District Court New South Wales Medium Neutral Citation: R v Cochran & Reihana [No. 2] [2017] NSWDC 369 Hearing dates: 27, 29, 30 November 2017 Date of orders: 30 November 2017 Decision date: 30 November 2017 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Evidence admissible applying in s.137 Evidence Act 1995 Catchwords: Operation of s.137 Evidence Act 1995, admissions, requirement admission relate to offence for trial, proof of identity of speaker, business records, consciousness of guilt reasoning, alternative explanations, taking evidence at its highest when there are competing inferences, dangers not correctable by direction real risk of unfair prejudice. Legislation Cited: Crimes Act 1900 Evidence Act 1995 Cases Cited: DSJ v R [2012] NSWCCA 9 at [88] & [89] Edwards v The Queen (1993) 178 CLR 193 IMM v The Queen (2016) 257 CLR 300 [2016] HCA 14; R v Armstrong [2010] NSWSC 801 R v Cook [2004] NSWCCA 52 at [43] R v Hall [2001] NSWSC 827 R v Lane [2011] NSWCCA 157 R v XY (2013) 84 NSWLR 363, [2013] NSWCCA 121 Category: Procedural and other rulings Parties: Ricky Cochran (Defendant) Mark Reihana (Defendant) Director of Public Prosecutions Representation: Counsel: Ms K Stares (for the Defendant Ricky Cochran) Mr J Clarke (for the Defendant Mark Reihana) Mr T Pickering (for the Director of Public Prosecutions) Solicitors: Ms S Aldis (for the Defendant Ricky Cochran) Mr M Ward (for the Defendant Mark Reihana) Mr B Allison & Ms L Cocca (for the Director of Public Prosecutions) File Number(s): 2016/60987-001 & 003 (for Cochran);2016/33174-008 & 009 (for Reihana); Publication restriction: Suppression order and pseudonym order – name of Complainant & crown witness Judgment Pseudonym Order 1. Pseudonyms have been used for names of the complainant and another witness, who himself prima facie, was the victim of a sexual assault. Pursuant to s578A Crimes Act 1900 there is to be no publication of a victim's name or anything that may lead to identification of the complainant. Identifying information has been removed from this version of the judgment to comply with this order. Introduction 1. On 27 November 2017 a jury was empaneled Ricky Cochrane and Mark Reihana are presently on trial. Each accused was indicted on two identical charges: Count 1 - Aggravated sexual assault: s61JA Crimes Act 1900, and Count 2 - Aggravated detain for advantage: s86 (2)(a) Crimes Act 1900. 1. The jury were sent away until 28 November 2017 while I dealt with preliminary legal issues. One issue involved the admissibility of evidence relating to a transcript of a phone conversation purportedly between the accused Cochrane and his sister in which he enquired of and became agitated about the removal and destruction of an i-pad. That issue could not be resolved immediately. It was visited a few times as the trial continued while the jury was absent. On 30 November 2016 I determined that the evidence of the call could not be admitted as evidence in the trial. These are my reasons for that decision. 2. The allegations against each accused are set out in a Crown Case Statement: Voir dire Exhibit 1. In brief summary; it is alleged that on 31 January 2016 both men forced Mark Simpson to come to Cochran's flat at 7/4 Stewart St. Wollongong. There Mark Simpson was tied up, beaten, threated with a meat cleaver and burnt with a blow torch. He had a chain put around his neck and was made to behave like a dog. In order to secure his release Mark Simpson promised Cochrane and Reihana $2,000. In order to secure compliance with the forced promise Mark Simpson was taken to a bathroom and there forced to suck the penis of another man, Bill Thomas. That act was recorded visually. 3. Reihana was arrested at Cochran's flat on 1 February 2016 for other matters. A number of items seized from Cochran's flat were associated with criminal activity other than the present matter. 4. Items seized during execution of the search warrant associated with the present matter included, cable ties, a pellet gun, a blow torch, a mobile phone that contained a recording of Simpson eating from a dog bowl and the dog bowl depicted in that recording. No i-pad or tablets were seized: Statement Detective Barnett - Voir Dire Exhibit 4. I was told by the Crown, and accept, that an i-pad or similar device can be seen in the search warrant recording: TT page 228 lines 15 -20. 5. Cochrane was arrested for this and another offence on 25 February 2016. The other offence was subsequently no billed. He was refused bail and has been in custody since that date. He spent time at the MRRC Silverwater from 1 March 2016 until 24 March 2016. He was then transferred to Long Bay gaol. 6. Corrective Services records indicate that on 24 March 2016 at 10:49 Cochran made a phone call to his sister Deeann Cochrane from Long Bay gaol. The recorded call ID number is 29524945: Voir dire Exhibit 7. 7. A transcript of a call from voice 1 to voice 2 was tendered it carries the identification number 29524945. Voice 1 is said to be Cochran although he, through Ms Stares his counsel, puts the prosecution to proof of this fact. The transcript of call 29524945 is inexplicably dated 12 January 2017 and the second voice is described as "V2 Unknown male": Voir dire Exhibit 2. 