Amy Sacco v The Queen
[2018] VSCA 353
•19 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0229
| AMY SACCO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, BEACH and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 December 2018 |
| DATE OF JUDGMENT: | 19 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 353 |
| JUDGMENT APPEALED FROM: | DPP v Sacco (Unreported, County Court of Victoria, Judge Murphy, 10 August 2018 (conviction)) |
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CRIMINAL LAW — Appeal — Conviction — Trial — Unrepresented accused — Possible objections to evidence — Scope of trial judge’s duty — Whether judge obliged to raise potential admissibility objections — Whether trial judge failed to provide unrepresented accused with necessary information and assistance — Whether serious departure from prescribed processes of a trial — Whether substantial miscarriage of justice — Whether conviction inevitable — Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann QC | Melinda Walker – Criminal Law Solicitors |
| For the Respondent | Mr C T Carr | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA
EMERTON JA:
Introduction
By a majority verdict, on 10 August 2018 a jury in the County Court convicted the applicant of attempting to pervert the course of justice.[1]
[1]Attempting to pervert the course of justice is a common law crime. By virtue of s 320 of the Crimes Act 1958 it is punishable by a maximum term of 25 years’ imprisonment.
The applicant was unrepresented at trial. She now seeks leave to appeal against that conviction on the ground that a ‘substantial miscarriage of justice has occurred in circumstances where the unrepresented Applicant was not provided with the level of assistance that was necessary to ensure a fair trial’.[2]
[2]The applicant did not seek leave to appeal against her sentence. On 7 September 2018, the trial judge sentenced her to a community correction order of nine months’ duration, with a condition that she perform 100 hours of unpaid community work.
For the reasons that follow, we would refuse leave to appeal.
The offending and police investigation
At the time of the offence, the applicant, who was born on 18 January 1991, was aged 24 years. She had been in a long-term relationship with Jonas Black, then aged 45 years. Black had been arrested on 25 May 2015 in relation to charges of attempted murder (and other charges). On 17 June 2015, Black was being held in custody at the Metropolitan Remand Centre (‘MRC’) awaiting committal.
The charges against Black arose out of an incident at his property at Turtons Creek, during which he attacked two South Gippsland Shire workers, striking their heads with a piece of metal scaffolding pipe.
During investigation of the attack, police located a plastic tarpaulin spread out over the rear cargo area of Black’s Nissan Patrol, together with two bags of hydrated lime, a long handled spade and mattock with fresh deposits of clay on them, a piece of metal pipe and a short handled shovel with blood stains. Significantly, the day after the attack, an apparent grave site was located a few kilometres away from Black’s residence.
On 15 June 2015, Black telephoned the applicant from the MRC. At the beginning of the call, the following recorded message played before there was any conversation:
This call has originated from an inmate of the Metropolitan Remand Centre. It is subject to monitoring and recording. It is unlawful for this call to be redirected or be part of a conference call. If you do not wish to accept this call, hang up now. If you understand the conditions of this call, please continue.
After some conversation between Black and the applicant about solicitors, bail and an individual referred to as ‘Chucky’, there was the following exchange:
BLACK: I’m O.K. Now, there’s a couple of things too. What I’m gunna do on Wednesday ---
SACCO: Yep.
BLACK: I’m gunna sign – sign out my property to you. I’ve already done it.
SACCO: What does that mean?
BLACK: Like my phone, my work boots and all that sort of stuff.
SACCO: Yep, yep.
BLACK: It will be signed out to you.
SACCO: Yep, O.K.
BLACK: So just ask about that on your exit.
SACCO: Yep.
BLACK: Yeah, and also I was wondering tomorrow when I ring you if you can have a pen with you and a paper.
SACCO: Yep
BLACK: O.K. ‘Cause there’s something else I want to – upon – getting my stuff though, when you’re driving through the city somewhere just throw my work boots out somewhere ‘cause they’re old.
SACCO: Yeah, O.K, I don’t see a problem.
BLACK: And, yep, that’s all I’ll say on that matter. Yeah, so that will be good. …
On Wednesday 17 June 2015 the applicant went to the MRC and collected property that Black had signed out, including his mobile telephone, wallet and cigarettes. When she asked where the boots were she was told that the police must have them.
