Director of Public Prosecutions v Manns
[2023] ACTSC 71
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Manns |
Citation: | [2023] ACTSC 71 |
Hearing Date: | 10 March 2023 |
DecisionDate: | 31 March 2023 |
Before: | Mossop J |
Decision: | See [35] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Nonpublication orders – whether nonpublication orders should be made – witnesses concerned with repercussions of giving evidence if identities disclosed – orders made until the conclusion of the trial of the accused CRIMINAL LAW – EVIDENCE – Admissibility of photographs which form basis of opinions – photographs of firearm found on accused’s phone – opinions of firearm examiner and fingerprint examiner – whether temporal connection between photographs and charged offence gives rise to unfair prejudice – significant strand in prosecution’s circumstantial case – photographs and opinions not inadmissible |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111 Evidence Act 2011 (ACT), ss 135, 137 |
Cases Cited: | Arico v The Queen [2018] VSCA 135; 272 A Crim R 450 R v Debs [2008] VSCA 240; 191 A Crim R 231 Sidaros v The Queen [2020] ACTCA 11 |
Parties: | Director of Public Prosecutions Connor John Manns ( Accused) |
Representation: | Counsel T Hickey (DPP) J Maher ( Accused) |
| Solicitors Director of Public Prosecutions Hugo Law Group ( Accused) | |
File Numbers: | SCC 79 of 2022 SCC 105 of 2022 SCC 106 of 2022 SCC 107 of 2022 |
MOSSOP J:
Introduction
The accused, Mr Connor John Manns, is facing five charges:
(a)Count 1 - Attempted murder;
(b)Count 2 - Attempting to intentionally inflict grievous bodily harm (alternative to count 1);
(c)Count 3 - Intentionally and unlawfully discharging loaded arms at another person so as to cause another person reasonable apprehension for their safety (alternative to count 2);
(d)Count 4 - Using a carriage service to make a threat to cause serious harm; and
(e)Count 5 - Using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive (alternative to count 4).
These reasons relate to two applications brought by the Director of Public Prosecutions (DPP) and one application brought by the accused.
The DPP seeks orders pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) forbidding publication of the names of two witnesses who the DPP proposes to call at the trial.
The accused seeks orders excluding evidence of opinion contained in various paragraphs of a report prepared by a forensic firearms and toolmark examiner, Mr Clive Roberts, and excluding the evidence of opinion expressed in a report of Mr Andrew Cross, a fingerprint examiner.
Part of the challenge to the evidence of Mr Roberts was based upon the decision of the Court of Appeal in Sidaros v The Queen [2020] ACTCA 11. In response to that application the DPP has sought a supplementary report from Mr Roberts elaborating upon the reasons for his conclusions. That report is not yet available and the parties approached the application on the basis that this aspect of the challenge to the admissibility of the report of Mr Roberts would be deferred. In those circumstances, it is not appropriate to give an advance ruling in relation to that aspect of the challenge to the admissibility of his opinions.
So far as the balance of the challenge to the expert opinions was concerned, this turned upon the admissibility of photographs of a pistol upon which those opinions were based.
Having regard to these matters the issues that require determination are:
(a)whether or not nonpublication orders should be made; and
(b)whether or not the photographs of a pistol that form the basis of Mr Roberts’ and Mr Cross’ opinions are inadmissible by reason of the operation of ss 135 or 137 of the Evidence Act 2011 (ACT).
The prosecution case
The prosecution case is as set out in the case statement filed 27 May 2022. In summary, the accused is alleged to have arranged to meet with Person A and then driven past him in a stolen vehicle and fired three shots at him from a handgun. Each of these three shots missed Person A. They are alleged to have been fired with the intention of causing the death of Person A. Counts 2 and 3 are alternative charges relating to this incident.
