R v Arnautovic

[2016] QDC 120

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Arnautovic [2016] QDC 120

PARTIES:

THE QUEEN

(Respondent)

v

SENAD ARNAUTOVIC

(Applicant)

FILE NO/S:

2034/15

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

26 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2016

JUDGE:

Chowdhury DCJ

ORDER:

The application for a permanent stay is rejected; and 1.   

2.   The application to exclude the evidence on the voice identification of Mr Waller is refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR OTHER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – GENERALLY – where it is alleged that the accused was one of two intruders into a dwelling – where both intruders had their faces covered – where the female occupant contacted the emergency number “000” – where the female occupant is now deceased – whether the female occupant’s death, as a material witness to the charged offence, deprives the accused of a reasonable prospect of acquittal

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – GENERALLY – where it is alleged that the accused was one of two intruders into a dwelling – where both intruders had their faces covered – where the female occupant contacted the emergency number “000” – where the female occupant is now deceased – where it is alleged that the accused was known to both occupants – where the occupants identified the accused by way of voice recognition

Justices Act 1886 (Qld), s110A

Evidence Act 1977 (Qld), s130.

R v Edwards (2009) 83 ALJR 717

R v Viet Dung Ong (2007) 176 A Crim R 366

COUNSEL:

C Cook for the Respondent

C O’Meara for the Applicant

SOLICITORS:

Office of the Director of Public Prosecutions for the Respondent

Hodgson Lawyers for the Applicant

1. The applicant has been charged on an indictment with three offences: burglary in the night while armed in company, attempted armed robbery in company and stealing.  By application filed on 3 May 2016, the applicant seeks the following orders:

1.          The proceedings against the accused be stayed permanently due to the death of a material witness.

2.          If a permanent stay is not granted, the following orders are sought:

(a)        The evidence of recorded interviews by the deceased witness, Deborah Louise Brookes, and Wayne Norman Waller on 25 February 2015 with Police Constable Shortis be excluded;

(b)        The first recorded conversation with the applicant at his home with Police on 25 February 2015 be edited, and the evidence of the second recorded conversation with Police be excluded;

(c)        That the last two phone calls made by Deborah Louise Brooks to the emergency number at 3:38:33am and 3:48:57am be excluded; and

(d)        The evidence from both Deborah Brooks and Wayne Waller of their recognition of the applicant’s voice be excluded.

1. In its outline the prosecution stated that it did not intend to lead the conversations with police mentioned in 2(b) of the application, nor did it intend to lead the two telephone calls to the emergency number referred to in 2(c).  In the course of argument at the hearing on 18 May 2016, the prosecution agreed to not lead the photoboard identifications of the witnesses Brookes and Waller, relieving the court from making a ruling on the application under 2(a). 

Application for permanent stay of the indictment

1. The facts relevant to the application can be shortly stated.  As at 25 February 2015 Deborah Brookes and Wayne Waller lived at 15 Cassia Street, Inala.  Ms Brookes was a long time heroin user, and had a number of health problems.  Mr Waller lived at the house as Ms Brookes’ carer; in evidence he said that there was no romantic relationship between them.

1. At approximately 1:25am on 25 February 2015 Ms Brooks and Mr Waller were asleep in the house.  Two intruders entered the house, by kicking the rear laundry door in.  Two men entered the house, both wearing scarves wrapped around their faces.  The intruders demanded drugs and money. 

1. A critical issue at any trial will be the identification of the applicant as one of the intruders. 

1. Very promptly Ms Brookes contacted the emergency number “000”, and a recording of that telephone call is to be led by the prosecution at the trial.  A transcript of that telephone call was attached to the prosecution’s outline.  Obviously police attended sometime later, and later again that same day, 25 February 2015, a three page signed statement was taken from Ms Brookes.  Importantly in para [10] of that statement she said that she recognised one of the men who entered the house as “Zed” wearing what she described as a “red hoody” as he had been at her house before.  She described “Zed” as not Australian, and having a really distinctive voice and look. 

1. Similarly Mr Waller gave a statement later on 25 February 2015, describing that he recognised the second of the intruders as “Zep”.  He gave a description of his clothing, and that he was wearing a “black and white patterned scarf over his entire face, held in place by a small hat”.  Mr Waller said that he knew it was “Zep”, because of his distinctive voice, and that the body and stature of the intruder match that of “Zep”.  Mr Waller was called to give evidence at the pre-trial hearing, and he clarified that he had known the applicant as “Zed” or “Zep”, that he had known him since 2011, and that he had met him 10-12 times.  Mr Waller said that the applicant had been at his house on a number of occasions, and on one occasion he had been at the applicant’s house, where he stayed for a couple of hours.  Later he said there were “countless times” when the applicant came to his house.  He described the applicant has having a “Russian/Bosnian” accent, and that he did not know anyone else in the Inala area with that accent. 

1. Also attached to the outline of the prosecution, as attachment “D”, was a statement of Constable Joel Cramp.  In brief, his statement reveals that he had had a number of dealings with the applicant while stationed at the Inala Police station, and that he knew the applicant as “Zed”.

1. On 17 December 2015 the witness Brookes died of heroin toxicity.  The death certificate was attached to the prosecution outline as Annexure “G”. 

