An issue has arisen as to the admissibility of part of the contents of two phone calls made by the accused in March 2020 to his friend Scott Woodward.
The defence seeks a preliminary ruling on the issue, submitting that certain parts of the conversations should be excluded under s 137 of the Evidence Act 1995 (NSW).
The Crown presses the option to tender those parts of the calls against the accused, whether the witness Scott Woodhouse is called to give evidence in the trial or not.
I ruled that the offending parts of the calls were not admissible. These are my reasons for that ruling.
[2]
Background facts
Scott Woodward is a friend of the accused. The evidence suggests that in the time leading up to 8 December 2018, the accused attended Scott Woodward's house at Wallsend almost daily.
Nakita Martyn was in a relationship with Scott Woodward and lived with him at Wallsend.
An issue was brewing about the ownership or possession of a motorbike which on 8 December 2018 was located at the home of the deceased, Mr Denniss.
The Crown case is that the accused visited Mr Denniss at home and there was an altercation about the motorbike at about 3:00pm on 8 December 2018. During that altercation the accused was stabbed in the arm by Mr Denniss. The accused returned about half an hour later and shot the deceased dead from a position on the driveway some distance from where the deceased was standing in his garage.
The accused was at Scott Woodward's house both before the altercation with Mr Denniss and again after it, and before he returned to Mr Denniss's house and shot him.
There is evidence available from Mr Woodward's girlfriend, Nakita Martyn, that certain things were said and done at Scott Woodward's house on both those occasions when both the accused and Scott Woodward were in her presence.
Scott Woodward was interviewed by ERISP on 19 December 2018, having been arrested at his home earlier that day. The ERISP included warnings offered by the interviewing police officers that he was not obliged to say or do anything unless he wished to in respect of a number of matters about which he was questioned.
Scott Woodward was included in the witness list to be called by the Crown until shortly before this current trial. During an argument before me on 31 August and 1 September 2020 regarding whether I should set aside a subpoena that was served late seeking the audio recordings of phone calls between the accused and Scott Woodward, (amongst others), I was informed that Scott Woodward was to be called by the Crown.
In an email dated 9 September 2020 the Crown Prosecutor indicated to counsel for the accused, Mr Steel, that the Crown no longer proposed to call Scott Woodward as a witness in the trial nor to make him available as a witness in the Crown case.
It is not the role of this application to examine the Crown Prosecutor's decision, however this evolved position provides some context for the basis of the application made by the accused to exclude the identified parts of phone calls made by the accused to Scott Woodward on 22 and 24 March 2020.
An email was forwarded by the DPP to the solicitor for the accused on 24 August 2020 stating that the police had been intending to take a "further" statement from Scott Woodward in the following week and suggesting that the defence may wish to defer their proposed conference with Mr Woodward "to wait for that (statement) to be served prior to the conference".
It is common ground that no such statement has been taken from Scott Woodward.
As a consequence of this, the defence wish to conference Scott Woodward to ascertain what evidence he would be able to give in the proceedings to determine whether he should be called as a witness in the defence case.
The Crown advised the defence that should the defence call Scott Woodward as a witness in the defence case, the Crown would propose to tender the gaol calls between the accused and Scott Woodward. The defence also understands that the Crown intends to cross-examine the accused and Scott Woodward in relation to the content of the calls.
[3]
The Defence Submissions
The defence object to the admission of the identified portions of the calls pursuant to s 137 of the Evidence Act on the basis that the probative value is outweighed by the danger of unfair prejudice to the accused.
The portions of the transcript of the calls in issue are as follows:
"22 March 2020:
DH: I dunno hopefully my lawyers will run you through like, yeah, everything
SW: Yep
DH: Yep I think they're just gonna run you through everything and see if you agree to it
SW: Yep
DH: And yeah
SW: Yeah that's all g.
DH: I said you should be eeetswa.
SW: Yeah
DH: But yeah. Yeah I dunno when Nakita, I think Taylah's gonna be first,
SW: Yep
DH: And then Nakita
SW: Yep
DH: And then you
SW: Yeah righto.
DH: And I said to me lawyers I'm like oh yeah fuckin that you're not a very big fan of Nakita anymore and they're like oh really (laughs) that's a good
thing I think
SW: Yep
DH: I dunno. I said --- on I think
SW: Laughs Ya funny cunt
DH: My lawyers are pretty good
SW: Yep
DH: So that yeah. I dunno if Leanne's even got your number, I think she does hey.
SW: Yeah.
DH: I told them to hit Leanne up and get the number off her.
SW: Yep
DH: Just so they don't have to go through the coppers or anything.
24 March 2020:
DH: Cause then once they know whatever. Then yeah, you'll be able to tell them what I've pretty much told them.
SW: Yep.
DH: And hopefully they tell ya what I've said anyway.
SW: Yeah
DH: Yeah. Which is what happened anyway
SW: That's exactly it."
And later in the conversation on 24 March 2020:
"DH: As long as like, you won't even really need to appear as long as you get to talk to my lawyers and that first.
SW: Yeah
DH: So that they, yeah, just back up my story or whatever. Pretty much.
SW: Yeah.
DH: Or not my story, what happened.
SW: Yeah.
DH: Then yeah. And then thought you might be able to do it AVL."
Mr Steel submitted that the defence will be placed in an untenable position if these portions of the conversations were admitted into evidence. Adding to the burden for the defence now is the need to conference Scott Woodward at this late stage, a difficulty that has arisen from the late cancelling of him from the Crown witness list in circumstances where despite what had been said in August 2020, the police have not taken a statement from Scott Woodward. He has not been conferenced by the Crown and the Crown do not propose to call him or make him available as a witness in the Crown case.
