Director of Public Prosecutions v Barbaro (Ruling No 3)
[2023] VSC 332
•16 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0114
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| RICARDO BARBARO | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 June 2023 |
DATE OF RULING: | 16 June 2023 |
CASE MAY BE CITED AS: | DPP v Barbaro (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 332 |
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CRIMINAL LAW – Murder – Ruling – Subpoena – Objection to production of materials sought by way of subpoena – Legitimate forensic purpose – Fishing – Whether ‘on the cards' that information sought will materially assist the accused – Subpoenas set aside.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Bourke Ms S Locke | Office of Public Prosecutions |
| For the Accused | Ms F Fox | Haines & Polites Legal Practitioners |
| For the Chief Commissioner of Police | Mr M Fisher | Victorian Government Solicitors Office |
| For Mr Mark Gray | Mr A Chernok | Theo Magazis & Associates |
HIS HONOUR:
Introduction
Ricardo Barbaro (‘the accused’) is charged with the murder of Ellie Price at South Melbourne on 29 April 2020.
This ruling is concerned with two subpoenas which have been issued on behalf of the accused, mainly concerning the contents of the telephone belonging to a prosecution witness in the trial, Mark Gray.
Two attempts have been made to progress the trial of this matter. The jury in the first trial was discharged after misconduct by a juror on the second day of the trial.
The second trial commenced on 4 May 2023 and an early witness to be called was Gray. Gray is significantly older than Ellie Price but they had maintained a close relationship, which Gray insisted had never been sexual. The significance of his connection with the deceased woman will shortly become apparent.
Following the discharge of the second jury and the production of Gray’s telephone to the informant, which occurred while he was being cross-examined by counsel for the accused, two subpoenas were issued on Friday, 2 June 2023. Those subpoenas are now the subject of applications for them to be set aside.
Subpoena to Mark Gray
The first subpoena was addressed to Mark Gray. The schedule of documents sought was as follows:
1.A copy of the ‘Cellebrite’ download of Mark GRAY’s telephone conducted by DSC Matthew Evans between 9-12 May 2023, in particular:
a)All communications (including text, email, messages and call logs) between Mark Gray and any person in relation to his purchase of The Daily Planet.
b)All communications (including text, email, messages and call logs) between Mark Gray and any person in relation to his interest in Harem, South Melbourne.
c)All communications (including text, email, messages and call logs) between Mark Gray and any person known to police in relation to organised crime groups.
d)All material on his phone relating to the death of Ms Ellie Price.
Subpoena to the Chief Commissioner of Police
The second subpoena was addressed to the Chief Commissioner of Police on the basis that the phone belonging to Gray was now in the possession of the informant. The schedule of documents sought in that document was similar to the first, but not identical:
1.A copy of the ‘Cellebrite’ download of Mark GRAY’s telephone conducted by DSC Matthew Evans between 9-12 May 2023, in particular:
a)Any material/intelligence holdings indicating that Mr Gray, or his business partners, are associated with suspected/known criminals, including OMCG members.
b)All communications (including text, email, messages and call logs) between Mark Gray and any person in relation to his purchase of The Daily Planet.
c)All communications (including text, email, messages and call logs) between Mark Gray and any person in relation to his interest in Harem, South Melbourne.
d)All communications (including text, email, messages and call logs) between Mark Gray and any person known to police in relation to organised crime groups.
e)All material on his phone relating to the death of Ms Ellie Price.
Because the phone is no longer in the possession of the Gray, the first subpoena is not pressed and I will, therefore, order that it be set aside.
In argument before me on 9 June 2023, Mr Fisher of counsel on behalf of the Chief Commissioner of Police and Mr Chernok of counsel of behalf of Gray, argued that the second subpoena should also be set aside.
Broadly, the outstanding issue in relation to that subpoena to the Chief Commissioner is that no legitimate forensic purpose for the subpoena can be demonstrated and, even if it can, the subpoena is oppressive given the volume of material involved.
As it appears from the schedule, the second subpoena seeks the production of a copy of the ‘Cellebrite’ download of Gray’s telephone. The download has occurred but, as I understand it, at this stage no-one knows anything about the detail of that download and what it contains. Primarily, that is because no-one is authorised to examine it given Gray’s objection to anyone doing so.
