The accused objects to the prosecution adducing evidence of certain answers he gave to investigating police in the course of a lengthy interview with police on 23 April 2015. The Crown says that the answers constitute lies capable of demonstrating a consciousness of guilt. The accused submits that the evidence is unfairly prejudicial because it will either disclose that he committed (or was alleged to have committed) another, unrelated, offence or that the evidence will invite speculation on the part of the jury. The Crown says that the evidence can be elicited in such a way that will minimise the possible prejudice and that any potential for prejudice can be cured by direction.
The Crown case is that the accused murdered his father in the early morning of Friday 13 June 2014. The Crown will invite the jury to infer that he did so by using a samurai sword ("katana"). There is evidence that the accused purchased such a sword from an instructor, Mr Friis, although the evidence is not clear as to precisely when the sword was purchased. There is also evidence that the accused was trained in martial arts including in the use of the weapon and that he was proficient in the use of the weapon. [1] One of his neighbours gave evidence that he showed her a samurai sword in 2012. As I understand it, the evidence will be that the police were unable to locate the sword in the course of their investigations in 2014 and 2015.
The impugned evidence concerns answers the accused gave as to the whereabouts of the katana. He told the investigators that Queensland police took the sword from him in the course of investigating an allegation that he used the sword to threaten somebody "in about 2007" ("the Queensland incident"). The Crown is in a position to call evidence from a Queensland police officer who will assert that he investigated the Queensland incident and did not seize the sword.
The accused's case in the present trial is that he was a victim of a home invasion during which unknown assailants tied him up with tape and killed his father. A neighbour found the accused tied up and crying for help. He had a number of injuries. He was interviewed at the scene (as a victim) and shortly thereafter provided a statement to police (as a victim). He became a suspect some time later. He was interviewed as a person of interest on 14 March 2015 [2] and again, after his arrest, on 23 April 2015. [3]
The Crown referred to a very small portion of the first interview in which the accused was asked about an incident "in about 2007" when the accused allegedly "threatened someone with a Samurai sword". He told police that he did "lose it then" and threatened a person who was "aggravating us constantly" and "starting problems". He said that "it went through court" but there was "no conviction" and that he then "got rid of all me weapons". [4] The Crown does not intend to lead any details of the incident or these answers except to put into context answers given in the later interview. The passage of the later interview is at QQ 563-564:
Q 563 OK. She also said in recordings, which we made about her, that a sword was used to murder your father on the 13th June, 2014. What can you tell me about that.
A. I don't have a sword.
Q 564. Michael, we had an interview prior to your arrest where we spoke about an incident where you were charged in Queensland in relation to using a Samurai Sword on someone?
A. Police had that, they took it.
The Crown does not propose to lead the question in Q 563 (or the whole of 564) but seeks to rely on the answer "I don't have a sword" and the explanation "Police had that, they took it." The Crown submits that the jury would be entitled to find that those answers constituted lies in relation to a material issue and that the jury would be entitled to infer that the lies demonstrated a consciousness of guilt. The Crown says that any prejudice could be reduced by the manner in which the evidence is elicited and by a direction to the jury as to the limited use to which the evidence can properly be put.
Mr Wendler submits that the evidence is unfairly prejudicial and that the degree of prejudice is high. The accused will be placed in a position in which he will be required to disclose the fact of a previous offence in circumstances where he has not raised character and where such evidence would not otherwise be admissible. The evidence would invite tendency reasoning even though the Crown specifically eschews reliance on the Queensland incident as demonstrating any relevant tendency. Alternatively, Mr Wendler says that the state of the evidence would be so vague or opaque that the jury would inevitably speculate as to what happened in the Queensland incident. As counsel put the submission: [5]
"I mean it just becomes completely artificial. The accused cannot
explain in his case the existence of this sword otherwise than by explaining the incident in Queensland that is a previous criminal prosecution in 2008. And the whole exercise just becomes contrived and invites, and has potential to invite the jury to reason in a propensity way. In other words because he's had some association, or been interviewed about a sword some years earlier therefore he's someone who - they would just speculate, it opens for speculation as to what his involvement with this sword was."
