Regina v Patsalis and Spathis [No 4]

[1999] NSWSC 715

CITATION:	Regina v Patsalis & Spathis [No 4] [1999] NSWSC 715 revised - 27/09/99
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	70002/97; 70200/97
HEARING DATE(S):	28 June 1999 - 30 June 1999 2 July 1999 5 July 1999 - 7 July 1999 12 July 1999 - 14 July 1999 19 July 1999
JUDGMENT DATE:	20 July 1999
PARTIES :	Regina v Michael Patsalis Alexios Spathis
JUDGMENT OF:	Kirby J

COUNSEL :	P Power (Crown) M Macgregor QC (Patsalis) D Campbell (Spathis)
SOLICITORS:	K Roots (Crown) Coustas & Co (Patsalis) Hancock Alldis (Spathis)
CATCHWORDS:	CRIMINAL PRACTICE & PROCEDURE; Propensity evidence; Admissibility of ERISP tapes
ACTS CITED:	Evidence Act, 1995 (s95, s97, s135, s136, s137) Crimes Act, 1900
CASES CITED:	R v AH (1997) 42 NSWLR 702 R v Fordham (1997) 98 A Crim R 359 R v Wilson (1970-71) 123 CLR 334 R v Bond (1906) 2 KB 389 Harriman v The Queen (1989) 167 CLR 590 R v Beserick (1993) 30 NSWLR 510 R v Makin (1893) 14 NSWLR 1 Tangye v The Queen (1997) 92 A Crim R 545 Pfennig v The Queen (1994-95) 182 CLR 461 R v Ritter (unreported, CCA, 31/08/95) R v Lockyer, Hunt CJ @ CL, 11/10/96
DECISION:	Ref para 45

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Tuesday 20 July 1999

70002/97 - REGINA v MICHAEL PATSALIS
70200/97 - REGINA v ALEXIOS SPATHIS

JUDGMENT (Re Propensity Evidence) [No 4]

1   HIS HONOUR: On 12 April 1996, Mr Patsalis handed the police at Bankstown a statement which he had prepared. The statement described the circumstances in which he had become indebted to Mr Spathis, his co-accused. The Crown seeks to rely upon that statement.

The Objection of Mr Patsalis

2   Objection is taken on behalf of Mr Patsalis to the use of this material. There are three grounds:

· First, that the police came into possession of the statement improperly, in that they failed to warn Mr Patsalis. I have dealt with that objection (R v Patsalis & Spathis [No 3]). I found no impropriety.

· Secondly, the statement offends against the Tendency Rule (s97 Evidence Act 1995). It discloses other criminal offences, or discreditable behaviour. It has no other relevance. It is prejudicial. Alternatively, if it does have relevance, it is insubstantial, and should be excluded (s97(1)(b), s101(2), s135(a), s137 Evidence Act 1995).

· Thirdly, the accused was asked to read his statement during the course of the electronic interview (the ERISP). Even were the statement admitted, his reading of it should be excluded, as a matter of discretion (s137).

3   I will deal, in this judgment, with the second and third issues.

The Crown Case

4   Mr Patsalis gave a lengthy interview to the police (as did Mr Spathis). He described the stabbing and robbing of the deceased. It is convenient to reproduce a passage from the judgment in the joint trial application (R v Patsalis & Spathis [No 1]), which describes the separate phases of the alleged crime in these terms:

· “First, there was what might be termed a preparation phase. Arrangements were made to meet the deceased at Bankstown. A number of purchases were made beforehand (two pairs of gloves, two knives, a tarpaulin and one tin of petrol).

· Second, having met the deceased, two vehicles were then driven from Bankstown to the Marrickville RSL. Mr Spathis was in his car. Mr Patsalis was a passenger in the truck driven by Mr Ludwig.

· Third, once at Marrickville, Mr Spathis parked his car. He then entered the truck, sitting alongside Mr Ludwig, with Mr Patsalis on the other side, nearest the door. Mr Spathis then drove to Botany.

