R v Rodney Paterson (No 1)
[2014] NSWSC 29
•06 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: R v Rodney Paterson (No 1) [2014] NSWSC 29 Hearing dates: 4 February 2014 Decision date: 06 February 2014 Before: Bellew J Decision: 1.The evidence of the witnesses Innis and Flagg will be admitted.
2.The evidence of those parts of the conversation of 10 August 2009 in which there was discussion about the accused's involvement in a previous instance of group sex will be excluded.
3.The evidence of the entirety of the conversation of 30 September 2011 will be excluded.
Catchwords: EVIDENCE - tendency evidence - whether evidence relied upon as tendency evidence had significant probative value - whether other inferences relied upon by the Crown reasonably open Legislation Cited: Evidence Act 1995 NSW Cases Cited: GBF v R [2010] VSCA 135
KRI v R [2011] VSCA 127
R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
R v Ford [2009] NSWCCA 306
R v PWD
R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182
R v Watkins (2005) NSWCCA 164
Zaknic Pty v Svelte Corporation Pty Limited (1995) 61 FCR 171Category: Procedural and other rulings Parties: Regina - Crown
Rodney Paterson - AccusedRepresentation: Counsel:
Mr K McKay - Crown
Mr J Stratton SC and Ms B O'Reilly - Accused
Solicitors:
Solicitor for Public Prosecutions (NSW) - Crown
Peter Murphy - Accused
File Number(s): 2011/248808 Publication restriction: NIL
Judgment
INTRODUCTION
Rodney Paterson ("the accused") has pleaded not guilty to an indictment alleging the following offences:
(i) that he did, on or about 1 February 1992, at Bundeena in the State of New South Wales, murder Pia Navida;
(ii) that he did, on or about 1 February 1992, at Bundeena in the State of New South Wales, in the company of Steve Isac Matthews, have sexual intercourse with Pia Navida without her consent, knowing that she was not consenting, in circumstances of aggravation, namely that they were in the company of each other.
I have been asked to determine, in advance of the commencement of the accused's trial, whether three particular pieces of evidence sought to be relied upon by the Crown, to which objection has been taken on behalf of the accused, should be admitted. In order to place the issues into their proper context, it is necessary for me to set out in broad terms the nature of the Crown case. The following summary is drawn largely from the Crown Case Statement which has been filed.
THE CROWN CASE
At about midday on Saturday 1 February 1992, two persons were walking along a bush track in the Royal National Park near Bundeena. In the course of doing so, they came across the body of a naked woman. In the immediate vicinity there were a number of personal effects, including deodorant and underwear. A large bloodstained rock was found nearby.
The body was later identified as that of Pia Navida ("the deceased"). It was determined that her death had been caused by head injuries inflicted by being struck with the rock to which I previously referred. The deceased had last been seen alive at about 2:00pm on the previous day, 31 January 1992.
Police identified a car tyre track near the deceased's body. The tread pattern of the tyre was consistent with that of a "Dunlop Le Mans" brand, with specifications J2 70 P195/70HR14. It is alleged that this type and brand of tyre was, at the time, commonly fitted to HQ model Holden motor vehicles.
Various swabs were taken from the deceased's body, including from her vagina and rectum. Samples of her fingernails were also taken. Upon analysis, the vaginal and rectal swabs indicated the presence of semen, along with what was then unidentified DNA.
Police investigations established that the deceased was a Filipina who had lived a nomadic lifestyle over the preceding 13 months. She earned a limited income from prostitution and was, along with her boyfriend, in the habit of frequenting a café in Surry Hills known as "Greasy's", from where she would periodically purchase drugs.