8. The Crown wish to lead evidence of this recorded call in their case against Cochrane as an admission. It is said that the call demonstrates that something "V2" said in the call had disturbed Cochrane and he was anxious to confirm that a tablet or i-pad had been removed from his flat and destroyed. The proposed evidence Extract Voir Dire Exhibit 2 V.1 What about the pads. Did you get both my pads V.2 Yeah, your pads and everything are still in there V.1 Still in where? V.2 In your flat. Everything's locked up. V.1 Nah. I wrote to the boys to get an Ipad or something of mine. V.2 Yeah, yeah, yeah. That's gone. V.1 What do you mean gone? Where is it? V.2 Do you want to know exactly where it is? I'll tell you right now? V.1 Oh (Sis) you don't understand man. I thought this was sorted when I was in Silverwater. Fuck me dead. V.2 It's gone dickhead V.1 Yeah, yeah. V.2 I thought you were talking about something else. V.1 That's what I mean. Properly gone. V.2 Yeah Nah properly gone yeah V.1 Yeah that the one thing that… V.2 I thought you were talking about something else. V.1 Nah that's the one thing I've been stressing about. V.2 I thought you were talking about fucking pads or fucking fighting. V.1 Nah. Fuck them. The fucking tablet thing whatever its called. V.2 Yeah nah that's gone. Submissions 1. Ms Stares, for Cochrane, objects to the call being put before the jury. She submits that: 1. The identity of the speakers has not been established. 2. The references to destruction of "pad" or "pads" is too ambiguous to be relevant to a fact in issue in these proceedings. 3. If able to be identified as Cochran's call, and if otherwise relevant, the call must be excluded by operation of s 137 Evidence Act 1995 as it has limited probative value because the reference to the i-pad is: 1. Ambiguous, and 2. The call cannot be related to the current allegations other than by presuming acceptance of the Crown case, and 3. As Cochrane was arrested for another offence and was suspected of other offending there are other potentially compelling reasons why he may have wished the i-pad destroyed. 1. Mr Pickering, who appears for the Crown, submits to the contrary. The prosecution submission is that the telephone conversation is capable of rationally affecting the assessment of the probability of the existence of the facts asserted by Simpson and Thomas, in relation to the offences charged. As such the answers were relevant and admissible as: 1. The Corrective Service records can and do correspond so that the identity of the accused, as Voice 1 on the recording, can be established. 2. The conversation is relevant and has substantial probative value as it indicates Cochrane, within a month of his arrest had taken steps to have an i-pad in his flat destroyed. And finally, 3. Any concerns about potential prejudice can be cured by direction. Relevant provisions of the Evidence Act 1995 NSW 1. The Dictionary to the Evidence Act notes: "admission" means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding. "representation" includes: (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated. Section 81 Hearsay and opinion rules: exception for admissions and related representations (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission. Section 88 Proof of admissions For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission. Section 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. Section 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. Can the prosecution establish the call is a representation by Cochran? 1. Corrective Services records are admissible as business records: s 69 Evidence Act 1985. They indicate when a recorded call was made on at 10:49: VD exhibit 7. The recording of the call was produced by Corrective Services in response to a valid warrant: VD Exhibit 9: 2. The transcript's erroneous date has been not explained, other than as a typographical error. Section 88 is in broad terms: R v Armstrong [2010] NSWSC 801. If the representation is an admission it is reasonably open to assume that Cochrane made it: see R v Hall [2001] NSWSC 827. 3. I believe I should proceed on the basis that the jury will accept the call was made by Cochran. What is the relevance of the Telephone conversation? 1. The fact in issue in the proceedings for Count 1 was whether Cochrane was part of the joint criminal enterprise that involved the forced act of sexual intercourse by Simpson on Thomas. Part of the prosecution case is that Cochrane recorded visually the act of intercourse on an i-pad or mobile phone. 2. The prosecution wish to put to the jury that the telephone conversation is a representation by Cochrane that in the weeks after his arrest he took steps to have an i-pad removed from his flat and destroyed. And, that he was anxious that this be done. 3. The prosecution wish to use this representation to advance the following propositions: 1. Cochrane's anxiety stemmed from a belief that the i-pad or pads contained the recording of the act of intercourse involving Simpson and Thomas. 2. His ordering the destruction of it was to remove that incriminating evidence. 3. There is an inescapable inference that this representation was made in in consciousness of guilt. 4. Accordingly, the representation is relevant and admissible to prove indirectly these facts in issue: 1. There was an act of sexual intercourse 2. Cochrane was recorded the act of the sexual intercourse on an i-pad, and 3. That Cochrane was aware its contents would incriminate him. 1. The relevance of the evidence thus depends on a series of inferences being drawn from the telephone conversation leading to the conclusion that the accused was acknowledging a role in the forced sexual intercourse with the Simpson. 