Some months later, on 14 January 2016, police interviewed the applicant. During the course of the recorded interview, conducted by Detective Peter Johnston in the presence of Detective Paul Burns, the applicant made some admissions, including that she was worried that there was ‘something incriminating’ with the boots. Following the recorded interview, in circumstances we will later discuss in more detail, the applicant made the following written statement to police, which she signed:
My full name is Amy SACCO. I am 24 years old. I have been interviewed today about my involvement with Jonas and what he did on the 25th of May 2015, to Matthew PATTERSON and Justin EADES.
I was asked questions about a phone conversation I had with Jonas whilst he was on remand. I wasn’t entirely truthful in my answer. Jonas had asked me to collect some of his property being held at the prison. He gave me a specific instruction regarding his boots, that he wanted me to dispose of them as I drove through the city. I can’t recall any specific conversation with him prior to this about the reasons why but I assumed that there was some incriminating evidence on the boots so I agreed to do what he asked. Also on the Saturday night I can recall Jonas and Chucky talking about the council situation. I can’t remember any specifics or it being a structured conversation but Chucky joked to Jonas suggesting that he should belt him (Matthew) when he turns up. 1 was unaware of any plans that Jonas may have had regarding Matthews [sic] visit.
In relation to the boots, I was concerned that there may be evidence on them that would further incriminate him and I didn’t want any further evidence against him in what appeared to be mounting evidence, so I agreed to do what he asked. I have made this statement of my own free will and I have not been coerced or promised anything for making this statement.
………………
(Amy SACCO)
Statement taken and signature witnessed by me at 11:13 am on 14/01/2016 at Wonthaggi
Det LSC P.JOHNSTON VP32235
I hereby acknowledge that this statement is true and correct and I make it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury.
………………
(Amy SACCO)
Acknowledgment made and signature witnessed by me at 11:13 am on 14/01/2016 at Wonthaggi
Det LSC P.JOHNSTON VP32235
As it transpired, soil on the boots was forensically linked to soil at the gravesite.
Discussion
As we have said, the applicant was unrepresented at trial. In this Court, counsel for the applicant submitted that she did not become disentitled to a fair trial because she declined the opportunity to be legally represented. He submitted that three ‘key events’ combined to create a situation where the applicant’s trial became unfair, albeit that he conceded that the applicant’s appeal could not succeed unless the Court accepted his submissions concerning the third key event.
By our estimation, for the purposes of pre-trial legal argument the applicant filed approximately 130 pages of submissions and supporting material that she had prepared, including:
· a 21 page submission, dated 20 January 2018, dealing with various matters (including the constitutional validity of the prosecution and the indictment, and the admissibility of the statement and record of interview);
· an eight page document headed ‘Treason and Misprison [sic] of Treason’, dated 13 May 2018 and signed ‘Brian Shaw’, suggesting (among other things) treason by a former State government;
· a 41 page submission, dated 29 June 2018, containing submissions under the headings ‘Outline of Submissions re: Invalid legislation and fraudulent grant of power relied upon to prosecute’, ‘Outline of Defence Submissions re: Invalid Indictment & Lack of Prosecution’, ‘Outline of Defence Submissions re: Trial and conviction of Jonas Black’, ‘Outline of Defence Submissions re: Admissibility of the Accused’s Statement‘, ‘Outline of Defence Submissions re: Admissibility of record of interview’, ‘Outline of Defence Submissions re: Boots not conclusively linked to the excavation site‘ (Exhibit 4);
· a 31 page document broken into three sections headed ‘Part A: Trial by Jury on Indictment’, ‘Part B: Removal of Grand Jury Right’ and ‘Part C: Treason and Misprision of Treason’;
· a 20 page submission, dated June 2018, which so far as we are able to glean, alleges a ‘Common Purpose Conspiracy’ between various heads of jurisdiction and others (Exhibit 1); and
· a three page affidavit, ‘Affidavit No 4’, affirmed by the applicant on 16 February 2017 (Exhibit 5).[3]
[3]The applicant also tendered an earlier sworn draft of Affidavit No 4, affirmed on 18 November 2016 (Exhibit 5A).