The investigations carried out by the police established (inter alia) the following circumstances surrounding the deceased's death:
(i) at a point near the end of the tyre track, the deceased had been struck on the head with the rock, following which her body was dragged into nearby bushes;
(ii) the area in which the deceased's body was found was a remote location which was concealed from the roadway;
(iii) the location was a significant distance from the area in which the deceased lived and which she frequented;
(iv) the deceased had worked as a prostitute but had an address at which she could engage in sexual acts with her clients. As a result, she did not have a need to take clients to a remote location for the purposes of providing sexual services;
(v) the deceased did not have a car and generally needed to be driven to any location;
(vi) the deceased's body was completely naked when found, with parts of her clothing and a series of personal items strewn around the immediate vicinity;
(vii) the analysis of the swabs taken from the deceased suggested that the she had engaged in sexual intercourse, both vaginal and anal, at some time shortly prior to her death.
On the basis of this (and other) evidence the Crown will argue at trial that the deceased was not at the National Park as a result of any agreement to provide sexual services to a client. Rather, the Crown will allege that the evidence supports a conclusion that the deceased's murder was sexually motivated, and involved her being driven to the National Park and sexually assaulted, before being killed. The Crown will further allege that a combination of circumstances, including the location at which the deceased's body was found, the fact that she was naked, and the fact that parts of her clothing were discarded, are consistent with a conclusion that the person(s) responsible for her murder intended that she not remain alive. The Crown will also argue that the location at which the deceased's body was found is consistent with the perpetrator(s) having had a detailed knowledge of that general area.
A coronial inquest was held into the death of the deceased and on 6 December 1994, an open finding was returned. However, in light of technological advances in the analysis of DNA, further testing of the swabs taken from the deceased was carried out in 2006. On that occasion, DNA consistent with that of the co-accused Steve Matthews ("Matthews") was identified. Further testing was carried in 2011 which identified Matthews' DNA on the vaginal swab taken from the deceased. It is noted that on 3 February 2014 Matthews pleaded guilty before me to the deceased's murder.
The testing carried out in 2011 also identified the accused's DNA on swabs taken from the deceased's rectum and right breast, as well as on the deceased's fingernails. That same testing also identified the presence of the DNA of a male, referred to as "unknown male A", on the swab taken from the deceased's rectum. DNA from at least three individuals was also identified on other items, including a string of beads which had been worn by the deceased. A conclusion was reached that the accused, Matthews, and unknown male A could not be excluded as the source of the DNA which had been recovered. Yet further DNA analysis has been carried out in recent months. The Crown will allege that the DNA analysis establishes (inter alia) that a struggle took place between the deceased and three other persons prior to her death.
The accused was interviewed on 10 August 2009. He told police on that occasion that he did not recognise photographs of the deceased or Matthews. He agreed that he was in the habit of frequenting "Greasy's Café" and further admitted that he had in fact travelled to Queensland with Matthews in early 1992, shortly after the deceased's murder. The Crown places some significance on the fact that in the course of that interview, which was conducted prior to the DNA analysis identifying the presence of a third male, the accused made reference to travelling to Queensland with Matthews and a third person.
The Crown also relies upon evidence obtained by the use of telephone intercepts and listening devices. The Crown will argue that statements made by the accused during recorded conversations establish (inter alia) his knowledge of the involvement of three males in the deceased's death. The Crown will also rely upon statements made by the accused in those conversations as constituting an admission that at or about the time of the deceased's murder, he was in the habit of having sexual intercourse with females in an HQ model Holden sedan.
In summary, the Crown will allege that the deceased was taken to the area in which her body was found where she was sexually assaulted by the accused, Mathews, and one other male.
The Crown will further allege that whilst the deceased was being sexually assaulted, there was a struggle in which she was restrained, and that in the course of being so restrained she was killed. The Crown will allege that the accused was either a participant in restraining the deceased when she was killed, or that he struck a blow with the rock which was found nearby.
THE CASE FOR THE ACCUSED
Senior counsel for the accused informed me that it will be the accused's case that he had sexual intercourse with the deceased at some time on the day before her body was found, and that this may have included consensual anal intercourse. The accused's case is that when he last saw the deceased she was in a panel van parked in the Surry Hills area, after which he had no further involvement with her.
