R v Bacash
[2001] VSCA 193
•30 October 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 353 of 2000
| THE QUEEN |
| v. |
| JOSEPH BACASH |
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JUDGES: | WINNEKE, P., ORMISTON and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 October 2001 | |
DATE OF JUDGMENT: | 30 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 193 | |
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Criminal law – Conviction – Instructions to the jury regarding the basis on which intercepted telephone conversations between the alleged co-offenders was ruled admissible – Use of the words “on the balance of probabilities” – Effect on the burden of proof and presumption of innocence – Failure to provide the jury with adequate instructions regarding their obligations in a joint trial – Attorney General of the Commonwealth v. Associated Northern Collieries (1911) 14 C.L.R. 387 - Ahern v. The Queen (1988) 165 C.L.R. 87 – The Queen v. Chai (1992) 27 N.S.W.L.R. 153
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pullen | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr O.P. Holdenson, Q.C. | Clarebrough Pica |
WINNEKE, P.:
I agree with Vincent, J.A., for the reasons given by his Honour, that this appeal should be allowed, the conviction quashed and a new trial be ordered.
ORMISTON, J.A.:
Having had the benefit of reading the judgment of Vincent, J.A. in draft form, I agree for the reasons he has stated that the application should be granted, the appeal allowed and that there should be a new trial.
VINCENT, J.A.:
The applicant was jointly presented before the County Court at Melbourne, on 2 October 2000, with an alleged co-offender named Lambros Karafilowski, on one count of trafficking in a drug of dependence namely methylamphetamine and an alternative count of possession of a quantity of that drug. At the completion of the trial, the jury returned verdicts of guilty against both accused on the principal count. No verdict was taken on the alternative count in the circumstances.
In due course, after hearing a plea in mitigation of penalty, the judge imposed upon the applicant a sentence of imprisonment of three years in respect of which a non-parole period of 20 months was fixed.[1]
[1]Karafilowski was sentenced to imprisonment for a period of two years, the service of 18 months of which was suspended for a period of three years.
The applicant now seeks leave to appeal against that conviction on a number of grounds, namely that:
“1.[As no argument was advanced on this ground, it need not be set out or otherwise addressed in this judgment.]
2.The learned trial judge erred in his directions to the jury in that he failed to direct the jury as to the consequences which flowed should the jury find that the evidence of the record of interview
conducted by the investigating police officers with the applicant was false.
PARTICULARS
(i)The learned trial judge failed to direct the jury that the jury must not reason that the applicant was guilty because he told lies in his record of interview.
(ii)The learned trial judge failed to direct the jury that there may be a number of reasons, each inconsistent with the guilt of the applicant, for his making false statements to the investigating police officers in his record of interview.
(iii)The learned trial judge failed to direct the jury that the jury must not follow a process of reasoning to the effect that just because the applicant was shown to have told a lie/lies about a number of matters to the investigating police officers in his record of interview, that is evidence of guilt.
3.The learned trial judge erred in failing to direct the jury that if the jury concluded that the applicant had lied (or “not told the truth”) to the investigating police officers who conducted the record of interview with the applicant, such neither constituted evidence of the applicant’s guilt nor was evidence of the applicant’s guilt.
4.The learned trial judge erred in failing to direct the jury that the evidence of the record of interview conducted by the investigating police officers with the applicant’s co-accused Lambros Karafilowski was not admissible in the trial of the applicant.
5.There has been a substantial miscarriage of justice by reason of the Crown prosecutor, in his final address to the jury, telling the jury of the decision of the learned trial judge to admit the evidence of ‘the other phone calls’ and the reasons for same, in circumstances where the jury was not directed by the learned trial judge to disregard same.
6.The learned trial judge erred in his directions to the jury by telling the jury why he had allowed into evidence ‘the phone calls which did not involve either of the accused’ and, as a consequence, there has been a substantial miscarriage of justice.
7.There has been a substantial miscarriage of justice by reason of the statement made by the Crown prosecutor in his final address and the directions given to the jury by the learned trial judge in respect of the admission into evidence of evidence of a number of phone calls which did not involve either of the accused persons.”
