R v Misiepo

[2015] NSWSC 1533

Supreme Court

New South Wales

Medium Neutral Citation:	R v Misiepo [2015] NSWSC 1533
Hearing dates:	13 October 2015
Date of orders:	16 October 2015
Decision date:	16 October 2015
Jurisdiction:	Common Law - Criminal
Before:	Hall J
Decision:	Evidence of flight admissible; Evidence of photographs found on accused’s phone admissible; Evidence of note found at location where accused was staying admissible; Evidence of knife found not admissible.
Catchwords:	CRIMINAL LAW – pre-trial issues – admissibility of evidence – flight evidence – application of principles as to evidence of flight as evidence of consciousness of guilt – whether unfair prejudice that outweighs probative value of the evidence under s 137 Evidence Act 1995 – evidence of photographs of accused posing with weapon found on accused’s phone – evidence of knife found in location to deceased not admissible – nothing to link knife to stabbing – evidence of note found – whether an admission against interest – evidence as to photographs and note admitted.
Legislation Cited:	Crimes Act 1900 Evidence Act 1995
Cases Cited:	R v Cook [2004] NSWCCA 52 R v Steer [2008] NSWCCA 295 R v Heyde (1990) 20 NSWLR 234 Lau v R [2014] NSWCCA 179 Ainsworth v Burden [2005] NSWCA 174 R v Suteski (2002) 137 A Crim R 371 Papakosmas v R (1999) 196 CLR 297 R v Lucas [1981] 1 QB 720 Blackwell v The Queen [2011] NSWCCA 93
Category:	Procedural and other rulings
Parties:	Regina (Crown) Chad Frederick Misiepo (Accused)
Representation:	Counsel: BG Campbell (Crown) D Carroll (Accused)   Solicitors: Solicitor for the Director of Public Prosecutions SCT Lawyers (Accused)
File Number(s):	2014/5390

Judgment

1. HALL J: The accused, Chad Frederick Misiepo, has been charged on indictment that on 1 January 2014 at Port Macquarie in the State of New South Wales, he did murder Peter Lesley Martyn: s 18(1)(a) Crimes Act 1900. The accused has entered a plea of not guilty to the charge. The trial of the proceedings is scheduled to commence in Coffs Harbour on 19 October 2015.

2. Application has been made for a number of pre-trial determinations in relation to the following issues:

1. Evidence of flight as consciousness of guilt.

2. Evidence of a “selfie image”, being an image of the accused holding a replica pistol.

3. Evidence of a note found on 7 January 2014 which the Crown alleges was created by the accused.

4. Evidence of a knife.

3. The alleged offence occurred in the early hours of the morning of 1 January 2014 at 4 Norfolk Avenue, Port Macquarie. The Crown case alleges that the accused inflicted a fatal stab wound with intent to cause death or grievous bodily harm upon the deceased, Peter Lesley Martyn.

4. The hearing of the pre-trial application took place in Sydney on 13 October 2015. Mr Brendan Campbell of counsel appeared for the Crown and Mr David Carroll of counsel appeared on behalf of the accused.

Evidence on the Application

5. The Crown tendered a folder entitled “Crown Material on Pre-Trial Legal Argument” (Exhibit VD A). The material in Exhibit VD A includes a copy of the indictment and statements of investigating police officers. In addition the exhibit includes photographs and expert reports relevant to the crime scene and various investigations carried out by police into the death of Mr Martyn. I will refer to certain of that material in greater detail below.

Submissions

6. The Crown relied upon its written submissions (undated), supplemented by oral submissions made at the hearing of the application.

7. Written submissions dated 12 October 2015 were provided on behalf of the accused, directed to the issue of the evidence which the Crown proposes to adduce of flight.

8. Mr Carroll also supplemented his written submissions with oral submissions at the hearing of the application.

9. I turn to consider the issues arising on the pre-trial application.

10. On the issue of “flight”, the Crown submissions set out in summary form a number of factual events relied upon by the Crown.

11. The Crown relies upon evidence of flight in the following respects:

1. The accused’s actions on 1 January 2014 in leaving the crime scene to the unit at 3/4 Norfolk Avenue and then through adjoining properties towards the beach.

2. The accused’s whereabouts in the period during between 1 January 2014 and 7 January 2014.

3. The accused fleeing from police on 7 January 2014, until he was eventually chased down.

12. In respect of the accused’s action in relation to (1) above, the Crown placed reliance upon the witness statement dated 1 January 2014, a copy of which is marked as 3(a) as part of Exhibit VD A. The statement records the witness hearing a disturbance coming from outside unit block at 4 Norfolk Avenue, Port Macquarie, and then hearing a male voice saying, “I’ve been stabbed in the heart. Someone call an ambulance” (Witness Statement, 3(a) at [5]).