2. Generally, if an inference is available, the inference being available, it is a matter for the jury to decide whether it should be drawn: IMM v The Queen (2016) 257 CLR 300 [2016] HCA 14; R v XY (2013) 84 NSWLR 363, [2013] NSWCCA 121 per Basten JA and Simpson J, as she then was. 3. It is for me as trial judge to determine the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue. I do so on the assumption that the jury will accept the evidence: IMM v The Queen at [39]. 4. Neither s 55 nor s 56 Evidence Act 1995 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some or even slight probative value will be prima facie admissible, just as it is at common law: IMM at [40]. 5. I proceed on the basis the proposed evidence is relevant and, subject to any exclusionary provision, admissible. Is the telephone conversation an admission? 1. To be an admission Cochran's representations in the gaol telephone call must be "adverse to his interest in the outcome of the proceeding;" Evidence Act Dictionary. If the prosecution case is accepted they most certainly are. 2. Ms Stares, for Cochran submits however that the evidence can only be adverse to Cochran's interests only if the jury reach the conclusion the representation that an i-pad was destroyed is an admission by conduct. This inference she submits, is not justified, either by the call itself or the call considered with the other evidence likely to be led at trial. 3. Returning to the Evidence Act Dictionary definition of "admission;" it needs to be asked: 1. Is there any evidence in the gaol telephone conversation to indicate the reference to pad or pads relates to these proceedings? 2. Alternatively, can it be inferred from the gaol telephone conversation and the proposed evidence to be called at trial that the gaol telephone conversation does in fact relate to Count 1 in these proceedings? And, 3. Can the gaol telephone conversation be construed as indicating a clear, unequivocal acceptance by the accused of his guilt of the offence in Count 1. 1. The answer to question 1 is "no." However, as with the relevance question, the prosecution case is valid inferences can be drawn. Generally therefor, questions 1 and 2 are questions for the jury. 2. During a voir dire where inferences need to be drawn as part of my predictive exercise I should deal with the evidence on the basis of any inference which would be available to a reasonable jury considering the proffered evidence, without speculating as to whether the jury would in fact accept the evidence and give it particular weight: XY, Basten JA at [66] and [67]. 3. The words "in these proceedings" in the Evidence Act Dictionary definition of admission are important. It is not in dispute that in early 2016 Cochrane was involved in the use and sale of methyl amphetamine or "ice". He was arrested on 25 February 2016 for this and another detain for advantage matter. The allegations in that other matter did not, on the prosecution case, involve an i-pad but it requires no imagination to assume that Cochran may have a number of things on an i-pad or pads that he would not want the police to find. 4. The only way the gaol telephone call could be construed as an admission is if the inference is available that the pad, the subject of the gaol recorded conversation, was the same i-pad referred to by Thomas or a pad that contained a copy of that recording. 5. That, on any rational view of the prosecution case, could not be the only inference available. Care needs to be taken here. The prosecution case is that a recording was made on an i-pad. Proof of this recording's existence would be a major plank in the prosecution case. When Cochran's flat was searched on 1 February police were not specifically looking for an i-pad as Simpson had yet to complain to them. If it could be established that that Cochran's destruction of an i-pad was to avoid his recording of Simpson and Thomas engaged in oral sex being discovered this act would found a powerful submission that the destruction indicated a consciousness of guilt of the offence in count 1. 6. On 24 March 2017 when the call took place police had already searched the flat. Police had already seized items of interest to them. Cochran had, had he wished, ample opportunity to delete or destroy incriminating evidence in relation to the present matters. 7. What the prosecution seek to have the jury infer from the tender of the call is more than the fact of the destruction of an i-pad referred to, and Cohran's anxiety about it possibly not being destroyed. For the evidence to have any cogency it then requires an inference be drawn that despite the evidence of Simpson that the oral sex incident was recorded on an i-pad, that this was an error and it was recorded on an i-pad, as Thomas says, or perhaps that the recording was later stored on an i-pad. This then will require an inference that the destruction of an i-pad in the weeks after arrest means that destruction related to the oral sex incident. For the prosecution evidence to have an cogency the jury must then infer that the destruction can be used as an admission to Counts 1 or representation by acts. That then in turn will allow for an inference that the destruction indicated a consciousness of guilt of the offence in Count 1. 