R v Johnson [2017] NSWSC 477

R v Johnson [2017] NSWSC 477

Although playing the audio recording created a danger of unfair prejudice because the deceased was heard speaking shortly before death, in pain and in a hospital setting, that danger would be substantially addressed by a jury warning. The audio had significant probative value beyond the transcript because it allowed assessment of the deceased's demeanour, the effect of pain on reliability, and the actual words spoken where the transcript was contestable due to indistinct and garbled speech. The probative value outweighed the danger of unfair prejudice, so s 137 was not engaged.

Jurisdiction
Australia
Judgment Date
27 April 2017
Procedural Posture
Criminal Proceeding for Murder and Alternative Forms of Homicide / Evidentiary Ruling During Trial on Objection Under S 137 of the Evidence Act 1995 (nsw)
Outcome
Defence objection dismissed; the audio recording was admitted subject to a jury warning.
Legal Topics
['exclusion of Prejudicial Evidence' 'probative Value and Unfair Prejudice' 'audio Recording of Deceased' 'hearsay Statement' 'jury Direction']
['criminal Law' 'evidence'] ['exclusion of Prejudicial Evidence' 'probative Value and Unfair Prejudice' 'audio Recording of Deceased' 'hearsay Statement' 'jury Direction']

Case Brief

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Procedural Posture

Criminal Proceeding for Murder and Alternative Forms of Homicide / Evidentiary Ruling During Trial on Objection Under S 137 of the Evidence Act 1995 (nsw)

Legal Issues

  1. 1 ['Whether an audio recording of the deceased speaking to detectives shortly before death should be played to the jury when the transcript was not objected to.' 'Whether the probative value of playing the audio recording was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

Although playing the audio recording created a danger of unfair prejudice because the deceased was heard speaking shortly before death, in pain and in a hospital setting, that danger would be substantially addressed by a jury warning. The audio had significant probative value beyond the transcript because it allowed assessment of the deceased's demeanour, the effect of pain on reliability, and the actual words spoken where the transcript was contestable due to indistinct and garbled speech. The probative value outweighed the danger of unfair prejudice, so s 137 was not engaged.

Court Disposition

Defence objection dismissed; the audio recording was admitted subject to a jury warning.

Orders

  • ['Subject to the proposed warning to the jury, disc Voir Dire exhibit F can be played in the presence of the jury.']