13. The witness stated that, having gone back to her unit she heard rustling of bushes in the backyard of the townhouses that back onto her block. She saw a male who she described. She said that he was wearing royal or dark blue shorts. He did not have a shirt on. She noticed his hands down the front of his shorts. It appeared they were wrapped in something white. She said she saw him jump over the timber fence between the townhouse block and the house block. She saw him stand up briefly. He then headed towards Pacific Drive: Witness Statement, 3(a) at [6].

14. The Crown also relies upon the accused’s conduct in the period between 1 January and 7 January 2014. In that respect the Crown’s allegation is that the accused went to Flynn’s Beach.

15. At about 9:20am on 1 January 2014, the accused is alleged to have contacted an acquaintance, Taylor Whitney, by Facebook. The Crown case is that he asked for her number and that he said “send me your number pls I need a massive favour. Its urgent n would ask ic I didn’t have to”. The Crown also alleges that he said “I hav no one else I could ask pls taylor PLEASE”. The Crown alleges that he later said “I really need to speak to you”.

16. The Crown case is that the accused arranged for Taylor Whitney to pick him up near the Waniora shops. The Crown alleges that he told her “I am in trouble. I need you to drop me off somewhere”. The Crown further alleges that he gave Ms Whitney money to book a motel room for him in her name.

17. The Crown alleges that the next day the accused contacted his brother and partner, Ms Natalie Clark, in Boambee East, near Coffs Harbour, and that Ms Clark subsequently collected him and drove him to their home. The Crown case is that the accused spent a number of days there until on 7 January 2014 police attempted to apprehend him. The Crown alleges that he fled from them on foot, but was able to be chased down: Statement of Senior Constable Keating. The Crown alleges that whilst he was being pursued, the accused discarded a mobile telephone which it alleges was subsequently recovered from a water-filled drain. The Crown alleges that police were able to recover images from the phone. In one image it is alleged that the accused is shown wearing the blue shirt which police allegedly earlier located at 3/4 Norfolk Avenue, and which is alleged to have had a DNA matching that of the deceased and the accused on it.

18. The Crown further alleges that there are “selfie”-style photographs which were found on the accused’s phone showing him posing with a silver pistol. The pistol has been identified as a replica.

19. The Crown additionally alleges that a search was made of the accused’s brother’s house where the accused had been staying. It further alleges that in a rear bedroom a note was found written in blue pen with a number of words overwritten in highlighter. It is alleged that a similar colour highlighter was found beside the note and DNA matching the accused was found on it. The note allegedly included mobile phone numbers for persons referred to as “Matt” and “Mano”. The Crown also alleges that the note said “Tell him Reece & his girl gave me up. Reece made full statement. The girl didn’t but said I was there at the scene”. The Crown alleges that the note also had the address at 3/4 Norfolk Avenue and the address of the mother of the Park sisters (who were staying at the unit where the offence occurred at the time) on it.

Crown Submissions on Evidence as to Flight

20. It was submitted that the accused’s flight from the scene is highly relevant to the issues of the trial. In particular, the accused’s immediate attempts to leave the scene in “urgent” circumstances were relied upon as a circumstance that the jury could have regard to in drawing the conclusion that the accused was responsible for inflicting the fatal wounds: Crown Submissions at [22].

21. Further, it was submitted that the accused’s flight from police on 7 January 2014, after there had been significant publicity, and after the Crown alleges the accused had written the note found at his brother’s premises, is evidence that the accused’s flight was related to the incident involving the death of Mr Martyn: Crown Submissions at [21].

22. The Crown noted that the defence objected to the evidence of flight upon the basis that the accused could give evidence at the trial that he fled because he was in breach of parole. The Crown submitted that in this case, the assessment of the value of the evidence of flight, which will involve evaluating the possible reasons for the flight, is properly a matter for the jury: Crown Submissions at [22]. Reliance was placed upon observations made in R v Cook [2004] NSWCCA 52 at [47]. I will return to discuss the relevant principles below.