Although somewhat hard to follow, the written submissions filed by the applicant suggested that she was unable to have a lawyer represent her at her trial. The argument — which was plainly untenable — included the following elements. First, in 1855 the Imperial Parliament passed The Constitution Act, which established the Colony of Victoria as a self-governing colony with responsible government. Secondly, the Constitution Act 1975 (Vic) was ineffective to ‘repeal’ the Act of 1855. Thirdly, the Australia Act 1986 (Cth) and Australia Act 1986 (UK) — which removed, first, any possibility for the United Kingdom to enact legislation with effect in Australia; secondly, for the United Kingdom to be involved in Australian government; and, thirdly, for an appeal from any Australian court to be heard by a court of the United Kingdom — were enacted in breach of s 128 of the Commonwealth Constitution, and were therefore void. Fourthly, the removal of the necessity in s 6(1) of the (since repealed) Legal Practice Act 1996 for a legal practitioner to take an oath of allegiance (effected by s 3 of the Courts and Tribunals Legislation (Further Amendment) Act 2000), was unlawful. Fifthly, as a result, ‘any legal practitioner purporting to derive their authority from such Act therefore has no valid standing in any court’. Sixthly, the removal of references to the Crown and Queen from Victorian law (including the Public Prosecutions Act 1994) means that no valid indictment exists, so that the trial ‘cannot proceed’. Seventhly, the abrogation of the oath of allegiance means that the Office of Public Prosecutions ‘and its representatives are therefore devoid of proper legal standing’, so that any proceedings brought by them ‘are therefore null and void ab anitio [sic]‘.
Unsurprisingly, on the first day of the trial, Monday 6 August 2018, the trial judge rejected the applicant’s arguments directed to the court’s lack of jurisdiction. Since the applicant sought to challenge the admissibility of the record of interview, however, further pre-trial arguments then took place. As part of that process a voir dire was conducted, during which Detective Johnston and Detective Burns both gave evidence and were cross-examined by the applicant, and the applicant gave evidence and was cross-examined by the prosecutor. The thrust of the applicant’s challenge to the record of interview was that her admissions were the product of duress and intimidation by the police. Thus, ‘Affidavit No 4’, which she was permitted to tender on the voir dire, contains the following:[4]
[4]Emphasis added.
1. I state that I am the fiancée of Jonas Black.
…
3. I state that, on 14th January 2016 I was asked by Detective Peter Johnston to attend the Wonthaggi police station on the premise I would be collecting the property of Mr Jonas Black.
4. I state that, having arrived at the Wonthaggi police station, I was escorted to an interview room and placed under arrest by Detective Peter Johnston.
5. I state that prior to the commencement of the recorded interview which followed, Detective Johnston told me in the absence of any other officers or witnesses, that I clearly knew more about what Mr Jonas Black had intended when he assaulted the two council workers on 25th May 2015, that no magistrate would believe I was innocent, that I could be facing a jail term, and that in the recorded interview that was to follow, I was being given one chance to cooperate to help me avoid imprisonment where he would be able to ‘make a deal’ with the magistrate I would be facing.
6. I state that whilst I had no idea what Detective Johnston was referring to, I was under the enforced assumption he did in fact have sufficient evidence to charge and convict me because he had verbally stated this before the recording had commenced.
7. I state that I was then taken outside the interview room by Detective Johnston to have my phone and car keys confiscated and photo taken.
8. I state that I was read my rights at the commencement of the interview by Detective Johnston and advised I could make a phone call, to which Detective Johnston asked if I would like to call my parents and notify them of where I was and what was happening.
9. I state that as I was previously told that a deal would be made if I was seen to cooperate with Detective Johnston, I did not feel I could remain silent or phone for legal advice for fear of aggravating him or disrupting the said ‘deal’, as at this point I was under duress.
10. I state that once the interview commenced Detective Johnston noted that it was only a few days before my birthday and that I might want to think about what I was doing with my life.
11. I state that at the conclusion of the interview I had not said anything sufficient to incriminate Mr Jonas Black which seemed to displease Detective Johnston.
12. I state that the other police officer present during the recorded interview was Detective Burns.
13. I state that when Detective Burns had left the room and the recorder had been turned off, Detective Johnston said he didn’t know what to do with me and that now he couldn’t help me because I hadn’t said enough during the interview.
