R v Cochran & Reihana [No. 2] [2017] NSWDC 369

R v Cochran & Reihana [No. 2] [2017] NSWDC 369

Although the telephone conversation was relevant and it was reasonably open to proceed on the basis that Cochran made the call, the evidence did not amount to an admission connecting the destroyed i-pad to Count 1 without circular reasoning and multiple competing inferences. Its probative value, even taken at its highest, was outweighed by the real danger of unfair prejudice, including impermissible reasoning, excessive weight, disclosure of bail refusal and other offences, and cumulative directions that risked undermining a fair trial. The evidence was therefore excluded under s 137, with s 90 similarly engaged.

Jurisdiction
Australia
Judgment Date
30 November 2017
Procedural Posture
Criminal / Procedural and Other Rulings; Preliminary Legal Issue During Jury Trial Concerning Admissibility of a Recorded Gaol Telephone Call
Outcome
The recorded gaol telephone conversation was excluded and could not be admitted as evidence in the trial.
Legal Topics
['section 137 Evidence Act 1995' 'admissions' 'proof of Identity of Speaker' 'business Records' 'consciousness of Guilt Reasoning' 'unfair Prejudice' 'competing Inferences']
['criminal Law' 'evidence'] ['section 137 Evidence Act 1995' 'admissions' 'proof of Identity of Speaker' 'business Records' 'consciousness of Guilt Reasoning' 'unfair Prejudice' 'competing Inferences']

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Procedural Posture

Criminal / Procedural and Other Rulings; Preliminary Legal Issue During Jury Trial Concerning Admissibility of a Recorded Gaol Telephone Call

Legal Issues

  1. 1 ['Whether the prosecution could establish that the recorded telephone call was a representation by Cochran.' 'Whether the telephone conversation was relevant to a fact in issue in the trial.' "Whether the telephone conversation was an admission adverse to Cochran's interests in the proceeding." 'Whether the evidence should be excluded under s 137 Evidence Act 1995 because its probative value was outweighed by the danger of unfair prejudice.' 'Whether s 90 Evidence Act 1995 was engaged because use of the evidence would be unfair.']

Ratio Decidendi

Although the telephone conversation was relevant and it was reasonably open to proceed on the basis that Cochran made the call, the evidence did not amount to an admission connecting the destroyed i-pad to Count 1 without circular reasoning and multiple competing inferences. Its probative value, even taken at its highest, was outweighed by the real danger of unfair prejudice, including impermissible reasoning, excessive weight, disclosure of bail refusal and other offences, and cumulative directions that risked undermining a fair trial. The evidence was therefore excluded under s 137, with s 90 similarly engaged.

Court Disposition

The recorded gaol telephone conversation was excluded and could not be admitted as evidence in the trial.

Orders

  • ['Pseudonyms used for the complainant and another witness.' "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." 'The evidence of the call is excluded.']