Director of Public Prosecutions v Tonkin and Ors (Ruling No.1)

[2022] VCC 635

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-02519
CR-19-02520
CR-19-02521
CR-19-02522

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL TONKIN, DUSAN JAVANOV, KRISHNEIL CHAND & AILOLE FUALAU

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JUDGE:	RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2022 - 15 March 2022
DATE OF RULING:	9 March 2022
CASE MAY BE CITED AS:	DPP v Tonkin & Ors (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2022] VCC 635

REASONS FOR RULING
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Subject:CRIMINAL LAW -- Jury Directions -- Unreliable Evidence Direction

Catchwords:                Extortion -- Complicity -- Complainant who ‘might reasonably be suspected of being criminally concerned’ in the offending -- Ultimate Issue -- Absence of supporting evidence -- Unreliable Evidence Direction given on other topics -- Motive to Lie direction given

Legislation Cited:        s.32 Jury Directions Act 2015 -- s.31 Jury Directions Act 2015 -- s.12 Jury Directions Act 2015 -- s.14 Jury Directions Act 2015 -- s.323 Crimes Act 1958 -- s.165 Evidence Act 2008

Cases Cited:Wade (a Pseudonym) v The Queen [2019] VSCA 168 -- Anile v The Queen [2018] VSCA 235 -- DPP v Faure [1993] 2 VR 497 --R v Mitchell [2006] VSCA 289 -- Ali v The Queen [2010] VSCA 182; R v Taranto; R v Freeman [1999] NSWCCA 396

Ruling:Pursuant to s.14 Jury Directions Act 2015 there are good reasons not to give the direction.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms J Fallar	Office of Public Prosecutions
For Daniel Tonkin	Mr R Backwell	Greg Thomas Barrister & Solicitor
For Krishneil Chand	Mr A Waters	Leanne Warren & Associates
For Dusan Javanov	Ms M Brown	Dribbin and Brown Criminal Law
For Aliole Faulau	Mr F Cameron	Gallant Law

HER HONOUR:

Introduction

1This is an application by Defence Counsel pursuant to s.12 of the Jury Directions Act 2015 (“the Act”) that I should give the jury a warning regarding a witness ‘who might reasonably be supposed to have been criminally concerned’ in the events giving rise to the trial. That witness is the complainant, Alex Kovac.[1]

[1] pseudonym used.

2After hearing argument at the conclusion of the evidence, and again after closing addresses, I determined pursuant to s.14 of the Act to refuse that request. In my view there were good reasons for not giving the direction. I indicated I would provide written reasons in due course. These are those reasons.

The Prosecution case

3The four accused, Daniel Tonkin, Dusan Javanov, Krishneil Chand and Ailole Fualau were each charged with one charge of kidnapping, one charge of extortion, one charge of common assault and one charge of theft. A fifth accused, Moana Ulutui was charged with the same offences, but his trial was adjourned.

4In short compass, Mr Kovac alleged that between 10 and 11 April 2019, he was variously detained by the five men at two residences.  He stated that at the first house he was tied to a chair, physically assaulted and threatened with weapons.  He stated that personal belongings were taken from him and that he was forced to make telephone calls to his parents to seek payment of $30,000 to secure his release. He stated that at the second house he was directed to take Seroquel tablets so that he would be sedated.  He eventually escaped when a taxi pulled up outside the second residence.  He was taken to Sandringham Hospital and treated for his injuries.

5Each accused denied involvement in the offending.  The way the trial was run was to the effect that the extortion was in fact the complainant’s idea or that he was at least party to it, and that he was not kidnapped but was a willing participant.  Further, that being tied to the chair and any assault was for ‘show’ in order to pressure his parents into paying the ransom.  Further, that none of his belongings were stolen.

6The facts in issue were whether the jury could be satisfied that the events occurred as described and whether Mr Kovac was a victim as he claimed, or whether he was criminally involved in the extortion attempt of his parents.[2]

[2] In relation to Mr Fualau there were also issues of identification.

Background

7The complainant Alex Kovac was 24 years old and lived in New South Wales.  He met Mr Tonkin in 2018 via drug rehabilitation in Melbourne. Through Mr Tonkin he met Mr Chand and Mr Ulutui.  In about March 2019, Mr Kovac moved to live with Mr Tonkin.

8On 4 April 2019 Mr Kovac asked his mother Louise[3] for $5000 to pay drug debts. There is some evidence that his mother was told he owed money to bikies and would be hurt if he did not pay. Louise Kovac paid $5,000 to his bank account. 