As part of the requirement in relation to the phone, the accused also requires all communications (including text, email, messages and call logs) between Gray and any person in relation to his purchase of The Daily Planet. In addition, and more specifically, all communications (including text, email, messages and call logs) between Gray and any person in relation to his interest in Harem, South Melbourne are sought. Next the accused seeks all communications (including text, email, messages and call logs) between Gray and any person known to police in relation to organised crime groups and, finally, all material on his phone relating to the death of Ms Ellie Price.
Separate from the phone, the subpoena requires material and/or intelligence holdings of Victoria Police indicating that Gray, or his business partners, are associated with suspected/known criminals, including Outlaw Motor Cycle Gang (OCMG) members.
Factual Background
In order to understand how this issue arose, it is necessary to outline the case against the accused. As the Amended Summary of Prosecution Opening filed with the Court on 12 April 2023 outlines:
1.At approximately 4.50pm on 4 May 2020, the body of Ellie Price, who was 26 years old, was located on the floor of her bedroom at 360A Park Street, South Melbourne by members of Victoria Police.
2.Ms Price died of multiple stab wounds, including a large wound across her neck that cut through her larynx.
3.Ms Price’s boyfriend, Ricardo Barbaro (the accused) is charged with her murder.
4.The Crown case is that the accused caused the death of Ms Price in the early hours of 29 April 2020 by inflicting those injuries with either an intention to kill her or cause her really serious injury, before leaving in her white Mercedes Benz registration 22ZERO and, late on 5 May 2020, travelling out of the state of Victoria. He was arrested in NSW on 14 May 2020.
5.The Crown says that the following combination of matters prove beyond reasonable doubt that the accused murdered Ms Price:
a)The accused was the last known person in her company;
b)The nature of the forensic evidence linking the accused to the crime scene;
c)The sometimes-acrimonious relationship between the accused and Ms Price, including physical assaults; and
d)The accused’s conduct between 29 April and his arrest on 14 May 2020.
6.The accused’s conduct that is relied on by the Crown includes:
a)The accused concealing Ms Price’s car at a rural property in Diggers Rest at about midday on 29 April 2020;
b)Leaving Victoria after news media first started to report the ‘death of a 26-yearold woman in South Melbourne’ on 5 May 2020;
c)Replacing the licence plates of the van he was travelling in sometime prior to his arrest on 14 May 2020.
7.The Crown says that Ms Price was murdered before the accused left her apartment at 4.30am on 29 April 2020.
In relation to the witness Gray, the following appears in the Amended Prosecution Opening:
14.The one significant friendship she (Price) had was with a man by the name of Mark Gray, an accountant in his fifties. After meeting her in 2017, he provided Ms Price with substantial financial support between 2017 and 2020. They were close and he had gotten to know her family.
15.In about June 2019, Mr Gray and Ms Price had a falling out over Ms Price wanting more financial support from him. Ms Gray felt that Ms Price had become totally reliant on him financially. They did not speak until January 2020 when they had lunch in Tasmania with Ms Price’s family.
16.Ms Price’s behaviour continued to complicate their friendship in 2020. On the one hand, you had “a very loving, caring girl, on the other side you’ve got a total monster who will do all sorts of things”.
The defence response to the prosecution case in its latest form[1] is in the following terms:
[1]There have been two other defence responses and at one stage the Court was informed that the accused would admit that he caused the death of Ms Price but that he was acting in self-defence. That approach was abandoned.
1.This Defence response should be read in conjunction with the Defence Response filed on 4 March 2022.
2.In that Response, it states that the Accused denies inflicting the injuries that caused the death of the deceased with the requisite intent for murder before leaving the deceased’s property.
3.The Accused maintains this position and denies he inflicted the fatal injuries to Ms Price.