8. What is said in the call is evidence an i-pad was destroyed. But without those later inferences being drawn the destruction of an i-pad could not be an admission that the i-pad destroyed was the i-pad referred to in the evidence of Simpson or Thomas. 9. In the absence of further evidence indicating there was a recording on the i-pad referred to or that it had something on it relating to Simpson, circularity of reasoning is needed to advance the prosecution's point. The prosecution argument presumes its conclusion. The gaol telephone conversation fits neatly into the prosecution case theory but a theory is not evidence and could not of itself found an inference. In the absence of evidence indicating that the destruction of the i-pad was in some way connected to the offence in count 1 it could not, without more, be an admission. Discretion to exclude 1. The portion of the gaol recorded conversation noted above is however relevant to a fact in issue. That said it must be not be admitted into evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant: s.137 Evidence Act 1995. 2. Assessment of probative value requires me to make an evaluative judgment on the assumption the preferred evidence will be accepted as true and the prosecution case may be accepted by the jury: IMM at [34]. That evaluation must consider the cogent capacity of the evidence. In R v XY (2013) 84 NSWLR 363 [2013] NSWCCA 121, a five judge bench differed on the issue of whether the existence of competing inferences reduced probative value. Basten JA and Simpson JA saying it did not. 3. Basten in XY noted, in short summary, that s 137 requires the court to balance different qualities of particular evidence proffered by the prosecution it does not require an assessment of the proffered evidence by reference to other aspects of the prosecution case or a balancing of the proffered evidence against conflicting evidence likely to be led for the defence: R v Cook [2004] NSWCCA 52 at [43] (Simpson J). The judge should assess the evidence proffered by the prosecution on the basis of its capacity to advance the prosecution case. The judge should deal with the evidence on the basis of any inference or direct support for a fact in issue which would be available to a reasonable jury considering the proffered evidence, without speculating as to whether the jury would in fact accept the evidence and give it particular weight. The judge should not make his or her own findings as to whether or not to accept the inference or give the evidence particular weight. Determining which inferences should be accepted was quintessentially a function for the jury: at [41], [66] and [67]. 4. Simpson in XY, noted in short summary that the "predictive and evaluative" judgment required by s137 required an assumption to be made that the evidence will be accepted as accurate. That is, a prediction of what use the jury could rationally make of the evidence, in the context of the trial evidence in its complete form (as then known). The evaluation is of the importance or significance of the evidence in the same context, that is probative value of the evidence, is made on the assumption that the jury draw the inferences that will be urged by the prosecution and of the potential unfair prejudicial effect, having regard to appropriate available ameliorative directions: at [163], [164], [167] and [177]. 5. In XY, Hoeben CJ at CL relying on DSJ v R [2012] NSWCCA 9 at [88] & [89] said that: "When assessing the probative value of the prosecution evidence sought to be excluded, i.e., its capacity to support the prosecution case, a court can take into account the fact of competing inferences which might be available on the evidence, as distinct from determining which inference or inferences should be or are most likely to be preferred. Here, as Basten JA, Blanch and Price JJ have pointed out, there were alternative inferences available which were inconsistent with the prosecution case and which were objectively plausible. That is a matter which can properly be taken into account when carrying out the balancing exercise required by s137 to determine whether the probative value of the evidence is outweighed by its prejudicial effect." 1. Blanch J agreed with Hoeben CJ at CL. Price J did not specifically address this issue. 2. The High Court in IMM did not discuss the problems that might arise in assessing probative value if there were competing inferences 3. Each matter must be assessed having regard to its facts and the consistent application of principle to them guided by the legislation and the appellate courts. The factual scenarios outlined in XY and IMM differ significantly from those before me. The proposed evidence to which a s137 assessment must be made differs significantly. 4. Here the reasoning of Hoeben CJ at CL and Blanch J in XY seems more apposite and relevant to the issues at this trial. Here, unlike IMM, no issues of reliability or credibility apply. The evidence in the gaol telephone conversation is unequivocal. What can be inferred from it however is not. The use of inferences and process of inferential reasoning is essential to how the evidence will be assessed by the jury. 5. There are a myriad reasons why a person in Cochran's position might want an i-pad destroyed including; the evidence of what was seized at his flat, his other arrest; and the evidence at this trial that he was a methyl amphetamine supplier. Each provides easily discernible alternative inferences other than the laptop was destroyed to conceal evidence relating to Count 1. 