Can Rap Lyrics be Used as Evidence of Guilt in Criminal Cases in Australia: Interview with Mark Dennis SC

Poppy Morandin.

Rap music has been historically associated with braggadocios lyrics, often boasting of crimes and indiscretions.

However, the question begs whether these lyrics can be used as evidence of a defendant’s supposed guilt.

In America and Canada, rap lyrics are increasingly being used as evidence in criminal trials.

Professors Erik Dennis and Andrea Nielson in their book ‘Rap on Trial’, have identified at least 500 cases in the US alone of rap lyrics being used in criminal trials, at times leading to inappropriate or wrongful convictions.

A key example includes a Louisiana born rapper named Mac Phipps, who was convicted of manslaughter in 2001, and sentenced to thirty years in prison.

The prosecutor quoted extensively from Phipps’ album ‘Shell Shocked’, which made it to #11 on the US Billboard 200.

“As rap became increasingly popular, prosecutors saw an opportunity: they could present the sometimes violent, crime-laden lyrics of amateur rappers as confessions to crimes, threats of violence, evidence of gang affiliation, or revelations of criminal motive—and judges and juries would go along with it.” explain Dennis and Nielson.

“An alarming number of aspiring rappers are imprisoned. No other form of creative expression is treated this way in the courts.”they continue.

However, the practice has been relatively unprecedented in Australia.

Despite this, concerns have begun to grow, following the extraordinary lengths NSW Police have gone to target prominent Western Sydney rap group ‘OneFour’.

NSW Police have admitted that they have actively sought to prevent the group from performing across Australia.

“I’m going to use everything in my power to make your life miserable, until you stop doing what you’re doing,” said Sergeant Trueman, an officer with the state’s high-profile Strike Force Raptor.

“Every aspect of your life. I’m going to make it uncomfortable for you.”

Two of the groups’ members ‘YP’ and ‘Celly’ are currently serving time in jail, after being sentenced over a violent brawl at the Carousel Inn at Rooty Hill in July 2018.

In December 2019, ‘YP’ received four years in prison, with a two-year non-parole period for several charges including reckless grievous bodily harm.

‘Celly’ was sentenced to 10 years in prison over the same brawl, with his involvement amounting to pulling a hammer from his jacket and hitting another man in the head several times.

However, he has since successfully appealed to the Court of Criminal Appeal who quashed the sentence and imposed a new aggregate jail term of eight years and slashed his non-parole period to four years and nine months.

In November 2019, member ‘YP’ attempted to vary his bail conditions at Parramatta District Court, to enable him to travel interstate.

The crown prosecutor in the matter tendered an extraordinary police brief about the group to the court, in which the police claimed the group’s lyrics referred to criminal activity.

In the brief, police alleged that OneFour is part of a broader gang representing Mount Druitt and the outer-western suburbs of Sydney and that the group has been ‘at war’ with a group representing Sydney’s inner-west, dubbed ‘21 District’.

Among lyrics referenced include ‘21 what, one got knocked, hah! I guess that makes them 20’ in OneFour’s popular track ‘The Message’ which has over 13 million views on YouTube.

According to the brief, the lyric referenced the murder of a member of ‘21 District’.

“You can definitely draw a comparison between the lyrics and offences that have occurred,” Sergeant Trueman said.

At the time, the group’s manager stated that whilst their music told ‘stories from the streets’, making a literal link to criminal acts was wrong.

“It’s no different from literature, music cannot be taken literally.” commented Triple J’s group music director, Richard Kingsmill.

Interview With Criminal Defence Barrister Mark Dennis SC

We interviewed prominent criminal defence barrister Mark Dennis SC on this topic. Mr. Dennis has been practising exclusively in criminal law since 1992 and the founder and convenor of “Reasonable Cause” CPD conferences which donates 100% of its profits to charity in assisting disadvantaged young Cambodians to assist in their education.

“Whilst I’ve never heard of such a prosecution in an Australian context, I see no reason in principle why they couldn’t use it in evidence, though it would have to be a fairly direct correlation,” explains Mark Dennis SC.

However, Mr Dennis identifies a number of issues associated with the utilisation of such evidence including whether “the rapper is necessarily the author of the lyrics” and that the lyrics “might not be about the relevant crime and may be about something else or something that they had vague knowledge regarding.”

“Therefore, if I ever encountered a prosecution trying to use such evidence, I would seek to show whether it really can be attributed to a crime.” he continued.

Mr Dennis also spoke about how he would seek to have it excluded on the basis that it would cause unfair prejudice.

Section 137 of the Evidence Act 1995 (NSW) states that: ‘in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.’

The expression of ‘probative value’ means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue, (Adam v The Queen (2001) 297 CLR 96 at [60]).

Unfair prejudice can be summarised as ‘danger that the fact finder may use the evidence to make a decision on an improper, perhaps emotional basis, i.e., on a basis logically unconnected with the issues in the case,’ as explained by the Australian Law Reform Commission.

Noting many critics of the use of lyrics in proceedings in America have sought to brand the practice as reinforcing racist stereotypes, he furthermore identified how the use of rap lyrics: “may fall more heavily on more cultural groups than others”.

Questions? Contact our friendly team of criminal lawyers, Sydney today.

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