R v Rossi-Murray; R v Byrnes (No 2) [2019] NSWSC 480

Supreme Court New South Wales

Medium Neutral Citation: R v Rossi-Murray; R v Byrnes (No 2) [2019] NSWSC 480 Hearing dates: 15 – 18, 22 – 26, 29 – 31 October 2018 Date of orders: 31 October 2018 Decision date: 02 May 2019 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: The application under s 137 of the Evidence Act 1995 (NSW) by the accused Byrnes is refused. Catchwords: CRIME – Evidence - application of s 137 to ERISP to exclude video, but not sound - evidence admitted Legislation Cited: Evidence Act 1995 (NSW), s 137 Cases Cited: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588; [1999] HCA 3 Category: Procedural and other rulings Parties: Regina (Crown) Barmah Rossi-Murray (Accused) Bradley James Byrnes (Accused) Representation: Counsel: P Barrett (Crown) A Webb (Accused Rossi-Murray) H White (Accused Byrnes)

Solicitors: Office of the Director of Public Prosecutions (Crown) Blair Criminal Lawyers (Accused Rossi-Murray) PW & Associates (Accused Byrnes) File Number(s): 2016/00205098; 2016/00212466

EX TEMPORE Judgment 1. HIS HONOUR: The Court has before it an application pursuant to the terms of s 137 of the Evidence Act 1995 (NSW) (hereinafter "the Act") that the evidence of the video, that is the vision of the ERISP (being the acronym for Electronically Recorded Interview of a Suspected Person) of Mr Bradley Byrnes not go before the jury. Essentially, the unfair prejudice upon which the accused, Mr Byrnes, relies through his counsel, Mr White, is an unfair prejudice associated with the jury's possible assessment of the accused adversely in relation generally to his demeanour, meaning by that his conduct during the course of the interview. 2. The possible adverse assessment in part relates to the conduct of the accused, Mr Byrnes, in either picking his ear or picking his nose or both and, secondly, relies upon the fact that the video shows him slouching and his conduct would or could, since we are dealing with the danger of unfair prejudice, allow the jury to draw the inference that he was on drugs at the time of the interview. 3. The task for the Court is to determine: firstly, the probative value of the evidence sought to be adduced; and, secondly, whether there is an unfair prejudice; and, then, to balance whether the probative value is out-weighed by the danger of unfair prejudice. If it is, the Court is required to reject the evidence and rule that it is inadmissible. So much is obvious from the terms of s 137 of the Act. 4. The Crown relies upon the evidence to show lies and relies upon it to go to credit once the evidence is otherwise admitted. If the Crown had sought to adduce evidence, independently, that the accused Byrnes was in the habit of or from time to time taking illicit drugs, that evidence could not be admitted unless it were somehow relevant to some issue in the trial other than credit. 5. It seems to me there are two aspects to the issue. I do get the impression that counsel for Mr Byrnes underestimates the capacity of juries to differentiate issues of direct relevance and issues that are not directly relevant. It is also going to be necessary, in the course of this trial, to make clear to the jury, by direction, that they can have no regard to the issues of drug taking and/or dealing in relation to other witnesses. 6. Mr White, counsel for the accused Byrnes, points out that there is no other evidence in the trial that suggests Mr Byrnes participates in drugs. That may be so. 7. The Crown says this is the best evidence. It is not absolutely clear what is gained by the evidence of sight, rather than sound, but it is clear that it is the best or only manner in which the demeanour of the interviewee, the accused Byrnes, can be ascertained. 8. There were certain comments, peripherally relevant, by the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588; [1999] HCA 3, particularly in the Judgment of his Honour Kirby J, in which his Honour pointed out that the day will come when all trials will be video recorded and appellate courts will be in just as good a position as anyone else to determine demeanour. 9. That comment points to the obvious fact that sight is a significant factor in the determination of the way in which we receive what someone says. One only has to have regard to the example of the somewhat famous scene from the classic film, "The Dictator", where Charlie Chapman is charged with defaming the State for using the words "This is a fine country". 10. It seems to me in the scheme of things, whatever unfairness may exist in the sight, the evidence of the video recording is the best evidence that will allow the jury to undertake an assessment of the demeanour of the accused. It is the best evidence. Whatever prejudice arises from that can be overcome by the use of appropriate directions. The application under s 137 of the Act is refused.