R v Pratten (No 24)

[2015] NSWSC 1376

Supreme Court

New South Wales

Medium Neutral Citation:	R v Pratten (No 24) [2015] NSWSC 1376
Hearing dates:	08 July 2015
Date of orders:	08 July 2015
Decision date:	08 July 2015
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	See [14]
Catchwords:	EVIDENCE – repetition of document in prosecution tender bundle – danger of prejudice to defendant is small – prejudice overcome by directions to jury
Legislation Cited:	Evidence Act 1995
Category:	Procedural and other rulings
Parties:	M. McHugh SC/with T. Berberian (Crown) S. Grant/with B. Dean (Accused)
Representation:	Counsel: M. McHugh SC/with T. Berberian (Crown) S. Grant/with B. Dean (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) O’Brien & Hudson Solicitors (Accused)
File Number(s):	2010/00315475
Publication restriction:	None

EX TEMPORE Judgment

HIS HONOUR: The Court is asked to deal with an issue associated with Exhibits 1-4 on the voir dire, which is similar to the form of the exhibit that is to be tendered as a joint tender bundle in the course of the prosecution before the jury.

Whether there is only one document that is in issue in the proceedings, or whether this document is being used as an example is not absolutely clear to the Court, but either way it seems to me that the same ruling would need to be made.

The issue between the parties concerns a document in the proceedings which has been identified as page 173 of volume A1. This document also appears at pages 320 of volume A1, 467 of volume A2 and 555 of volume A2.

The document is an email and it is unnecessary to repeat its terms. It is an email which in effect deals with the requests by the accused for certain things to be done with certain assets if, in the worst case scenario, the helicopter which he was to fly was to crash.

I hasten to add that it did not crash and I am not even sure if the trip took place, but, be that as it may, the Crown tendered the document. There is no issue that the document is relevant in the sense used in ss 55 and 56 of the Evidence Act 1995. The difficulty is its repetition and it is put by the accused, or on his behalf, that on the one hand the repetition of the document is either irrelevant in the sense that it does not in its repeating affect the probability of the existence of a fact in issue given that it has been tendered once already. Or, on the other hand, that by its repetition it causes the danger of an unfair prejudice to the defendant. Reliance was placed by the accused on s 135 of the Evidence Act that is discretionary and may have work to do, but, if in fact there is a danger of unfair prejudice, s 137 of the Evidence Act mandates that the Court must refuse to admit the evidence if the danger were to outweigh the document’s probative value.

During the course of the discussion, for which I am most grateful, the analogy was made by the Court as to the manner in which one treats a video of a victim’s or child's evidence where that evidence is also on the transcript. In those circumstances, it is not simply the repetition of the evidence that creates the danger of unfair prejudice. Rather, it is the repetition in a more compelling form than simply reading a transcript, which may result in giving the video a predominance over and above the transcript.

It seems to me that there is a small danger of prejudice. I am not convinced that the prejudice is an unfair one because the Crown, even if this document were tendered only once, could continually refer to it in its closing address by referring to it in relation to each subject matter to which it is relevant.

Even if there were an unfair prejudice, it seems to me it is a prejudice that I can overcome with strong directions both as to the fact of repetition and how the jury will treat it and also as to what, if anything, can be drawn from the document in question.

I do not accept that the document in question is an admission as to the ownership by Mr Pratten or the receipt by Mr Pratten of the monies relating to each subject matter of the charges simply because in the email, as I recall it, some of the assets which the accused sought to dispose are assets which are undeniably not held by anybody other than Mr Pratten. Those are matters for the jury to deal with.

It seems to me that the fairest way to deal with the matter is to make the directions when the document is tendered, that is the directions relating to the manner in which the jury ought to treat the repetition of the document, otherwise the directions will be repeated.

The only other way that any unfair prejudice may be overcome, but I think this would be very difficult and may in the end be more problematic for the defence is to redact the document insofar as it is repetitive of the other subject matter, that is, when dealing with the Skallett property, the reference to the disposition of the hardware store or the school fees or other assets would be taken out.

The difficulty with that course is that then the document would not be in a form in which the whole document is before the jury at any stage and that would be, in my view, even worse.

Having considered that alternative, in terms of how best to deal with any potential prejudice whether unfair or otherwise to the accused, it seems to me that any unfair prejudice, and I am not yet satisfied that there is an unfair prejudice, can be overcome by an appropriate direction and I rule that the document may be repeated in the way that it has been.

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Decision last updated: 04 July 2016