It is also the accused's case that at some later time he travelled to Queensland with Matthews and a third male, known to him only as "Jack", and who is not otherwise identified by the evidence.
THE MATTERS IN DISPUTE
Evidence of Fiona Innis and Rodney Fagg
The Crown seeks to lead evidence from Fiona Innis, a Psychologist employed by the Department of Corrective Services, who provided a statement to the police on 22 March 2012 in which she made reference to an interview that she conducted with the accused upon his admission to Bathurst Correctional Centre on 3 August 2011. To the extent relevant for present purposes, the statement reads as follows:
"12. It was during this interview process when I arrived at questions fifty two (52) upon the questionnaire which asked, 'have you asked the offender how he feels at the moment". The question is formulated to prompt the interviewer to ask the same. Rodney Paterson said "sought of alright". I recorded this response upon the IOMS system questionnaire.
13. In (sic) continued to make a note upon the system of my observation of Rodney Paterson recording, "but teary, concerned about partner". It was around this time Rodney Paterson spontaneously stated "I'm going to get him".
14. I was aware that Rodney Paterson had a co-accused in relation to the charges he was facing. I immediately suspected, given the nature of the charges, that Rodney Paterson was referring to "getting" his co-accused in this matter.
15. His statement caused me to ask him who he was referring (sic) when he said he was going to get him? He stated, "my co-ee".
16. At this time I was trying to assess a potential risk to Rodney Paterson's co-accused. At this time I was unaware of his co-accused person (sic) name. I later that day, (03/08/2011) became aware of his co-accused Steve Matthews name after conducting a search upon the IOMS system to identify the person potentially at risk.
17. I ask, "how would you feel if you came across your co-ee?
18. He said, "he would be black and blue and coming out with the third persons name".
In addition, the Crown will seek to lead evidence from Rodney Fagg, a Corrective Services Officer, who made a statement to police on 22 March 2012 in which he made reference to having issued an internal "alert", warning of the dangers which would arise in the event that the accused and Matthews were permitted to associate within the gaol. The basis of the issue of that alert was explained by Mr Fagg in paragraph 9 of his statement:
"It was during the phone call to his partner that I heard Rodney talk about his co-accused, Steve Matthews. I remember Rodney said words to similar, "I'd really like to get to him really bad". There was a pause after he said that and he glanced over at me. I believed that Rodney was talking about getting to his co-accused Matthews. I knew the circumstances surrounding Paterson being in custody and I must have known that Matthews was coming to the centre. With those comments made by Paterson, I decided to put an association alert on so that the two couldn't mix. From a custodial side of things I did this to protect the safety of both inmates".
Also relevant to the admissibility of the evidence of Ms Innis and Mr Fagg are statements made by the accused in two recorded conversations. The first of those conversations was between the accused and an acquaintance, Robert Neal, at 09.14 on 16 September 2011, during which the accused said (at T 8-9):
"When the psych spoke to me, she said 'what's going to happen when you run into your coee'. Well, two things, he's gunna be black and blue and he'll be comin' out with the third person's name, 'cause I ain't comin out with it. ...But yeah, because I said that I'd get, get the third name out of him, yeah, OK, well we're not going to let you near him.
The second conversation was between the accused and his partner, Kelly Thurgood ("Thurgood") at 14.52 pm on 27 October 2011, in the course of which the accused is recorded saying:
'Cause like I said they still haven't found the third person which is the actual second person in the fuckin' blue".
The submissions of the parties
The Crown submitted that this evidence was of high probative value. In particular, the Crown submitted that there was an available inference that the accused was aware of the involvement of a third person in the deceased's murder, and was thus aware of what had happened to her. It was submitted that the probative value of the evidence was strengthened by the content of the two intercepted conversations, in the course of both of which the accused made reference to the third person.