14. I state that he then sent me outside of the interview room again to have my fingerprints recorded and, as stated by Detective Johnston, whilst doing so to have a good think about what I wanted to do.
15. I state that when I returned to the interview room under extreme duress because of the intimidation, I then made a false statement.
16. I state that during a prison visit prior to the 15th of June 2015 Jonas did state that there were items of his in prison property for me to collect that he no longer required and that could be donated or disposed of as appropriate.
17. I state that during a prison phone call on the 15th of June 2015 Jonas notified me that he had indeed signed out said property for me to collect on my next visit and dispose of accordingly.
18. I state that at this time Jonas was not aware that his boots were in possession of the police.
19. I state that I then allegedly agreed under extreme duress to make a statement saying that I had agreed to dispose of the boots because I had believed they were evidence that would be used against Jonas so as to suit Detective Johnston’s intentions and obtain said ‘deal’.
…
22. I state that I then signed the statement where it said I had not been coerced into making the statement, again because I feared that refusing to do so would damage the ‘deal’.
…
Towards the end of that first day, the judge announced that he would rule on the admissibility of the record of interview the following day, and would empanel a jury and start the trial on Wednesday. At that point, the applicant asked the judge how she would go about appealing any of his decisions, and the judge told her about the availability of an appeal under s 295 of the Criminal Procedure Act 2009. The judge told her that the Court of Appeal had held that certification should not be granted to challenge the admissibility of records of interview, ‘so that then puts the ball in [the applicant’s] court’. The applicant said that she understood.
The first key event
Counsel for the applicant submitted that the first key event occurred the next day, Tuesday 7 August 2018, after the judge delivered a ruling upholding the admissibility of the record of interview. Having ruled, the judge announced that a jury panel was due the next day at 10.30 am. The applicant immediately then said: ‘Yes, Your Honour. I’m obliged to raise the question at this point whether you’re willing to certify for me to appeal on any of the two rulings that you’ve given’.
After discussion, the judge refused certification under s 295(3) of the Criminal Procedure Act 2009. The applicant then sought to recapitulate some of her somewhat absurd arguments about the oath of allegiance, the unlawfulness of lawyers’ appointments, the court’s lack of jurisdiction and the invalidity of the indictment, and, reading from s 74 of the Constitution, she asked the judge, ‘Your Honour, is the constitution suspended in this matter or in effect?’. There was then the following exchange:[5]
[5]Emphasis added.
HIS HONOUR: … So look, that again is irrelevant. Now I ask you again, is there any reason why the case shouldn’t start tomorrow?
[APPLICANT]: Well I – I am largely unprepared, Your Honour, for a case to start tomorrow.
HIS HONOUR: Well, you’ve had months to prepare the case.
[APPLICANT]: I’ve – as I said, Your Honour, um, manifestly I was ah, really seeking that if a determination on my point about the validity of – obtaining a lawyer would either be discussed in which point it would need to be referred to a higher court for due consideration of that point in proper jurisdiction. Um, or it would be stuck out [sic] in such court and I would then be able to obtain a lawyer. I’ve sort of found myself in between the two and unable to appeal the point.
HIS HONOUR: Well look, you’ve created the own rod for your own back. As I say, there’s an army of lawyers out there looking for work and the point that you’re making about – I ruled against your point so ---
[APPLICANT]: I understand that, Your Honour. But as I’ve said, I do feel that these are criminal offences revealed in this legislation ---
HIS HONOUR: Well ---
[APPLICANT]: --- that I have a duty to – to disclose.
HIS HONOUR: Well I gave you that – I told you that yesterday, you can take your allegations of treason or conspiracy or whatever, to an appropriate authority. I am not an appropriate authority. And so in a sense, your ---
[APPLICANT]: Your Honour, with respect, it would mean that you’re acting on an improper authority.
HIS HONOUR: Well look, I hear what you say. I don’t accept it for the reason I’ve given yesterday. Now given that I’ve ruled against you, there’s no reason why this case can’t start tomorrow. Now I’ve got to call up a jury panel and that requires 50 odd citizens from Gippsland and the electorate of Gippsland to come to this court. Some of them have got to come as far as Wonthaggi. So it’s not as though they could just jump on a train like they can in Melbourne.
[APPLICANT]: I understand that, Your Honour.