23. The Crown submitted that any danger of “unfair prejudice” in this trial can be adequately guarded against with appropriate directions. It was submitted by the Crown that if the accused were to give evidence that he was in breach of parole at the time of the alleged offence it would not be necessary to explore in evidence the particular offence that resulted in that sentence having been imposed. A jury, it was noted, could be directed that they should consider the accused’s explanation for his flight and that they could not use the evidence of his flight against him unless they were satisfied it related to his consciousness of guilt in relation to the stabbing of Mr Martyn. If they were not so satisfied, then they should ignore his conduct. The Crown further submitted that the jury could be directed in conventional terms that they should disregard any other disreputable behaviour in assessing the accused’s alleged guilt in relation to the offence. Reference in this respect was made to the decision in R v Steer [2008] NSWCCA 295 at [45]: Crown Submissions at [24].

Submissions for the Accused

24. In the written submissions for the accused, Mr Carroll identified the conditions which must be satisfied before evidence of flight is capable of amounting to consciousness of guilt evidence. These, he noted, were stated in R v Heyde (1990) 20 NSWLR 234, and that were said to have been broadened in R v Cook, supra recently cited with approval in Lau v R [2014] NSWCCA 179 at [104] per Hoeben CJ at CL. The conditions were summarised as:

(i)   The flight must be deliberate;

(ii)   It must relate to a material issue;

(iii)   The motivation for flight is a realisation of guilt;

(iv)   (Where relevant) the evidence of flight must be from an independent witness; and

(v)   The flight must be capable of being seen as an indication of consciousness of guilt of the specific offence with which the accused is charged: Defence Submissions at [2].

25. It was submitted that when the Crown seeks to tender evidence of an accused’s post-offence conduct as evidence of consciousness of guilt, two separate issues arise:

1. The first is that in order to be admitted as evidence, the trial judge must be satisfied that the evidence (of flight) is capable of meeting all five conditions as outlined in Cook. If the evidence is not capable of meeting the requisite conditions then it is inadmissible. If it is capable, then it may be subject to one of the discretionary exclusion provisions under the Evidence Act 1995, in particular, those within ss 135 or 137.

2. The second issue pertains to the directions to be provided to a jury concerning the use that may be made of the evidence of flight. This issue is only enlivened if the evidence is admitted: Defence Submissions at [3].

26. In his submissions, Mr Carroll referred to the factual circumstances in Cook which placed the appellant in “an awkward position” in giving evidence as to an alternative explanation: Defence Submissions at [4].

27. In the application of the relevant principles to the present case, it was submitted that:

“The probative value of the evidence of flight of the accused is significantly diminished by the fact that Mr Reece Barnes, who was prosecuted as an alleged co-accused, himself similarly fled the location and was discovered in the laundry at the rear of No 4 Norfolk Avenue, Port Macquarie. He told a resident who located him there that he was “just doing a load of washing”. Mr Barnes left the laundry and was then confronted by police at which point he surrendered to them.” (Defence Submissions at [5])

28. It was noted that as at 1 January 2014 the accused was subject to a breach of parole warrant in relation to an offence of reckless wounding on 10 March 2012. It was noted that the facts of that matter had the accused using a screwdriver as a weapon to inflict a wound. In respect of that offence it was stated he was sentenced to a period of imprisonment of 2 years: Defence Submissions at [6].

29. In that respect it was said that he could attempt, either by giving evidence or by calling witnesses or by cross-examination of Crown witnesses, to explain his conduct such that it would exonerate him of the murder of Mr Martyn, or he could choose to leave the evidence (of flight) as it may be presented. If he chose the latter course, it was said that there was an obvious possibility that the jury would draw an adverse inference: Defence Submissions at [7].

30. It was further submitted:

“The essence of Mr Misiepo’s case in respect of admission of evidence of flight is that in order to provide an explanation for his conduct in fleeing the scene, he would necessarily reveal the existence of a breach of parole and the nature of the offence to which it relates.

Mr Misiepo maintains that such a revelation raises an obvious prejudice which enlivens Evidence Act 1995 (NSW) s 135 or, in the alternative, s 137. His explanation would both expose his previous criminal record and expose him as a person with a history of an offence of reckless wounding.” (Defence Submissions at [8]-[9])

31. Mr Carroll in his submissions described the discretion in s 135 as providing a broad base for the exclusion of evidence whilst the mandatory form of s 137 provided a stronger basis for exclusion, given what was termed its “lower hurdle”: Submissions at [11].

32. It was observed that “unfairly prejudicial” in s 135 and “unfair prejudice” in s 137 were considered to have the same meaning: Ainsworth v Burden [2005] NSWCA 174. Prejudice, it was noted, being not that which would advance the prosecution case or weaken the defence case, but rather “damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response” and which carries “a real risk that the evidence will be misused by the jury in some unfair way”: R v Suteski (2002) 137 A Crim R 371, 388 at [116] (Wood CJ at CL); Papakosmas v R (1999) 196 CLR 297, 325 [51] (McHugh J): Defence Submissions at [12].