4.It is the Accused’s case that:
a)He and Ms Price were in a volatile relationship, often marked with jealousy.
b)Ms Price’s behaviour became more erratic around the time of her death.
c)Ms Price was suffering from mental health difficulties.
d)Ms Price was abusing significant amounts of alcohol and drugs.
e)Ms Price slept with a knife by her bedside.
f)Around the time of her death, Ms Price was incredibly concerned with sourcing money by whatever means she could.
g)On 28 April 2020, the Accused and Ms Price attended a doctor’s appointment. They remained in each other’s company until the Accused left 360A Park Street.
h)During that time, they visited various locations and were drinking alcohol. Ms Price also took drugs.
i)The Accused had a headache and Ms Price on at least three occasions provided the Accused with medication from her car.
j)During the evening, the Accused and Ms Price had a disagreement about her extortion of Mr Gray as well as how Ms Price wanted to use Mr Gray and his money to her benefit.
k)When at 360A Park Street, the Accused told Ms Price that he would not remain in a relationship with her unless he could meet Mr Gray face to face and discuss various matters with him. Ms Price was not happy with this.
l)The Accused recalls falling asleep, he believes due to the medication he was provided.
m)The Accused woke up in the dark feeling someone on top of him whilst he was under attack with a weapon. A struggle ensued.
n)The Accused managed to get to the lights in the room.
o)He punched the wall.
p)He saw someone in the room as well as Ms Price. Ms Price told the other person it was her issue. The Accused was asked to leave.
q)Fearing further injury, he then left the property, having suffered knife wounds to his arm and torso.
r)He fled the scene in panic. His actions post-incident should be seen in this context. He panicked as he was concerned the police would not believe him.
s)He spoke to a solicitor in Queensland, who wished to speak to him in person. He therefore left Victoria when the media release was released so as to attend upon his solicitor. He was arrested before that time.
On the basis of these documents identifying the issues, the trial commenced on 1 May 2023. The jury was discharged on 3 May 2023. A second jury was empanelled on 4 May 2023.
On 9 May 2023, the prosecution called Gray and he commenced his evidence before the jury. He was questioned, among other things, about a series of text messages from his phone which had been reproduced by the informant, photographing them with Gray’s consent.
Then, the following occurred during cross examination of Gray by Mr Nathwani of counsel on behalf of the accused:[2]
[2]Transcript of proceedings, Director of Public Prosecutions v Ricardo Barbaro (Supreme Court of Victoria, S ECR 2021 0114, Lasry J, 9 May 2023), 168 – 169.
All right. Are you saying, there were no other messages between you and Ms Gangell – or Mrs Gangell – prior to 2 April on your phone?---Well, um, I don't have my phone with me to check; but I'm – I don't know when I started talking to – to Ms Gangell.
Do you use the same phone?---Yes.
You haven't deleted any messages?---No.
All right, I'm afraid you're going to have to come back tomorrow in any event, because I won't finish with you today?---I understand.
Are you prepared to bring that phone to court, tomorrow?---The phone's here.
And – is here?---Yes.
In this building?---Yes.
All right, before you go, are you prepared to give it to the informant?---Um - - -
The police officer behind me? You know, Mr Evans - - -? ---Mr Bourke, is that – I – I don't have any objection.
Don't worry about Mr Bourke; don't worry about Mr Bourke? ---I – I don't know if that's protocol, but I'm happy to do whatever you want.
If I ask anything that's wrong, someone will stop me?---Oh, I understand; okay, then I'm happy to do that - - -
All right? So, don't look to Mr Bourke?---Yes; of course.
All right, but you're prepared to do that?---Yes.
The phone was produced and handed to the informant. As it can be seen, it was in the context of cross examination about text messages.
There were then delays and ultimately, the jury was discharged because the entirety of the download of the phone apparently ran into many thousands of pages which might need to be examined and released; all this in circumstances where nobody had any authority to deal with the material, hence the issue of the subpoenas.
I have not inspected any of the material. It is most unfortunate that this issue arises now rather than at a much earlier stage of the case. It has caused significant inconvenience.
Legal Principles
In relation to how the remaining subpoena should be dealt with, a convenient starting point is the judgement of Gibbs CJ in Alister:[3]
Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v. Whitlam, (1978) 142 CLR, at pp 42, 62) so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence.
[3]Alister v The Queen (1984) 154 CLR 404, 469 (‘Alister’).
That approach was carefully examined by Bell J in Ragg v Magistrates Court of Victoria,[4] and I add some emphasis:
On the basis of the above authorities, I consider the true test is whether there is a reasonable possibility that the sought-for information would materially assist the defence. Probability is too high a standard. Mere possibility is too law. The adverb ‘reasonably’ gives proper scope to the judge to determine the issue responsibly and objectively. Such a standard also is consonant with the principles of open justice.