HIS HONOUR: And so ---
[APPLICANT]: I don’t intend to waste anyone's time if that's what you’re implying.
HIS HONOUR: Right. Right. So you’re to have to be ready to bounce the ball tomorrow. You understand?
[APPLICANT]: I’ll do my best, Your Honour.
Counsel for the applicant in this Court submitted that the applicant had indicated that she was largely unprepared to run the trial herself because she had anticipated that she would have had the opportunity to pursue an appeal on her ‘oath of allegiance’ point to a higher court, and had anticipated that if that appeal was unsuccessful, she would then be able to ‘obtain a lawyer’. Given that the applicant was effectively indicating that she had intended to obtain a lawyer, when the opportunity to pursue her ‘oath of allegiance’ argument had been extinguished, counsel submitted, the trial judge should have done more, at that juncture, to explore whether there was a reasonable possibility that a trial could proceed with the applicant being represented by a lawyer.[6] Counsel submitted that it was incumbent upon the judge to pursue the question of whether — it having been effectively indicated to her that she could no longer pursue the ‘oath of allegiance’ argument — the applicant now wanted to proceed with the trial represented by a lawyer.[7]
[6]Counsel cited McInnis v The Queen (1979) 143 CLR 575, 579 (‘McInnis’).
[7]Counsel cited Macpherson v The Queen (1981) 147 CLR 512, 524 (‘Macpherson’).
We reject these submissions.
The record of the trial reveals that, although her arguments may have been misguided, the applicant was neither unintelligent nor inarticulate. She certainly does not appear to have been intimidated or overawed by the trial process. Notwithstanding that this is so, however, when the trial resumed on Wednesday 8 August 2018, she did not seek an adjournment so as to obtain the assistance of a lawyer, or, indeed, indicate to the judge that she would welcome such assistance. Instead, she took part in the empanelment of the jury, and, after the prosecutor had opened the prosecution’s case, orally opened her defence to the jury.
It is important to understand that these events unfolded against the background of there having been previous mentions in the lead-up to the applicant’s trial — conducted by other judges of the County Court — during which she had been urged to obtain legal advice. Thus, on 14 November 2017, when the judge asked the applicant whether she was going to represent herself at trial, she replied, ‘Yes sir. Based on the issues that I’ve raised previously, yes’. She maintained that position despite the judge’s observation that it was ‘not wise’. And in a later mention on 17 April 2018, after the applicant had once more said that she intended to represent herself, another judge specifically asked the applicant what she intended to do if her ‘constitutional argument’ — which had been ‘raised before and rejected many times’ — failed, and enquired of her whether she was ‘in a position to empanel a jury, do an opening address, cross-examine witnesses, discuss the issues of law with the judge hearing the matter and do a closing address on [her] own’.
In our view, given what had transpired, the applicant cannot have laboured under any misapprehension that if her jurisdictional arguments failed, the trial would not proceed. Despite having been urged by judges to obtain a lawyer; having been told in effect that her ‘constitutional argument’ was without merit; and having had impressed upon her the dubious wisdom of representing herself; the applicant nonetheless made a deliberate choice to be unrepresented.
True it is that after her jurisdictional arguments failed (as they were inevitably bound to), the applicant said that she thought they ‘would need to be referred to a higher court for due consideration’, and that if they did not succeed in that higher court, she ‘would then be able to obtain a lawyer’. It is plain, however, that despite being aware that she could do so, the applicant did not seek to mount an interlocutory appeal; did not attempt to obtain a lawyer in the afternoon or evening of the second day of her trial; and did not seek an adjournment on the third day of the trial in order to obtain a lawyer’s services. These were, in our view, deliberate choices.
Although no sensible person would gainsay the desirability of an accused person being represented in a criminal trial by competent counsel, as it presently stands the law does not permit a trial judge to compel the reluctant or intransigent accused to obtain legal representation. This case may have taken on a different complexion had the applicant sought an adjournment to obtain a lawyer, and that application had been refused.[8] But, as we have said, notwithstanding her obvious intelligence, the applicant did not seek an adjournment so as to obtain legal advice.
[8]McInnis, 579.
In these circumstances, it is impossible to say that the first event relied upon by the applicant could have played any part in producing a substantial miscarriage of justice.
