed in rather callous terms, that the offender holds about child molesters. Thus viewed it is difficult to see how it could be read as an admission that the accused was present and that he participated in the murders of the deceased. The problem which I perceive however is the real likelihood that the jury would impermissibly use it for that purpose. In those circumstances, I am of the view that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. The demeaning fashion in which the deceased are referred to, only serves to reinforce that conclusion.

7 I am further fortified in my view by the fact that material of an almost identical kind to the impugned remark has already been edited out by agreement. At one stage, for example, the accused is said to have observed, in relation to the deceased, that the “cunts deserved to get chopped up”.

8 These are my reasons for upholding the objection.

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