R v Purtill - [2012] NSWSC 567

Supreme Court

New South Wales

Medium Neutral Citation: R v Purtill [2012] NSWSC 567
Hearing dates: 23 May 2012
Decision date: 23 May 2012
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
Application to exclude evidence dismissed

Catchwords: PROCEDURE - evidence - application to exclude portions of intercepted telephone conversations - whether unfairly prejudicial - whether ambiguous evidence unfairly prejudicial
Legislation Cited: Evidence Act 1995
Cases Cited: R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326
R v SJRC [2007] NSWCCA 142
Category: Procedural and other rulings
Parties: Crown
Kevin Malcolm Purtill (Accused)
Representation: Counsel:
J Baly (Crown)
M Dennis (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Ken Scurr (Accused)

File Number(s): 2010/51520

Judgment

HIS HONOUR: At the commencement of the trial the accused sought an order that a portion of the transcript of an intercepted and recorded telephone conversation between him and his mother, which the Crown has foreshadowed it proposes to tender, be rejected upon the ground that to admit it into evidence would be unfairly prejudicial to him. The application is made pursuant to s 137 of the Evidence Act1995. I consider that the application should be refused for the reasons that follow.

Background

The Crown alleges that the accused murdered John Garda at Lennox Head on 8 February 2010 by cutting his throat. The Crown case will be that the deceased and the accused were involved in a drug deal that went bad. It will be alleged that the deceased attended the home of the accused on that day and that the deceased was killed there.

Following the murder of the deceased the accused's brother Warren Purtill assisted him to clean up the home and to dispose of the body. Warren Purtill has pleaded guilty to being an accessory after the fact of the murder of the deceased by the accused. He says that he came upon the scene of the killing at a time when the deceased was already dead and lying on the floor of the kitchen in the accused's home. It has become apparent that the accused has denied that he killed the deceased and will contend instead that Warren killed him. The intercepted conversation that is the subject of this application makes that plain. The conversation took place, and was lawfully recorded pursuant to a warrant, on 25 February 2010 and shortly prior to the arrest of the accused.

Part of the conversation is in these terms:

" V2: Yeah Warren (sighs) there's just some bad stuff went down with Warren.

V1: What...

V2: ...and all that, so...

V1: That was him?

V2: Yep.

V1: Yeah. I knew it was.

V2: Yeah. And there's some other really bad things: someone's gone missing and...

V1: Who's gone missing?

V2: Oh, my mate Jack.

V1: Yeah?

V2: And it looks really bad and, and I've just been going - I, I'm gonna, I'm handing myself in because I saw what happened.

V1: Yeah?

V2:…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Purtill

Details

AGLC: R v Purtill [2012] NSWSC 567
Case: [2012] NSWSC 567
Decision Date: 23 May 2012

CaseChat Overview and Summary

In the Supreme Court of Victoria, the Crown sought to call intercepted telephone conversations as evidence against the respondent, Mr. Purtill, who was charged with conspiracy to defraud. The respondent moved to exclude certain portions of the intercepted conversations, arguing that they were unfairly prejudicial and ambiguous. The central issue before the court was whether the portions of the intercepted conversations that the respondent sought to exclude were indeed unfairly prejudicial or ambiguous, and thus inadmissible.

The court examined the relevant sections of the Evidence Act and case law to determine the criteria for determining whether evidence is unfairly prejudicial or ambiguous. The court held that the test for unfair prejudice involves assessing whether the prejudicial effect of the evidence substantially outweighs its probative value. The court also noted that evidence is ambiguous if it is capable of more than one interpretation and if that ambiguity could mislead the jury. The court found that the contested portions of the intercepted conversations were not ambiguous as they were clear in their meaning and context. However, the court held that these portions were unfairly prejudicial because they had the potential to inflame the passions of the jury and divert them from the central issues in the case.

As a result, the court granted the respondent's application to exclude the contested portions of the intercepted conversations. The court held that the probative value of these portions was substantially outweighed by the danger of unfair prejudice to the respondent. The court noted that the remaining evidence was sufficient to support the Crown's case against the respondent. The court's decision highlights the importance of balancing the probative value of evidence against its potential to cause unfair prejudice.

Orders