The second key event
The second key event occurred on the day the jury was empanelled, when an audio recording of the MRC telephone conversation between Black and the applicant on 15 June 2015 was played to the jury.[9]
[9]See [7]–[8] above.
In the course of the recording being played, the applicant objected. She said that she had not been ‘made aware of any of this conversation apart from the first two pages’.
It seems that for some inexplicable reason, the committal depositions contained only an edited transcript, and the applicant apparently had not listened to the audio recording of the telephone call. Although the prosecution did not place reliance on the balance of the call beyond the edited portion, the prosecutor nonetheless had permitted the whole of the recording to be played — until the applicant objected — in the belief that the applicant had been provided with the entire transcript and did not object to the entire call being played. The prosecutor accepted fault for what had occurred.
The sting in the portion that was played, counsel submitted, was that the applicant had opened to the jury on the basis that, at the time that she attempted to collect the boots, she had no knowledge that they were considered to be evidence in the case against Black. In her record of interview, police asked the applicant about ‘Chucky’ (David Currie). She said that she thought at the relevant time that there was nothing untoward in the fact that Chucky and Black went off for a drive, and she had no idea that Chucky and Black had gone off to dig a grave in preparation for the murder of the council officers. Police specifically put to her, however, that she did in fact know that Chucky and Black had driven off to dig the grave, and that is why she would have realised at the time that the boots might link Black to the gravesite. On the applicant’s account there would be no reason why she would be worried as to what Chucky would say when questioned by police as part of the investigation into the attempted murder. That, however, is what the ‘surprise’ portion of the recorded conversation disclosed.
In her submissions following her objection, the applicant said that she felt that the conversation not relied upon by the prosecution created prejudice towards her. She said that the conversation sounds ‘a bit shady out of context’, created ‘unfair bias’ and seemed ‘quite damning’.
Counsel for the applicant in this Court submitted that the judge had a duty in the circumstances to provide the applicant with an opportunity to make an application to discharge of the jury. Whilst the judge laid out some alternatives to deal with the problem, so counsel submitted, at no stage did he provide an explanation to the applicant that she could apply for a discharge of the jury.[10] As a consequence, counsel submitted, the applicant was not provided with the type of assistance that was required for an unrepresented accused met with the situation where prejudicial and inadmissible evidence had been introduced into the trial.[11]
[10]Counsel cited O’Connell v Western Australia [2012] WASCA 96, [106].
[11]Counsel cited Andelman v The Queen (2013) 38 VR 659, 678 [88]–[89]; R v White (2003) 7 VR 442, 445 [2]; and Macpherson, 534 (Mason J), 546–7 (Brennan J).
In contending that no miscarriage of justice occurred, the respondent’s counsel submitted that the sole issue that fell for consideration was the level of assistance that the judge was required to give in the prevailing circumstances. He submitted that the applicant had identified a single and discrete failing on the judge’s part; that is, that the applicant ought to have been given the opportunity to argue for the discharge of the jury. Once the transcript is closely read, however, it is clear that the applicant did have that opportunity.
Hence, after the applicant had raised the issue, the trial was adjourned for lunch. After lunch, the prosecutor summarised what had occurred, and explained the applicant’s options to her. It is apparent from what the prosecutor said that the applicant had been informed of her ability to make an application for the discharge of the jury. The prosecutor told the judge the following:[12]
Ms Sacco was taken by surprise by the second half of that call. The second half of that call is nothing I need to rely upon. I’ve explained to Ms Sacco that there’s a few ways we can deal with this. One is she’s of the view that there's something prejudicial in what’s been heard that takes her by surprise that she can make an application to Your Honour.
The second way I’ve suggested is that we can just cut the recording off now and say to the jury the rest of it is irrelevant and then we can have this edited overnight and it will be dandy tomorrow morning. Or the third way is to edit it at a different portion and have the jury hopefully not raise any questions about the bit that they heard before lunch that is now not on the transcript or not in the recording. Or else indeed, just play the rest of the call.
So there’s really four different ways of dealing with it. But I’ve explained as best I can to Ms Sacco her options of that. …
[12]Emphasis added.
