Director of Public Prosecutions v Farquharson (No. 2)
[2010] VSC 177
•30 April 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1524 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT DONALD WILLIAM FARQUHARSON |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 April 2010 | |
DATE OF RULING: | 30 April 2010 | |
CASE MAY BE CITED AS: | DPP v Farquharson (No. 2) (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 177 | |
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CRIMINAL LAW – Evidence – Prejudicial and probative value –Application to exclude portions of covertly recorded conversation – Application pursuant to s 137 of the Evidence Act 2008 – Evidence allowed at first trial – Court of Appeal commentary on the evidence – One sentence excluded, remaining conversation to remain intact.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney SC Ms A Forrester | Office of Public Prosecutions |
| For the Accused | Mr P. Morrissey SC Mr C Mylonas | Victoria Legal Aid |
HIS HONOUR:
Robert Farquharson is charged with three counts of murder. The prosecution case alleges that on 4 September 2005, he murdered his three children by deliberately driving his vehicle, in which they were passengers, into a dam just off the Princes Highway between Geelong and Winchelsea.
The issue in the case will be whether the prosecution can prove that the actions which led to the deaths of these children were deliberate on the part of the accused as opposed to his explanation that the incident was a consequence of a significant coughing fit during which he lost consciousness resulting in the car going into the dam uncontrolled.
In 2007 at the first trial, a jury found the accused guilty of each of the three counts of murder. On 17 December 2009, the Court of Appeal of this Court directed that a re-trial of the accused be held. This is the re-trial.
The issue for resolution in this ruling is whether I should exclude certain portions of a conversation between the accused and a witness, Greg King, which occurred on 13 October 2005, some weeks after the incident. At the instigation of the police and unknown to the accused, the conversation was recorded.
Mr Greg King is an important witness in the prosecution case. He claims that he had a conversation with the accused about two or three months prior to 4 September 2005 in the vicinity of a fish and chip shop in Winchelsea. He also claims that in that conversation the accused told him that he intended to get even with his wife “big time” and also said “I’ll pay her back, I’ll teach her”. This conversation is said to refer to the fact that in November 2004, the marriage between Ms Cindy Gambino and the accused moved into separation, Ms Gambino informing the accused that she did not care for him sufficiently to continue to live with him. King also gave the following evidence:
He wanted to take away the most important thing that meant to Cindy and I said, "What would that be Robbie?" He then nodded his head towards the fish and chip shop window and I said, what, the kids. He said yes. I said, what would you do, would you take them away or something? He then just stared at me in my eyes and said, "Kill them". I said, "Bullshit, it's your own flesh and blood Robbie". He said, "So, I hate them". I said, "You would go to gaol" and he said, "No I won't, I'll kill myself before it gets to that". I asked him how. He said it would be close by and I said, what, and he said there'd be an accident involving a dam where I survive and the kids don't, it'd be on a special day. I said, "What kind of day?" He said, "Something like Father's Day so everyone would remember it. When it was Father's Day and I was the last one to have them for the last time. Not her. Then she looks up and for the rest of her life every Father's Day". I said, "You don't even dream of that stuff Robbie". Nothing more was said. We went home, I told my wife about the conversation, didn't do anything about it. We just thought he was talking shit again.[1]
[1]Transcript at page 1380
This conversation between the accused and King has been generally described as the “fish and chip shop conversation”. The accused does not deny there was such a conversation and appears not to deny that he said he would pay his ex-wife back “big time”, and that as he spoke, he nodded his head towards the fish and chip shop window, where it appears Cindy Gambino and the three children were. However, there was a significant dispute as to what, if anything else, was said during the conversation as the Court of Appeal noted.[2]
[2][2009] VSCA 307 at [36].
As the Court of Appeal also noted, during the trial in the cross-examination of King, it became clear that the various versions of this account of the conversation apparently incorporated into his second and third statements “contained a version of the fish and chip shop conversation which was considerably more detailed and more serious than the preceding version. According to King’s evidence at trial, that was due to the fact that the conversation came back to him in stages over time after the death of the applicant’s children. King’s evidence at trial was in accordance with the third and most serious version”.[3]
[3]Ibid at [37]
In addition to recounting that conversation to police, on at least two occasions Mr King cooperated with police in wearing a recording device for conversations with the accused and in circumstances where the accused was, of course, unaware that such a conversation was being tape recorded. One such conversation occurred on 13 October 2005, and it occurred at the home of the sister of the accused. On behalf of the accused, Mr Morrissey SC seeks to exclude certain parts of the recorded conversation.
