R v Scott (No 2) [2015] NSWSC 459

Supreme Court New South Wales

Medium Neutral Citation: R v Scott (No 2) [2015] NSWSC 459 Hearing dates: 25 March 2015 Date of orders: 25 March 2015 Decision date: 25 March 2015 Jurisdiction: Common Law Before: Wilson J Decision: Letters between accused and witness admissible Catchwords: CRIMINAL LAW – evidence – admissibility of letters between accused and witness – evidence as to consciousness of guilt – whether prejudicial effect outweighs the probative value – discretion to exclude evidence – evidence admissible Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: Regina Michael Scott Representation: Counsel: Mr J Bowers (Crown) Mr R Cavanagh (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) O'Brien Winter Partners (Accused) File Number(s): 2013/104881 Publication restriction: None

EX TEMPORE Judgment 1. HER HONOUR: The Crown seeks to lead evidence arising from the discovery of a letter evidently from the accused to the witness Kayla Houston, and apparently conveyed by him to her yesterday, and of her reply, which was seized from her before it was delivered to the accused. 2. The accused and Ms Houston were accommodated in the holding cells at the courthouse yesterday and in some way used that proximity to communicate. 3. Mr Cavanagh for the accused objects to the evidence. 4. The letter from the accused, which is Marked For Identification (MFI) 22, is an apparent attempt by him to influence Ms Houston's testimony in the trial. He refers to the trial all coming down to her and her evidence, and urges that if she says the "right thing" he will "beat the trial". 5. Ms Houston's response makes her continuing allegiance to the accused plain. She refers to her resolve in the letter to "always protect" Mr Scott. 6. The Crown seeks to lead the evidence as relevant to consciousness of guilt. The accused concedes the relevance and admissibility of the evidence but submits that the evidence is so prejudicial that it should be excluded from evidence, as the prejudicial effect outweighs the probative value. 7. The probative value is high in my view. Ms Houston is a witness of some significance. An attempt by the accused to influence her evidence is clearly capable of contributing to proof of the charge in that it is conduct indicative of a consciousness of guilt. 8. To undertake such a risky manoeuvre as the transference of a letter, at the courthouse, and during the trial, when both the accused and the witness were being held in the same facility, in open cells that were monitored, is indeed strongly indicative of a consciousness of guilt. It may be that such extraordinary action could arise from nothing more than panic in an unsophisticated but innocent individual, but that would ordinarily be a matter for a jury to assess. 9. The disputed evidence has relevance in two other ways. Firstly, the Crown can rely upon it to rebut any defence of self defence or indeed to rebut any defence which would seek to blame Hayley Orchard for the death of Mr Dehn. Secondly, the evidence is relevant to an assessment of the evidence given before the jury by Kayla Houston. 10. The timing of the advent of the letters and how that might have had an impact on the evidence Ms Houston gave is a relevant consideration to that latter feature. Prior to lunch yesterday, when it appears this correspondence was discovered, Ms Houston gave evidence that appeared to be quite compromised by the failure of memory. 11. After lunch, when she was aware that the existence of the letters was known, her memory seemed to improve. It is reasonable to infer that the improvement is attributable to her awareness that the authorities were in possession of the accused's letter and were thus aware of his exhortation to her to give evidence in such a way that he could "beat the trial". 12. This all goes back to the probative value of the evidence and its high degree of probative value in my assessment. The question is whether the high degree of probative value of that evidence is outweighed by its prejudicial effect such that it could be unfair or would be unfair to the accused to admit the evidence. Mr Cavanagh relies upon s 135 of the Evidence Act 1995 in that regard. 13. There is a prejudicial effect in the receipt of this evidence as there is with any evidence that tends to prove the Crown case against the accused. The potential effect this evidence will or may have, needs however to be assessed in the context of other evidence and having regard to the overall manner in which the trial has been conducted by the parties. 14. I assume the accused's case is one of self-defence, although there may also be an issue as to the liability of Hayley Orchard, having regard to some of the telephone intercept material and some of the evidence about the accused's claims in this regard. There has already been a considerable amount of telephone intercept evidence with all but one call admitted without objection, in which the accused appears to be seeking to interfere with Crown witnesses in an endeavour to have them alter evidence, or even to prevent them from testifying by arranging for them to be given what has been referred to as a hot shot, that is, to be killed. 15. The jury could be under no misapprehension as to that evidence; the potential meaning of the evidence or what its relevance to the question of proof of guilt will ultimately be is up to them. In light of that evidence admitted without objection, I see no additional prejudicial effect attaching to the disputed evidence, or prejudicial effect which is sufficiently unfair to the accused as to give rise to its exclusion from evidence. 16. As noted the evidence of the telephone intercepts has been lead without objection and that is the context in which this evidence needs to be considered. The evidence of the letters is of the same nature as that of the telephone intercept material, although of a less dramatic character in my assessment, in that it does not contain any reference to an attempt to "staunch" or intimidate a witness. 17. On balance I do not think the evidence is unfairly prejudicial. That it is evidence the accused has handed to the Crown goes without saying. I would not refuse to admit the evidence in the exercise of my discretion. 18. Following the decision to admit the evidence of the letters, the parties took the view that Ms Houston was an unfavourable witness and would be so characterised on any application to this Court to declare her such. My understanding, from raising it with the parties is that counsel discussed the question of adducing further evidence from Ms Houston yesterday afternoon, and the manner in which she has given her evidence in chief today has been by consent.