Senior Counsel for the accused conceded that the evidence had some probative value. However, he submitted that the accused's references to Matthews being "black and blue" were highly prejudicial and might lead a jury to conclude that the accused had a propensity to be violent. In these circumstances, he submitted that the evidence should be excluded pursuant to s. 135 of the Evidence Act 1995 (NSW) ("the Act"). In response, the Crown made it clear that the references to "black and blue" were not relied upon for any purpose.
Consideration and conclusion
The evidence is, in my view, capable of sustaining an inference that the accused had some knowledge of the person or persons involved in the deceased's death. It may, of course, also be capable of sustaining an inference that the accused was planning to try and elicit the name of the third person from Matthews in an effort to identify the true perpetrator of the deceased's death. All of these matters will be for the jury to assess but in either case, I regard the probative value of the evidence as significant.
In the course of submissions, and given the Crown's clear indication that the evidence was not relied upon for the purpose of establishing that the accused was a person prone to violence, I canvassed with the parties the possibility of the evidence being edited in a way which excluded the references to Matthews being "black and blue". However, senior counsel for the accused accepted that if I were to conclude that the evidence should be admitted, it would be difficult to edit it in a way which allowed it to remain in a sensible form.
Section 135 of the Act confers a discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that it might be (inter alia) unfairly prejudicial to a party. Having regard to the inferences which are available to be drawn from the evidence, its probative value is high and in all of the circumstances I do not consider that such probative value is substantially outweighed by the danger of unfair prejudice. The Crown has made it clear to me, and will no doubt make it clear to the jury, that the evidence is not adduced for the purposes of attempting to establish that the accused is a person who is prone to violent behaviour, and that it is relied upon only for the purposes of sustaining an inference of knowledge, on the part of the accused, of matters surrounding the deceased's murder. I will direct the jury, both at the time of the evidence being led and in my summing up, that the evidence is adduced for the limited purpose outlined by the Crown and that it would be impermissible to use it to form a conclusion that the accused is a person prone to violence.
It follows that in my view the evidence should be admitted.
THE TELEPHONE CONVERSATION OF 10 AUGUST 2009
One of the conversations recorded by police in the course of the investigation was a conversation between the accused and Thurgood which took place on 10 August 2009. The general subject matter of the conversation concerned the fact that the accused had engaged in sexual relations with other women. Thurgood pointed out, more than once, that she did not want the accused to refer, in her presence, to other women with whom he had engaged in sexual activity. She is recorded as saying (inter alia) at p. 2:
"I don't want to know about your time in Queensland. I don't want to know about the cunts you were with in Queensland, let alone that fucking mole you were with. I don't want to think about it okay (starts crying)".
At p. 7 of the transcript, the conversation turned to the fact that the accused had previously engaged in group sex. That part of the conversation included the following exchange upon which the Crown seeks to rely (at p. 7 - 8):
A Get fucked, you don't wanna talk about it, just shut up. I haven't said a fucken word since you said you don't wanna talk about it. See you try to shut up and you keep going, you keep bringing it up.
T Keep bringing it up, once I brought it up ....
A (indecipherable)
T Yeah, that's cause I get the blame for everything.
A ... fuck, you're the one sitting there telling me that I'm only talking to about someone .... Talk to you about, I telling you it's got nothing to fucken do with her.
T I don't care if you're talking about it , her to me Rob, I care that she's in the conversation.
A And I told you she wasn't in it.
T She was in Queensland at the time.
A No she fucken wasn't, oh, for fuck sake. This time that they're talking about is a different time I was in Queensland
with fucking Banj and her. Fuck me dead.
T So when did you fuck her?
A Fucking, get fucked.
T When did you fuck her?
A What are you on about, I don't remember, fucken ....
T You'd remember, you had a threesome with her and Jimbo.
A Ah, see, you, all you wanna fucken do is argue. Get fucked, I'll get out of your fucken life cunt. Like I said, you keep pushing the point but you don't want me fucken with ya, then fine.