· Fourth, at some point the vehicle parked by the side of the road at Botany. Whilst parked, Mr Ludwig was stabbed. Each accused blames the other. Each asserts ignorance of the sinister purpose of the other. Both acknowledge that money was removed from Mr Ludwig’s jacket after the stabbing.

· Fifth, Mr Spathis then drove back to Marrickville with Mr Patsalis as a passenger. Mr Patsalis then alighted. He thereafter drove Mr Spathis’ vehicle. Mr Patsalis was covered with blood. The car seat was protected by the plastic tarpaulin purchased earlier in the day.

· Sixth, the two vehicles then drove to Terry Hills, although by a circuitous route. At Terry Hills the body was removed from the cabin by Mr Spathis, and left by the side of the road. It was doused in petrol. Further money was removed from the jacket of the deceased. The body was then set alight.

· Seventh, the vehicles then left the scene, although in circumstances which were somewhat chaotic. The burning of the body, and the rapid exit from the area, were witnessed by the occupants of a number of vehicles which were in the area.

· Eighth, the vehicles proceeded to Mr Patsalis’ flat at Homebush. Mr Spathis was driving the truck, and Mr Patsalis Mr Spathis’ car. Having met at Homebush, the two vehicles were then driven to Chester Hill where the truck was set alight. Mr Patsalis placed his blood stained clothes inside the truck, so that they were also destroyed.”

5   The description of these matters is common to both interviews. The difference between the two accounts is in the role each accused assigns to himself, and his co-accused. Each seeks to explain his complicity, upon the basis of ignorance of the true purpose of the other before the deceased was stabbed, and threats made by the other after the stabbing had taken place.

6   The Crown puts its case against each accused upon three bases, namely:

· First, that either Mr Patsalis, or Mr Spathis, or both, stabbed the deceased.

· Secondly, there was a joint criminal enterprise between Mr Patsalis and Mr Spathis. The act of stabbing Mr Ludwig was within the scope of that enterprise. Accordingly, were the jury to decide that one only physically stabbed Mr Ludwig, the other should also be fixed with responsibility. Were the jury undecided as to who physically stabbed Mr Ludwig, both should, upon this basis, share responsibility.

· Thirdly (and in the alternative), since the robbery occurred in circumstances which satisfy s98 of the Crimes Act 1900, and the wounding or infliction of grievous bodily harm was within the contemplation of both accused, the felony/murder rule would apply to make each responsible for Mr Ludwig’s death.

The Statement of Mr Patsalis

7   The statement handed by Mr Patsalis to the Bankstown police, to which objection is now taken, contains Mr Patsalis’ account of the background to Mr Ludwig’s murder.

8   The statement is quite long. Only certain passages are objected to. It is important, however, to see those passages in context. Reproduced below are the first several pages of the statement. The words objected to are underlined.