[3] pseudonym used.

9That money was spent on the debt, and on more drugs, gambling and buying clothing for himself and Mr Tonkin.

10Mr Tonkin and Mr Kovac had a falling out and on 9 April 2019 Mr Kovac moved to the Sandown Park Motel.  Mr Ulutui and a male called Leon attended at the motel. They all smoked ice.  Mr Kovac and Mr Ulutui went to play the pokies. Mr Chand attended. Mr Kovac gave Mr Ulutui money to go and buy more drugs. Mr Ulutui did not return.

11Mr Kovac became suspicious about what Leon was doing on his laptop.

12On 10 April Louise Kovac, received notification from her bank about suspicious transactions.  She rang Alex Kovac and he immediately formed a view that Leon was responsible.

13Mr Kovac received a text from Mr Ulutui to meet him at a shopping centre.  Leon went with him but disappeared.  Mr Kovac ran into Mr Fualau, who he identified as Mr Ulutui’s nephew. Mr Fualau tried to contact Mr Ulutui, and Mr Kovac rang Mr Chand and Mr Tonkin.

14Mr Tonkin picked up Mr Kovac from the shopping centre.  They drove to meet up with Mr Chand.  They then drove and met up with Leon.  Upon seeing Leon, Mr Kovac jumped out of the car and punched him once to the face.  Leon ran off.

The Offending

15Mr Kovac was then driven by Mr Tonkin to a house where he saw a man he called “the Serb” who it is understood is Mr Javanov.  The complainant was under the impression the house belonged to Mr Javanov.  Mr Kovac followed Mr Tonkin to a rear bedroom.  Mr Chand soon arrived.

16Mr Kovac stated he was pushed into a chair and that Mr Chand and Mr Javanov tied him to the chair.  He was struck to the face and head multiple times by Mr Chand and Mr Javanov.  He had trouble hearing from his right ear. 

17Mr Chand and Mr Javanov produced tools and told him to pick one.  A crowbar was then held against his knee in a threatening way.  Cloth was placed around his mouth.  Mr Tonkin was going in and out.  

18Mr Kovac stated that Mr Ulutui and his nephew (Mr Fualau) arrived.  They started going through the complainant’s bag, taking out hats and his laptop. They took his phone and were going through it.

19A snap chat video taken from Mr Ulutui’s mobile phone shows a person scrolling through Mr Kovac’s phone to see passwords.  Screen shots were taken on Mr Ulutui’s phone of the list of passwords. 

20Mr Kovac stated that Mr Chand told him they wanted $50,000 and then $30,000.  Mr Chand produced a knife and threatened him.

Phone calls

21A series of phone calls were recorded by the complainant’s father, William Kovac.[4]  Images from a face time call were recorded by his mother.  The complainant also spoke to a family friend, Geraldine Somers.[5]  Moana Ulutui spoke to William Kovac during various calls. 

[4] pseudonym used.

[5] pseudonym used.

22Alex Kovac said he was instructed what to say. He asked his parents to pay the money to ensure his release.

23During the face time call William Kovac saw his son being hit to the head.  The screenshots captured by his mother showed facial injuries.

24At times Mr Kovac's father expressed scepticism about what was occurring. For example he said “I’ve got a drug affected son who’s obviously trying to get money out of us.” He queried how tight the ropes were. He queried whether he was being extorted ‘by a drug addict son’ and commented that he (Alex) would ‘take a [physical] hit for money like that’.

25William Kovac[6] gave evidence that he was trying to provoke those holding his son to engage with him to obtain information that might identify any “perpetrators”.  He described this as “one of the most high stress moments of my life.” And “All I could try to do is tactically try to get the other person to become involved in the conversation so I had some potential identifiers on that person.”

[6] A food regulator.

26Both parents and Ms Somers variously describe the complainant’s demeanour during the calls as ‘not happy’, ‘panicked’, ‘very stressed’, ‘a matter of urgency’, ‘very distraught and seemed scared’, ‘very frightened’, ‘crying’, ‘extremely upset and fearful’.

27William Kovac telephoned Daniel Tonkin at 8:04pm on 10 April to see if he knew anything about Alex’s whereabouts.  Certain comments made by Tonkin made him suspicious.  It was after that call that William and Louise Kovac called the police and reported the kidnap of their son. 