33. In the present case it was submitted for the accused:

“13.   Bearing in mind the seriousness of the charge with which he breached his parole and the nature of the evidence required to meet the evidence of flight, Mr Misiepo submits that there is ‘a real risk that the evidence will be misused by the jury in some unfair way’, and the prejudicial effect is therefore unfair and outweighs the probative value of the Crown evidence.” (Defence Submissions at [13])

34. In oral submissions Mr Carroll again referred to what he termed the “significant prejudice” which he said would arise if the accused gave evidence that he had been serving a sentence for a reckless wounding offence involving the use of a screwdriver to inflict a wound (though not causing grievous bodily harm). He submitted that there was a similarity in respect of the offending behaviour in the present case as in the case of Cook and that this was a significant factor: T 19, 13 October 2015. Additionally it was noted that disclosure of breach of parole would involve, in effect, a revelation of the accused’s failure to adapt to community life, a failure to embark upon rehabilitation in terms of drug addiction and that he had been brought under notice of police on two occasions in respect of illicit drugs. It was stated that these are the actual circumstances in which the accused found himself on 1 January 2014: T 19-20.

35. It was submitted:

“What my friend implicitly acknowledges in his submission is that the true picture to explain the alternative basis for fleeing brings with it insurmountable prejudice. It is not a solution to limit the factual scenario to something which is not as significant. The reason why it’s not appropriate or I use the word ‘unfair’ is that it leaves the accused not in a position to meet fully the alternate explanation for the flight.” (T 20)

36. This latter submission was directed to a suggestion or proposal by the Crown that there would be no need for there to be disclosure as to the offence for which the accused was serving a sentence as at 1 January 2014. However, Mr Carroll responded by submitting that a “neutral” account of events limits the prejudice created by the “true situation”:

“… what it does, in a practical sense, is limit the ability of the accused to rebut the consciousness of guilt.” (T 20)

37. Mr Carroll raised as a further issue relevant to probative value the fact that the case would involve an issue as to the person who stabbed the deceased. In that context the submission was that in considering the position of Mr Barnes and Mr Misiepo he stated:

“… the fact that the other potential person responsible for the fatal blow has also embarked upon running from the scene, avoiding the detection of the police or trying to, providing false statements as to why he was hiding in the laundry to Ms Fardy’s saying he was doing a load of washing was significant in that respect it was contended that the probative value of the accused’s flight as evidence of consciousness of guilt was limited ‘to a substantial degree’ by the fact that Barnes also took steps to avoid detection on the morning of the first of January 2014.” (T 21)

38. It was noted in the context of the present case that there would not be evidence from Mr Barnes on these issues. It was submitted that the probative value of the accused’s flight is to be weighed against Barnes’ conduct. Such conduct was not going to be properly explored as to why it was that Barnes told Ms Fardy that he was only doing his washing and why he ran down the stairs after being inside the unit shortly after the offence and that police halted his escape. He said it was very different from a situation where the facts of a case concerned only one person as responsible for the offence: T 21. He submitted that the only relevant difference between the accused and Barnes was the fact that the flight of the accused was effective for some seven days: T 21.

Crown Submissions in Reply

39. In his submissions in reply, the Crown Prosecutor stated that it was necessary in relation to the issue of flight to consider the factual matrix of the case. It would be clear to the jury that the accused was not found at the scene of the crime, but that he was found in Coffs Harbour at a later date.

40. There was also said to be the further issue as to the use the prosecution could make of the issue of flight. In that respect the Crown submitted that it would be open to the jury, because of the circumstances of the accused having immediately run from the scene of the stabbing, together with other factors such as his contact with Ms Whitney which told of urgent circumstances, his contact with having Ms Whitney book a motel room in her name for him to stay there, and his contact with his brother and brother’s partner arranging for them to travel to Coffs Harbour, were all matters relevant in constituting the factual matrix.

39. In addition, the Crown emphasised that there was a further aspect – when the accused was approached by police on 7 January 2014, he ran and was chased, and the Crown alleges that during the chase he disposed of the mobile phone. The Crown submitted that the jury are entitled to reason based on such behaviour, that in acting that way he demonstrated consciousness of guilt and that that went to the ultimate issue as to whether he was the one who inflicted the stab wound to Mr Martyn.