As to the answer to Q 564 ("Police had that, they took it"), Mr Wendler submitted (on instructions) that this was a reference to a different weapon. Asked whether the answer at Q 564 was conceded to be a lie, Mr Wendler said: [6]
"No. No, I'm instructed that he answered that question on his best memory that he did take it and I'm instructed that he in fact had two swords and the one that he remembers he thought the police took, as a memory, was the sword that was purchased from Mr Friis.
HIS HONOUR: Is it capable of being categorised by the Crown as a lie?
WENDLER: Well it's, on the Crown case, it's suggested it's a lie that they took it, I mean it an issue really solely going only to credit."
One difficulty in determining this objection is that not all of the material concerning the Queensland incident is available because it was not tendered on the voir dire. (This is not to suggest that it should have been.) For example, the police asked the accused about an incident in "about 2007" whereas the argument proceeded on the basis that the incident occurred in 2008. [7] This has some significance because the evidence is that the accused stopped training in Zen Do Kai in 2008. [8] I assume he purchased the katana before that, but there is no evidence as to precisely when the sword was acquired. Another area where the information before the Court is a little vague (or, perhaps, unlikely) is that the accused told police that no conviction was recorded in relation to the Queensland incident. [9] This was confirmed in the course of submissions, although it was put in argument (on instructions) that he "was fined but no conviction was recorded." [10] The Crown did not gainsay this assertion although, in New South Wales at least, it is an unlikely outcome. That is, there is no power in a sentencing court (in New South Wales) to impose a fine if no conviction is recorded. (After publishing a draft of this judgment, I was advised by the Crown Prosecutor that such an outcome is possible in Queensland.) A further area of uncertainty is that the accused told police that the "victim" of the Queensland incident was "aggravating us." In argument, it was put that the victim was bullying another person and the accused intervened. [11] The basis (or facts) upon which the matter proceeded in Queensland is not known but the Crown did not contradict the matters put by the accused in argument (or in the interview).
Each of the matters referred to in the last paragraph has some capacity to impact on the degree of prejudice that would be suffered if the evidence is admitted. If the accused was defending somebody who was being bullied and if no conviction was recorded against him, the degree of prejudice would be reduced. The evidence could be elicited, and cross-examined upon, in such a way that would not cause very much prejudice at all. Any prejudice could be cured by direction. On the other hand, if there was some factual dispute as to the basis of the sentencing hearing or if the prosecution sought to refute the assertion that no conviction was recorded, there is a risk that there would be a "trial within the trial" and the jury would be confronted with the possibility of (or a suggestion that) the Crown is asserting that the accused told a lie upon the original (alleged) lie.
The objection was based on s 137 of the Evidence Act 1995 (NSW). In the alternative, reliance was placed on s 135. Those sections provide:
135 General discretion to exclude evidence
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
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.
…
137 Exclusion of prejudicial evidence in criminal proceedings
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.
There is clearly a risk of prejudice in admitting evidence that the police investigated the accused in relation to a previous criminal use of a katana or similar weapon. However, evidence that an accused person has previously been charged or convicted for a crime is not per se inadmissible. The question has always been and - subject to the provision in s 97 of the Evidence Act (tendency evidence) upon which the Crown does not here rely - the question remains whether the evidence is probative beyond the suggestion that the accused has a propensity to commit crime, or the type of crime under consideration. This was said as long ago as Makin's case [12] where Lord Herschell made the following observation at 65:
"It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury…"
This passage has stood the test of time. [13] Even so, it is always incumbent on the trial judge to determine whether the evidence should be excluded (previously at common law, and now under ss 135 and 137 Evidence Act) following an assessment of the probative value and prejudicial impact of the evidence.
