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. Consideration 6The probative value of evidence means the extent to which it could rationally affect the assessment of the probability of the existence of a fact in issue. For present purposes the fact in issue is whether or not the accused killed the deceased. I anticipate that the accused will in due course contend that Warren killed the deceased and that he will rely upon or embrace so much of the recorded telephone conversation with his mother as supports that assertion. The question of whether or not he was telling his mother the truth when he told her that Warren killed the deceased is therefore squarely in issue. 7If the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, there is no residual discretion to admit it. The evidence must be rejected: see R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326. 8As far as I can determine, the burden of the accused's contention is that the evidence objected to is, or may be, ambiguous. That is to say, it is capable on the one hand of being read and understood as meaning that the accused was genuinely trying to recall what happened in a truthful way so as to be better prepared to speak to the police if or when that eventually occurred. That is presumably the interpretation favoured by the accused. It is also capable on the other hand of being read and understood as meaning that the accused had been spending three days with his lawyer trying to avoid telling them the truth by working out or concocting in advance a story that would appear to exculpate him. That, or something similar, is undoubtedly the interpretation of which the accused is fearful. 9In R v SJRC [2007] NSWCCA 142 the trial judge excluded prosecution evidence on the basis that there were a number of possible interpretations of the evidence, including ones consistent with the innocence of the defendant, so that the evidence was "ambiguous" and there was a danger of unfair prejudice to the defendant that would outweigh any probative value the evidence had. James J (with whom the other members of the Court agreed) said this at [38] - [39]: "[38] It not infrequently happens that evidence sought to be relied on by the Crown in a criminal trial is open to more than one interpretation or is capable of giving rise to more than one inference. However, provided that the evidence is capable of bearing the interpretation or of giving rise to the interference 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. [39] It is part of the function of the jury as the judges of the facts to determine what interpretation should be given to evidence they accept and to determine what inferences should be drawn from evidence they accept. It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn." 10In the present case it seems to me that the concern of the accused is that the evidence in question is or may be open to more than one interpretation or is capable of giving rise to more than one possible inference. In my view the evidence is at least capable of supporting the inference favoured by the Crown. The evidence is also capable of supporting the inference for which the accused contends. The evidence is not in those circumstances unfairly prejudicial to the accused simply because an acceptance by the jury of the version for which the Crown contends would ultimately be likely to be prejudicial to the accused. As his Honour correctly and uncontroversially observed, it is frequently part of the function of juries to determine which inference, if any, out of a number of competing inferences, should be drawn. This case is no different. The jury should have the benefit of considering the whole of the recorded conversation, including those parts that are arguably favourable to the accused and those portions that are potentially unfavourable. A proper assessment of where the truth lies or what is to be made of this evidence should be left to the jury with the benefit of hearing the whole of the conversation. Conclusion and order 11It follows, in my view, that the application that I refuse to admit the evidence that the Crown proposes to adduce should be rejected. ********** 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: 29 June 2012