Person B is the partner of Person A. The accused is alleged to have sent threatening text messages to Person B including an image of a person holding an assault rifle and a pistol followed by the message “I’ll do life for this idgaf”. The alternative charge in count 5 relates the same conduct and alleges that the use of the carriage service would be regarded by reasonable persons, in all the circumstances, as being menacing, harassing or offensive.
Nonpublication orders
The application for nonpublication orders relates to the prosecution witness who is alleged to be the victim of counts 1, 2 and 3 (Person A) and the prosecution witness who is alleged to be recipient of the communications subject of counts 4 and 5 (Person B).
The evidence in support of the application indicates that Person A has concerns about being identified by photographs. He is concerned about the potential for backlash from the friends of the accused. He has already been referred to as a “dog”. He is concerned about his employment prospects if his name, as associated with this case, can be looked up on the internet.
Person B is the domestic partner of Person A. Following the arrest of the accused, people that were with him messaged her to the effect that she was a “dog”. She described her fears of the accused’s circle of friends. She describes having moved house. Although the evidence was not explicit as to the reason for the move, she described her perception that stolen cars had been driving by her house in the couple of weeks after the accused was arrested. She recorded being concerned about her children. She is concerned about knowledge of her involvement with the accused affecting her employment prospects. She has also expressed concern about having to give evidence in the same room as the accused and the anxiety that would cause her.
The accused opposes the making of any nonpublication orders. The submission was that given that the accused knows both Person A and Person B, any nonpublication order lacked utility because “the horse has bolted”.
Section 111 of the EMP Act applies if it is in interests of the administration of justice that the names of a witness or intended witness in the proceeding should not be published: s 111(1)(b)(ii).
Having regard to the terms of the text message communications alleged to have been made by the accused to Person B (which are contained in the statement of facts but which it is not necessary to set out) an apprehension of, at the very least, harassment if her identity is widely known is a reasonable one. Similarly, so far as Person A is concerned, having regard to the allegations concerning the conduct of the accused and previously being identified as a “dog”, the apprehension of harassment if his identity is disclosed is a reasonable one.
While the submission on the behalf of the accused is to the effect that the identity of the witnesses is already known to the accused and those to whom it might have been communicated is correct, I do not consider that this completely undermines the utility of a nonpublication order. It is likely that publicity given to the identity of these two witnesses and the availability of photographs of those witnesses will significantly increase the public prominence of their participation in the trial and hence make it more likely that they will be the subject of, at least, harassment.
The evidence is not sufficient to establish any real risk that either witness will not comply with their subpoena to give evidence. However, if there is harassment between now and the conclusion of the trial then that may affect the quality of their evidence and their willingness to give it without fear of repercussions.
In order to enliven the power in s 111 it is necessary to establish that it is in the interests of the administration of justice that the names of the witnesses should not be published. That requires a real connection between the administration of justice and the nonpublication. In my view, that is established up until the conclusion of the trial. The evidence is insufficient to establish that any longer term or permanent nonpublication order should be made. I will therefore make nonpublication orders in relation to Person A and Person B and they will remain in effect until the conclusion of the trial. Any nonpublication order beyond that will be a matter to be raised with the trial judge.
Admissibility of photographic evidence
There are eight photographs of a pistol which were examined by Mr Roberts. These were located on a mobile phone seized from the accused in August 2021, that is, well prior to the alleged shooting on 21 November 2021. The metadata for the images indicates that the photographs were taken in March 2021. Mr Roberts has examined those images and expressed the following opinions:
5.5 The pistol depicted in images 5, 6 and 8-13 appears to be a .25 ACP calibre, Taurus branded, Model PT51, self-loading pistol.
5.6 There is no evidence from the visual examination of all images to suggest that the pistol would not function correctly as a self-loading pistol.
5.7 The apparent .25 ACP calibre, Taurus branded, Model PT51, self-loading pistol depicted in the images is the correct calibre of firearm to discharge both .25 ACP calibre fired cartridge cases FEN100502257 and FEN100502279 and the exhibit .25 calibre fired bullet FEN100502268.
