Mudiawati Leota v The Queen

[2007] NSWDC 146

CITATION:	Mudiawati Leota v R [2007] NSWDC 146 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10.5.07, 25.5.07, 22.6.07
JUDGMENT DATE:	22 June 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Woods QC DCJ
DECISION:	25.5.07 Appeal Upheld. Conviction and sentence imposed by Magistrate are quashed.; 22.6.07 Direction that the respondent pay costs in the sum of $18,766 to the Registrar or the Local Court at North Sydney within sixty days.
CATCHWORDS:	Offences against justice - failure to bring information to attention of police - misprision of felony - costs in criminal cases
LEGISLATION CITED:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001
PARTIES:	Mudiawati Leota [Appellant] NSW DPP [Respondent]
FILE NUMBER(S):	06/12/1403
COUNSEL:	Mr J Mehta (NSW DPP) Mr G Jones, Mr B Clarke (Appellant)

1 HIS HONOUR: The Bells Hotel in Woolloomooloo is a social and literary landmark of Sydney. In the early 1950’s it was purchased by Jimmy Carruthers after his retirement as a world champion boxer. This inspired the lines by poet Kenneth Slessor,

“God help the man who starts a blue
"In the Bells Hotel in Woolloomooloo...”

2 A “blue” in the Australian vernacular is a dispute or fight. This case is about a fight which took place in the Bells Hotel in Woolloomooloo on 17 or 18 December 2004. Unlike Jimmy Carruthers in this respect, the publican was no fighter. He was a peaceful and sociable businessman. In a front bar brawl, he died from a blow or blows through no fault of his own, and notwithstanding the assistance of his family and fellow workers who unsuccessfully came to his aid.

3 This is an appeal to the District Court against the conviction on 20 September 2006 in the Local Court at North Sydney of Mudiawati Leota for an offence against section 316 of New South Wales Crimes Act. The charge was, in brief, that she failed to do her duty and inform police of her knowledge that her husband and or three of his friends had murdered the publican at the Bells Hotel and caused grievous bodily harm.

4 Following police investigations, suspicion fell upon certain people, particularly Joseph Leota, the husband of the appellant and three friends of his.

5 On 14 February 2005, following appropriate warrants being obtained, a listening device was covertly installed at the house at Merrylands occupied by Joseph Leota and the appellant, his wife. Merrylands is a suburb in the west of Sydney, about thirty kilometres from Woolloomooloo.

6 Joseph Leota is a man of south sea island background; the appellant is from an Indonesian background.

7 On 18 February 2005 police released a compilation tape which showed closed circuit television footage of the brawl on the night of 17 or 18 December 2004 when the publican killed. Other television news footage showed a senior police officer calling for people possessing relevant information to come forward (Exhibit 4).

8 On 26 February 2005 the covert listening device secured some conversation between the appellant, her husband and another suspect, a man called Taiseni.

9 On 3 March 2005 Joseph Leota was arrested and detained. The appellant was taken into immigration custody.

10 On 15 June 2005 police interviewed the appellant and a record was made of the interview. That document is before me in evidence in Exhibit A (the crown brief on the appeal) and was of course before the magistrate.

11 It is necessary to explain an aspect of the wording of the charge in the papers before me in this appeal. The charge is set out in the Court Attendance Notice in Exhibit A as follows:

“That the accused between 26/2/2005 and 15/6/2005 at Merrylands and elsewhere did fail without reasonable excuse to bring information to the attention of a member of the police force or other appropriate authority knowing that a serious offence had been committed, to wit, murder and assault occasioning grievous bodily harm by Joseph Leota, Etutate Taiseni, Taniela Motuapuka, Aminiasa Tuifua and that she, the said Mudi Leota had information which might be of material assistance in securing the apprehension of the said persons.”

12 This is the amended version of the charge appearing in the court documents and it is obviously what was intended to represent the charge, since several changes as to date and place were made by hand - presumably by the hand of the magistrate. However, when the learned magistrate gave his judgment (Exhibit A, transcript of 19 July 2006, page 21) he gave the broader dates of between 18 December 2004 and 15 June 2005, and placed the alleged offence at Woolloomooloo rather than at Merrylands. There is no evidence that the appellant was ever at Woolloomooloo. I will assume that the magistrate simply overlooked the amendment.