1. The applicant submits that because of Ms Brookes’ death he has been deprived of a reasonable prospect of acquittal, thus warranting a permanent stay of the indictment.  The applicant in his outline states the following detriments to his ability to have a fair trial:

(a)        The initial call to “000” by Ms Brookes during which on at least two occasions said she could not identify the intruders.  She says she does not know who it is even when prompted by Mr Waller as to who it was;

(b)        Her description in her statement of the clothing of the second intruder (alleged to be the defendant) which is inconsistent with Mr Waller’s description. 

(c)        Her description of the second assailant as having a half a face mask, linked to a visual identification of acne around his eyes.[1]  This description is in contrast with the description of the full mask given by Mr Waller.

[1]At the hearing, it was accepted that in fact what Ms Brooks describes in her statement is “acne like scaring around his eyes”.

(d)        Ms Brookes description of one the assailants saying something like, “hand it all over I don’t want to hurt you” indicates that she was unable to particularise which of the assailants said this, raising the inference that she could not identify the voices being that of the defendant.

(e)        The unreliability of her account about $300 being taken. 

(f)         Ms Brookes used her house for dealing in drugs.

(g)        Her use of Heroin, which ultimately led to her death.

(h)        An inability to cross-examine Ms Brookes on what conversation, if any, she had with Mr Waller about her claimed subsequent visual recognition of the defendant following the initial emergency phone call.

(i)          The inability to cross-examine Ms Brookes about the extent of her contact with the applicant as a basis for voice recognition.

1. The prosecution have made an application for the statement of Ms Brookes to be admitted pursuant to s 110A (13) Justices Act 1886. It appears that the magistrate at the committal hearing failed to sign this statement, and the prosecution will seek to have that omission rectified. Subject to that, the preconditions for admissibility of the statement are satisfied. It is accepted that the court has a discretion to exclude such a statement in the exercise of the discretion to exclude evidence which is of little or no probative value, but of undue prejudicial effect. Alternatively, there is the discretion to exclude evidence under s 130 of the Evidence Act 1977.

1. It is undoubted that the applicant will be at a disadvantage by not being able to cross-examine Ms Brookes.  She was not called as a witness at the committal hearing.  Nonetheless, Ms Brooks promptly called the emergency phone number it seems while the incident was underway, and that is tape recorded.  What she said, and the way she said it, will easily be exposed to the jury because it is tape recorded.  Significantly, her statement was given to the Police very quickly, later that same morning.  Inconsistencies between what she said to the emergency phone operator, and what she said in her statement, can easily be highlighted to the jury.  Similarly, inconsistencies between her statement and the evidence of Mr Waller can also be highlighted. 

1. In all of the circumstances there is no justification to exclude the statement of Ms Brookes from the evidence.  Critically, Mr Waller is available to give evidence and available to be cross-examined.  The fact of Ms Brookes’ death, that it was by way of heroin toxicity, her long standing use of heroin, and other matters that may tend to detract from her credibility and reliability as a witness may all be placed before the jury.  In some respects the applicant may be in a better position by the death of Ms Brookes.

1. The principles relating to when a permanent stay of an indictment should be granted are well known.  It is an exceptional order, and should only be granted rarely.

1. In R v Edwards (2009) 83 ALJR 717, the court said this at para [31] on 722:

“Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed.  Witnesses may die.  The fact that the tribunal of factors called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.”

1. Later at para [33], the court observed that the circumstances in which proceedings may be found to be an abuse of process are not susceptible to precise definition.  It was not necessary for the court to consider whether there may be circumstances in which the loss of admissible evidence occasions an injustice of a character that would make the continuation of proceedings an abuse of process of the court. 

1. In all the circumstances there is insufficient basis to suggest that proceedings against the applicant are an abuse of process.  The application for a permanent stay is rejected.

Evidence of voice recognition

1. The principles relating to the admissibility of voice identification are largely the same as those relating to visual identification.  On the evidence, this is not a case of a witness attempting to identify the voice of an offender unknown to the witness, and in fleeting circumstances.  On the base of Mr Waller’s statement, there was a significant exchange of words between the applicant and him, particularly set out at para [16] – [25] of his statement.  In addition, as mentioned above Mr Waller in evidence at the pre-trial hearing told of his numerous dealings with the applicant before the 25^th of February 2015, and his opportunities to speak with him and to recognise his voice. 

1. In R v Viet Dung Ong (2007) 176 A Crim R 366, Buchanan JA at 370 observed that evidence identifying a voice is regarded as carrying a risk of mistake at least as great as evidence identifying a person, and that a Judge must warn the jury as to the dangers of convicting on such evidence. Importantly he said this:

“The reliability of evidence identifying a voice depends upon the familiarity of the witness with the voice, the length and volume of the speech said to be that of the person identified and the time that has elapsed between the occasion from which the witness heard the voice to be identified and the voice of the person said to be the speaker.”

1. This is undoubtedly a case where the trial judge will give careful directions to the jury about the potential for mistaken identification, and generally of the risks inherent in voice identification.  However this is a case of recognition, and no doubt the credibility as well as the reliability of Mr Waller’s identification will be contested at the trial.  This is eminently a matter for a jury.

1. For the reasons set out above, the application to exclude the evidence on the voice identification of Mr Waller is refused.