There is little need, in the circumstances of the present matter, to set out in detail the evidence adduced by the prosecution. It is, I consider, sufficient to state that –
At 3.49 p.m. on Wednesday 21 October 1998, a man named Fouad Lababidi contacted an informer and indicated that he had 12 “cabbages” for him. There was evidence in the trial that “cabbages” was a code word and referred to ounces of methylamphetamine. The informer told Lababidi that he would in turn contact “Tony” and call back. “Tony” was a senior constable of police on secondment to the Covert Investigations Unit.
At 4.29 p.m. on the same day, the informant contacted Mr Lababidi by telephone and informed him that he had been in touch with “Tony” and that Friday 23 October was a suitable date.
At 8.16 p.m. Lababidi then called the applicant who he instructed not to purchase anything until he had ensured that it was of adequate strength. The applicant responded to the effect that he understood the need to do so. He told Lababidi that he was waiting for a man named Peter to arrive.
There was further a telephone conversation at 10.02 p.m. between Lababidi and the applicant, and another at 10.05 p.m. between a person named Peter Birch and Lababidi. In the latter call, Birch told Lababidi he would provide him with a sample that had only been cut a couple of times. He said that the material could be further cut in the proportion of five of sugar to one of product. The material was referred to as “cabbage”. An arrangement was made for the men to meet in Lygon Street, Carlton on the following Friday.
A few minutes later, at 10.09 p.m. on 21 October, Lababidi rang the informer and organized to meet him on the following day in order to give him a sample of the available material.
At 3.37 p.m., on Thursday 22 October, Lababidi rang the applicant and informed him that everything was okay and that “We gave them to him and he liked them.” The two men arranged to meet at 2 p.m. on the following day at the Tabaret. Lababidi emphasized the need to make sure that he secured the “vegetables” that night. He rang again, at about 3.40 p.m., and repeated his instruction to the applicant that he should “get them tonight” so that there would be no be difficulty on the following day. Lababidi told him that everything was otherwise in readiness. Lababidi asked the applicant whether he would be coming with another person. The applicant said that as soon as they, presumably referring to Peter Birch, had effected agreement, he would give “them” to him and he (the applicant) would get the money. Lababidi told the applicant that the man liked the price that had been quoted.
On the morning of 23 October, Lababidi again contacted the applicant by telephone and arranged to meet him in Carlton at 11.00 a.m. instead of 2 p.m.
At 9.47 a.m. Lababidi contacted the informer and told him that everything was all right and that they would meet at 3 p.m.
At 10.50 a.m. Lababidi was observed meeting the applicant in Farraday Lane, Carlton.
At 10.56 a.m. the man Birch was observed standing on the corner of Dorich Street and Farraday Lane.
At 10.58 a.m. Lababidi, the applicant and Birch were observed entering a nearby café where they remained for three-quarters of an hour before they went to a further café where they stayed until 12.45 p.m.
At 12.47 p.m. Lababidi left by motor car. The applicant and Birch left together in another vehicle.
At 1.08 p.m. the informer rang Lababidi and was told that everything was okay.
Between 1.35 p.m. and 3.07 p.m. Lababidi called the applicant on eight occasions inquiring about his location.
At 3.01 p.m. Lababidi met with the applicant and Karafilowski in Brunswick. The three men then went to the area of the Optus Oval in Carlton. The applicant and Karafilowski travelled together in the same vehicle.
At 3.07 p.m. Lababidi met with “Tony”, the undercover police operative. They conversed in “Tony’s” car about the purchase of ecstasy and amphetamine. Lababidi then left “Tony” saying that he was going to a vehicle to speak with some gentlemen who had come with him and had 10 ounces of amphetamine in order to conduct their transaction. By this time, the car containing the applicant and Karafilowski was parked in a service lane of Royal Parade. He walked to the car containing the applicant and Karafilowski. He remained there for approximately one minute and spoke with the occupants. He then returned to “Tony” carrying a plastic bag containing 12 ounces of amphetamine. There was no direct surveillance evidence showing who handed over the package to Lababidi and the undercover police member was not able to observe, from his position, the movements of Lababidi as he walked behind a toilet block between the car park in which “Tony’s” car was located and Royal Parade. When Lababidi returned, a female covert operative who had been positioned nearby, came to the vehicle and handed Lababidi the purchase money. At that stage, the various participants were arrested.
The material seized was analyzed by the Victorian Forensic Science Centre. In total quantity, it contained 334 grams of methylamphetamine with a purity of 15%. The value of the material seized was assessed at approximately $66,000.