Mr Morrissey submitted that prejudice is created by the conversation and in particular that when the accused is giving his explanation about what had occurred and why he had said what he said, King is openly dismissive of what he is being told. Mr Morrissey also emphasised that the conversation was what he characterised as a “fake” because the accused was misled into thinking that he was providing support and reassurance for King when, of course, the truth was that King believed that Farquharson was guilty and was operating at the instigation of the police. Mr Morrissey then identified what he called the “real issue”: that his client was tricked into thinking that King was a true friend who was concerned about what he'd heard and was struggling emotionally with that burden and was turning to Farquharson for reassurance, comfort and opportunity to bear his soul and to hear what Farquharson had to say. That, he argues, pervades the subterfuge which King was engaged in.
On that basis, as I followed these submissions, this is an application to exclude the particular material pursuant to s 137 of the Evidence Act. Some reference was made to whether or not s 90 of the Act was required to be considered, but the most convenient way to deal with it without any injustice to the application is to consider whether, in the circumstances, the unfair prejudice of this evidence outweighs its probative value. No challenge is made to the voluntariness of the statements, and in the circumstances no challenge could be made to the reliability of what was said. Mr Morrissey accepts that investigative deceptions of the kind identified in R v Tofilau (No 2)[4] and R v Clarke[5] mean it is difficult to impugn this subterfuge but he submits that under s 137 of the Evidence Act it cannot be ignored.
[4](2006) 13 VR 28
[5][2006] VSCA 43
Thus, the question arises, what is the danger of unfair prejudice to the accused? In order to answer that, convenient reference can be made to the passages quoted by Mr Stephen Odgers in his eighth edition of the text “Uniform Evidence Law” at paragraph 1.3.14780 where he quotes from the Australian Law Reform Commission Report No. 26, which says:
“The risk of unfair prejudice is one of the potential disadvantages mentioned. By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.”
I have both read the transcript and listened to the recording of this conversation. The conversation which commences at about 7.50pm on 13 October 2005 is one which, for relevant purposes, commences with the witness, King, telling the accused that he is having an emotional struggle over the conversation at the fish and chip shop, bearing in mind what happened subsequently on 4 September 2005. From there on, the accused gave a detailed explanation about that conversation and explained to King that it is obvious that he has misinterpreted what was said by the accused during that conversation. The thrust of the conversation is that, ultimately, King expresses to the accused that he understands the explanation the accused has now provided to him about why what was said was said, but that he had to establish from the accused the truth of what occurred for the purpose of his own emotional stability. Mr Morrissey submits that this is an elaborate ruse because, in truth, King did not accept what he was being told by the accused, but it was done for the purpose of providing the police with evidence.
Mr Morrissey does not seek that the conversation be excluded altogether but rather that particular passages should be. He first argues that an introductory passage where the police identify themselves and identify King and give him certain instructions should not be before the jury and the prosecutor agrees with that.
The next portion sought to be excluded is a portion of the conversation where the accused was explaining to King that he purchased goods for his children and then said “And I was trying to set things up. Now we went in there and I bought them stuff and all, why would I do something like that? Why?”. King said, “You had to I suppose, didn’t you? You’re the Dad”. The complaint about this passage is that King is said to be in some way “sneering” and Mr Morrissey submitted that when one listens to the tape, it is a gibe and therefore should be excluded. As to that, I can only say I disagree. It was an appropriate response to be made in the context of the total conversation.
The next passage is a very short passage during the conversation in which a dog is clearly interrupting the discussion. The full passage reads:
“Get down, get down. Come on, here. Here. Hang on. Down, down, down. And I’d never do anything like that, it’s not me, you should know that. Fucking get down. Down, come on. Down, down. Kick ya fucking clean off in a minute, get down.”
Minor as it may be in a sense, I think the last sentence should be excluded, consistent with the observations I made during the course of argument. In my opinion, that passage is prejudicial and is capable of being misused and has no probative value of any kind.
The next passage is one in which the witness, King, is describing the fact that, like the accused, he is “flesh and blood”, with his own family and things of that kind.[6]
[6]See passage at pp 25-26 of the transcript.
Mr Morrissey describes this passage as argumentative in the sense of King justifying himself in emotive terms. Although what the accused is saying is not damaging to the accused’s case, it is an exchange which Mr Morrissey submits has no probative value at all, yet it features the witness arguing with the accused about the fact that he has been effectively put in a difficult situation by the earlier fish and chip shop conversation with the accused.
I am unable to see any reason to exclude this passage of the discussion. As Mr Tinney later submitted, it is part of a conversation which, subject to the particular nature of the subject matter, is entitled to be examined as a whole and includes a suggestion by the accused that Mr King’s concerns about his family and getting his “head sorted” can occur once he puts out of his head any suggestion that the accused committed the acts of 4 September intentionally.