T Fucked if I know .... that told me that ..... fucken idiotic man. I wanna be with you is the reason of my fucken life (crying).
A How do you?
T ... and you go and fucken tell me ...
A How the fuck do ya? So I made one mistake and told you one fucken thing ...
T ...mistakes...
A ... and you don't fucken give up on it
Later at p. 17, there is a further reference to the accused engaging in group sex:
T I arguing the point, cause I don't know why the fuck you told me. What in the fuck reason could you have to tell your girlfriend that you had a threesome with a bloke and another sheila?
A I don't know but I was fucken ....
T You fucken idiot
There is yet a further reference at p. 26:
T No, but ... girl ... fucken ... Fucken .... Slut. Fucken ... mole ... pack slut. You all went through her, I hope youse all got something from her ... can't wait mate. I'm gonna ... flogged for it ... How easy's that (laughs). Fucken oath ... that slut ... fucken ... Hope you ... your arse ... remember ... mate. That you had a threesome ... mate ... cause ... won't live it down ...
A Whatever you fucken reckon.
There are three other passages of this conversation which are important for the purposes of determining the admissibility of the evidence in question. The first appears at page 16 of the transcript:
A No then you .... oh, fuck. Get fucked alright. I'll get out of your life. Because what you've ... for eleven years, you've had this one fucken thing on your head.
T Cause you fucken open your mouth and told me about it. Fucken idiot.
A ... fucking stew on it for eleven years.
The second appears at p. 18:
A ...You've had it on your head for the fucken whole time. And like I said that's why I've always felt like you didn't want me with you. So get fucked, I'll get out of your life cunt. Move.
T It's not right for you to do that.
A It's not right for you to do this for ten and a half years either.
The third appears at p. 25:
A Even when I tell ya, I'm not wanting to go anywhere, all I want you to do is stop arguing, you won't fucken stop. And that's right, you are over it. You were over it ten fucken years ago, when I had to, fucken told
T No, but I'm not
A ...not gunna make a difference, you're still gonna have that one fucken thing on your head for the next twenty years
The submissions of the parties
The Crown submitted that the evidence established that the accused had previously engaged in group sex involving one female and more than one male. In this regard, the Crown emphasised that part of its case was that group sex involving the deceased and more than one male had taken place immediately prior to the deceased's death. The Crown submitted that the evidence in question was therefore admissible as evidence of a tendency on the part of the accused to act in a particular way, namely to participate in group sex with one woman and more than one male.
The Crown argued that that the fact that the evidence was of only one incident did not mean that it was incapable of constituting tendency of evidence. Finally, whilst conceding that the time at which the incident is said to have occurred was a relevant consideration, the Crown submitted that this was not a factor which tended against the admission of the evidence in the present case.
Senior Counsel for the accused made three submissions in support of the conclusion that the evidence ought be rejected. Firstly, he relied on the fact that the evidence concerned a single incident of group sex activity which, of itself, meant that the probative value of the evidence was necessarily low.
Secondly, senior counsel emphasised that in circumstances where the Crown alleged that the group sex involving the deceased was non-consensual, there was not the slightest indication that the incident which was the subject of discussion between the accused and Thurgood was other than consensual.
Thirdly, senior counsel submitted that the "temporal distance" between the time of the deceased's murder, and the time of the other incident, further eroded the probative value of the evidence.