40. In relation to the submissions made as to the alternative theory or explanation for the accused’s flight, it was submitted that to explain that motivation did not necessarily involve any explanation as to why he was on parole or what the offence was for which he was placed on parole. It was noted that he had been released on parole on 6 August 2013 - that is a period of some eleven months and two days of a two year sentence. At that point he had just over twelve and a half months outstanding. By 21 January he had a little over eleven months of parole outstanding.

41. The Crown outlined a limit on the explanation that needs to be given to the jury for the reason that the accused was on parole as a “mid-position” between the Crown’s hypothesis as to why he fled and what Mr Carroll was proposing: T 25. The Crown also emphasised that the jury would be told not to speculate as to the circumstances which had led to the sentence being imposed upon the accused and which resulted in him being on parole at the time of the stabbing.

42. The Crown referred to the conventional directions given at trial in relation to evidence of flight, with the appropriate warnings given in the course of such directions, namely, that the jury would be instructed that they are not to speculate as to why the accused had been convicted of an offence and was serving time in a gaol. In short, the Crown submitted, that all such matters can be dealt with by way of appropriate directions: T 25.

43. The Crown submitted that even if an alternative explanation was given which involved reference to the fact that the accused had been convicted of an offence of reckless wounding, that can be dealt with by appropriate directions: T 26.

44. In relation to the position concerning Mr Barnes referred to above, the Crown submitted there was “a quantum difference” between the behaviour of Mr Barnes after the stabbing and that of the accused. Reference was made to the evidence of the accused’s flight, including his contact with Ms Whitney, and contrasted the same with the position with Mr Barnes who was found in the laundry and who surrendered when confronted by police.

Consideration: Admission of Evidence of Flight

47. The Crown, by the material in Exhibit VD A, and the summary of the evidence set out in its written submissions, has identified the alleged conduct by the accused which it contends is admissible as evidence of flight.

48. As her Honour, Simpson J, in Cook stated at [21]:

“Evidence from which a jury may be asked to infer that an accused person has acted out of a consciousness of guilt which is tendered in a prosecution case most commonly relates to lies, either in or out of court, alleged to have been told by the accused person.”

49. Her Honour then noted that a considerable body of law with respect to the circumstances in which such evidence may be admitted, and the way it may be treated, has developed. Her Honour noted that various conditions must be fulfilled before evidence as to lies may be admitted as evidence of consciousness of guilt. These had been stated in R v Lucas [1981] 1 QB 720 and were adopted in the judgment of Clarke JA in Heyde, supra. Her Honour noted at [22] that the conditions are directed to a determination of whether or not the lies upon which the Crown seeks to rely are capable of amounting to corroboration.

50. The principles in relation to the admission of evidence as to lies equally inform the admission of evidence of flight as consciousness of guilt. As earlier noted, those principles include the requirement that the evidence must be capable of being seen as indicating a consciousness of guilt in relation to the specific offence with which the accused is charged.

51. There are two steps involved in determining the issue of admissibility. The first goes to the admission of the evidence which in turn requires an assessment and determination as to whether the evidence is capable of meeting the five conditions referred to above. If the evidence is capable of meeting those conditions, there then arises the question as to whether it should be rejected pursuant to one of the discretions available to a trial judge, in particular, the discretion conferred by s 135 or following the exercise that is required by s 137 of the Evidence Act.

52. The second step, which only arises where the evidence has been admitted, concerns the directions required to be given to the trial jury by the judge as to the use that may be made of the evidence.

53. In the present case the jury would be asked to infer, if the evidence is admitted, that because the accused fled on at least two separate occasions, he exhibited a consciousness of guilt of the stabbing of Mr Martyn. An issue arises as to whether that would place him in an awkward position as arose in Cook. If so, the question of the discretion arises and, importantly, the power under s 137 of the Evidence Act to exclude the evidence. This aspect requires a balancing of the probative value of the evidence against the danger of unfair prejudice to the accused. If that balancing process results in a finding that the probative value is outweighed by the danger of unfair prejudice then the Court is constrained to refuse to admit the evidence. In that respect no element of discretion arises: Cook at [27]. I will refer to the significance of the matters considered in that case below.

54. Section 137 requires a consideration of the probative value of the evidence of flight relative to its prejudicial effect in giving rise to unavoidable unfairness. In other words, the probative value of the evidence is accordingly not to be assessed merely by examination of the evidence itself.

55. In the present case, the evidence to which I have referred, in my opinion, supports the conclusion that the probative value to the Crown case is high. Within a very short period of the stabbing incident in question, the accused fled, ultimately taking refuge in the apartment of his brother and his brother’s partner and subsequently when located on 7 January 2014, he fled from police who chased him. In the course of the chase, as noted above, the Crown alleges he disposed of his mobile phone.

