Supreme Court New South Wales Medium Neutral Citation: R v Andrew Iskandar & R v Nita Iskandar (No. 1) [2011] NSWSC 1324 Hearing dates: 24 October 2011 Decision date: 24 October 2011 Jurisdiction: Common Law - Criminal Before: Davies J Decision: The evidence is admissible Catchwords: CRIMINAL LAW - evidence - admissibility - whether evidence of probative value - whether evidence unfairly prejudicial to Accused - inference capable of being drawn from evidence - whether evidence could be misused by the jury. Legislation Cited: Evidence Act 1995 Cases Cited: Festa v The Queen (2001) 208 CLR 593 Louizos v The Queen [2009] NSWCCA 71 R v Shamoul [2006] NSWCCA 112; (2006) 66 NSWLR 228 R v SJRC [2007] NSWCCA 142 R v Sophear Em [2003] NSWCCA 374 (2009) 194 A Crim R 223 Category: Procedural and other rulings Parties: The Crown Andrew Iskandar (Accused) Nita Iskandar (Accused) Representation: Ms K Shead (Crown Prosecutor) Mr J O'Sullivan (Andrew Iskandar) Mr D G Price (Nita Iskandar) Solicitor for Public Prosecutions (Crown) Nyman Gibson Stewart (Andrew Iskandar) Archbold Legal (Nita Iskandar) File Number(s): 2010/49007 & 2010/49279 Publication restriction: Publication restricted to the parties Judgment 1The Crown seeks to tender two pieces of paper. Both pieces of paper are folded in half. One contains two clothes pegs attached and one has one clothes peg attached. The two pieces of paper, when folded, appear to me to be roughly the size of a standard number plate. The Crown also seeks to tender, with those two pieces of paper, two photographs taken by Crime Scene Officer Anthea Windsor showing those pieces of paper on a seat in the black Toyota that has been referred to in the evidence and which was apparently hired by Hazairin Iskandar. 2The evidence is tendered with the view to asking the jury to infer that the pieces of paper, as pegged, were intended to be used to obscure the number plates of the hired car. The Crown submits that this is some further evidence on the part of the accused, Andrew Iskandar, of planning in relation to the offences charged. 3Section 55 of the Evidence Act 1995 defines relevant evidence as evidence that, if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings. A fact in issue is whether this offence was planned. On the face of it, the evidence is relevant. 4Mr O'Sullivan, for the accused Andrew Iskandar, opposes the evidence being received, both on the basis of ss 135 and 137 of the Evidence Act and submits, in particular, that in either case the evidence is unfairly prejudicial to his client. Mr O'Sullivan submits that what the Crown is inviting on the part of the jury is speculation, or at least a "very long bow" (to use his words), in suggesting that these two pieces of paper could form any part of the planning by the accused in relation to the offence of murder as charged. He says that the jury could not reasonably use the evidence in support of the inference that the Crown will ask it to draw. 5Section 137 in particular involves a balancing act between the probative value of evidence and the danger of unfair prejudice to an accused. 6Probative value is defined in the dictionary of the Evidence Act as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. The definition differs only from s 55 in that regard by omitting the words, "if it were accepted." 7The distinction between that definition and s 55 is discussed by Spigelman CJ in R v Shamoul [2006] NSWCCA 112; (2006) 66 NSWLR 228 commencing at [47]. At paragraphs [60] to [62] of that judgment the Chief Justice refers to authority in the Court in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account when determining the probative value of evidence for the purposes of determining questions of admissibility. He says that evidence has probative value, as it is defined, if it is capable of supporting a verdict of guilty. 8Further, in Festa v The Queen (2001) 208 CLR 593 at [14] Gleeson CJ says that if evidence is, albeit of slight probative value, it is nevertheless admissible unless some principle of exclusion comes into play to justify withholding it from the jury's consideration. It is not enough to say that the evidence is weak to withhold it from the jury. 9In my opinion the evidence has probative value because the jury could infer that the pieces of paper, as folded and pegged, might have been used as part of the planning of the commission of the crime to obscure the number plates of the car. 10Mr O'Sullivan has, as I have said, submitted that the evidence is unfairly prejudicial because at least it would not be reasonable for the jury to draw that conclusion and that they might be swayed from their proper task in speculating about its use. 11In R v SJRC [2007] NSWCCA 142 James J (with whom Rothman J and Harrison J agreed) said at [38] and [39]: Provided the evidence is capable of bearing the interpretation of, or of giving the inference contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused, does not of itself show that any probative value the evidence has is outweighed by the danger of unfair prejudice. It is part of the function of the jury, as the judges of the facts, to determine what interpretation should be given to the evidence they accept and to determine what inferences should be drawn from the evidence that they accept. 12What has been stressed in the cases is that unfair prejudice is concerned with the possible misuse by the jury of the evidence: R v Sophear Em [2003] NSWCCA 374; (2009) 194 A Crim R 223 at [120] per Howie J (with whom Ipp JA agreed), and Louizos v The Queen [2009] NSWCCA 71 at [35] per Howie J (with whom McClellan CJ at CL and Grove J agreed). 13It does not seem to me that the fact that the jury might draw the inference that the pieces of paper, as they appear, might have been intended to be used by the accused to obscure the number plates and that this involved a measure of planning in relation to the crime, is, or could be, a misuse of the evidence. If it is an available inference then the drawing of it can scarcely be said to be a misuse of the evidence. 14No matter how one characterises the strength of the evidence, it is evidence which is relevant under the definition in the Evidence Act and has probative value as defined. How the jury uses it, and the inferences that the jury draws, are matters peculiarly for the jury. It is not for the judge to exclude such evidence on the basis of its weight. 15In my opinion, the evidence is admissible. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2012