5.8 Furthermore, should the pistol depicted in the images be a functioning firearm, it could have fired the exhibit fired bullet FEN100502268 as the barrel contained six lands and grooves of rifling (right-hand twist) and the exhibit fired bullet FBN 100502268 contained six land and groove engraved areas (right-hand twist) on its surface.
5.9 The cartridge in the top of the magazine depicted in Figures 5 and 6 is consistent with being a .25 ACP calibre cartridge of ammunition.
Mr Cross examined one of the photos that was relied upon by Mr Roberts, which is a photograph of a pistol being held at an angle by a hand in a manner that makes the palm of the hand visible. Mr Cross expressed the opinion that the surface of the palm depicted in the image, when compared in accordance with the methodology described in his report, was from the same person who provided a set of prints taken by New South Wales police in 2021 from the accused.
The facts sought to be established by the prosecution are that the hand depicted in the photograph is that of the accused, that he was in possession of the pistol shown in those images and that the pistol shown in those images could have been the pistol which discharged the cartridges found at the scene of the shooting and fired the bullet which was found at the scene of the shooting.
The submissions of the accused were that the probative value of the evidence is slight and the danger of unfair prejudice is very high. Counsel for the accused referred in particular to the temporal gap between the possession of the weapon and the alleged offending. He referred to the decision of Priest JA in Arico v The Queen [2018] VSCA 135; 272 A Crim R 450. So far as prejudice is concerned, the submission was that the “inevitable inferences” that would be drawn from the fact that the images were found on a mobile phone seized by police in August 2021 were:
(a)the accused was the subject of a police investigation for criminal offences prior to the alleged shooting in November 2021;
(b)the accused was in possession of an apparent firearm nine months prior to the alleged shooting in November 2021;
(c)the apparent firearm was unlawfully possessed and was itself unlawful as it had its serial number removed; and
(d)the accused was therefore engaged in unlawful criminal activity a significant period of time before the alleged shooting.
This is said to give rise to a real danger that the jury would reason that the accused has a tendency to commit criminal offences or a preoccupation with unlawful firearms and that he is therefore guilty of the offences charged.
The prosecution submissions explain that the issue at trial will be whether the accused was the shooter. The prosecution case is a circumstantial one. It relies upon a number of different strands of evidence. These include:
(a)The text message exchange with Person B on 20 November 2021 which included an image of a figure whose face and body is obscured by emojis superimposed over an image of what appears to be a large assault rifle and a small pistol. The pistol is similar in appearance to that in the digital images examined by Mr Roberts.
(b)A version of the image without emojis which shows that the person holding the apparent weapons is the accused or a person strikingly similar to the accused.
(c)Text messages between the accused and Zachary Robb on 20 November 2021 during which threats were made in relation to Person B.
(d)The message between the accused and Person A on 21 November 2021 when an arrangement was made for the parties to meet up for a fight.
(e)The text message sent by the accused to Mr Robb on 21 November 2021 apparently consistent with an intention to harm Person B.
(f)Evidence that the accused was driving a car on the day of the shooting that was broadly similar in appearance to the vehicle driven by the shooter.
(g)A message conversation between the accused and Mr Robb after the shooting which the prosecution says contains an admission that the accused attempted to kill Person A.
(h)The location of two .25 calibre fired cartridge cases and one fired bullet at the scene the shooting.
The prosecution submits that the evidence of Mr Roberts’ opinion that the pistol could have fired the exhibit fired bullet is evidence of significant probative value when considered in the context of the whole of the prosecution’s circumstantial case. In particular, the pistol in the photograph is similar in appearance to the pistol shown in the photograph sent to Person B (see [24](a) above).
