DPP v Farquharson (Ruling no 9)

[2007] VSC 463

IN THE SUPREME COURT OF VICTORIA
CRIMINAL DIVISION

No. 1419  of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT DONALD WILLIAM FARQUHARSON

Ruling No 9

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	12 September 2007
CASE MAY BE CITED AS:	DPP v Farquharson (Ruling No 9)
MEDIUM NEUTRAL CITATION:	[2007] VSC 463

---

Criminal law and procedure- murder – evidence – admissibility.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Rapke QC Ms A Forrester	Office of Public Prosecutions
For the Accused	Mr P Morrissey Mr C Mylonas	Victoria Legal Aid

---

HIS HONOUR:

1. Learned leading counsel for the accused, Mr Morrissey, has submitted that a body of evidence elicited in telephone intercept warrants between 11 and 21 September 2005, ought properly be admitted in evidence.  The material is statements of the accused to various persons which were lawfully intercepted and recorded pursuant to warrants issued to that end. 

1. Mr Morrissey has submitted that the statements of the accused thus recorded are admissible in this trial, although are out-of-court statements by the accused, because they bear upon an issue as to possible consciousness of guilt which the prosecution may, at the end of the evidence, seek to rely upon.

1. The argument by Mr Morrissey is that the material revealed in the intercepts lays a foundation for a rebuttal of the consciousness of guilt proposition by the prosecution in that it can be said that the statements of the accused were statements of a person who did not wish wrongly to be charged with an offence that he did not commit.  That is an understandable argument and not an unfamiliar argument in the area of consciousness of guilt.  It is necessary for the prosecution to establish that the statements were made out of the consciousness of guilt of the crime charged and the argument Mr Morrissey put, very understandably, is that it can properly be contended that these were statements by a person who was innocent and concerned not to be wrongly charged.

1. The question, however, is whether the material is admissible.  In my view it is not.  These are statements which are self-serving, hearsay statements made by an accused out of court and as a consequence of the general rule precluding out-of-court self-serving statements are not admissible.  They are no more admissible than the accused going around Winchelsea saying to people that he is innocent and that would not be admissible either.

1. Mr Morrissey has called in aid two particular matters to defeat the normal exclusionary principle of out-of-court, self-serving statements.  One is Mr Morrissey wants to elicit the material to show that the accused had additional pressure, not only of being possibly wrongly charged with an offence but also having a mental breakdown.  Further, Mr Morrissey has sought to rely upon the material as to its tone.

1. In my view neither argument suffices to make this material admissible.  There is a substantial amount of material, as Mr Rapke reviewed at T.1557-1558 of the general state of the accused, plus, of course, the material in the King tapes which has already been played before the jury.  As to that last matter, Mr Morrissey has said this TI material is different from the King material because the King material could be said by the prosecution to be manipulation by the accused of Mr King to stop Mr King going to a counsellor and thereby the material getting to the police.  Doubtless that is what the prosecution will say.  Mr Morrissey has said that this extraneous material, the TI material, does not have that characteristic and therefore should be admitted on that account because it is different from the purpose-specific King material which is to prevent King going to a counsellor.

1. In my view that is a distinction without a difference.  The reality is that these are self-serving statements made out of court; they have no admissibility for testimonial purposes; no admissibility otherwise; and I rule that they are not admissible.

1. A further issue was raised by Mr Rapke - in my view it is not necessary to go to this but I simply record it - as to the TI intercepts between 11 and 21 September 2005, is that inherent in them is the spectre of a lie detector test, which was in fact conducted on 20 September 2005.  Mr Rapke has put that if the TI self-serving proclamations of innocence, with their emotional panoply, go in, the prosecution, in order to properly present that material, would need to have in the lie detector test aspects of it because, Mr Rapke said, they are integral to the holistic entity.  Demonstrably it would be undesirable for the accused if any lie detector reference went in, let alone any suggestion that he failed it.  That plainly should never go before the jury, and it will not.  But Mr Rapke's submission is that not to have the lie detector reference in these TI materials unfairly puts the Crown in a wrongful position.  I think that is right but I do not rely upon that in itself.  I think antecedently the material is simply self-serving and inadmissible, and I so rule.

---