I would adopt this approach, not only because it is not clearly wrong, but because I think it is correct. More specifically, a ‘reasonably possibility’ test expresses in more certain language what Gibbs CJ probably had in mind when he used the ‘on the cards’ metaphor in Alister v R, gives proper effect to the underlying fundamental duty of the court to ensure a fair trial and is consistent with international human rights and principles that Australia recognises. With respect, I would not follow the judgment of Balmford J in Fitzgerald v Magistrates’ Court that ‘on the cards’ means ‘within the range of probability’ because it is clearly incorrect.
In summary, an accused person is entitled to seek production of such documents as are necessary for the conduct of a fair trial between the prosecution and the defence of the criminal charges that have been brought. When objection is taken, the accused must identify expressly and with precision the forensic purpose for which access to the documents is sought. A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence. That is a low threshold, but it is a threshold.
The ‘reasonably possibility’ test does not apply in all cases in a fixed manner as if the relevant considerations always have the same value. It is necessary to consider ‘the importance of the issue to which it is said the subpoena relates and the importance of the document in question in the determination of that issue’ and, more generally, ‘the circumstances as a whole’. In doing so, it is necessary to give a ‘broad interpretation’ to the issues in the case or, to put it another way, the ‘parties’ respective cases should not be restrictively analysed’. It is also important to pay due regard to the fact that ‘[d]efence lawyers are in a better position than a judge to make an appraisal of the value of information contained’. Lastly, as Pincus JA said in R v Spizzirri: ‘courts should be careful not to deprive the defence of documents which could be of assistance to the accused’.
[4](2008) 18 VR 300, 323-324.
In Commissioner of Australian Federal Police v. Magistrates Court of Victoria & Ors,[5] J Forrest J, having examined the authorities, summarised the relevant principles that apply in circumstances like those before me as follows:
[5][2011] VSC 3 [28].
The following principles apply in determining whether a party is entitled to access documents the subject of a subpoena:
a)it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
b)the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;
c)the applicant for the witness summons must also satisfy the court that it is “on the cards”, or that there is a “reasonable possibility”, that the documents sought under the subpoena “will materially assist the defence”.
d)a “fishing expedition” is not a legitimate forensic purpose and will not be permitted;
e)the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
f)a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied.
g)in criminal proceedings a “more liberal” view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.
h)where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.
Submissions
The submissions for the accused began with the acknowledgment that it is first necessary to establish that there is a legitimate forensic purpose in them seeking the documents in the subpoena.
Essentially, the submissions were that the credibility of the witness Gray is in issue because, among other reasons, on the defence case he is an alternative suspect for the killing of Ms Price. I note that I am unaware of any forensic evidence that would connect Gray to the scene of her murder.
In particular, it is argued that in text messages she sent to Gray, Ms Price demanded that he pay her $100,000 or face the prospect that she would claim that he raped her. I assume it is to be implied that that invests Gray with a motive to kill Ms Price. The fact of that demand happening happened is already in the evidence. Gray also spoke to Ms Price on the phone sometime between 2:50am and 3:57am on the day she was killed. In dealing with that, Ms Fox of counsel for the accused submitted:[6]
Your Honour, in relation to legitimate forensic purpose, there are really those two purposes that I've identified; that is, looking for or having access to material related to conversations that Mr Gray had both at the time of the death and at the time of the extortion. Now, for a man in Mr Gray's circumstances - that is, someone who has significant involvement in the sex industry - someone extorting or seeking to extort them in relation to a sexual offence, in my submission, it would be something that Mr Gray is talking about with his business associates, with people. It is a significant matter that he's raised with Ms Gangell, and in my submission, it's beggars belief that it would not have been something that he raised with people that he knows.
[6]Transcript of proceedings, Director of Public Prosecutions v Ricardo Barbaro (Supreme Court of Victoria, S ECR 2021 0114, Lasry J, 9 June 2023), 13.
As I noted in argument, the prospect of such discussion does not appear to me to carry much weight in the argument for the enforcement of the subpoena.