Consideration and conclusion
As I have outlined, the basis on which the Crown seeks admission of this evidence is that it establishes a tendency on the part of the accused to act in a particular way, namely to engage in group sex involving a single female and more than one male. Relevantly, s. 97 of the Evidence Act is in the following terms:
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
In the present case, no issue arises in terms of the notice which was given by the Crown of its intention to adduce the evidence. Accordingly, the first issue to be determined is whether or not the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the Crown, have significant probative value. The term "probative value" is defined in the Dictionary to the Act in the following terms:
"Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
I were to come to the view that the evidence did have significant probative value, it would then be necessary for me to consider the further restrictions upon the admission of the evidence which are imposed by s. 101 of the Act:
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
In order to admit the evidence I must, in view of the provisions of s. 97(1)(b), come to the conclusion that it has significant probative value. In other words, I must come to the conclusion that the evidence is capable of rationally affecting the probability of the existence of a fact in issue to a significant extent, i.e. to an extent which is greater than that which is required in order to satisfy the test of relevance under s. 55 (see Zaknic Pty v Svelte Corporation Pty Limited (1995) 61 FCR 171 at 175-6; R v Ford [2009] NSWCCA 306 at [50]-[51]; R v PWD [2010] NSWCCA 209 at [66]). Both the probative value of the evidence, and the possibility of its prejudicial effect, must be assessed having regard to the issues in the case (see PWD (supra) at [63]).
It is not necessary that there be a striking pattern of similarity between the conduct which is established by the evidence said to constitute the tendency, and the conduct which is alleged against the accused (see generally Ford (supra) at [38] and [125]; PWD (supra) at [64]-[65]). However, generally speaking, the closer and more particular the similarities, the more the likely it is that the evidence will have significant probative value.
The possibility of prejudicial effect with which s. 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves (see R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at [116]). Should it become necessary for me to consider the provisions of s. 101, I must make an assessment of whether the probative value of the evidence substantially outweighs any prejudicial effect that it may have (see R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at [94]-[95]. If the evidence satisfies the test posed by s. 101, it will not be excluded under s. 137 (see Ford (supra) at [59]).
With these principles in mind I turn to consider the evidence in the present case.
There is some degree of similarity between the conduct which was the subject of discussion between the accused and Thurgood, and the alleged sexual assault of the deceased immediately prior to her death. In particular, there is evidence that both involved group sexual activity with one female and more than one male. That is a relevant consideration, and is one which supports the position of the Crown. Further, the fact that the evidence is sought to be relied upon for the purposes of proving particular conduct on the part of the accused (as opposed, for example, to establishing his identification) also assists the Crown's position (see for example BP (supra) at [112]-[113]).
However in my view, those matters are substantially outweighed by other factors which reduce the probative value of the evidence to a level that is less than significant. I have reached this view for a number of reasons.
Firstly, although there is a degree of similarity between the conduct in each case, there is also one significant difference. The incident involving the deceased, on the Crown case, involved sexual intercourse without consent. In contrast, there is not the slightest suggestion in the conversation between the accused and Thurgood that the other incident of group sex was other than consensual. In fact, the inference is to the contrary. This is an important difference, bearing in mind that the probative value of the evidence must be assessed having regard to the issues in the case.
Secondly, the number of occasions on which a person may have engaged in particular conduct sought to be relied upon as tendency evidence is relevant to an assessment of probative value. I accept that there may well be situations in which it would be open to conclude that an accused person had a tendency to behave in a particular way which he or she may have only demonstrated on very few occasions (see GBF v R [2010] VSCA 135 at [34]). In the present case however, the evidence relied upon is of a single instance of conduct which, as I have noted, differs in a material respect to that relied upon by the Crown in support of its case against the accused.
Thirdly, the lapse of time between the respective conduct is also relevant to an assessment of the probative value of the evidence (see R v Watkins (2005) NSWCCA 164 at [36]. The Crown case is that the deceased was murdered on or about 1 February 1992. The conversation in which the relevant discussion took place occurred in 2009, some 17 years later. It is evident from those passages of conversation extracted in paragraphs [32] - [34] above that the incident relied upon by the Crown as tendency evidence took place some 10 or 11 years prior to that time, i.e. in or about 1997. That was 5 years after the deceased's murder. In my view, these circumstances operate to further erode the probative value of the evidence.
