R v Johnson [2017] NSWSC 477

Supreme Court New South Wales

Medium Neutral Citation: R v Johnson [2017] NSWSC 477 Hearing dates: 26 April 2017 Date of orders: 26 April 2017 Decision date: 27 April 2017 Jurisdiction: Common Law Before: Button J Decision: Subject to the warning I propose to give the jury, the disc Voir Dire exhibit F can be played in the presence of the jury. Catchwords: CRIMINAL – evidence – whether audio recording of deceased speaking shortly before death can be played in the presence of the jury – transcript not the subject of objection – whether probative value is outweighed by the danger of unfair prejudice – evidence admitted subject to direction to jury Legislation Cited: Evidence Act 1995 (NSW), s 137 Category: Principal judgment Parties: Regina Steven John Johnson Representation: Counsel: L Carr (Crown) C Taylor (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Rice, More & Gibson (Accused) File Number(s): 2015/146675 Publication restriction: Nil

Judgment Introduction 1. Objection has been taken by defence counsel pursuant to s 137 of the Evidence Act 1995 (NSW) (the section) to the playing of a disc that became Voir Dire exhibit F. It is an audio recording of the deceased being questioned by detectives at a hospital about three hours before his death on Saturday 16 May 2015. The subject matter is the events of the preceding evening. 2. The section is as follows: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Background 1. The background of the application can be stated shortly. The accused is charged with the murder of the deceased (and various alternative forms of homicide), said to have been committed by way of an assault on the outskirts of Tamworth at about 7.00PM on 15 May 2015. 2. Cross-examination so far in the trial suggests that there will be a serious issue for the jury as to precisely what (if anything) the accused did with regard to the person of the deceased. It has also been foreshadowed, both informally to me and formally by way of a defence opening, that there will be a serious issue about medical causation. Submissions 1. In support of exclusion, defence counsel accepted the relevance of all of the pressed evidence of what the deceased said to the investigating detectives (a previous application pursuant to the same section with regard to a small portion of it has been rejected by me). 2. He made it clear, however, that the playing of the audio (as opposed to the provision of the transcript of it) is objected to. That is on the basis that it will inevitably be unfairly prejudicial for the jury to hear a recording of a man who was shortly to die; who was obviously in pain; and who was in the dramatic and perhaps frightening circumstance of being treated in a hospital. In particular, he focused on an early part of the recording whereby the deceased is repeatedly vocalising in pain. 3. Counsel submitted that the probative value of the playing of the audio (as opposed to the jury merely being given the transcript) is low. In short, he submitted that the evaluative judgment in the section is engaged, and therefore the playing of the disc must be refused. Determination 1. Turning to my determination, I accept that there is a danger of unfair prejudice in the jury hearing the disc. That is because I think there is something poignant in hearing a recording of a man speaking who the jury knows will be dead in a matter of hours thereafter. 2. I also think the disc is saddening, in that the deceased is indeed in obvious pain, and his slurred and garbled way of speaking suggests a cognitive deficit, whether acute or chronic. 3. Finally, the background noises suggest a hospital, and that adds to one's emotional reaction. 4. In short, I accept the submission of defence counsel that there will be a measure of unfair prejudice if the disc is played to the jury. That is why, during discussion, I indicated that I would be prepared to direct the jury along the following lines: You may find it sad, moving perhaps, to hear the words spoken by a person shortly before he passed away. But your task as judges is not to give effect to emotions, whether they be sympathy for or against any person or party, or prejudice for or against any person or party. Your task as judges is analysis of evidence as to whether the Crown has proven its case, nothing more and nothing less. 1. The Crown Prosecutor expressed his contentment with that direction being given. I believe that the giving of such a direction will go quite some way to removing that danger of unfair prejudice, and I should determine the application on the assumption that I will indeed give it. 2. Separately, I do not accept that the recording adds little, in terms of probative value, to the transcript of the conversation. I say that for the following reasons. 3. First, speaking generally, the demeanour of a person giving a hearsay statement, whilst not to be equated with giving evidence in the witness box, is not to be discounted entirely. For example, whether a person answers a question without hesitation and with great forcefulness on the one hand; or, on the other hand, after a long pause and very tentatively, can certainly inform the assessment of the hearsay evidence of that person. 4. Here, the evidence of the deceased as to who had allegedly assaulted him, and how, is of critical importance to the trial. An assessment of his demeanour, as best one can make it through an audio recording, is significant. To my mind, how he said what he said is of significant probative value. 5. Secondly, the degree of pain from which a person is suffering, and the effect it is having on him or her, can surely affect the reliability of the statements of that person. For example, a person who is in great pain may be distracted by it, and therefore unreliable. On the other hand, a person who is experiencing only a niggling injury – although, in truth, it may be very grave in its consequences – may perhaps be thought to be less distracted, able to think more clearly, and therefore a more reliable historian. 6. In other words, although the pain experienced by the deceased will give rise to some prejudice, I think that it is significantly probative in one's assessment of his hearsay statements. 7. Thirdly, because of the indistinct and garbled way in which the deceased spoke, the transcript that became Voir Dire exhibit A is far from determinative, and very contestable (of course, in saying those things, I make not the slightest criticism of the deceased, nor of the person who prepared the transcript). 8. In those circumstances, the transcript will be, to a large degree, a contestable (and perhaps contested) opinion of a third party of what the deceased said. In other words, the transcript could only be placed before the jury as an opinion on the part of some unidentified person as to what the deceased had said. The usual approach – that the transcript is nothing more than an aide mémoire with regard to the disc itself – would self-evidently not be able to be taken without the playing of the disc. 9. In the particular circumstances of this case, namely the indistinct and unenunciated way in which the deceased spoke, the transcript will be a far inferior version of what he actually said about the centrepiece of the Crown case. And without the disc, the jury will be in no position to make its own judgments about that crucial factual question. 10. In short, I accept that there will be a danger of unfair prejudice accruing to the accused if Voir Dire exhibit F is played, even despite the direction I propose to give the jury. Nevertheless, in the unusual circumstances of this case, I am affirmatively satisfied that the probative value of the playing of the disc, beyond the mere provision of the transcript, outweighs that danger. It follows that, in my evaluation, the section is not engaged. Ruling 1. It is for those reasons that, at the end of the hearing of legal argument, I ruled that, subject to the warning I propose to give the jury, the disc Voir Dire exhibit F could be played in the presence of the jury.