“I, Michael Patsalis of 19 Woodbine Street, Yagoona, had organised a buy between Peter and Alexios Spathis of a large ship of cigarettes on, on the 11th of the 4th, 1996, the exact amount being of 58 and a half thousand dollars. Mr Spathis of 18 St Paul Street, Randwick, then planned that he and his uncle from Ashfield could supply any amount of cigarettes that Peter would require.
Chain of Events.
I met Peter, his surname I do not know, at a gambling establishment at 12B Restwell Parade, Bankstown, owned by John Hounitous. He supplied him with cigarettes and vending machines 3 to 4 months ago. In the meantime I had occurred a substantial debt to Mr Spathis, Alex, of about $16,500. I was buying cigarettes for him and his uncle from a man called Tom, an Asian fellow. Alex’s uncle had given him an amount around the $5000 to make a purchase. This was to offset events that led to Peter being murdered. For Alex had invested a large sum of money obtained from his savings with his fiancee girlfriend without her knowledge, also borrowings from his father, sister and other relatives. In short, all the money that was borrowed was to be invested in buying cheap cigarettes and reselling them at a greater profit to his uncle and other associates. We were ripped off.
Note, initially, I had a debt to Alex of about $5500 by the fact that I lied to him in that his licence driver’s was cancelled and that I could get him a new licence . This caper proved very costly to Alex because he had used some of the money that he and Elizabeth had saved to purchase a home. He could not afford to tell her that he had just lost $5500. He approached me on several occasions up at the Three Swallows Hotel and explicitly told me that he would make sure that I had some sort of accident unless that money was returned to him quickly so as, so as Elizabeth nor his parents would find out. I would - I could see the, the desperation on his face. I felt real remorse about what I had done for I used that money that I had obtained off him to gamble with. I was getting deeper and deeper in debt to him by devising a plan that I was to gain some form of compensation from the government. I went to him and showed him part of my bankbook which stated that I had received a payment of $705,000. In actual fact it was a mistake by the bank. He believed that I had this money in the term deposit for I had forged a letter from my solicitor, Mr Coustas, stating that we went to court and we were awarded $570,000 of the 705,000 and was, and was due to get this amount around February of 1996. The reason I did this was to gain some more money from him, ie $5000 so as I could go to the races, Rosehill racecourse and win back the money so as I could pay him back in full. Unfortunately for me and him I could not win and lost the lot on the same day. This made my situation worse. I was now in debt to him for $10,500. I started to borrow money from others to try and get myself out of debt. I kept on getting deeper and deeper into debt. I lied to people to obtain money so as I could win it back and get him off my back for he had threatened to kill me unless I was able to pay him back. As he said, ‘I no longer have a life. You have destroyed me. If Elizabeth finds out that I lost the $10,500 she will never be able to trust me again.’ He said that if I was able to get the money back to him within 3 months everything would be fine. I met up with a fellow by the name of Tom at the sports club. He sold me about $500 worth of cigarettes. I told this to Alex, the real worth being $1700. He said that he would be able to get a large amount for that price, ie $27 a carton and sell them elsewhere and make a profit. I said I could deal for him and Tom. Tom convinced us both that he could supply us for whatever we wanted. Both Alex and myself invested a large sum of money. Tom took the money and we have never seen him since, that being $6000. Alex blamed me and added this amount on to my bill. He was getting very upset and starting to call me on my mobile phone. He would visit my place of residence, that being Arthur Street, Homebush. He made a lot of threats to me and towards my family, especially my brother Andrew. This troubled me to a great deal. I finally told him that we could go to my solicitors, Mr Coustas, and draw up papers stating that I owed him all this money to make it legal. We went to Mr Coustas and he drew up the papers for us. I heard nothing from Alex for a few days. This was unusual for, for he would either visit my place or he would phone me to find out if I was still living there or whether I had left. After a couple of weeks Alex approached me because he could no longer take this pressure. I said to him in hesitance, remembering what had happened with Tom that that I had met another fellow by the name of Peter. …”

The Evidence Act, 1995

9 Section 95 deals with the circumstance that evidence is not admissible as tendency evidence (satisfying s97(1) and s101(2)), but is admissible for another purpose. It makes the following provision:

“95(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.”

10 A discretion arises under s135 which, relevantly, is in these terms:

“135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or …”

11   The Court may limit the use made of the evidence, if there is the danger that a particular use might be “unfairly prejudicial to a party” (s136(a)). The general exclusion applying to criminal proceedings is also relevant, and is in these terms:

“137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

The Suggested Relevance of the Statements

12   Mr Patsalis, in the passages objected to, described two episodes which are certainly discreditable, and probably criminal:

· First, he obtained $5,500 from Mr Spathis by lying to him. Mr Spathis’ driver’s licence had been cancelled. Mr Patsalis apparently represented that, upon payment of $5,500, he could obtain a new licence.

· Secondly, to obtain a further advance of $5,000, Mr Patsalis falsely represented to Mr Spathis that he was entitled to substantial compensation. The compensation would become payable in February 1996. To add weight to that representation, he forged a letter from his solicitors saying that the money was on term deposit. Each sum provided by Mr Spathis was gambled and lost.