In relation to unfair prejudice, the prosecution submitted that possession of the weapon prior to the shooting is not unfair prejudice because it is simply part of the case against the accused. Possession of a .25 calibre pistol is a circumstance which the prosecution relies upon in order to prove beyond reasonable doubt that the accused was the shooter. It may be prejudicial but not unfairly prejudicial in the manner captured by ss 137 or 135 of the Evidence Act. Further, the prosecution submits that there is no reason why it would be necessary to lead the fact that the phone containing photos of the pistol was seized during the execution of a search warrant in August 2021. Rather, it would simply be enough to lead evidence that the phone was lawfully seized from the accused. In relation to the removal of the identifying serial number, the prosecution accepts that it would be possible to avoid leading evidence that the serial number had been removed. However, it intends to lead that evidence because its removal makes it significantly more likely that it would be the sort of weapon used in serious criminal activity such as that alleged in the present case.
In any event, the prosecution submitted that if any of the inferences suggested by the accused might arise then that risk is slight and could be appropriately addressed by directions to the jury.
In oral submissions counsel for the prosecution pointed to the fact that the photograph of the person who appears to be the accused was taken on 16 November 2021 and that photograph was inevitably going to end up before the jury because the version with the emojis on it was the subject of counts 4 and 5. Any risk of unfair prejudice to the accused from the admission of the earlier photographs would need to be assessed in the context of the jury having available to it photographs of a man, apparently the accused, with weapons only a few days prior to the alleged offending. Assuming that it is conceded or established that the person in the photograph was the accused, then the possession of a weapon similar to the pistol depicted in the photograph some nine months earlier is unlikely to feature prominently in the minds of the jury.
In my view, the photographic evidence is not inadmissible under ss 135 or 137 of the Evidence Act.
The photographs and the evidence of Mr Cross and Mr Roberts provide an evidentiary basis for a conclusion that the accused possessed a weapon that, by reference to its calibre and rifling, could have been the weapon used in the shooting. That the possession occurred in March 2021 is a fact which the jury will inevitably need to take into account in determining the weight to be given to the evidence. The available use of that evidence is affected by the presence of a similar apparent weapon in the photograph sent to Person B. The probative value of the evidence is not slight. Rather it is a significant strand in the prosecution’s circumstantial case.
So far as unfair prejudice is concerned, I do not accept that the inferences identified in the submissions made on behalf of the accused are likely to be drawn. It will not be essential to lead evidence of the reasons for the seizure of the accused’s phone in August 2021. It will certainly not be necessary to lead evidence that the accused was subject to a police investigation for criminal offences at that date. I accept the submissions made on behalf of the prosecution that the possession of an apparent firearm nine months prior to the alleged shooting is not appropriately characterised as unfair prejudice. It is a necessary component of the prosecution case that the accused had possession of, or access to, a weapon of the type shown in the photographs. That there is a significant temporal gap between the date of the photographs and the date of the alleged offending might, in theory, give rise to some speculation by jurors as to why it was in the possession of the accused. However, in the context of this case there is only a negligible possibility that jurors would embark upon a chain of tendency reasoning rather than the reasoning that they were invited to adopt as part of the prosecution case. If the trial judge perceived that there was some risk of such reasoning be adopted, then I am confident that it could be appropriately addressed by a direction to the jury. The same can be said in relation to the removal of the serial number. The jury are very unlikely to adopt the chain of tendency reasoning suggested on behalf of the accused and, if at trial there was perceived to be a risk of them doing so, then the matter could be appropriately dealt with by a direction.