In each case, it is necessary to make an assessment of the probative value of the evidence. In the context of the allegations, including the suggestion that the accused killed his father by using a katana, a false denial by the accused that he owned such a weapon, or a false assertion that the police took it from him some years before the offence, is evidence capable of establishing a consciousness of guilt. Whether there is another explanation - that he made a mistake due to the passage of time or that he was talking about a different sword - is a matter for the jury to determine. While clear directions must be provided to the jury as to the use of the evidence and the possible danger in its use, I assess the probative value of the evidence to be reasonably high.
As I have acknowledged, there is always potential for prejudice in the admission of such evidence. However, I doubt that the jury would reason to guilt in the present case on the basis of the relatively minor allegation that the accused faced in Queensland. Further, based on the conduct of the voir dire, there are a number of measures that can be taken to reduce the danger of unfair prejudice.
First, the evidence can be elicited in such a way to make it clear to the jury that there was no allegation or suggestion that the accused physically used the weapon to strike, or attempt to strike, any person. Second, the jury can be informed that the accused was provoked, or that he came to the aid of a third party who was being bullied (assuming that is the fact). Third, the evidence adduced may include the fact that no conviction was recorded against the accused or, if that is not the case, that the accusation was a minor one and that the accused was fined with no other penalty. In view of the absence of any contest as to those issues on the voir dire, it is assumed such material will be adduced in chief, or in cross-examination, or by means of an agreed fact. If these matters were elicited in cross-examination or if evidence was led in the accused's case, considerations of fairness would disentitle the Crown from rebutting those assertions unless the matter is raised prior to the evidence subject of the present objection being adduced before the jury.
Finally, the jury can be directed as to the limited use to which the evidence can be put. Specifically, the jury could receive a firm warning against reasoning that the accused is more likely to be guilty merely because he was the subject of a police investigation (or a charge) concerning a relatively minor incident several years ago. The jury would be directed that the evidence is only relevant to the Crown's allegation that the accused used a katana to carry out the murder offence, attempts by police to locate that weapon and the accused's response to that part of the investigation. Such directions can be given when the evidence is adduced and repeated in the summing up.
The summing up would also include directions as to the way in which lies can be used and the caution with which such evidence must be approached. If the accused requested it, some direction on this subject could be provided when the evidence is elicited but my inclination, in the absence of such a request, would be to provide all directions as to lies in the course of the summing up.
I should say that, as the matter currently stands, I am unable to accept the submission that the lie (assuming the jury found it to be a deliberate untruth) would only be relevant to an assessment of the accused's credibility. In my view, on the evidence currently before me in the trial and on the voir dire, the answers related to a material issue and it would be open to the jury to find that the accused attempted to distance himself from the weapon in an attempt to exculpate himself from the crime. Whether the jury draws that conclusion will be a matter for it, and its members, in the light of all of the evidence and the directions it receives as to the caution with which such evidence must be approached. Even if it were only relevant to the credibility of the accused, the probative value of the evidence remains high because the accused's account to police must be disproved beyond reasonable doubt for the Crown to have any hope in establishing the charge of murder.
Having considered these matters I have concluded that the probative value of the evidence is not outweighed by the danger of unfair prejudice (s 137). Similarly, I am not persuaded that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing or result in an undue waste of time (s 135).
Subject to the concessions made by the Crown as to the manner in which the evidence will be adduced, and to the contents of this judgment, the evidence is admissible.
[2]
Endnotes
Transcript (T) 806.
Four pages of this lengthy interview were tendered on the voir dire as Ex VD-S.
The whole interview is Ex VD-T but I was only taken to a very small portion of the interview.
Ex VD-S QQ 410-413.
T 1043-1044.
T 1045.
T 1043-1044.
T 801.
Ex VD-S, Q 411.
The transcript incorrectly records this statement as emanating from the bench. It ought correctly be attributed to counsel.
T 1044.
Makin v Attorney General for New South Wales [1894] AC 57.
See, for example, Markby v The Queen (1978) 140 CLR 108; [1978] HCA 29, Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75 and HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16 at [160] (Hayne J).
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Decision last updated: 27 October 2017