13   Unquestionably, prejudice attaches to this material. Mr Patsalis was, no doubt, acutely aware of that fact when he wrote out the statement. He recognised, apparently, that substantially more was at stake than the matters which he acknowledged in his statement. He denied any complicity in the murder or robbery of Mr Ludwig, which he had witnessed. His denial was the more plausible because it was made in the context of what may be thought to be a full and frank disclosure. His interview with the police, in the concluding stages, included the following question and answer:

“Q245 Because of your gambling problem, did you feel any pressure to comply with Alex’s requests to assist him in recovering the money?
A. To recover the money but not by killing anybody.

14 The Crown did not suggest that the evidence was tendency evidence capable of satisfying the requirements of s97(1) and s101(2). It identified two matters which gave the evidence a relevance beyond the mere disclosure of a propensity for criminal conduct. The evidence was relevant, first, to the relationship between the accused, Mr Patsalis, and Mr Spathis, and secondly, to Mr Patsalis’ motive to commit the crime charged. Where evidence is introduced for such purposes, though it may disclose previous offences, it is not tendency evidence, and s97 and s101 are irrelevant (R v AH (1997) 42 NSWLR 702, per Ireland J at 708: also see, R v Fordham (1997) 98 A Crim R 359: cf Comparative Evidence; Admission of Evidence of Relationship in Sexual Offence Prosecutions, Justice T H Smith and O P Holdenson QC 73 ALJ 432 (Pt 1), and 494 (Pt 2), especially 496).

The Relationship Cases

15   In R v Wilson (1970-71) 123 CLR 334, Barwick CJ (at 338) endorsed the following passage in R v Bond (1906) 2 KB 389, taken from the judgment of Kennedy J:

“The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.”

16   The Chief Justice rejected two suggested limitations upon the reception of such evidence. First, it is not limited to those cases where the relationship tends to establish motive (at 339). Secondly, it cannot be confined simply to the relationship which is proximate to the act charged (the shooting by the husband of his wife in Wilson’s case). The Crown may prove any act of the accused which is itself relevant to whether the accused did the act charged (at 338).

17   Nonetheless, the evidence must meet the following test: (at 339)

“It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn.”

18   Barwick CJ provided a number of illustrations. He said this: (at 339)

“If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible.”

19   In that case the issue was whether the discharge of a gun was accidental, or deliberate.

20   In Harriman v The Queen (1989) 167 CLR 590, the appellant was charged with having been knowingly concerned in the importation into Australia of heroin. The Crown alleged that he acted in concert with a person, Lester John Martin. Martin gave evidence on behalf of the Crown. He was a person with a history of drug dealing. The issue was whether evidence of his relationship with the appellant was admissible, including dealing in heroin on other occasions. The Court (Brennan, Dawson, Toohey, Gaudron and McHugh JJ) held that such evidence was admissible. It was highly probative of the character of the appellant’s association with Martin. The appellant and Martin had travelled to Thailand. On the Crown case, the heroin was obtained on that occasion. Toohey J said this: (at 609)

“Now it is true that such evidence was also likely to demonstrate a propensity on the part of the applicant to engage in heroin trafficking. But the evidence went beyond that. It was relevant to the character of the association between the applicant and Martin and was admissible for that reason, though, questions of prejudice aside, possible misuse of the evidence by the jury required that its purpose be explained with some care to them.”

21   McHugh J said this: (at 630)

“Evidence relating to the accused and the alleged victim (‘the relationship cases’), although revealing other criminal conduct, will frequently be admissible because it tends to prove how or why the conduct the subject of the charge arose or because it makes it more probable than not that the conduct occurred at the time or place or in the way alleged. In ‘the relationship cases’, evidence of previous acts is admissible not to show a general criminal disposition but to show the nature of the relationship between the parties.”

22   The relationship between Mr Patsalis and Mr Spathis was the context within which the events of 11 April 1996 took place. The words of Hunt CJ at CL (although referable to a sexual relationship) are apposite (R v Beserick (1993) 30 NSWLR 510 at 515), describing such evidence as:

“… admissible in order to place the evidence of the offence charged into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason.”