13 On either version of the charge before the Local Court and before me, it is necessary for the crown to prove that the appellant knew: firstly, that a murder and assault occasioning grievous bodily harm had been committed; and secondly, that it had been committed by at least one of the four named individuals.

14 S 316(1) of the Crimes Act if as follows:

“If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.”

15 The charge in this case was not couched in the rather broader way that section would permit - that is, that the accused knew or believed the relevant matters. On my analysis of the evidence, however, such a formulation would make no difference in fact and to the result. There are other components of proof, but it is not necessary to consider them immediately.

16 There can be little doubt that the appellant saw some television coverage of the fact that a fight had happened at The Bells Hotel on 17 or 18 December 2004. Precisely when she saw it is not clear, but it is assumed for the purpose of the exercise that she knew that what happened was a fight involving a murder.

17 The main defect in the prosecution case is that there is no satisfactory evidence that the appellant knew that murder or assault occasioning grievous bodily harm had been committed by her husband, or by any of the other three men - that is, in terms of the section, that one of these persons was the offender.

18 From the tape recorded conversation of 26 February 2005, (Exhibit A before the magistrate) the most that could be attributed to the appellant is some measure of suspicion about the man, Taiseni (“Eddie”). I have listened to the tape recording and various parts of it repeatedly. The typed version of it which is before the magistrate as MFI A is helpful, but not accurate. There are many incomprehensible parts. There are some words which I hear which are not on the aide memoire transcript.

19 The crown case relies on what is transcribed as the commencement of the tape:

“ET - ‘the guy say to police, That’s my plan, that’s my plan and I’m the one that murdered that key, I’m the one that killed that man.

JL - ‘Fuck’.

Appellant - ‘Stupid, don’t be stupid’.”

20 I do not hear the word “fuck” attributed to the husband, but the word “what?” More importantly I read this, in context of the whole conversation quite differently from the way the crown contends and the way the magistrate interpreted it. Read as a whole, it is clear that Taiseni is saying that someone has made an allegation against him, but that the allegation is false.

21 Later, after some further incomprehensible conversation, ET, that is Taiseni, says

“I don’t know when the police are going to turn up to my house, you know they’re gunna talk to my wife.”

22 The appellant gave some advice,

“You know what you do, you move now, move because they come, they’re gunna come.”

23 The appellant goes on to talk of some street-smart advice from some friend/lawyer/boss (which is not clear) who says it is always good practice that when the police come,

“Don’t say anything.”

24 From all of this it is clear that the appellant was attempting to assist Taiseni in some way. What is not clear is that she knew that he or any of the other three, including her husband, had committed murder or assault occasioning grievous bodily harm.

“ET ‘I know maybe the guy was dead, but we didn’t do nothing that day, we didn’t do any thing. Maybe we get charged, maybe the police. You walk.”

25 I hear various extra words in this conversation, particularly before the statement that

“We didn’t do nothing that day”

26 I hear

“We saw them that night, but”

27 which should read as

“We saw them that night, but we didn’t do nothing that day. We didn’t do anything.”

28 This is nothing like a confession of guilt to murder, either by Taiseni or any of the others named in the charge. The language is not clear, although it seems to be the language or a concerned man. It is not clear precisely what it is that he was concerned about, but it seems to have believed that “that guy” had spoken to police and mentioned his – Taiseni’s - name, wrongly. Not only does he dispute any criminality, he appears to decline the suggestion that he should move house, preferring to endure the prospect that the police should come if they were going to do so.

29 Although the listening device was in place for some extended time at the house of the appellant and her husband, there is no other material pointing to the possession by the appellant of the necessary knowledge.

30 Other evidence upon which the prosecution relies is to be found in an interview with the appellant conducted by police on 15 June 2005 (Exhibit 3 in the Local Court). Questions and answers 84 to 86, 89 to 98, 138 to 148 are important. The appellant agreed that she heard about a murder in The Bells Hotel, but

“In the news only”.

31 She did not know that someone was killed until she read about it in the newspaper (Q 84). Her husband never told her that he was at The Bells Hotel (Q89), but he did tell her that he had been in a big fight (Q91):

“He tell me ‘it’s not your business’, that’s it.”

32 Her basic position was that

“It’s not my business, it’s his business.”