As can be observed, the prosecution case was based upon a combination of different types of evidence. It consisted of recordings of intercepted conversations, evidence of physical surveillance, and the evidence provided by the undercover operatives. As I consider the above summary demonstrates, the evidence of the fact and contents of the various telephone conversations, some of which were conducted in Arabic, assumed considerable significance in the trial.
An application was made by the applicant’s counsel to exclude evidence of certain conversations between Lababidi and the informer and between Lababidi and Birch, on the basis that in each case they were hearsay and inadmissible. This application was made prior to the empanelment of the jury and was properly rejected in the circumstances by the trial judge. No complaint has been advanced before us concerning this ruling.
As I have indicated, recordings of the relevant telephone conversations were played to the jury, and were translated when required. Both the recordings and translations were tendered. Neither of the accused gave evidence and what could be described as an optimistic submission that there was no case to answer was made on behalf of each accused before the Court. These applications were also rejected.
Grounds 5, 6 and 7
Shortly prior to the presentation of final addresses, counsel, who appeared on behalf of the applicant, sought clarification as to whether the prosecutor contended that the telephone conversations or some of them were admissible against the co-accused, Karafilowski. The prosecutor responded they could not be properly so used and that he proposed to make that clear to the jury. The judge indicated that he would provide instruction on that aspect and then stated:
“They will also be told that the other conversations were allowed in by me on the basis that I made a decision on the balance of probabilities that that evidence was evidence of furtherance of a common purpose or concert.”
Neither counsel responded to that statement. It appears likely, in view of his later exception to the judge’s charge, that counsel for the applicant either missed or misunderstood his Honour’s remarks. The matter was not further addressed until the prosecutor stated in his address to the jury that:
“His Honour will tell you again as a matter of law that before the start of this case his Honour had to consider a preliminary point, because ordinarily what other people say out of court falls into what is known as hearsay to lawyers is not admissible in evidence. If Mr Engel was to come here and say to you, ‘Well, I stood on the street corner and 50 people told me that Mr X was a drug dealer’, and the Crown closed its case, you might sit there and think to yourself, ‘Well, that’s pretty worthless, we don’t know who these people are, we don’t know how reliable they are, we haven’t any way of knowing anything about what Mr Engel has been told, it’s not in the evidence’. That is what hearsay is about, something you have been told yourself, you don’t know the reliability of it, the accuracy of it, you didn’t witness it, there’s no way of testing whether it’s true or not true, it’s something you have been told by someone else.
The phone calls in this case between Mr Lababidi and the informer, et cetera, fall into a different category. The phone calls [to] Bacash are admissible evidence to them[2] because he’s a party to them, he is in the phone call, but the other phone calls are admitted because his Honour decided, on the balance of probabilities, that is a lower standard of proof known to the civil law, that there was reasonable evidence of Mr Bacash being involved in the crime and therefore the acts and declarations of the people who were also involved, that’s Lababidi, in the course of or in furtherance of it are admissible in evidence. It’s one of the exceptions to the hearsay rule. You people, however, have to be satisfied of his guilt beyond reasonable doubt, that’s beyond reasonable doubt. That is a different standard but that is a matter his Honour will explain to you in more detail and I don’t want to trespass on to his Honour’s area, but the Crown says it’s admissible in evidence and you can use it in that way and in a moment I am going to go through all those calls and point out to you or make comments about the way the Crown says this case fits together.”[3]
The judge endorsed these remarks in his charge when he stated:
“Before the trial I made a ruling regarding some phone calls. These were phone calls which did not involve with of (sic) the accused, namely Lababidi and Tony, Lababidi and Birch and Lababidi and the informer. I allowed those calls into evidence, according to a legal principle, even though normally they would be regarded as hearsay. I made that decision on the balance of probabilities and that is what I am required to do.”[4]
[2]“To them” where first appearing is almost certainly a typographical error and should read “against him”.
[3]My emphasis.
[4]My emphasis.
It is not necessary for present purposes to address the judge’s description of this evidence as hearsay, save to state that some, at least, of it could not properly be so categorized and was admissible in accordance with the principle stated long ago by Isaacs, J.:
“Community of purpose may be proved by independent facts, but it need not be. If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of preconcert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.”[5]
[5]Attorney-General of the Commonwalth v. Associated Northern Collieries (1911) 14 C.L.R. 387, at 400.