In our view, the transcript reveals that, not only did the applicant understand that she could make an application to discharge the jury, but also that she had an understanding of the considerations generally brought to bear in considering such an application. Thus, she submitted to the judge that a direction to ignore the impugned part of the conversation would not be sufficient. She said:
… I feel the precaution [i.e. direction] would not be sufficient to having the jury – you know – forget essentially what they just heard in the phone call and especially at this early stage in the trial, I feel that’s quite damaging to the case. That when Chucky’s name is then raised later on, that that would – you know – reignite their memories of what was said during that phone call which is not relevant to the charge.
Given that counsel for the applicant limited his submissions to the failure of the judge to inform the applicant of her right to seek a discharge of the jury, and did not seek to impeach any direction given (or, for that matter, not given) by the trial judge, we are unable to conclude that the second event relied upon by counsel for the applicant could properly establish (alone or in combination) that a substantial miscarriage of justice resulted. Quite clearly, the applicant knew that she could apply to discharge jury — the prosecutor had told her so, and he had informed the judge that he had told her so — yet the applicant chose not to make that application.
The third event
As we have mentioned, counsel for the applicant conceded that the appeal could not succeed unless the Court accepted his submissions about the third key event.
The applicant had made a written and signed statement to police,[13] which she sought to have excluded from evidence at the trial. In written submissions, she relied on ss 84, 90 and 138 of the Evidence Act 2008 (and several authorities) and submitted:
[13]See [10] above.
1. The single charge on the alleged indictment alleges that Amy Sacco (the accused) did an act intending to pervert the course of public justice in that she received a phone call from Jonas Black (the co-accused) on the 15th June 2015, during which he requested that she collect and dispose of his work boots and that the accused agreed to this on the premise that they may have afforded forensic evidence against him.
2. The prosecution proposes to adduce evidence that:
A written statement was taken from [the accused] in which she stated, ‘In relation to the boots, I was concerned that there may be incriminating evidence on them that would further incriminate [Jonas Black] and I didn’t want any further evidence against him in what appeared to be mounting evidence, so I agreed to do what he asked.’
3. The accused concedes that she did attempt to collect the boots from the Metropolitan Remand Centre. However, she refutes that she had the knowledge or belief at that time that the boots may have afforded evidence against Mr Black. She relies on the Affidavit titled ‘Affidavit 4’ in relation to the events which resulted in her relinquishing her right to silence during the interview with police, and subsequently making the statement now relied upon by the prosecution.
4. Based on the information provided in such Affidavit, it is the submission of the defence that such a Statement was made due to threat of imprisonment and the promise of assistance to avoid such imprisonment.
…
Faced with these submissions, the prosecutor conceded — mistakenly, in our view — that the statement was inadmissible. Thus, in his written submissions in response, the prosecutor said:
The prosecution concedes that the written statement of the accused is not admissible. The prosecution will not lead evidence of the accused making that statement.
The applicant is obviously intelligent. She cannot have failed to appreciate that the prosecutor did not intend to introduce her statement into evidence. Moreover, she must have understood that her record of interview would be introduced into evidence, her challenge to it on the voir dire having proved unsuccessful. There the matter stood, until the applicant’s cross-examination of the informant, which resulted in the statement’s tender.
Before turning to the circumstances of the statement’s admission into evidence, it is revealing to look at some of what the applicant told the jury in response to the prosecution opening. She said:[14]
Now, this might seem a simple enough case, but unfortunately, it has been made more complicated – or for me at least – that about six months after I went to pick up Jonas’ property from the remand centre, I received a phone call from the detective, the informant in Jonas’ case as well as mine here today, who asked me to attend the police station in Wonthaggi to collect some personal items of Jonas’.
On that premise, I went to collect that property on 14 January in 2016. I state that when I arrived at the police station, the detective took me to an interview room where I assumed at first was where the property was until he told me to sit at the far side of the table and in the absence of any other police officers told me that I was under arrest, that I clearly knew more about my partner’s case than what I’d let on, that no magistrate would believe I was innocent and that I was being given one chance and one chance only to, as he put it, tell the truth and come clean and that I might be able to afford myself avoiding prison.