6. If the jury drew the inference now urged by the prosecution, the probative value of the evidence could be significant and the prosecution case would be significantly strengthened. However when considering how the jury would assess this evidence taking it at its highest it suffers from the same real dangers that caused me to reject the suggestion it could be regarded as an admission. A real danger the jury would reason from the destruction of an i-pad that whatever was on was the recording of Simpson and Thomas and from that conclusion the event alleged occurred. 7. In most cases of the juries reasoning process would be guided by a direction in these terms: "In determining whether an inference is a reasonable inference, you must consider the evidence as a whole. Do not disregard an item of evidence because when considered alone it does not support a reasonable inference. Look instead at all of the evidence together. One piece of evidence may resolve any doubts you have about another piece of evidence. When all of the pieces of evidence are taken into account, you may become certain of a particular conclusion that would not be reasonable to reach if you considered those items separately." 1. This form of reasoning is a generally straight forward. The jury would however be given two more interrelated directions containing important cautions. In short form they are: 1. In a criminal trial, you must be satisfied of the guilt of an accused beyond reasonable doubt. Amongst other things, that means that you should be extremely careful about drawing any inference. You should examine any possible inference to ensure that it is a justifiable inference. Even if, on the evidence, the inference urged by the prosecution is open you could not conclude the offence has been proved beyond reasonable doubt if another innocent inference is also reasonably open to be drawn. Where, as here, proof is required beyond reasonable doubt, you should not draw any inferences from the direct evidence unless it is the only rational evidence in the circumstances. 2. Where the prosecution rely on an act here the destruction of the i-pad before it can be used to infer a consciousness of guilt or a realisation that its contents would implicate him it must be proved that; 1. the act was be deliberate; 2. the act related to a material issue in this trial; 3. the motive for the act must be a realisation of guilt and a fear of the truth; 4. the act said to constitute the act in consciousness of guilt must clearly be shown to be so by admission or by evidence (adapting Edwards v The Queen (1993) 178 CLR 193 and R v Lane [2011] NSWCCA 167). 1. If those directions were obeyed, as it is presumed they must be, then the evidence of the gaol telephone conversation, taken at its highest and presuming acceptance of the prosecution case, has little probative value. 2. On the other hand the risk of prejudice could not so readily be addressed by directions to the jury. There is a real and discernible risk both of impermissible reasoning and the jury giving the evidence more weight than it deserves. Resolving this issue may also divert the jurors from their task of assessing witnesses who say they were present during the alleged events. This risk is illustrated by the number of matters that cannot be proved and must be presumed. 3. The proposed evidence only has cogency once it is assumed the offence occurred as alleged, and that it was recorded, and the record was on the i-pad Cochran directed be removed or destroyed. The danger of the jury reasoning back from the destruction of an i-pad rather than analysing the prosecution evidence as a whole is considerable. 4. There are two further concerns about potential unfairness. First, the gaol conversation would require disclosure Cochran had been bail refused, and secondly any answer to the prosecution case to avoid an inevitable inference the call did relate to the present count would reveal other offences unconnected with the present matter, one of which at least had similarities to the present matter. 5. Both potential problems would individually be remedial by direction. Both those directions would be added to directions already required to be given. They include, cautions about context or background evidence revealing other offences, cautions about reasoning to guilt from drug Cochrane's use and evidence he was a drug supplier. Further, as this evidence is to be given in a joint trial, a strong caution would need to be given that it was evidence in the prosecution case against Cochrane only. While it is ait is must be presumed a jury will apply all these cautions the cumulative impact of these direction caries a significant risk one that could undermine the requirement an accused get affair trial. Conclusion 1. Section 137 is engaged. Section 90 is similarly engaged because of the potential for the evidence to be misused and potential weaknesses in the evidence, which may not be adequately assessed by a jury, properly directed, 2. Accordingly, the evidence must be excluded. ********** 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: 19 December 2017