R v Purtill [2012] NSWSC 567

Supreme Court New South Wales

Medium Neutral Citation: R v Purtill [2012] NSWSC 567 Hearing dates: 23 May 2012 Decision date: 23 May 2012 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Application to exclude evidence dismissed Catchwords: PROCEDURE - evidence - application to exclude portions of intercepted telephone conversations - whether unfairly prejudicial - whether ambiguous evidence unfairly prejudicial Legislation Cited: Evidence Act 1995 Cases Cited: R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 R v SJRC [2007] NSWCCA 142 Category: Procedural and other rulings Parties: Crown Kevin Malcolm Purtill (Accused) Representation: Counsel: J Baly (Crown) M Dennis (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Ken Scurr (Accused) File Number(s): 2010/51520

Judgment 1HIS HONOUR: At the commencement of the trial the accused sought an order that a portion of the transcript of an intercepted and recorded telephone conversation between him and his mother, which the Crown has foreshadowed it proposes to tender, be rejected upon the ground that to admit it into evidence would be unfairly prejudicial to him. The application is made pursuant to s 137 of the Evidence Act 1995. I consider that the application should be refused for the reasons that follow.

Background 2The Crown alleges that the accused murdered John Garda at Lennox Head on 8 February 2010 by cutting his throat. The Crown case will be that the deceased and the accused were involved in a drug deal that went bad. It will be alleged that the deceased attended the home of the accused on that day and that the deceased was killed there. 3Following the murder of the deceased the accused's brother Warren Purtill assisted him to clean up the home and to dispose of the body. Warren Purtill has pleaded guilty to being an accessory after the fact of the murder of the deceased by the accused. He says that he came upon the scene of the killing at a time when the deceased was already dead and lying on the floor of the kitchen in the accused's home. It has become apparent that the accused has denied that he killed the deceased and will contend instead that Warren killed him. The intercepted conversation that is the subject of this application makes that plain. The conversation took place, and was lawfully recorded pursuant to a warrant, on 25 February 2010 and shortly prior to the arrest of the accused. 4Part of the conversation is in these terms: " V2: Yeah Warren (sighs) there's just some bad stuff went down with Warren. V1: What... V2: ...and all that, so... V1: That was him? V2: Yep. V1: Yeah. I knew it was. V2: Yeah. And there's some other really bad things: someone's gone missing and... V1: Who's gone missing? V2: Oh, my mate Jack. V1: Yeah? V2: And it looks really bad and, and I've just been going - I, I'm gonna, I'm handing myself in because I saw what happened. V1: Yeah? V2: And I'm just gonna do the right thing. V1: But why did - you didn't do anything did ya? V2: No. V1: No. Um, you - the thing is you were supposed to report in when it happened. V2: Eh? I should have, yeah. V1: Eh? V2: What was that? V1: Um, so the knife thing happened when Warren was at your place? V2: Yeah. I, I don't want you to question, give Tanya and - I know you need to know, but, um, yeah, it was just Warren - anyway (stutters) yeah, Warren murdered someone in my home, okay, so - and I tried to stop him basically. Um, Tanya wasn't there... V1: Mm. V2: ...she's got nothing to do with it. V1: Mm. V2: And, um, I'm just going to hand myself in. I've, I've already been to solicitors and I've been there for two or three days trying to work, trying to get this story straight. V1: Yeah. ... V2: I just didn't want to worry you as usual. V1: No, I know, I know. I knew there was something wrong when youse came up here. And you don't know where Warren is? V2: Yeah, he's in gaol. V1: Oh, is he? V2: Yeah. V1: So, he'd - for that reason? V2: No, because he went in - the guy he murdered, he ran around and started usin' his credit card, the fuckin' idiot. V1: Oh, okay. Oh, bloody lovely." 5The accused only objects to the emphasised portion of the conversation. He does so upon the basis that if it is admitted as evidence it has the potential unfairly to give the impression that he had been attempting to concoct a story or a version of events that was untruthfully favourable to him. He submits that the prejudice that is occasioned to him is that the jury might conclude that the balance of his conversation with his mother is fabricated, in particular the portion of it that implicates Warren as the killer of the deceased and which, if accepted by the jury as truthful, may operate to exonerate the accused of any responsibility as a principal liable for the murder. He contends that the danger that the evidence may be unfairly prejudicial to him if it is admitted outweighs its probative value.