Cases Dealing with Motive

23   McHugh J in Harriman (at 628), drew attention to the following passage from the judgment of Windeyer J in R v Makin (1893) 14 NSWLR 1 at 18, where his Honour said:

“… you can give evidence of the commission of another crime when the evidence concerning the other crime is either a part of the res gestae in the case before the Court, or where the evidence about it is so connected with the prisoner as to explain his conduct or motives in the transaction which is the subject of the trial.”

24   In Wilson v The Queen, Barwick CJ made the following comment: (at 339)

“It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal.”

25   In Harriman v The Queen, McHugh J said this: (at 631)

“Moreover, circumstantial evidence, not amounting to similar fact evidence or ‘relationship’ evidence, may be admissible although it reveals other criminal conduct. Evidence of previous crimes of the accused may be admissible because it supplies the motive for the crime charged or because it identifies the accused with the commission of the crime. It is commonplace in trials for murder or assault for evidence to be tendered to show that the motive for the killing or the assault was a dispute over the proceeds of other crimes or a fear that the victim would inform on the accused in relation to other crimes.”

Application of these Principles

26   I should make a number of preliminary remarks. First, in this case, unlike many cases, there is no question concerning the cogency of the evidence. The description of the relationship between Mr Patsalis and Mr Spathis was provided by Mr Patsalis himself. Secondly, it is important that the statement represents Mr Patsalis’ appreciation of matters relevant to the murder of Mr Ludwig. It is, as he describes, “a chain of events”. Thirdly, although the cases speak of the relationship between the accused and the victim, the same principle applies between an accused and a co-accused, where it is suggested that the parties were acting in concert. The relationship between the parties may assist in determining whether they had reached an understanding or arrangement amounting to an agreement to commit a crime (Tangye v The Queen (1997) 92 A Crim R 545, per Hunt CJ at CL at 556), as Harriman v The Queen demonstrates.

27   In my view, the statements to which objection is taken are relevant. They provide the basis for inferences that may logically and reasonably be drawn (cf Barwick CJ in Wilson at 339). They are capable of explaining the conduct of the accused as charged in the indictment (cf Kennedy J in R v Bond), or how and why such conduct arose (cf McHugh J in Harriman at 630). Indeed, the material is capable of assisting in a choice between the two competing hypotheses, namely complicity in a joint criminal enterprise, as alleged by the Crown, or an absence of foreknowledge and involvement, as asserted by the accused.

28   Mr Patsalis owed Mr Spathis a substantial sum, namely $16,500. Such a debt is an unconvincing motive for murder. However, here the debt was but part of the picture. The picture also included the circumstances in which the debt had been incurred, and the reaction to those circumstances by Mr Spathis. According to Mr Patsalis, Mr Spathis first advanced $5,500 upon the basis of a false representation that Mr Patsalis could obtain a counterfeit driver’s licence. Mr Patsalis was unable to deliver. He gambled the money, and lost it. He, therefore, was in no position to return the money. Not surprisingly, Mr Spathis reacted angrily. He made threats. The problem was compounded by further deception, inducing Mr Spathis, according to Mr Patsalis, to provide a further $5,000. Again Mr Patsalis gambled the money and lost. Each time, to use his own words, he was endeavouring to get Mr Spathis “off his back”. Mr Spathis, again according to Mr Patsalis, became desperate. His desperation showed in his face. Mr Spathis was accountable to his family for the money which had been lost. He saw his relationship with Elizabeth, his fiancee, in jeopardy. He responded towards Mr Patsalis with more threats. Mr Patsalis, in his turn, reacted by suggesting yet another scheme to recoup the money (which was again unsuccessful), namely the purchase of cheap cigarettes.