In Ahern v. The Queen it was pointed out that evidence:
“...may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.”[6]
Be that as it may, counsel for the applicant complained about this instruction on a more fundamental basis:
“COUNSEL:[I]n my submission your direction to the jury that there was [a] ruling by you on the balance of probabilities that led to certain evidence being accepted into evidence, was unnecessary and was prejudicial - - -
HIS HONOUR: It was required by Chia’s case.
COUNSEL:And was prejudicial, Your Honour and that it was best left, in my submission, in this case, unsaid.
HIS HONOUR: But I am required to do it by Chia’s case.”
[6](1988) 165 C.L.R. 87 at 93.
Although the position is unclear, as his Honour did not provide a citation for the case to which he was referring, there seems to be no doubt that he regarded himself as bound by some authority to provide such an instruction to the jury. In this context, I observe that in two earlier trials involving different accused, to which our attention has been directed, a similar form of instruction was given by him. The transcript of one of them[7] records that his Honour referred in the course of discussion to “the case of Chie (indistinct)” and that he took the instruction “straight from a charge in a Court of Appeal case”. I suspect that his Honour may have been adverting to the decision of the Court of Appeal of New South Wales in The Queen v. Chai[8]. In that matter, addressing the task assigned to a trial judge in a conspiracy trial by the High Court in Ahern v. The Queen[9], Badgery-Parker, J. said:
“It appears to me that the portion of the High Court judgment from the foot of p 103 to the middle of p 105 makes it very clear that it was for the judge and only for the judge to determine the sufficiency of the independent evidence and, he having done so, it was not appropriate for him to leave any such question to the jury as was left under the previous practice. It seems to me with respect that this is to commit to the judge a decision of law such as is traditionally and properly reserved to the judge and to commit to the jury only a question of fact such as is properly and traditionally left to the jury. Judges ordinarily are called upon to determine questions as to the sufficiency of evidence — the test may be different according to the stage of the trial at which the question arises and according to the nature of the issue under consideration — nevertheless, this is an ordinary part of the function of the trial judge: ...
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The judge does not make a finding as to the sufficiency of the ‘reasonable independent evidence’ which in any way binds the jury. Indeed, as it seems to me, he would not in a properly framed summing up make any reference at all to the issue that he has had to decide and to the manner in which he has decided it.”[10]
[7]R. v. Charbel Atallah . This instruction was the subject of an application for leave to appeal in [2001] VSCA 194.
[8](1992) 27 N.S.W.L.R. 153.
[9]Supra.
[10]Chai at 186-187. The other two members of the Court, Hunt, C.J. at C.L. and Allen, J. expressed concurrence with this view. See also R. v. Pektas [1989] V.R. 239 at 244-5 per Murphy, J.
On the assumption that the judge had this decision in mind, it appears that either his recollection was faulty or he had misunderstood its effect. Whilst not totally excluding the possibility, there would seldom be any need or justification for a trial judge to inform a jury of the factors or reasoning processes which led to the making of a ruling that some particular piece of evidence was admissible. It may well be incumbent upon the judge to instruct them in relation to a number of the same matters as they could impact upon the jury’s assessment of the reliability of the evidence concerned, but that, of course, is a very different matter. An instruction of the kind provided by the judge in the present case could in no way assist the jury in the proper performance of their task.
As Badgery-Parker, J. observed in Chai, the High Court in Ahern was mindful of a potential danger arising from the determination by the trial judge of the question of the admissibility of the evidence of the acts and declarations of alleged co-conspirators in the trial of an accused.
“It may be argued that there is a danger in not leaving the question of admissibility to the jury in that the jury may see the independent evidence of participation as unconvincing and yet act upon the acts and declarations of others outside the presence of the accused. Any such danger may, however, be avoided by an appropriate direction from the trial judge. It will be proper for him to tell the jury of any shortcomings in the evidence of the acts and declarations of the others including, if it is the fact, the absence of any opportunity to cross-examine the actor or maker of the statement in question and the absence of corroborative evidence. Where it is appropriate, it will not be difficult to instruct a jury that they should not conclude that an accused is guilty merely upon the say so of another nor will that be an instruction which it is difficult to follow. A direction of that kind is likely to be far more effective in safeguarding the position of an individual accused than a direction, the evidence having been let in, which a jury could not reasonably be expected to understand and apply. Moreover, any danger of the kind suggested would, in our view, be outweighed by the risk of diverting the jury’s attention from the criminal standard of proof in requiring them to apply some lesser standard to determine a preliminary question.”[11]
It would be quite inconsistent with this approach for the judge to instruct the jury that he had already determined that the lesser standard had been satisfied. I should also point out that his Honour provided almost no instruction to the jury as to how the evidence could be properly used.