The question of the admissibility of tendency evidence is one of fact and degree, to be assessed in the light of the facts and circumstances of the particular case in question (see KRI v R [2011] VSCA 127). For the reasons I have outlined, the facts and circumstances of the present case are such that in my view, the probative value of the evidence is far from significant. The evidence should therefore be excluded.
Having reached that conclusion, it is not necessary for me to consider the provisions of s. 101.
THE CONVERSATION OF 30 SEPTEMBER 2011
The third issue concerns another conversation between the accused and Mr Neal on 30 September 2011, when the accused was in custody following his arrest. It is apparent from the opening parts of the conversation that the accused was recounting an incident in which he had been assaulted whilst in custody. It is also apparent that from his perspective, the cause of the assault emanated from the fact that he had been charged with sexual assault. Having discussed the prospects of being moved to another custodial facility, the transcript of the conversation records the following (commencing at page 5):
"A Yeah. Hey, I was thinkin' before, maybe to get rid of that fuckn' one charge, can you look up on the computer on what the fuckn' crime numbers are on a rape charge?
N Yeah, mate I will.
A I mean I know I never done it but yeah.
N Yeah
A That way I might be able to just fuck that charge off anyway
N Exactly. Is that the one's that giving you the grief?
A Yeah.
N The rape?
A Yeah.
N Fuckn' bullshit. Alright, mate.
A Like I said to 'em after it, watch the news, mate? When the case is finished you'll see."
The recording of the conversation was played on two occasions in the course of argument, following which it was the Crown's submission that what is transcribed as the words "crime numbers" should in fact read "prime numbers". Senior Counsel for the accused submitted that neither of these interpretations was correct, and that the accused had in fact used the words "time limits".
The submissions of the parties
Based upon his interpretation of what had been said, the Crown submitted that there was an available inference that the accused was contemplating pleading guilty to the sexual assault charge. The Crown submitted that in these circumstances, the statements made by the accused amounted to an admission, or evidence of a consciousness of guilt, in respect of count 2 in the indictment.
Senior Counsel for the accused, based upon what he argued were the words used by the accused, submitted that the conversation reflected nothing more than a mistaken belief on the part of the accused that there was, in effect, a limitation period which applied to count 2 on the indictment. Accepting this to be the proper interpretation of what was said, senior counsel submitted that the inference sought to be drawn by the Crown simply did not arise.
Consideration and conclusion
I have had the benefit of listening to the recording of the conversation on a number of occasions since hearing submissions. Having done so, there is, in my view, considerable force in the submission made by senior counsel for the accused as to what was in fact said. Moreover, given the context of the conversation and the subject matter which was being discussed, the term "prime numbers" would seem to me to make little sense.
However, even if the Crown's interpretation were adopted, the evidence does not sustain the inference that the Crown seeks to draw. Quite apart from any other consideration, the accused, on two separate occasions in the conversation, denied having committed the offence. The first of those denials was in express terms, the second is to be inferred from his reference to "watching the news when the case is finished". Those denials are completely inconsistent with the inference that the Crown seeks to draw. In my view, the Crown's suggested inference is more properly categorised as impermissible speculation.
I should note that in the course of argument, the Crown referred me to a decision of the Court of Criminal Appeal at [2013] NSWCCA 113, in which the Court was constituted by Simpson J, Harrison J and myself. The publication of that judgment is presently restricted and accordingly it would not be appropriate for me to refer to it in any detail. It is sufficient for present purposes to note that in my view, the factual circumstances of that case were markedly different. The decision provides no support for the Crown's position in the present instance.
For these reasons, the evidence of the conversation should be excluded.
ORDERS
I make the following orders:
(i) The evidence of the witnesses Innis and Flagg will be admitted.
(ii) The evidence of those parts of the conversation of 10 August 2009 in which there was discussion about the accused's involvement in a previous instance of group sex will be excluded.
(iii) The evidence of the entirety of the conversation of 30 September 2011 will be excluded.
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Decision last updated: 03 March 2014
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