29   It is one thing to owe money. Many people manage to ignore debt. It is another to owe money in circumstances where the lender threatens to kill the person to whom the money is advanced (or members of his family), or arrange an accident. Many would find that more difficult to ignore. The relevance of the deception of Mr Spathis, which Mr Patsalis acknowledged, is that it came to the notice of Mr Spathis and (as a matter of inference) fed his outrage. When Mr Patsalis was unable to either provide a licence, or return the money, it would have been apparent to Mr Spathis that he had been deceived. The term deposit expired in February 1996. February came and went and Mr Patsalis could not repay. He made it plain he had no money. It would have been obvious to Mr Spathis that he had again been deceived. The pressure exerted by Mr Spathis was, no doubt, the product of Mr Spathis’ anger at Mr Patsalis’ conduct, and his embarrassment at his own conduct, he being accountable to members of his family for the money. When interviewed by the police, Mr Patsalis said this: (Q219)

“Q219 Okay. Were you scared that you might be killed or injured if you didn’t pay Alex back the money?
A. Yes.”

The Test to be Applied

30   In Pfennig v The Queen (1994-95) 182 CLR 461, Mason CJ, Deane and Dawson JJ, included relationship evidence as a species of propensity evidence. They said this: (at 464/465)

“There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term ‘similar fact’ evidence is often used in a general but inaccurate sense.”

31   Their Honours then suggested the following test in respect of propensity evidence: (at 482/3)

“Because the propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused ( Hoch (1988) 165 CLR 296).”

32   However, whereas the rule in respect of circumstantial evidence is ordinarily applied at the end of the evidence (or at least the close of the Crown case), and upon the whole of the evidence, the test should be applied to evidence which is but part of the proof offered by the Crown. Mason CJ, Deane and Dawson JJ said this: (at 483)

“…. the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect.”

33   McHugh J disagreed with the majority’s formulation of the test. He said this: (at 530)

“However, I do not think that evidence disclosing or tending to prove other criminal or wrongful conduct, and consequently the criminal or discreditable propensity of the accused, must always meet this high standard. In the relationship cases, for example, propensity reasoning may simply reinforce or explain other evidence that directly implicates the accused. In such cases, it would be contrary to both the practice of the criminal courts and the interests of justice to use the no rational explanation test as the condition of admissibility of such evidence.”

34   In respect of relationship evidence, his Honour added: (at 532)

“But in the relationship cases, for example, where evidence of propensity is relied on as confirmatory or explanatory of evidence implicating the accused, I do not think that such a high standard is either required or appropriate.”

35   McHugh J proposed the following test: (at 529)

“… the judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.”

36   In R v Ritter (unreported, CCA, 31 August 1995), the accused was charged with the murder of his defacto wife. Evidence was led by the Crown concerning the relationship between the deceased and the accused. According to this evidence, the accused had, on other occasions, battered the deceased. Gleeson CJ (with whom Handley JA and Hume J agreed), identified the appellant’s argument in these words: (at 6)

“… it was argued that the decision in Pfennig is authority for the proposition that evidence of the kind in question should have been rejected unless it were proper to conclude that its probative force was such that it bore no reasonable explanation other than the appellant’s guilt of the crime charged. This, it was said, is the test to be applied whenever the Crown tenders evidence, for any purpose, which is evidence tending to show that an accused is guilty of a criminal offence other than that charged.”

37   His Honour rejected that argument. He said this: (at 6/7)

“I am not persuaded that Pfennig is authority for that proposition.
There are many circumstances in which evidence, otherwise relevant and admissible, might disclose that an accused person has been guilty of some criminal offence other than that the subject of the current charge. For example, if a person is accused of committing a crime which is said to have occurred within a prison, evidence about the circumstances of the alleged offence will almost certainly reveal that the accused is a convicted criminal. Depending upon the case, it might also reveal the crime of which the accused had been previously convicted. Again, an account of the history of an alleged offence might incidentally reveal the commission by the accused of other offences. For example, in seeking to prove that an accused has engaged in a money laundering transaction, the Crown may tender evidence which reveals that, shortly before the transaction took place, the accused had come into possession of a large amount of cash as a result of an illegal drug deal. To take another example, it may be material to a charge that an accused person had attempted to bribe a police officer to prove that the accused had previously committed, or had told the police officer he had committed, an offence which he did not want investigated.
It can hardly be the case that, in the two examples just given, the evidence which reveals the commission of another offence is only admissible if it bears no reasonable explanation other than the accused’s guilt of the offence of money laundering, or attempted bribery. In most cases of the kind mentioned, the evidence in question would not satisfy that test.”

