Director of Public Prosecutions v Guarini
[2023] ACTSC 263
•19 September 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Guarini |
Citation: | [2023] ACTSC 263 |
Hearing Date: | 18 September 2023 |
Decision Date: | 19 September 2023 |
Before: | Berman AJ |
Decision: | (1) The evidence obtained by the audio and visual recording of the accused and Mr Joliffe-Cole on 11 August 2022 is admissible at the trial of the accused. (2) Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the complainant be referred to by the pseudonym “Caleb Reilly”. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility – recording of accused and co-accused in the ACT Watchhouse – whether admissions were made by the accused – whether there was contravention of s 4 of the Listening Devices Act 1992 (ACT) – whether the Surveillance Devices Act 2004 (Cth) applies – evidence admissible |
Legislation Cited: | Criminal Code 2002 (ACT), s 310 |
Case Cited: | R v Sutton [2019] ACTSC 284 |
Parties: | Director of Public Prosecutions Kobi Guarini ( Accused) |
Representation: | Counsel L Etheredge ( DPP) J Maher ( Accused) |
| Solicitors ACT Director of Public Prosecutions Fortify Legal ( Accused) | |
File Numbers: | SCC 21, 22 of 2023 |
BERMAN AJ:
Introduction
1․On 23 July 2022, Caleb Reilly (a pseudonym) was robbed by three people. He recognised one of them, a man named Kalani Joliffe-Cole from school and as a basketball teammate. He did not know the other two. He reported the matter to police and provided them with descriptions of all three men.
2․Police suspected that the accused in this trial was one of the other two men. They conducted a search and as a result of things found during that search arrested Mr Joliffe-Cole and the accused. They were separately taken to ACT Watchhouse where they were charged and then placed in a cell together. The conversations that they had whilst they were in the cell were recorded. The prosecution says that some of the things that the accused said amounted to an admission to his involvement in the robbery.
3․The accused objects to the recording being admitted in evidence against him.
4․The accused relies on s 4 of the Listening Devices Act 1992 (ACT) which provides that:
4Use of listening devices
(1)A person must not use a listening device with the intention of—
(a)listening to or recording a private conversation to which the person is not a party; or
(b)recording a private conversation to which the person is a party.
Maximum penalty: 50 penalty units.
(2)Subsection (1) does not apply to—
(a)the use of a listening device under an authority granted by or under a law in force in the ACT; or
(b)the unintentional hearing of a private conversation by means of a listening device.
5․If s 4 has been contravened, it becomes necessary to consider s 10 of the Listening Devices Act 1992 (ACT) which provides that:
10Admissibility of evidence obtained using listening devices
(1)If a private conversation, or a report of a private conversation, has come to the knowledge of a person as a result (direct or indirect) of the use of a listening device in contravention of section 4, or as a result (direct or indirect) of the use of a listening device in circumstances referred to in section 4 (2) (b) or 4 (3)—
(a)evidence of the conversation; or
(b)evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person;
may not be given by that person in any civil or criminal proceedings.
(2)Subsection (1) does not apply—
(a)if each principal party to the conversation consents to the evidence being given; or
(b)in proceedings for an offence against this Act; or
(c)if the listening device was used in the circumstances referred to in section 4 (3) (b) (i)—so as to render any evidence inadmissible for the purpose of protecting the lawful interests of the principal party to the conversation who consented to the use of the device; or
(d)in proceedings for a defined offence if, subject to subsection (4), a court considers that the evidence should be admitted; or
(e)if the person referred to in subsection (1) also obtains knowledge of the conversation or report in circumstances other than those referred to in that subsection.
(3)Subsection (2) (c) does not apply so as to render admissible evidence that has been obtained, directly or indirectly, by the use of a listening device by or on behalf of the Territory.
(4)In determining whether to admit evidence referred to in subsection (1) in proceedings for a defined offence, the court shall—
(a)be guided by the public interest, including (if relevant) the public interest in—
(i) upholding the law; and
(ii) protecting people from illegal or unfair treatment; and
(iii) punishing those guilty of offences; and
(b)have regard to all relevant matters, including—
(i) the seriousness of the offence in relation to which the evidence is sought to be admitted; and
(ii) the nature of the relevant contravention of section 4, or of the relevant circumstances referred to in section 4 (2) (b) or 4 (3).
(5)A court before which evidence referred to in subsection (1) is admitted in proceedings for an offence against this Act, or proceedings for a defined offence, may, at any stage of the proceedings, and from time to time, make an order forbidding the publication of—
(a)any such evidence; or
(b)any report of any such evidence; or
(c)any report of the substance, meaning or purport of any such evidence.
(6)A person must not engage in conduct that contravenes an order under subsection (5).
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
6․The term “defined offence” is defined in the dictionary to include an offence against territory law punishable by life imprisonment or for 10 years or more. The offence of aggravated robbery is thus a “defined offence”: see s 310 of the Criminal Code 2002 (ACT).
7․Therefore, if the recording of the conversation between the accused and Mr Joliffe-Cole was made in breach of s 4, evidence of the recording can only be admitted in the trial of the accused after consideration of the matters in s 10(4).
Prosecution submissions
8․The prosecution says that the accused’s objection falls at the first hurdle. The prosecution says that s 4 was not breached in the first place. The prosecution refers to s 4(2)(a) of the Act and relies on s 38(1) of the Surveillance Devices Act 2004 (Cth) as the “law in force in the Act” which, it says, operates to provide that s 4(1) is of no application to the use of the listening device in the watchhouse.