Second location

28At some time after the 8:04pm call and before a 10:20pm call to his mother, Alex Kovac was taken by Mr Tonkin to a unit in Hampton East. Those premises are occupied by Victoria Po’oi, the sister of Moana Ulutui.

29Mr Kovac was told he could not leave until the money was paid. He was told to take Seroquel tablets which had the effect of sedating him. 

30At about 9:30am on 11 April 2019, Mr Kovac was woken by Mr Tonkin who was angry as police had attended his home as a result of the report made by Louise and William Kovac.

31Mr Tonkin told Mr Kovac to ring his parents from a telephone box outside the units. Mr Tonkin stayed nearby. Mr Kovac returned to the unit and went back to sleep.

32Police were able to identify the location of the telephone box.  They conducted surveillance.  Mr Tonkin was spoken to in that vicinity on the morning of 11 April but denied knowing anything of the whereabouts of Mr Kovac.

33Mr Kovac woke later and realised he was the only person at the unit. He walked to the telephone box but was seen by Mr Javanov who told him to go back to the unit or he would ‘drag him there’. Mr Kovac returned to sit on the front step. 

34A little later, Mr Kovac saw a taxi pull up and made his escape. The driver took him to the Sandringham Hospital where his mother and police were contacted.

Injuries

35Mr Kovac was found to have a perforated right ear drum, bruising around both eye sockets, tenderness and swelling to his nose, bruising to the upper and lower lips, and mild tenderness and soft tissue injury to his left shoulder. Photographs were tendered.

Police Involvement

36Mr Kovac told attending police a false story about having been at Nandos with Mr Tonkin the day before and that three men (Lebanese, Arabs and an Aussie) bundled him into a car. He then essentially described the events the subject of the allegations but stated he did not know the perpetrators. 

37An off-site Detective instructed attending police to arrest Alex Kovac for extortion.  The informant arrived later and formed a view that the elements of extortion were not met.

38Mr Kovac was later interviewed for possession of Seroquel.  Early in the interview the police stated “So our contact with you stems from a report of a kidnapping… whereby your mother has reported to Victoria police that you’ve been kidnapped.”  Mr Kovac reiterated the false story.  He stated he was too fearful to tell the truth.

39He was never interviewed for nor charged with extortion.

40On 18 April 2019 police attended in Sydney to take a statement and obtain the recordings from William Kovac.  On that day Alex made a statement to police. He gave evidence at committal and at trial in accordance with that statement.  That is the basis of the allegations.

41Police investigation identified the mobile phones registered to or used by each of the accused Tonkin, Chand, Javanov and Ulutui. Phone data analysis placed those phones together and in the relevant location at the relevant time of the kidnapping.  Mr Fualau denied owning or using a phone.

Arrests and Records of Interview

42All accused were arrested. They either made no comment or denied having any involvement in the offending.

Prosecution Case

43Each accused is charged as a principal offender and on the basis of complicity pursuant to s.323(1)(a) of the Crimes Act 1958.

Defence case

44None of the accused gave evidence.

45The accused by their pleas, and where they made a record of interview, denied any involvement in the alleged offending.

Facts in Issue

46The facts in issue were squarely whether the jury could be satisfied that Alex Kovac was the victim of the kidnap and extortion, or whether he was a party to it.

47It followed that the credibility and reliability of the complainant was the central issue in the trial.

Element 2 of Extortion

48In addition, the second element of Extortion required the Prosecution to prove that the accused reinforced the demand with a threat to injure a person other than an accomplice. Therefore, those issues went specifically to the extortion charge; if the jury accepted, or had a doubt that Mr Kovac was an accomplice, they could not be satisfied of this element which would necessarily result in a verdict of not guilty.

Cross-examination of the complainant

49During cross-examination, Counsel variously put to the complainant that

(a)   he was behind the ‘scam’ to extort money from his parents; and

(b)   that the phone call to his mother was the beginning of trying to get money out of them; and

(c)   that he had got money from his mother by way of a false story on 4 April and was trying to do so again; and

(d)   any assault was with his consent; and

(e)   that he did not want police involved because he knew he would be charged; and

(f)    when he realised police did not believe him and it was not ‘going to go away’ he made up a false story, distancing himself and implicating others; and

(g)   that he included what he knew to be true details in order to make his account plausible; and

(h)   that he did so to save face with police and with his parents; and

(i)    that since then he has had to maintain the truth of that story.