56. The balancing exercise that is required by s 137 cannot be undertaken without an understanding of any explanation that the accused might seek to advance in order to nullify the adverse inferences that would, absent explanation, arise.

57. There was no evidence on the pre-trial application from the accused himself. Mr Carroll’s submissions proceeded upon the basis that the accused was on parole as at 1 January 2014 and that he had been convicted, in that respect, in relation to an offence of reckless wounding. Those matters are accepted as the basis for the exclusion of the evidence.

58. However, in the present case, the offence of reckless wounding, involved different factual matters and state of mind issues. As to the latter, an offence involving the element of recklessness requires that a person foresaw the possibility of harm and went on to commit the offence regardless: Blackwell v The Queen [2011] NSWCCA 93. The nature of a reckless wounding offence is therefore materially different, in particular as to the issue of state of mind, from a case such as the present involving a charge of murder where the Crown alleges an intention to kill or cause grievous bodily harm. Accordingly, I do not accept, as was submitted, that there is a relevant similarity with the circumstances in Cook.

59. Ultimately, it is a question, as I have stated, of determining the result of the balance between the probative value of the evidence proposed to be relied upon by the Crown, and the nature and extent of the prejudice that would arise to the accused. That is a matter to which I have given close consideration. It is a central matter in the determination of the admissibility of the evidence as to flight. The exercise to be undertaken pursuant to s 137 I note also requires that there be brought into consideration the directions that would need to be given to the jury in order to ameliorate the impact of the jury’s knowledge of the accused’s prior conduct.

60. As to the explanation which the accused might seek to advance with a view to eliminating the adverse inference that the Crown would rely upon it is necessary, as indicated in the discussion above, to consider the same insofar as it would, or may, involve disclosure of the fact that the accused had been convicted of the earlier offence and was on parole and, if so, whether such matters generally are such as to require the exercise of the discretion in favour of exclusion. In relation to a similar matter, Simpson J in Cook observed:

“39   Counsel for the appellant submitted that:

“Where the explanation involves revealing further offences generally the discretion should be exercised in favour of exclusion.”

40.   In favour of this proposition two authorities were cited: R v Power (1996) 87 A Crim R 407 (Court of Criminal Appeal, South Australia) and R v Taranto (1999) NSWCCA 396, unreported, 16 December 1999. In my opinion, neither is authority for a proposition as broadly stated as that extracted above. In Power, two appellants had been told by police that they were under suspicion for a series of bank hold-ups.”

61. The principles to be applied, as discussed by Simpson J in Cook including in particular those concerning the application of s 137 include the following:

• It is not the role of the trial judge under the Evidence Act to make a finding of fact about the actual reasons for flight where such evidence is given on behalf of the Crown. That remains the province of the jury.

• The role of the trial judge is merely to determine the relative probative value against the danger of unfair prejudice that might result.

• In respect of such a determination there is no blanket rule that in considering evidence on the voir dire where the issue is the admissibility of the evidence under s 137, there is never any room for findings concerning credibility.

• There will be occasions where the credibility of the evidence will be inextricably intertwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury.

• Where an accused’s response is so preposterous as to give rise to the conclusion that it could be accepted by no reasonable jury then credibility may be taken into account in the assessment.

• The credibility exercise in such circumstances is to determine whether the evidence given by (or on behalf of) the accused, is capable of belief by the jury. If it is, then its prejudicial effect must be considered. If it is not, then the balancing exercise may well result in an answer favourable to the Crown. That is essentially because the prejudice arising to an accused from putting a preposterous explanation to the jury would not be unfair prejudice.

62. In the present case, accordingly, I proceed upon the basis that the evidence that may be given by or on behalf of the accused as to the reasons for flight is at least capable of belief by a jury.

63. In Cook, Simpson J observed:

“47.   In my opinion none of the authorities to which reference has been made support the proposition advanced on behalf of the appellant. There is no general principle that, when the explanation for flight involves revealing other offence, the evidence should be rejected. Indeed, it is part of the conventional direction in relation to evidence indicative of a consciousness of guilt (whether of lies, or flight, or otherwise), that the jury be alerted to the possibility that the accused person has undertaken that course of conduct by reason of consciousness of guilt, not of the offence charged, but of some other offence or discreditable conduct.”