38   Pfennig was a case which concerned similar fact evidence, as the opening words of the majority judgment make plain. Gleeson CJ said this: (p 7)

“In the two examples mentioned above, the evidence in question was not propensity or similar fact evidence. The evidence of drug dealing would not establish a propensity to engage in money laundering, and the evidence of previous criminal behaviour would not establish a propensity to bribe police officers. Nor is there any similarity between the offences disclosed and the offences charged.
Similarly, in the present case the evidence in question was not led on the basis that it was propensity or similar fact evidence. It was led, in conformity with the decision of the High Court in Wilson , on the basis that it tended to establish matters relevant to the relationship between the appellant and the deceased. There is nothing in Pfennig which suggests that the High Court was setting out to overrule or qualify Wilson . Indeed, it may be remarked that, if Pfennig is authority for the proposition relied upon by senior counsel for the appellant in this appeal, then Wilson would seem to have been wrongly decided.”

39   On the basis of this authority, I will deal with the admission of the evidence, applying the ordinary test. The Crown must demonstrate its relevance, which I believe it has. It is not necessary that the evidence meet the more rigorous standard suggested in Pfennig, namely that before it can be admitted, there must be no reasonable view of the evidence that is consistent with the innocence of the accused.

Discretions Under the Evidence Act

40 I turn, then, to the discretions arising under s135, s136 and s137. It is convenient to deal with the issues under s136(a) first. There is a danger that the jury may resort to what has been termed “propensity reasoning” (that, because Mr Patsalis has admitted to deception, and forgery, he has a criminal disposition, and, is therefore guilty of the crime charged). Such reasoning would be unfairly prejudicial to Mr Patsalis. Were the evidence admitted, I would propose to warn the jury that they must not resort to such reasoning. I would also propose to identify the use which they may make of the evidence. It may be used as evidence relevant to the issue of motive (whether Mr Patsalis had a motive to murder or rob Mr Ludwig, or join in a joint criminal enterprise to do so), and the nature of the relationship between Mr Spathis and Mr Patsalis.

41   The evidence, in my view, has substantial probative value. Were the directions given, which I propose, I do not believe that the probative value would be substantially outweighed by the danger that the evidence would be unfairly prejudicial to Mr Patsalis (s135(a)) (R v Lockyer, Hunt CJ at CL, 11 October 1996). Nor, for the same reasons, do I believe I should refuse to admit the evidence under s137.

The Reading of the Statement

42   I move, therefore, to the final objection to the hand-written statement. During the electronic interview, Mr Patsalis’ attention was drawn to that document. The interview was in these terms:

“Q21. I also understand that when you spoke to the police here at Bankstown you handed them a handwritten document. Is that correct?
A. That is correct.
Q22. OK. I’d just like to show you some handwritten pages inside some plastic sleeves. Could you go through each on and just, just indicate whether that's the notes you handed to the police here at Bankstown?
A. Yes, yes, yes, yes, yes, yes, yes, yes, yes, yes, yes. Yes, they are.
Q23. Right, OK. Just for the purposes of the, of the audio and video interview. Are you able to read tht, read that onto the record for us?
A. Yes.”

43   Mr Patsalis then read the hand-written notes. Counsel for Mr Patsalis made the following written submission:

“If the document is admissible it speaks for itself and the accused Patsalis should not be judged on his reading of it. The accused demonstrated obvious reading difficulties, whether affected by nervousness, distress or the legibility of his handwriting.”

44 I watched the video concerning Mr Patsalis for a second time in order to determine this issue. Had Mr Patsalis exhibited some reading difficulty, it may well have been appropriate to exclude this material. However, Mr Patsalis appeared to read the statement without difficulty, and in a straight forward way. I see no basis for the exclusion of this material under s135 or s137, or otherwise.

45   I therefore admit the whole of the ERISP tape concerning Mr Patsalis.

**********

Last Modified: 09/27/1999