50The puttage is best reflected in the following passages –

Mr Backwell –

Mr Kovac, I want to put a couple of propositions to you, and then that will be the end of my cross examination.  I suggest to you that in your drug addled state, you hatched a plan to get money from your parents.  What do you say about that? ---  I say that's false.

And the plan started when you were in the car with Daniel Tonkin and you rang your mother.  What do you say to that? ---  I say that's false.

And the next step in your plan was your rang Geraldine Somers.  What do you say to that?   --- I can't recall the phone call with Geraldine.

…

I suggest to you that you rang Geraldine Somers hoping that she would use her influence as a friend of your mother and get your mother to pay the money.  What do you say to that? --- I say that's false. 

And that when you got to the house, you had to ratchet up the pressure on your parents, and you started making calls to them voluntarily? --- False.

…

And that any slaps to your face were your idea? --- False.

And as your father said to you on the phone, you'd be prepared to take a few hits like that for some big money.  That's right, isn't it?   …  And that's what happened.  You consented to be assaulted to make it look more real for your parents? ---  No I didn't.

Every step of the way you were ratcheting up the pressure on your parents to get them to pay.  That's what you were doing, weren't you? ---  That's false.

…

Mr Kovac, you weren't in a dangerous situation.  You were creating a fiction to try and scam your parents.  What do you say?  --- I say that's false. 

And what you did when the police told you that they were going to arrest you for extortion is that you decided to continue with that version, that's what you did, isn't it?---That's incorrect.

And you built a false narrative about how that came to be. I was bundled into a car, knocked unconscious by these totally unidentifiable Lebs or Arabs, that's what you did wasn't it?---I was scared at the time.

51And –

Mr Waters –

Mr Kovac so what you did was to sit down and construct an account.  An account incorporating elements of what's on the phone calls.  Incorporating elements of what you told the police in your interview but adding into it these men.  That's what you did isn't it?---No.  That's what happened.

You constructed an account that is not true, didn't you Mr Kovac?---That's false.

And that account has one primary objective.  To get you off the hook in relation to attempting to scam your parents of thirty or $35,000.  That's right isn't it Mr Kovac?---That's false.

….

They are just a fiction.  A fiction invented originally to convince your parents to give you money.  That's right isn't it Mr Kovac?---That's incorrect.

A fiction that's clumsily added to when you are interviewed by the police.  That's right?---That's incorrect.

Finally, it's all about making you look better in the eyes of your parents, isn't it?---

… Definitely not.

Application for Unreliability Direction

52Mr Backwell on behalf of Mr Tonkin made application for a Direction pursuant to s.32 of the Jury Directions Act 2015. That application was adopted by each of the other accused.

53The significant matter relied on by Mr Backwell and basis of the application was that Mr Kovac was akin to an accomplice. Mr Backwell therefore relied on s.31(c) of the Act.

54Mr Waters, on behalf of Mr Chand outlined matters referred to in the Judicial College Charge Book which he submitted I include in the direction, namely that a person who might reasonably be criminally involved in the offending may implicate others and may tell lies to distance themselves from the offending, and may then be forced to maintain those lies. 

55The application was objected to by Ms Fallar on behalf of the Prosecution.  She submitted the issue of whether the complainant was criminally involved had been well ventilated.  In addition he was never interviewed or charged in relation to the offending.  She submitted the jury would be told that if they accept the complainant was part of the extortion then they would have to acquit the accused.

56I indicated in discussion that my preliminary view was that there were good reasons I should not give the direction, namely that it was the ultimate issue for the jury to decide.

57Counsel agreed that closing addresses could proceed without a final determination of this issue.  I reconsidered my decision after hearing closing addresses of Counsel. Prior to giving my Charge I indicated that I remained of the view that there were good reasons not to give the direction.

Decision not to give direction

58Determination of an application for a s.32 direction requires me to undertake a two-stage process.[7] Counsel having made the application pursuant to s.12 of the Act, and relying on s.31, I must first determine whether the evidence is of a kind that may be unreliable either because it comes within one of the specified categories or because of circumstances which have the effect that the evidence is of that kind.

[7] Wade (a Pseudonym) v The Queen [2019] VSCA 168

59If satisfied of those matters, I am then obliged to give the requested direction unless there are good reasons for not doing so.  The question is ‘are there good reasons for declining the request?’ rather than ‘are there good reasons for giving the direction?’

Analysis

60A direction under s.32 must be given where a witness falls within one of the recognised categories outlined in s.31(a) to (e).

