R v Beretov [2019] NSWDC 774

R v Beretov [2019] NSWDC 774

The pretext call was not relevant; the accused did not by his demeanour or conduct acknowledge the truth of the assertion made by the complainant. It was not fairly open to conclude that the accused's silence in the call could be a tacit admission or implied agreement with the facts alleged. Even at its highest, the circumstances rendered the conversation ambiguous and unfair. Admission would be unfair and apt to mislead the jury, thus the evidence was excluded under ss 56(2), 90, 135, 137 Evidence Act 1995 (NSW).

Parties
Accused: Risto Beretov; Prosecutor: Director of Public Prosecutions
Jurisdiction
Australia
Judgment Date
11 November 2019
Procedural Posture
Criminal / Pre Trial Evidentiary Ruling
Outcome
pretext call excluded from evidence
Legal Topics
Admissibility of Evidence, Admissions, Silence in Response to Accusations, Recorded Conversations, Prejudicial Evidence
Criminal Law Evidence Admissibility of Evidence Admissions Silence in Response to Accusations Recorded Conversations Prejudicial Evidence

Case Brief

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Parties

Risto Beretov

Accused

Director of Public Prosecutions

Prosecutor

Procedural Posture

Criminal / Pre Trial Evidentiary Ruling

Legal Issues

  1. 1 Whether a clandestine but lawfully recorded telephone conversation (pretext call) should be admitted as evidence of an implied admission by silence
  2. 2 Whether silence in response to an accusation can constitute an admission
  3. 3 Application of ss 90, 135, 137 Evidence Act 1995 (NSW) to exclude evidence

Ratio Decidendi

The pretext call was not relevant; the accused did not by his demeanour or conduct acknowledge the truth of the assertion made by the complainant. It was not fairly open to conclude that the accused's silence in the call could be a tacit admission or implied agreement with the facts alleged. Even at its highest, the circumstances rendered the conversation ambiguous and unfair. Admission would be unfair and apt to mislead the jury, thus the evidence was excluded under ss 56(2), 90, 135, 137 Evidence Act 1995 (NSW).

Court Disposition

pretext call excluded from evidence

Orders

  • The pretext call cannot be admitted in evidence in the trial