64. As mentioned, in Cook it was noted that a particular circumstance of relevance in that case was that revelation of the charge that the accused there faced involved violence against women, and this had particular poignancy given the nature of the charge on the indictment. It was the admission of such evidence that put the appellant in Cook in an awkward position. As her Honour observed:

“… his response to the evidence not only disclosed previous criminal offence, it disclosed criminal offences with a disturbingly close relationship to the offence with which he was charged. That the evidence would have a prejudicial effect is clear.”

65. In Cook, the essence of the appellant’s case on the question of the admission of the flight evidence was that in order to give an explanation for his conduct the appellant necessarily had to reveal the existence of an ADVO, his previous breach of it, and the fact of an assault. He gave this as the reason for his flight when police approached him. It was noted in that case that the prejudice to the appellant was plain. Not only would his explanation expose him as a person with a criminal record (the assault and the previous breach), but it would also expose him as a person with a history of violence against women. In the context of the charge he faced, that exposure, Simpson J noted at [32], would have a particular poignancy.

66. As noted earlier, in the course of argument, the Crown proposed the evidence could be adduced in a way that could permit an alternative explanation by the accused to be led without reference to the nature of the offence (reckless wounding) for which the accused was convicted. Mr Carroll, however, indicated that the offence itself was part of the relevant circumstances and disclosure of it may necessarily be required. I accordingly proceed upon the basis that such disclosure may be seen by the defence as one that would need to be made

Conclusions on Flight Evidence

67. I have closely examined the matters relevant to both the probative value of the evidence in question and the matters relied upon said to be supportive of the existence of unfair prejudice should the evidence be admitted. I have reached the following conclusions:

1. I am satisfied that the conditions for the admissibility of the evidence discussed above are satisfied in this case.

2. A proper application of the principles discussed above, and the provisions of s 135 and 137, lead me to the conclusion that there is no basis, such as existed in Cook, which would warrant the exclusion of the evidence. In other words, I do not consider that the probative value of the evidence would be outweighed by any unfair prejudice to the accused.

3. Disclosure of the previous offence for which the accused was convicted would not, in the context of the present charge against him, in my opinion, place the accused in an awkward position such as that advanced in Mr Carroll’s submissions. The availability of, and the capacity of trial directions to deal with any issue of unfairness, is a factor that cannot be discounted.

4. Trial directions would plainly be required directed to the following matters:

• That the jury must be satisfied that the accused fled because of a consciousness of guilt, that is, that the evidence points unequivocally to consciousness of guilt of the offence charged and not by reason of some other offence or discreditable conduct.

• The terms of trial directions would need to both draw the jury’s attention to such evidence as well as to the way it is to be assessed.

• That the jury must not speculate about the circumstances concerning the offence for which the accused was convicted resulting in him being on parole as at 1 January 2014.

5. I have concluded that the probative value does outweigh any unfair prejudice. I have, in making that assessment, had regard to the need and role played for appropriate trial directions.

OTHER ISSUES

Selfie Image on the Accused’s Phone

68. The Crown submitted that a “selfie” image of a replica pistol found on the accused’s mobile phone is relevant and probative. The basis for the submission was as follows:

1. The image demonstrates that the accused had an association with a replica pistol.

2. That association, in turn, connects him as the person whom it is anticipated the witness Ms Hill will say she saw holding what appeared to be a gun not long before the stabbing of Mr Martyn.

3. The image of the gun assists in identifying the accused as the person to whom Mr Martyn was referring when, according to Ms Hill, he said “Look out he’s got a gun”.

4. The fact that the gun was a replica is relevant in explaining why a knife, rather than a firearm, was used to inflict the injuries upon Mr Martyn.

69. In response to Mr Carroll’s submission that there was no evidence as to whether the image was taken from the accused’s mobile phone and no evidence as to a time, date or manner in which the image of the gun was taken, the Crown Prosecutor stated that the material provided to the accused’s legal representatives included information that indicates that the photo image was taken on the accused’s mobile phone at about 10:54am on 29 November 2013, that is approximately one month prior to Mr Martyn’s stabbing: T 27.

70. In explaining the relevance of the image the Crown Prosecutor relied upon four matters:

1. An essential question in the trial concerns the issue of the identification of the accused as distinct from Mr Barnes.

2. Ms Hill’s evidence, it is anticipated, will be that she saw a male on the road outside Norfolk Avenue initially. She said she saw that person holding something which she thought was shiny and pistol-shaped. That person was said to be some distance away at the time Mr Martyn said, “Babe, they stabbed me in the heart”.

3. It is important to distinguish the accused from Mr Barnes. This may be done by the fact that Ms Hill saw the person the Crown alleges is the accused with something that was pistol-shaped (ie, he is associated with such an object).

