Supreme Court New South Wales Medium Neutral Citation: R v Beattie (No 2) [2015] NSWSC 395 Hearing dates: 9 March 2015 Decision date: 10 March 2015 Jurisdiction: Common Law - Criminal Before: Button J Decision: The Crown will not be permitted to lead the last sentence of paragraph five of voir dire exhibit A. Catchwords: CRIMINAL LAW – evidence – whether part of police statement should be excluded under s 137 Evidence Act 1995 (NSW) – threat to wife and children of police officer –whether probative value is outweighed by danger of unfair prejudice Legislation Cited: Evidence Act 1995 (NSW), s 137 Category: Procedural and other rulings Parties: Regina Matthew Beattie Representation: Counsel: M Barr (Crown) J Trevallion (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Robert Kaufmann Criminal Lawyer (Accused) File Number(s): 2013/205981 Judgment 1. Objection is maintained by defence counsel to the last sentence of paragraph five of voir dire exhibit A, that being the statement of Senior Constable McEwen of 15 July 2013. In short, defence counsel submits that evidence of the accused saying something similar to "What's your fucking name? Wait till I find your wife and kids" to a police officer at about 4.30 AM on 30 June 2013 infringes the rule of exclusion in s 137 of the Evidence Act 1995 (NSW). 2. The background of the issue may be shortly stated. The accused is alleged to have murdered his close friend, the deceased, at about 3 AM on 30 June 2013 by administering a severe beating to him, although the deceased did not die until several days later. The accused has pleaded guilty to manslaughter, and it is quite clear that the real issue in the trial for murder is whether the Crown can prove beyond reasonable doubt that the accused possessed a contemporaneous intention to inflict really serious physical injury upon the deceased. 3. The position of defence counsel is that, due to the effects of alcohol, amphetamines and a prescription drug, the jury would have a reasonable doubt about that mental element. 4. Evidence has been led without objection as to the aggressive and offensive behaviour of the accused at about 1 AM earlier that morning, when he was escorted out of licensed premises. 5. There has also been evidence led without objection about the behaviour of the accused when he was arrested at the scene very shortly after the assault, and no doubt each counsel will seek to call in aid aspects of that conduct in his case. 6. It is noteworthy that very similar evidence was led before the jury of the accused saying the same thing when he was arrested at the scene (see the evidence of Constable Cook at trial transcript p 200 line 16). Although defence counsel explained that his failure to object to that is an oversight, there has been no application for discharge based upon it. In any event, although that matter has not formally been discussed between Bench and Bar table, I would have thought that all of the things said and done by the accused during, very shortly before, and very shortly after the fatal assault are highly probative with regard to the central issue. 7. The Crown submits that the maintenance of the same threat at 4.30 AM shows that the adoption of that course was by no means a fleeting effect of intoxication, but rather a settled effort on the part of the accused to threaten police into refraining from conduct to which he took objection. 8. I respectfully think that there is force in that submission of the learned Crown Prosecutor. But the crucial time is the time of the assault, and the conduct of the accused well before and well after that time, although relevant, is not of the greatest probative value. The Crown already has evidence that the accused said much the same thing moments after the assault came to an end. And the Crown can argue, based upon that evidence, that the accused was thinking rationally and soundly in touch with the real world. 9. In the circumstances I assess the probative value of the fact that the accused said the same thing an hour or so later, and in a different place and context, as possessing a probative value that is not overly high. 10. Turning to the danger of unfair prejudice, the jury has already heard that the accused engaged in very aggressive conduct towards police and used highly offensive language towards them. Although the accused has admitted to committing a brutal bashing, it is to be recalled that he is facing the most serious charge known to law. I think evidence that he saw fit to threaten the innocent families of police officers, presumably with physical harm or death, has a potential, if emphasised by repetition, to inflame the jury against the accused. 11. Whilst I accept that evidence of things said and done by the accused at 4.30 that morning has some probative value, I consider that that attribute with regard to this particular alleged utterance is outweighed by the danger of unfair prejudice, if these alleged words are placed before the jury, as it were a second time. It can be seen that in those circumstances the statute mandates exclusion. 12. For the foregoing reasons, the Crown will not be permitted to lead the last sentence of paragraph five of voir dire exhibit A. ********** 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: 09 April 2015