The next passages[7] are sought to be excluded because the impression they create is that the witness, King, is wanting to leave the premises, telling the accused that he is required to go, but is “being importuned by the guilty Farquharson”.
[7]Pages 27-32 of the transcript.
In my opinion, there is nothing in this objection. The conversation between pp 27 and 32 has a number of passages which are particularly probative. They include an expression by the accused of a fear that if King says something about the fish and chip shop conversation, it might incriminate the accused, and urges him to put it out of his head. He then gives a long explanation of how incidents can occur when people black out and repeats that, as he has been assured by others, this incident was something about which he could do nothing. On several other occasions,[8] there are further requests from the accused not to repeat what had been said by asking King to put what he believed he had been told by the accused out of his head. At one stage,[9] the accused says “and if you think you need counselling, do it. But I’m begging you not to mention anything what you think of that”.
[8]For example, pp 29 and 30.
[9]Page 30 of the transcript.
One point made about this by Mr Morrissey on behalf of the accused is that the probative value of such exhortations are captured elsewhere in the conversation and that there is a prejudice in the repetition of it. The point is made that King is repeating that he needs to leave and, notwithstanding that, the accused man continues to put his explanation to him in some detail.
Mr Morrissey also submitted that it might be possible, if I were of the view that some of the passages had probative value, to edit the smaller parts of the passage which he criticises.
I am unable to see any reason why that should occur. I simply cannot identify passages in this portion of the conversation which are likely to be misused in the way that would be required for them to be excluded pursuant to s 137 of the Evidence Act or, were the material to fit into the category covered by s 90 of the Evidence Act, the unfairness contemplated by that section either.
I also do not agree with the submission that there is something particularly dismissive or disbelieving in the tone of the witness, King. There is no sign of any cross-examination or criticism by King of what the accused is saying, other than at places where such a response is appropriate and, even in those circumstances, the response is neither offensive nor displaying a clear air of incredulity. Indeed, towards the end of the conversation, the following appears:[10]
[10]Transcript at p 33.
The accused: “Look, I, I understand. Just you, you, all you’ve got to do is just lay that to rest. Put that out of your head, it’s the best thing you can do”.
King: “Hum”.
Accused: “And you can do it”.
King: “Yeah well I’ll try”.
Accused: “You should be able to feel better now”.
King: “Well I am, I’m feeling, you can tell I’m talking better”.
Accused: “You should”.
King: “I feel better and – but I’ve had that pain in the guts”.
Albeit that it is false, King certainly conveys the impression, in listening to the conversation, that he is accepting of the explanation that is given by the accused.
I therefore do not accept the submission that King is disparaging of what is being said by the accused and I am not persuaded that there is any significant harm to the accused in what Mr Morrissey described as the “therapeutic type counselling” by the accused.
When this evidence is put before the jury they will know of the subterfuge and King will, in all likelihood, be cross examined about whether he manipulated or misled the accused. The jury will therefore be fully aware of the circumstances under which the conversation took place. They will be directed, as juries constantly are, that sympathy and prejudice for or against the accused or any witness has no place in their deliberations.
This conversation as a whole to the extent that the circumstances of 4 September 2005 are the subject of discussion, coupled with the related issues between the accused and his wife is, in my opinion, of significant probative value. It seems to me to go to the heart of the issue in this case and the conversation represents a recital by the accused of his explanation for what happened and the wide acceptance which he claims that explanation has been given.
In addition, in dealing with the grounds of appeal that are relevant to this conversation, the Court said:[11]
“The jury should have been instructed that, once a determination was made of what the applicant said to King in the conversation, the whole of the taped conversations, including those parts which the prosecution alleged reveal ‘sustained manipulation’ or ‘blackmail’, and those parts which the jury may have concluded constituted a false denial, had to be taken into account. Therefore, an Edwards direction, with appropriate adjustment to deal also with concealment, needed to be given in relation to the entirety of the taped conversations”.
[11]Paragraph 199.
Mr Tinney submitted that in that passage, the Court of Appeal was countenancing the fact that the whole conversation would be relevant to be assessed by the jury in deciding whether or not the exhortations to the witness, King, to not reveal his impression of the conversation of the fish and chip shop were in fact implied admissions by the accused of his guilt. Mr Tinney submitted that sense cannot be made of the critical parts of the conversation without being able to see them in context, and that is what the Crown seeks to have occur.
I would therefore not exclude any of this conversation pursuant to s 137 of the Evidence Act, except the opening paragraphs which the Crown accept and also the reference to the dog being kicked. Beyond those passages, in my opinion, the balance of the conversation is probative and does not create a risk of an unfair prejudice to the accused.
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