[11]Ahern at 104-5.
The practical consequence of his Honour’s remarks in the present case was a serious reduction of the burden of proof in the trial. They were told that the judge had decided on the balance of probabilities that there was reasonable evidence of the applicant being involved in the crime. This could very easily have been regarded by them as a statement that the judge had decided that the accused was probably guilty and that their task was to determine whether the prosecution had established guilt at the higher standard of proof beyond reasonable doubt. The presumption of innocence in that situation may have been effectively negated and the jury may have commenced their consideration of the evidence on the foundation of the accused’s guilt. Such an approach would involve a fundamental departure from their proper role and the principles upon which a criminal trial is conducted under our system.
In my opinion, grounds 5, 6 and 7 have been sustained.
Grounds 2 and 3
These grounds are based upon the following passage in the address of the prosecutor.
“Mr Bacash does not tell the truth to the police when he is interviewed because the surveillance proves that. It is the same afternoon that he his interviewed, so he doesn’t remember what he was doing six months ago, two years ago, it was what he was doing earlier that day. The surveillance proves he is not telling the truth to the police. He meets with Lababidi at 3.01 p.m. Now, the records of interview, I suggest to you, ladies and gentlemen, you just put them aside. You just reject what is in them and forget about them.”
As the trial judge gave no directions whatever with respect to that interview, it was argued on behalf of the applicant that the jury may have impermissibly reasoned that any such lies of themselves constituted evidence of his guilt. No exception was taken to the charge on this basis. As counsel who appeared for the respondent before us submitted, it may well have been the view of the applicant’s counsel that the less that was said about the demonstrable lies in the interview, the better it would be for his client. Although the applicant submitted to us that an instruction in accordance with Edwards v. The Queen[12] should have been given, I am not persuaded that it was necessary to do so in the particular circumstances of the present case. In any event, it is unnecessary, in my opinion, to make any final determination about the matter. Whether or not any such direction may be required in the re-trial, which I regard as necessary in the circumstances, will no doubt have to be considered by the trial judge on the basis of the evidence adduced at that trial.
Ground 4
[12](1993) 178 C.L.R. 193.
As earlier mentioned, the applicant was jointly presented with Karafilowski who had also been interviewed by the police. The prosecutor in his address submitted that:
“Mr Karafilowski in his record of interview is going for a drive. Where is he going? Now, he doesn’t have to prove anything, I am not suggesting he does by doing that. But what does he say to the police and how does it fit with the proven facts? Question 149, I know you don’t have the questions, you have a tape, but this is so my learned friends can follow this. They are going to put the allegations to him, ‘Lababidi has left him in the carpark ... (reads) ... I’ve got no idea, to tell you the truth’. What a load of rubbish. He must have an idea. He stops in Sydney Road. A guy gets out of the car, walks across the road, sticks his head in the driver’s window, appears to have a conversation for a minute, they then drive off in convoy together. They park. Lababidi comes up and approaches the car again on his side, the passenger side of the vehicle, he doesn’t know who he is, he doesn’t know it is the same man. He is not telling the police the truth. You would have to know it is the same man. It is between 3.01 and 3.10. What’s it all about? What’s going on? Why are they stopping at 3.10, what are they dong? He doesn’t have to explain anything, I suggest to you, you can use your common sense to draw the conclusion that he knows what’s going on, that he is not telling the truth to the police when they asked him. You can reject what he has come up with, some innocent answers to the police.”
This interview was not admissible in the trial of the applicant. However, the judge gave no instruction to this effect to the jury which may well have misunderstood the situation. Indeed, he made no clear reference in his charge to the necessity for the separate consideration of the cases of the accused before them. These were also serious defects in a joint trial.
Conclusion
Irrespective of the strength or otherwise of the prosecution case against the applicant, I do not consider, in view of the fundamental nature and aggregation of defects in this trial, that the possible application of the proviso need be addressed.
I propose that the conviction of the applicant be set aside and a re-trial be ordered.
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