61Sub-section (c) is in the following terms –

evidence of a kind that may be unreliable includes -

(c)  evidence given by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the trial

62The wording of the section is broader than at common law, being evidence given by a witness ‘who might reasonably be supposed to have been criminally concerned’ in the events giving rise to the trial.

63There has been a deal of consideration of s.32 regarding hearsay evidence, police informers, and where the central evidence comes from a complainant where there is a history of drug addiction, mental health conditions, poor memory, the possibility of confabulation or a combination of such circumstances.

64However, there does not appear to be any higher court authority on the question of s.31(c).[8] In particular, there does not appear to be authority either under the Jury Directions Act 2015, or its predecessor s.165 of the Evidence Act 2008, or at common law, concerning a complainant/victim who it is argued is akin to an accomplice.

[8] In Anile v The Queen [2018] VSCA 235 the Court of Appeal considered an accomplice warning given in relation to a defence witness whose evidence was exculpatory to the accused. The Court concluded the warning should not have been given. Those facts are of limited assistance in the case before me.

65The cases referred to by Counsel do not assist in that regard.[9]

[9] DPP v Faure [1993] 2 VR 497, See also, for example R v Mitchell [2006] VSCA289, Ali v The Queen [2010] VSCA 182

Conclusion

66Whether a witness might reasonably be suspected of being criminally involved is ordinarily a matter of fact to be determined by the trial judge.[10]  I accept that ordinarily if the determination is that there is evidence which may support such a conclusion, then a warning should be given. 

[10] R v Taranto; R v Freeman [1999] NSWCCA 396

67However, in my view when that is the ultimate issue in the trial and relates to the complainant/victim, it is entirely a matter for the jury to make that determination. 

68In this case reliance was placed on the doubts expressed by the parents in the various recorded phone calls.  However, the jury were also entitled to consider the explanations given by both parents, along with their descriptions of the complainant’s physical appearance and demeanour, along with the other evidence in the trial.  Ultimately the father stated that any initial doubts were soon dispelled, leading to the parents reporting the kidnap to police within hours.

69There was no other evidence which went to establishing that the complainant was akin to an accomplice.  Puttage that he was so does not create evidence that he was or might reasonably be suspected of being involved.  He denied all such suggestions.

70That issue was front and centre of the Defence cases and well ventilated before the jury.  In addition, the credibility of the complainant more generally was well ventilated before the jury.  Consistent with the cross-examination, Counsel in closing argued those issues again. 

71Ultimately, it was a matter for the jury to determine whether they accepted those arguments, or had a doubt about the role of the complainant.  If the jury were satisfied that the complainant was, or might reasonably be criminally concerned in the extortion, that would necessarily result in verdicts of not guilty.  They would not need to then go on to consider whether his evidence might be unreliable.  The need for a warning would be otiose.

72For these reasons I determined pursuant to s.14 of the Act that there were good reasons for not giving the direction.

Unreliable Warning for other reasons

73At my invitation, Defence Counsel sought a s.32 warning on other bases. I gave a warning regarding evidence of the complainant which may be unreliable due to:

(a)   the complainant’s history of and recent drug addiction;

(b)   the fact he had been awake for several days leading up to the alleged offending;

(c)   the fact that in September/October 2018 he suffered a psychotic episode, where his mother described him demonstrating paranoia, in particular that people were ‘coming to get him’;

(d)   the fact that he had demonstrated dishonesty in obtaining the $5,000 from his mother;

(e)   the fact he admitted lying to the police at the hospital and in his record of interview.

74That warning appropriately focussed the jury’s attention on the need for care in respect of the matters which bore on the central issues around the complainant’s credibility.

Motive to Lie Direction

75In addition I gave the jury a direction regarding the complainant’s motive to lie, highlighting the following arguments and what was described as a chain of events leading to the allegations –   

(a)   that the complainant was behind the scam to extort money from his parents;

(b)   the fact he received money from them before, including the $5000 from his mother on 4 April which Defence argue was a result of a false story;

(c)   the fact that he was told he was being arrested for extortion;

(d)   the fact that once arrested he believed he was in trouble and so made up a story to get himself out of trouble;

(e)   the admitted lies to police at the hospital and in his record of interview;

(f)    the fact that police came to Sydney some days later to take a statement, at which time he made his statement implicating the accused;

(g)   the fact Defence argued that he then had to maintain the story told in his police statement, to convince both police and his parents about what occurred.

76That direction also reinforced the need for the jury to give careful consideration to those matters bearing on the central issues in the Trial.

And I so rule.