R v Smith (No.2) [2014] NSWSC 769

Supreme Court New South Wales

Medium Neutral Citation: R v Smith (No.2) [2014] NSWSC 769 Hearing dates: 21/05/2014 Decision date: 21 May 2014 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Evidence in paragraph 13 of the statement of Ms Asprogiannis dated 23 January 2013 is allowed Catchwords: CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - Evidence Act 1995; ss 135, 137 - prejudicial evidence - whether evidence unfairly prejudicial to accused Legislation Cited: Evidence Act 1995 Category: Interlocutory applications Parties: The Crown Graham Smith (Accused) Representation: Counsel: Mr M Barr (Crown) Ms K Traill (Accused) Solicitors: Director of Public Prosecutions (Crown) SCT Lawyers (Accused) File Number(s): 2013/23883

Judgment - Admissibility of Evidence 1The Crown seeks to lead evidence of a conversation which occurred late on the evening of 20 January 2013 between the accused and Ms Asprogiannis. The conversation and conduct is adequately contained at paragraph 13 of the statement of Ms Asprogiannis to police dated 23 January 2013. 2Ms Traill, counsel for the accused, objects to the evidence being admitted. She submits in reliance upon either, or both, of s 135 and s 137 of the Evidence Act 1995, that the Court should exercise its discretion to refuse to admit the evidence. Ms Traill submits that it would be unfair to the accused to admit the evidence of what he said on the evening of the shooting because at the time of the conversation he was significantly affected by drugs. 3The Crown is presently presenting its evidence. The accused has not, as yet, given evidence. 4As the Crown case presently stands there is no evidence that between the time of the shooting at about 1.30pm and the time of this conversation at about 9.30pm or 10pm, the accused in fact took drugs. There is some evidence from Mr George Asprogiannis of a conversation with the accused which may suggest that some hours earlier, in the course of the early afternoon, the accused was in a physical and mental state which was consistent with having taken drugs. 5The evidence that Ms Asprogiannis is also capable of giving, in particular her observations of the accused's demeanour, may be interpreted as being consistent with his having taken drugs. Equally, so it seems to me, it may be interpreted by the jury as simply being the consequence of the events which had occurred earlier in the course of that afternoon: in particular, that the accused had shot and killed the deceased, and had then escaped the scene and evaded the police search. 6If it be that evidence, in due course, demonstrates that the accused was under the effects of drugs at the time he made the challenged statement, then it will be a matter for the jury to determine the extent of that affectation, and the extent of reliability of the accused's admission that is recorded by this witness. 7I accept that the evidence has significant probative value, and I accept that like much other evidence called by a prosecution the evidence is prejudicial to the interests of the accused. 8However, that is not the test. I have to be satisfied that any prejudice which exists is unfair. I do not think that there is any unfairness to the accused in the admission of this evidence. The real question that surrounds this evidence is what is its weight. That seems to me to be a matter for the jury and a matter which is properly to be determined having regard to all of the surrounding evidence. 9I am not satisfied that I should exercise my discretion to exclude this evidence and accordingly I will permit it.