So with the belief that I was as good as convicted and had better cooperate to avoid further punishment, I participated in the record of interview with him. During that recorded portion of the interview, there was a second police officer present, which [sic] Detective Paul Burns as mentioned earlier. I state that what was said during the interview and what transpired afterward were the product of those things said to me by the detective, my resulting compromised state of mind due to fear and coercion and I was not able to speak freely because of it.
I concede that some parts of what the prosecution are going to present to you might look bad but I’ll explain everything when it's my turn. Thank you.
[14]Emphasis added.
In her cross-examination, during which she made a clear attempt to suggest that her admissions were the result of duress and intimidation, the following exchange occurred:[15]
[APPLICANT]: Um, and to your recollection, was there much discussion following the record of interview?---Ah, following the record of interview, um, the process – because they're on three recorded DVD discs, um, they have to be finalised so that they’re playable again. Um, at that point my corroborator, Detective Burns, took Ms Sacco to a room down the corridor for – take her fingerprints. Um, I sat in a room and did this finalising of the discs. Um, when that was back, Detective Burns brought her back in to me, um, she was um, a bit – bit distressed, I suppose, and she made the comment that she was um, sorry. And that um, she asked whether or not it would be appropriate if she made another interview and I said ‘No’. I wasn’t going to waste my mind [scil, time]. I said she had the opportunity and that was um – and she said, ‘Well, can I do a statement or something?’ and I said, ‘I’ll take a statement from you if you wish.’ So I then proceeded to take a statement from her.
[APPLICANT]: So after I went to have my fingerprints checked, you allege that I came back to the interview room and suddenly wanted to make a statement to the effect that I committed a serious indictable offence?---Well, the content of the statement as – I don’t — I don't believe the statement's been tendered so ---
HIS HONOUR: It’s not in evidence at this point.
[APPLICANT]: No. But you have said – you have said that I did want to make a statement?---You asked me to – um, if you could make a statement. In fact, I’ve made notes of it in my diary at that time.
Okay?---And you have a copy of my notes so you would know that.
[15]Emphasis added.
In our view — and consistently with the manner in which she had opened to the jury — the applicant deliberately asked questions directed to the circumstances in which her statement was produced.
Thus, the applicant first asked whether there was ‘much discussion following the record of interview’. That question did not, however, elicit the content of the statement. She then asked the next question, which precisely targeted and drew out the statement’s content. It seems to us that this was a deliberate forensic tactic, pursued with the objective of demonstrating to the jury that her alleged admissions — including those in the record of interview — were the product of improper pressure by the police. The applicant’s case was, in effect, that she had been compelled to make false admissions. Adducing the further admissions contained in the statement was entirely consistent with the case that she sought to promote. Rather than derogating from her case, adducing the content of the statement tended to bolster it, by demonstrating that the informant had somehow obtained much more direct and incriminating admissions once the recording had ceased. Her question, expressed in a tone of incredulity — ‘I came back to the interview room and suddenly wanted to make a statement to the effect that I committed a serious indictable offence?’ — plainly was directed to that forensic objective.
We consider that, in those circumstances, the applicant cannot be heard to complain that the prosecutor was permitted to tender the statement in re-examination of the informant. In the exercise of a rational forensic decision, she had deliberately made the statement relevant.
Moreover, we consider that, in any event, the statement was admissible. As we have said, the prosecutor conceded that the statement was inadmissible. That concession was, in our view, wrongly made. The judge had rejected the notion that any circumstances prevailed that would have led to the exclusion of the applicant’s admissions by virtue of ss 84, 90 or 138 of the Evidence Act 2008. Moreover, the taking of the statement did not infringe s 464H(1) of the Crimes Act 1958, since the evidence revealed the applicant had asked to make the statement after questioning had ceased.[16] Thus, had the prosecution sought to rely on the statement from the outset, there would have been no proper basis upon which the applicant could have sought its exclusion.
[16]Compare the circumstances in DPP v Donnelly (2006) 166 A Crim R 534 (Hollingworth J).
For these reasons, we reject the contention that the third event relied upon occasioned any miscarriage of justice.
Finally, we would observe that we regard conviction to have been inevitable. The MRC telephone conversation was damning. Her answers given in the record of interview even more so. The idea that the applicant thought that she was going to collect Black’s boots, and then dispose of them somewhere in the city simply because they were old, is preposterous.
The application for leave to appeal against conviction must be refused.
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