The State of Western Australia v Yerkovich

The case of The State of Western Australia v Yerkovich [2004] WASC 62 involved a voir dire to determine the admissibility of two types of evidence: alleged admissions made by the accused after a video recorded interview and monitored and recorded telephone calls made by the accused whilst on remand in Hakea prison. The Supreme Court of Western Australia, presided over by Roberts-Smith J, heard the arguments from both the State Prosecutor, Ms Chong, and counsel for the accused, Mr Kitto. The central issues were whether the evidence of the alleged admissions was admissible under s 570D of the Criminal Code and whether the recorded telephone calls could be admitted as evidence of consciousness of guilt.

The court ruled that the evidence of the alleged admissions was not admissible. It found that there was no reasonable excuse for the admissions not being recorded on video, as the accused had not been asked whether he would consent to the recording, and therefore, the strict statutory regime for admissibility under s 570D was not met. Furthermore, the court was not persuaded that there were exceptional circumstances justifying the admission of the evidence in the interests of justice, given the direct challenge to the account given by the detectives.

Regarding the recorded telephone calls, the court held that certain parts of the calls were admissible as circumstantial evidence from which an adverse inference of guilt could be drawn. The court found that the calls demonstrated the accused's attempts to suborn witnesses and fabricate evidence, which could be used to infer a consciousness of guilt. However, the court noted that careful editing would be required to remove extraneous or unfairly prejudicial material before the evidence could be led at trial. The court also ruled that one particular conversation was inadmissible due to its slight relevance and the potentially unfairly prejudicial effect.

In conclusion, the court found that the evidence of the alleged admissions was not admissible, while certain parts of the recorded telephone calls were admissible as circumstantial evidence of consciousness of guilt. The trial was adjourned pending the resolution of the editing disputes and the re-listing of the case.