Mr Steel argued that in the normal course, the defence would be able to conference the witness and call him to give evidence without any adverse consequence. In the circumstances as they have arisen here the defence has to make a determination as to whether any of the evidence Scott Woodward can give would assist the accused's case. Such a decision must be affected by whether material would be able to be raised by the Crown in the trial that would suggest that his evidence may be tainted.
In this case, because of the nature and content of the exchange between the accused and Mr Woodward, the suggestion of tainting is open. Worse still, the calls suggest the prospect of tainting by the accused's lawyers.
The prejudice is huge and unable to be remedied in circumstances where it is likely that the jury will erroneously conclude that the accused's lawyers have in fact "run the witness through everything", and told him what the accused would say so that the witness can "back up" the accused's story.
The Crown has made clear on the record that it does not have any concern that the defence would conduct a conference with Scott Woodward in such a manner and the content of the calls in issue is not pressed on that basis.
Mr Steel submitted that these portions of the calls would have very limited, if any, probative value and the admission of the material would have the gravest prejudicial effect. It is highly likely that this material will taint the integrity and propriety of the accused's legal representatives in the eyes of the jury such that the accused will not be able to receive a fair trial. Further, the reception of this material is likely to inflame the jury and as a consequence there is a grave risk that they may consciously or unconsciously determine the case adversely to the accused based on these extraneous factors.
[4]
Crown's Submissions
The Crown argued that the context of the calls on 22 and 24 March 2020 support an inference that Scott Woodward and the accused had discussed the accused's account of events before.
There was evidence that there had been 21 calls made by the accused to Scott Woodward between November 2019 and 22 March 2020. The Court should infer that this illustrates a willingness on the part of Scott Woodward to receive information from the accused. The content of the calls in issue on 22 and 24 March 2020 show preparedness by Scott Woodward to adopt what he had been told to by the accused, and that he would in fact adopt what he was told to say in his evidence.
Parts of the calls in context indicate that the accused is instructing Scott Woodward to speak to the accused's legal team before he gives evidence and that Scott Woodward is agreeing that he will do that. Given the circumstances are that the account given by Scott Woodward to the police in his ERISP in December 2018 is not consistent with the accused's claim of self-defence, the content of these calls is particularly significant.
All those parts of the responses by Scott Woodward where he says "yeah" and "yes" in response to matters stated by the accused, supports the inference that they have discussed these matters before and that Scott Woodward is aware of the accused's account and is going to give a version that supports the accused's account, but Scott Woodward had not approached the police to give his - what would have to be - changed account.
The Crown also submitted that I should take into account that during his ERISP Scott Woodward told many lies that were later proven to be lies because in relation to subjects where he chose not to exercise his right to silence, he made certain denials and claims that he knew nothing about certain things, yet he later pleaded guilty to or admitted his guilt in respect of those things.
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Defence Submissions in Reply
The officer in charge of the investigation, DSC Galbraith, said in his statement of 9 September 2020 that as at June 2020, he was making arrangements with Scott Woodward to attend Cessnock Police Station to make a statement. This also indicates that Scott Woodward was in fact willing to provide a statement to the police and the police could have been involved in that process but instead they chose not to do that and the defence now is in the position of having to take his account.
Mr Steel submitted that the Court should reject the interpretation of the parts of the phone calls in issue as being an adoption by Scott Woodward of what is being said by the accused. At its highest, the responses by Mr Woodward indicate that he is open to the process of going and talking to the lawyers for the accused, rather than any suggestion that he necessarily will adopt any particular version of what occurred.
The risk is that the jury may put a sinister connotation upon the exchange. There is a real danger of that and enormous prejudice will flow that cannot be remedied by any direction to the jury.
The accused and Scott Woodward were friends, and so no adverse assumption should be made because the accused made 21 phone calls to his friend in the space of five months. Without any objective evidence, the Court should not draw any inference at all about the number of calls or what was discussed in those calls.
[6]
Decision
The nature and the content of the extracts in issue seem to me to be nothing more than naive exchanges between the accused and his friend about what they think might be the process when Scott Woodward goes to see the accused's lawyers.
I do not accept that the fact that there had been 21 calls made by the accused to his friend over a five month period before the last aborted trial indicates anything at all.
I am certainly not prepared to draw an inference from the transcripts of the conversations on 22 and 24 March 2020 that any previous phone call included any conversation about what evidence Scott Woodward would or ought to give.
The difficulty with those identified parts of the conversations on 22 and 24 March 2020 is that the jury may well take the view that evidence of those exchanges is being led because the jury ought to consider the possibility or even probability that any evidence offered by Scott Woodward has been dictated to him by the accused. Even more damaging would be if the jury concluded that somehow in that naive and ill-informed exchange, the accused was implying that the accused's lawyers would tell Scott Woodward what he had to say in his evidence.
The Crown accepts, as do I, that the accused's lawyers would not engage in any such thing.
The exchanges in issue have in my view virtually no probative value but carry a significant danger of causing unfair prejudice to the accused of the nature outlined, without overstatement, by Mr Steel.
The identified portions of the gaol calls between the accused and Scott Woodward on 22 and 24 March 2020 may not be led and may not be admitted into evidence.
[7]
Amendments
19 November 2020 - Amended Publication Restrictions to "Nil".
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Decision last updated: 19 November 2020