9․Section s 38(1) of the Surveillance Devices Act 2004 (Cth) says:
(1)A federal law enforcement officer acting in the course of his or her duties may, without warrant, use a surveillance device for any purpose involving listening to, or recording, words spoken by a person:
(a)if the officer belongs or is seconded to the Australian Federal Police—that is within the functions of the Australian Federal Police set out in section 8 of the Australian Federal Police Act 1979; or
(aa)if the officer belongs or is seconded to the National Anti‑Corruption Commission—that is within the functions of the National Anti‑Corruption Commissioner set out in section 17 of the National Anti‑Corruption Commission Act 2022; or
(b)if the officer belongs or is seconded to the Australian Crime Commission—that is within the functions of the Commission set out in section 7A of the Australian Crime Commission Act 2002;
if the use of that device for that listening or recording purpose is confined to circumstances where:
(c)the law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or
(d)the law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted to listen to or record the words by paragraph (c) or by subsection (4).
10․It is the submission of the prosecution that federal law enforcement officers, acting in the course of their duties at the ACT Watchhouse, were lawfully entitled to use a surveillance device to listen or record words spoken by the two men in the cell because such law enforcement officers are included in a class or group of persons by whom the two men either intend or should reasonably expect the words to be heard.
11․There was evidence given that in the Watchhouse, including in each of the cells, there are clearly visible CCTV cameras. As was apparent, each cell is also equipped with an intercom enabling prisoners to communicate with the authorities.
12․In addition to such general evidence, the prosecution relied on things the two men said during their five hours together in the cell as demonstrating they had a reasonable expectation that their words would be heard by federal law enforcement officers.
13․At one stage, Mr Joliffe-Cole is alone in the cell when the accused is brought in. They speak a few words to each other before Mr Joliffe-Cole says “we’ll talk in the yard ay” tapping the intercom on the cell wall as he says this.
14․Later the two men discuss the circumstance that they have been put together in cells even though they are co-accused. They then have this conversation:
JC: weird ay
KG: mmmm
KG: want us to talk
JC: maybe its because they know we’re gonna dob on each other
JC: they are probably listening to us right now wondering ‘what are you cunts talking about’
KG: they are15․This part of the conversation concludes with Mr Joliffe-Cole saying loudly to the ceiling “fuck you”.
16․Finally, Mr Joliffe-Cole again says that “we’ll talk about it in the yard” because they will be “going on remand today”.
Defence submissions
17․Mr Maher referred me to some things said by Mossop J in R v Sutton [2019] ACTSC 284. There his Honour was dealing with the common use by police investigating sexual assault matters of what are known as pretext calls. His Honour’s judgment considers the application of s 38(4) to those who assist federal law enforcement officers. Section 38(4) has no application to the present matter.
18․However, his Honour did say something on which Mr Maher relies. At [16] his Honour says that paragraph (c) and (d):
… limit(s) the circumstances in which the listening or recording may be carried out to circumstances where the target is talking to a police officer. …
19․I do not consider that that passage from R v Sutton assists the accused.
20․All his Honour was there doing was noting the relationship between ss 38(1) and (4) as it was relevant to the factual issue before him. I do not believe that his Honour intended to limit the operation of s 38 in the way Mr Maher suggests. Rather than deciding this issue on the basis of his Honour’s summary, which was made for another purpose, I will decide this matter by construing the words of the legislation itself.
21․Mr Maher also refers to some evidence adduced by the prosecution on the voir dire concerning the sign on the wall of the watchhouse, which is in these terms: “Please note, if the charge light is on, all conversations are being recorded”. This rather unhelpful sign does not tell anyone what the charge light is, and it is at least arguable, and certainly, Mr Maher argues, that it is apt to mislead. In truth, all conversations in the cells were being recorded and for the sign to suggest that it is only conversations happening while the charge light is on which are being recorded is certainly contrary to that.
22․Mr Maher also emphasises that a finding by me that the two men might expect the words to be heard or might think it possible that the words they spoke would be heard by law enforcement officers is not enough. He emphasises the words of s 38 which require the prosecution to demonstrate that the two men should reasonably expect their conversation to be heard by law enforcement officers.
Consideration
23․When I construe that legislation based on the evidence before me, I am satisfied that the two men in the cell were well aware that the words they spoke would be heard by law enforcement officers.
24․The passages I have referred to earlier make that abundantly clear. Mr Joliffe-Cole cautions the accused about speaking in the cell by telling him that they will later speak in the yard and makes clear the reason for this caution being the presence of the intercom. The two men later discuss what they consider to be the strange situation of them being placed in a cell together and draw the conclusion that this is because the authorities “want us to talk”. The accused agrees with the proposition put to him by Mr Joliffe-Cole that “they are probably listening to us right now…”. Finally, Mr Joliffe-Cole addresses those who he expects would hear his words by loudly shouting “fuck you”.
25․In such circumstances, the two men reasonably expected their words to be heard by law enforcement officers and should, therefore, have had that expectation. Although, as I said, the sign about the charge light is apt to mislead, I am satisfied that, given the words spoken by the two men in the cell to which I have just referred, they either did not see the sign or if they did, they were not misled by it.
26․I am satisfied that s 38 of the Surveillance Devices Act 2004 (Cth) operates in such circumstances so that it authorised the use of the listening device by which the relevant recordings in this matter were made. Therefore, s 4 of the Listening Devices Act 1992 (ACT) was not breached and there is no need to consider the matters referred to in s 10 of that Act to decide whether the evidence should be admitted at this trial.
27․There being no breach of the Listening Devices Act 1992 (ACT) the evidence on which the prosecution relies will be admitted.
Order
28․The order of the Court is:
(1)The evidence obtained by the audio and visual recording of the accused and the co-accused on 11 August 2022 is admissible at the trial of the accused.
(2)Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the complainant be referred to by the pseudonym “Caleb Reilly”.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman. Associate: Date: |