Regina v Patsalis and Spathis [No 6]

[1999] NSWSC 746

CITATION:	Regina v Patsalis & Spathis [No 6] [1999] NSWSC 746 revised - 27/09/99
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	70002/97; 70200/97
HEARING DATE(S):	28 June 199 - 30 June 1999 2 July 1999 5 July 1999 - 7 July 1999 12 July 1999 - 14 July 1999 19 July 1999 - 21 July 1999
JUDGMENT DATE:	22 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; Withdrawal of exhibit
ACTS CITED:	Evidence Act, 1995 - s135
DECISION:	See para 9

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Thursday 22 July 1999

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

JUDGMENT (Withdrawal of Blue Tracksuit Pants (Exhibit AA) from List of Exhibits (ref page 790 transcript) [No. 6]

1   HIS HONOUR: In this matter the Crown tendered a pair of blue tracksuit trousers which were recovered from the bedroom of Mr Alex Spathis, the accused, that being the rear bedroom identified as bedroom number 1 at premises 18 St Paul Street Randwick. At the time the tracksuit trousers were tendered they had been identified by Constable Young as having been located within that bedroom, draped over an ironing board. They appear in certain photographs which form part of exhibit L which have been distributed to the jury.

2   At the time of the tender there was no objection to the tender by either Mr Macgregor QC, on behalf of Mr Patsalis, or Mr Campbell. They were admitted as Exhibit AA in the case against both accused. However, Mr Macgregor, some time shortly thereafter, did raise a difficulty in respect of them. The basis upon which they are tendered by the Crown is that Mr Patsalis, in the course of his interview, said that, having discarded his own clothing at Chester Hill, he was provided by Mr Spathis with a top and tracksuit pants. The tracksuit pants he described as blue and made of a fleecy lined material, as opposed to some parachute material.

3   The tracksuit trousers found at the premises of Mr Spathis fit that general description. They were also damp, and that fact is relied upon by the Crown, it being suggested that they had been washed, like a jacket which Mr Spathis acknowledged he had worn the evening before and which had been laundered in order to remove the smell of smoke.

4   Mr Spathis, in his interview, gave an account of the tracksuit trousers. He initially retrieved them from Mr Patsalis at Mr Patsalis' home in Homebush. However, according to his interview, he later noticed that they were singed and therefore discarded them in Earlwood along with other items, including the blue tarpaulin.

5   The reception of the tracksuit trousers into evidence could be justified on the basis of relevance, having regard to the material which I have recited. Nonetheless, they do seem to me to have the potential of mischief so far as Mr Spathis is concerned in view of the account he has given. More than that, their probative value is slight in my view. There were apparently, within the same room, other pairs of tracksuit trousers, and they are undistinctive in their appearance.

6   The danger from the perspective of Mr Spathis is that whatever probative value they may have is outweighed by the prejudice that could arise through the jury inferring that he had lied in respect of his explanation of having discarded the tracksuit trousers. The trousers were not submitted to forensic analysis and, beyond their description, there is nothing to link them with the events of the evening of the 11th April. The Crown does not suggest that it would be making a submission that Mr Spathis did lie in respect of these trousers.

7   In that circumstance I believe that it is appropriate, under s135 of the Evidence Act, to determine that the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.

8   Having said that, the matter has gone before the jury, and indeed the trousers have been inspected by the jury during one of the adjournments. The whole of the Crown case is not in. Other witnesses may be called who may throw greater light upon this issue, although that is not immediately apparent from the material which has been served by the Crown. Nonetheless it seems to me that, if they are to be withdrawn, that should occur at the end of the Crown case.

9   For that reason, unless something else arises, I would propose that the tracksuit (Exhibit AA) should be withdrawn, notwithstanding its earlier admission without objection, on the basis that I have identified. Further, the photograph of the trousers taken during the search (which forms part of exhibit L, photograph number 67), should likewise be withdrawn, and an indication given that the Crown does not rely upon that photograph.

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Last Modified: 09/27/1999