The reliance by the accused on the decision in Arico did not assist him. In that case the issue was whether or not evidence of possession of a firearm and ammunition under the seat of the appellant’s motorcycle was properly admitted in support of charges of extortion and drug trafficking. The charges arose out of a relationship between drug dealers that went wrong. One of the charges of extortion arose out of a threat to “shoot up” the houses of a witness, his mother and his brother. The second charge of extortion involved a threat to shoot the witness and his wife unless they signed a sham agreement and acknowledgement of debt. The drug trafficking charge arose out of what was said to be an offer to supply one or more kilograms of high-quality methamphetamine for $145,000 per kilogram. The issue in relation to this charge was whether or not the accused had been joking or testing the witness when he made the offer. On appeal the principal area of contention related to the admissibility of the evidence of the firearm in relation to the drug trafficking charge. For reasons which are unclear, counsel for the accused in the present case placed reliance upon the dissenting judgment of Priest JA and did not refer to the majority judgment of Maxwell ACJ and Weinberg JA. Priest JA concluded that the possession of the firearm and ammunition could not have had any bearing on the assessment of whether the offer to sell drugs was genuine. He concluded that the possession of the pistol and ammunition “went to nothing other than rank propensity or ‘criminal disposition’”: [281]. The majority judges also examined the line of authority relating to the admissibility of evidence of incriminating objects found in the possession of an accused person. Their Honours found that the probative value of the evidence was because the principal witness had given unchallenged evidence that demonstrated that guns were “very much the ‘tools of trade’ for drug dealers working in this particular milieu”: [105]. It was in that context that the possession of the firearm had substantial probative value. The majority found that proof that the applicant was in the business of drug dealing was capable of rationally affecting the jury’s assessment of the probability that the offer made was a genuine one to sell drugs: [115].
The present case is very different to Arico. The issue in Arico arose because there was no charge asserting possession of the weapon – those charges having been severed – and the narrow issue related to the intention behind the offer to sell drugs. The possession of a firearm was only of indirect relevance as it was something which indirectly indicated that Mr Arico was a drug dealer which tended to indirectly support the proposition that his offer was a genuine one. In contrast, in the present case possession by the accused of a firearm capable of discharging the bullet and the cartridges found at the scene of the shooting is an essential fact in the prosecution case. It is true that there is a temporal remoteness between any possession in March 2021 and the shooting in November 2021. The significance of that temporal gap is a matter that will need to be considered by the jury. That consideration will have to occur in light of the photograph taken on 16 November 2021 which is consistent with possession of an apparently similar weapon proximate to the shooting. It cannot be said that the temporal remoteness renders the evidence of only very limited probative value. This case is more factually similar to R v Debs [2008] VSCA 240; 191 A Crim R 231 which is referred to in Arico at [272]-[274], in which the Victorian Court of Appeal dismissed an appeal in which it was asserted that evidence of the finding, two years after the offence, of weapons at premises of the appellant’s mother was inadmissible. The weapon was linked to the appellant by some statements that he had made and was sufficient to give rise to an inference that when the victim was killed the applicant had access to a gun of the same kind that killed her: [63]. The court made reference to the trial judge’s careful warnings about the use of propensity reasoning and that the finding of the weapon was simply one aspect of the circumstantial evidence that formed the basis of the prosecution case.
I do not consider that for the purposes of s 137 the probative value of the evidence in the photographs is outweighed by the danger of unfair prejudice to the accused. As a consequence, I do not consider that the opinions expressed in paragraphs 5.5 to 5.9 of the report of Mr Roberts dated 17 March 2022 are inadmissible. It also follows that the evidence should not be excluded under s 135. Further the evidence of the opinion expressed by Mr Andrew Cross’ report dated 19 February 2022 is not inadmissible under s 137. Nor should it be excluded under s 135.
Orders and rulings
The orders and rulings of the Court are as follows:
1. Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) the publication of the name of the following witnesses is forbidden until the conclusion of the trial of the accused:
(a) [redacted]; and
(b) [redacted].
2. The evidence of the opinions of Mr Clive Roberts at paragraphs 5.5 to 5.9 of his report dated 17 March 2022 are not inadmissible under ss 135 or 137 of the Evidence Act 2011 (ACT).
3. The evidence of the opinion of Mr Andrew Cross in his report dated 19 February 2022 is not inadmissible under ss 135 or 137 of the Evidence Act 2011 (ACT).
4. Liberty to apply is granted to relist the accused’s amended application in proceedings dated 24 February 2023 before Mossop J on two days’ notice.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 31 March 2023 |
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