R v Martinez; R v Tortell (No. 5) [2019] NSWSC 1665

R v Martinez; R v Tortell (No. 5) [2019] NSWSC 1665

The parts of the recorded conversation between the accused are admissible as evidence of consciousness of guilt, as they are relevant to material issues in the trial and capable of supporting the inference that the accused were aware of their guilt concerning the murder (or participation in a joint criminal enterprise to cause serious harm). Their probative value is not outweighed by unfair prejudice, and alternative explanations or generality are jury matters, not bars to admissibility.

Parties
Prosecution: Regina (Crown); Accused: Wade Martinez; Accused: Jake Tortell
Jurisdiction
Australia
Judgment Date
28 November 2019
Procedural Posture
Criminal / Pretrial Ruling on Admissibility of Evidence
Outcome
Application to admit identified portions of the conversation as evidence of consciousness of guilt allowed; other portions excluded.
Legal Topics
Murder, Joint Criminal Enterprise, Consciousness of Guilt, Admissibility of Evidence
Criminal Law Evidence Murder Joint Criminal Enterprise Consciousness of Guilt Admissibility of Evidence

Case Brief

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Parties

Regina (Crown)

Prosecution

Wade Martinez

Accused

Jake Tortell

Accused

Procedural Posture

Criminal / Pretrial Ruling on Admissibility of Evidence

Legal Issues

  1. 1 Whether recorded conversation between accused is admissible as evidence of consciousness of guilt
  2. 2 Whether evidence is relevant or 'intractably neutral'
  3. 3 Whether the probative value of evidence is outweighed by the risk of unfair prejudice under s.137 Evidence Act 1995

Ratio Decidendi

The parts of the recorded conversation between the accused are admissible as evidence of consciousness of guilt, as they are relevant to material issues in the trial and capable of supporting the inference that the accused were aware of their guilt concerning the murder (or participation in a joint criminal enterprise to cause serious harm). Their probative value is not outweighed by unfair prejudice, and alternative explanations or generality are jury matters, not bars to admissibility.

Court Disposition

Application to admit identified portions of the conversation as evidence of consciousness of guilt allowed; other portions excluded.

Orders

  • Identified parts of the conversation between accused as highlighted in MFI27 are admitted as evidence of consciousness of guilt.
  • Other contested parts of the conversation are excluded as not relevant or incapable of supporting inference of guilt.