33 She denied that she knew that Eddie Taiseni was involved in the fight at The Bells Hotel until he had been arrested (Q142). She said she did not know how many days after 18 December it was that she knew anything. In fact she said

“But I don’t know, I don’t really know, I just see in the news and that’s it.” (Q151).

34 I can find in the evidence no basis for concluding that the husband or any of the others had confessed to or in the presence of the appellant. She was never relevantly at The Bells Hotel. Her house was bugged and the only real evidence against her is wholly insufficient to prove to the criminal standard the requisite knowledge (or even belief, if the charge had been constructed that way, which it was not).

35 Section 316 of the Crimes Act is not a provision which mandates the communication to police about suspicion of serious wrongdoing generally. For example, there are no doubt many parents of teenagers who would be concerned to think that they were required to “dob in” children whom they suspected, even strongly suspected of serious illegality involving drugs. Before criminality will be imposed there must be the requisite mental state, not only as to the fact of the serious indictable offence having been committed, but that it was committed by a particular person. It is only after these factors are proven that the broad terms

“might be of material assistance”

come into play. That possibility must relate to a crime which is known or believed to have been committed by a particular person.

36 In this case, suspicion by the appellant is not enough: proof of her knowledge that either her husband or one of the other three had committed the murder or the other crime is required.

37 The prosecution must fail. The appeal is upheld. The conviction and sentence imposed by the magistrate are quashed. I direct the entry on the record of a verdict of acquittal.

22.6.07

38 HIS HONOUR: In this matter I heard an appeal against conviction on 25 May 2007. The decision was that the appeal was upheld, the convictions and orders of the Magistrate quashed, the verdict of acquittal was directed to be entered on the record. To the extent that it might be necessary, I add an order that the appellant is discharged. There was a costs application. The costs matter was before me on Friday 8 June 2007, and that matter has been argued. There were further written submissions. I have before me, as well, memoranda of fees from counsel, Mr Gregory Jones and Mr Clark, and a solicitor’s invoice. I have an analysis concerning costs from the crown. I am satisfied that the seriousness of this matter justified the use of two counsel and it seems to me that the amount claimed is fair and reasonable. Let me explain my reasons.

39 In the first instance I indicated that the appeal was upheld. In that judgment I made it clear that analysis of the evidence resulted in my conclusion that the appellant lacked the requisite knowledge (or even belief if the charge had been constructed in that way, which it was not). For reasons of judicial economy, it was unnecessary for me to dilate upon any further reasons why the appeal might have been determined. The decision by the trial court focussed on the issue of knowledge.

40 There were, however, several further defects of the prosecution case which in my view would vitiate the conviction. One is the argument urged by the defence before the Magistrate and since, that at the time the telephone bug was placed into the house at Merrylands, the police knew when the man, Taiseni and her husband were, and nothing that she could do would materially assist police in apprehending them, to use the word in the statute. These were not, to use the vernacular, “flown birds” - they were present in the house when police were listening to them via the electronic equipment.

41 A second further consideration fatal to the conviction, which I do not need to spell out in detail, is that there was inadequate evidence before the learned Magistrate of the fact of a murder or of an offence of assault occasioning grievous bodily harm at all, by whomever committed. Certainly there was film shown on television relating to the incident. But proof of an incident in which someone dies does not prove murder or any other crime. A death might be accidental, or it might be some form of homicide less than murder. I make these observations to confirm the necessity that the prosecution was always bound to fail, which is of course a consideration in the costs application.

42 The costs are sought under the Costs In Criminal Cases Act, and that statute allows costs to be given where on appeal the conviction of the defendant is quashed and the information or complaint upon which the defendant was convicted is dismissed: that is indeed the order (or is included in the orders) that I have made.

43 But the power to order costs against the public prosecutor is limited by a special provision in the Crimes (Appeal & Review) Act 2001. That relatively recent provision is in the following terms applicable in this case: Section 70(1):

“Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied:


(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or

(b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner...”

44 The provision continues, but it is unnecessary for me to set out any more. Section 72 is relevant. There is an order that an appellant or respondent pay costs. The order must direct that the costs be paid to the Registrar of the original Local Court and must state a time within which the amount must be paid.