In addition, Gray is said by the accused to have deleted messages to and from Ms Gangell (the mother of the deceased). Apropos of that, Ms Fox summarised her argument for the enforcement of the subpoena in the following way:[7]
In our submission, Your Honour, it is the cloaking or the willingness to hide material that provides that it is on the cards that there's material in there that relates to, for example, Mr Gray's location or activities at the time of Ms Price's death. Now I accept that he's been ruled out as a suspect by Victoria Police. Now again, that is a valid line of cross-examination for the informant and any investigator in this matter in relation to when did they discount him? On the evidence and material that we have he's never been cautioned. He would never rose to be a suspect in circumstances where he's the one that has the last known text conversation with Ms Price.
Now the integrity and the validity of any lines of enquiry in relation to Mr Gray, there just simply is no evidence there and we've not been provided necessarily with material that would enable us to understand where it is that he is, what is he doing, who is he communicating with?
[7]Ibid 7-8.
With respect, it is the last part of that submission that tends to demonstrate that the accused is looking and hoping for something rather than it being ‘on the cards’ that it is there.
In resisting the enforcement of the subpoena, counsel for Gray, Mr Chernok, submitted that the subpoena is ‘untenably broad’ and that accused has failed to demonstrate how it could be ‘on the cards’ or be ‘reasonably possible’ that the material would materially assist the defence.
Counsel for the Chief Commissioner, Mr Fisher, likewise argues that the subpoena is ‘a mere fishing expedition’ and there is no reasonable basis to conclude that the material on the phone may contain anything relevant to the alleged offence.
Consideration
As already described, the subpoena requires the production of a number of items and, in its terms, is slightly confusing. The opening paragraph reads:
A copy of the ‘Cellebrite’ download of Mark GRAY’s telephone conducted by DSC Matthew Evans between 9-12 May 2023, in particular: …
It then goes on to specify at sub para (a) the following:
a)Any material/intelligence holdings indicating that Mr Gray, or his business partners, are associated with suspected/known criminals, including OMCG members.
I assume that paragraph is directed at anything the police might hold by way of intelligence about Gray and his activities and not limited to his phone. Either way, the phrase ‘indicating that Gray or his business partners are associated with suspected/known criminals including OMCG members’ cannot be any more than a fishing expedition. It is absurdly broad, imprecise and the requirement that it be demonstrated that such material will materially assist the defence has not been met in any respect.
The subpoenas specifies at sub para (b) that:
b)All communications (including text, email, messages and call logs) between Mark Gray and any person in relation to his purchase of The Daily Planet.
Whether or not Gray had an interest of any kind in the Daily Planet had not been put to him when the second trial was aborted. That is not a criticism – his evidence had not been completed when the second jury was discharged. He accepted that apart from being an accountant, he also has interests in legal brothels in Melbourne and Sydney. Be that as it may, I am completely unable to see how this paragraph is anything other than a fishing expedition. There is no clear and precise statement in the submissions about how such material, if it exists, would materially assist the defence of the accused bearing in the mind the manner in which he now intends to conduct the trial.
Sub para (c) of the subpoena reads:
c)All communications (including text, email, messages and call logs) between Mark Gray and any person in relation to his interest in Harem, South Melbourne.
My previous conclusion in relation to (b) applies equally to this paragraph of the subpoena.
Sub para (d) reads:
d)All communications (including text, email, messages and call logs) between Mark Gray and any person known to police in relation to organised crime groups.
My earlier conclusion in relation to paragraph a (above) applies to this paragraph.
Sub para (e) reads:
e) All material on his phone relating to the death of Ms Ellie Price.
On the face of it, this paragraph has a degree more precision. However, considering the legal requirement that the accused seeking the production of documents pursuant to subpoena must also satisfy the court that it is ‘on the cards’, or that there is a ‘reasonable possibility’, that the documents sought ‘will materially assist the defence’ it needs to be borne in mind that such assistance will only be relevant if it is, in turn, relevant to the possibility that Gray murdered the deceased woman rather than the accused. In my view, the accused has failed to demonstrate that there is a reasonable possibility that any material on Gray’s phone will materially assist the defence in that way. It is perhaps hoped that will be the case but as an enthusiast once said, ‘the charm of fishing is that it is the pursuit of what is elusive but attainable, a perpetual series of occasions for hope’.[8]
[8]John Buchan (Novelist).
Conclusion
In my view, none of the paragraphs in the second subpoena comply with the principles I have described earlier in this ruling, and it follows that, in addition to the first subpoena addressed to the witness Gray, the subpoena addressed to Chief Commissioner of Victoria Police must also be set aside.
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