4. The evidence as to the replica pistol assists the jury in making the distinction between the accused and Mr Barnes.

5. The image on the phone is of a gun not capable of firing a projectile.

71. The photo images shown in the expert report, Mr Carroll, observed, show the accused in what was referred to as “gangster poses”, shrouded in black. The Crown responded by saying that the evidence concerning the gun can be led in a way that reduced any risk in that respect. The Crown Prosecutor stated that showing a close-up image of the gun itself without other features may be a way that avoids any suggested risk: T 28.

72. The evidence that establishes the gun was a replica, it was submitted by the Crown, is relevant in explaining why a knife not a gun was used in the assault of Mr Martyn.

73. I am of the opinion that if Ms Hill’s evidence is as outlined above, the fact that a male person in close proximity to Mr Martyn when standing on the road was seen holding what appeared to be a gun, together with evidence that establishes an image on the accused’s phone of a replica gun (and the fact of the image having been taken approximately one month before 1 January 2014) is evidence that is relevant to a fact in issue in the proceedings, namely, identification of the person who stabbed the deceased.

74. If the evidence of the image is tendered without any of the features raised by Mr Carroll, I consider no unfair prejudice to the accused will arise.

The Note Found on 7 January 2014

75. The Crown submitted that the note is relevant and probative evidence: Crown Submissions at [27]. If the jury concluded that the note was written by the accused, it was contended that they could conclude it demonstrates that he was concerned that Mr Barnes and Ms Park had told the police of his alleged responsibility for the stabbing. On that basis the Crown submitted that it was evidence against interest.

75. Mr Carroll submitted that the note is not a statement going directly to the critical issue in the trial, namely, the identity of the person who stabbed the deceased. He contended that it was “a general statement” about being given up and is capable of various interpretations which do not go specifically to the critical issue: T 21.

76. The note, I have concluded, is relevant evidence in that it goes to a fact in issue in the proceedings, namely identification of the perpetrator of the stabbing incident, in that it is evidence: (a) that is capable of establishing the existence of knowledge in the maker of the note of facts concerning the stabbing of Mr Martyn, and (b) as to concern as to disclosure of information concerning the incident, that is, it is relevant to a state of mind issue concerning both knowledge and disclosure of facts concerning the same. It is also relevant as an admission against interest as to the person responsible for the stabbing.

The Knife

78. The statement of Sergeant Jason Maxwell dated 2 February 2014 (document 2(a) in Exhibit VD A) establishes that the Operational Support Group (OSG) attended at Flynn’s Beach, Port Macquarie on or about 20 January 2014.

79. Sergeant Maxwell reached a set of wooden stairs leading down from Tuppeny Road onto the picnic area of Flynn’s Beach. He said he noticed a metallic object lying on the ground. It was next to the wooden stairs. He saw that it was a serrated knife with a black handle similar to a steak knife. He took possession of the knife. The OSG Team completed the search.

80. The knife is depicted in photographs 123 and 124 of Exhibit VD A.

81. Exhibit VD A also contains a statement of a female (referred to here as Ms “A”). She stated that she was swimming at Flynn’s Beach between about 6:20am and 6:30am on Wednesday, 1 January 2014. She said she caught a wave to shore. She stood up and saw a male standing on the water’s edge on the beach. She said the male seemed a “little jittery”. He did not have a shirt on and was wearing blue shorts. She provided a description of the male. She said that she saw a photograph of the male that she had seen on the beach, in the ‘Port News’ Newspaper. This occurred on 6 January 2014. The newspaper featured an article on a stabbing that had occurred in Port Macquarie.

82. Exhibit VD A also contains a statement of a male (referred to here as Mr “B”). In his statement he provided an account of his observations of a male he saw at Flynn’s Beach on 1 January 2014 about 50 to 60 metres south of the access stairs at the northern end of the beach.

83. Mr Carroll submitted that there was no basis to link the particular knife found by police to the accused.

84. DNA testing of the knife did not produce any result. As Mr Carroll observed, there was no evidence linking the knife to the stab wounds to the deceased.

85. There is no sufficient basis, in my opinion, for the admission of evidence concerning the knife. In particular, there is no basis to link it to the accused. It was found on 20 January 2014 near the picnic area. It has been described as being a knife similar to a steak knife. It is at least consistent with it being a knife dropped by a visitor, in an area frequented by members of the public including picnickers near the picnic area in question.

86. On the above basis, the knife is not admissible as evidence in the trial.

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Decision last updated: 25 February 2016