45 As I have indicated, I make the cost orders sought. In my view the initiation of the proceedings in the Local Court was always without reasonable cause on the evidence available to the prosecution at the time of its initiation. As I said in the principal judgment on the appeal, I respectfully disagree with the analysis of the facts by the learned trial Magistrate. It seems to me that the applicant never possessed the state of mind required for proof of the charge as particularised.

46 Further on the costs application, Mr Jones repeated the submission upon which he had relied from the beginning - that the charge as pleaded alleged that the police could have been assisted in the “apprehension” of the alleged offenders, and yet at all material times the relevant alleged offenders appeared to have been the subject to actual surveillance by police. The police knew where they were; they were simply seeking evidence against them; anything that Mrs Leota could have told police was immaterial to the apprehension to the alleged offenders. It might have been material to the possible prosecution of the alleged offenders, but in the circumstances it could not have been material to their apprehension. That is the way the charge was laid and particularised, and no amendment of the charge was sought or made in those terms.

47 In my view, the use by the legislature of the word “material” to qualify “assistance” is an emphasis on practical reality rather than on the hypothetical. This supports Mr Jones’ argument. Furthermore, the crown has argued on the costs application that the word “apprehension” should be given a wider meaning than mere physical capture, and that in that wider sense it can support the charge. I do not accept this. In section 316 “apprehension” and “prosecution” appear as separate terms. The essential meaning of “apprehension” in this context is indeed “physical capture or arrest”. As I have said earlier a similarly fatal and fundamental vice of the prosecution lies in the failure of the prosecution to prove that a murder or an assault occasioning grievous bodily harm had been committed. Even at the present time, as I understand it, no charges against anyone over the Bells Hotel incident have been determined. Proceedings may be ongoing and I will make no comment about any pending matter. However it is clear that over the period of the time frame of the charge, however calculated, nobody had been convicted of murder or assault occasioning grievous bodily harm arising out of the matter.

48 Of course for the purpose of an ancillary charge such as this, the fact of murder having been committed or the fact of an assault occasioning grievous bodily harm having been committed might have been proved by other evidence than the fact of a conviction. However no such evidence was presented before the learned Magistrate or me. It is difficult to resist the thought that the present prosecution may have been launched in part with the hope in mind that the applicant might, “spill the beans”, so to speak, on her husband and the other alleged offenders. Such a prosecutorial motivation would not in itself be improper. Where a crime apparently occurs and there are various people suspected, prosecuting authorities who charge a number of parties are legitimately entitled to hope that one or more of them will “crack”, reveal all and incriminate others. This is a standard practice where there are multiple offenders. It is often successful and, in the real world, clears up much criminality.

49 However, such an approach depends upon there being reasonable evidence to sustain a charge against the party or parties charged. One critical determinant of whether there is such reasonable evidence is the terms of the charge as pleaded. Prosecution for merely tactical reasons would not be proper, although I do not take the view that there was any such impropriety in this case. It was certainly legitimate for the crown perhaps to have a hope that the prosecution such as this might result in the revelation of material which would comprehensively clear up the matter. However, in the present case, correct legal analysis demonstrates that there was no reasonable basis for the charge as laid.

50 This is not a finding that the charge laid against Mrs Leota was malicious or improper. The language used in the tape recorded conversation excited suspicion. The prosecution of alleged offences such as that against Mrs Leota has historically been difficult. The ancient law of misprision of felony, which predates this statute, was doubtful and difficult to apply. It was these doubts and difficulties which lead to the enactment of a suite of “Offences Against Justice” in the part of the Crimes Act where section 316 appears; but this exercise in partial codification has not been wholly successful. The Court of Criminal Appeal has referred on several occasions to the complexities and difficulties of prosecutions of this kind.

51 However, whatever these complexities and difficulties may be, they do not justify the present prosecution of Mrs Leota where the prosecution was never going to be successful. The failed prosecution was based on legal misjudgement rather than on bad faith, but it was still not reasonable. The law of costs in criminal cases of this kind is not governed by the necessity to show prosecutorial bad faith. I have referred to section 70. Section 70(1B) distinguishes between proceedings initiated without reasonable cause or in bad faith. In this case there was no bad faith, but there was a failure of reasonableness in terms of the section.

52 I direct that the respondent pay costs in the sum of $18,766. The costs are to be paid to the Registrar or the Local Court at North Sydney within sixty days.

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27/08/2007 - typing & para number corrections - Paragraph(s) 32-52