R v Bascombe and Spilios
[2015] SASC 129
•25 August 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v BASCOMBE AND SPILIOS
[2015] SASC 129
Reasons for Ruling of The Honourable Justice Peek
25 August 2015
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - CROSS-EXAMINATION AND INVITATIONS TO COMMENT ON OTHER STATEMENTS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - PARTICULAR CASES - EVIDENCE DERIVING FROM ACCOMPLICE OR CO-ACCUSED
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
Accused jointly charged with murder – application to exclude record of interview or parts thereof – whether failure to comply with s 79A Summary Offences Act 1953 – whether police adequately facilitated accused’s request to communicate with a lawyer – fairness discretion – public policy discretion – whether hearsay statements as part of police interrogation admissible – application to exclude parts of a covertly recorded conversation – exclusionary discretions – exclusion pursuant to s 34P Evidence Act 1929 – application for a separate trial – severance pursuant to s 34T Evidence Act 1929 – whether evidence against co-accused inadmissible against accused and unfairly prejudicial.
Held:
1. Exercise of the fairness and the public policy discretions to exclude the entire interview declined. (at [18]-[19])
2. Both the fairness discretion and the public policy discretion exercised to exclude the whole of the record of interview after page 17 line 546 and certain passages prior to page 17. (at [41])
3. Discretion exercised to exclude certain passages in the covertly recorded conversation. (at [44]-[47])
4. There is no real risk that the accused will be unfairly prejudiced by a joint trial if appropriate directions are given to the jury. Application for separate trials dismissed. (at [48]-[52])
Summary Offences Act 1953 s 79A; Evidence Act 1929 ss 34P, 34T, referred to.
R v Ireland (1970) 126 CLR 321; Barca v The Queen (1975) 133 CLR 82; R v Andrews & Ors [2005] SASC 15, applied.
R v Grondkowski [1946] 1 KB 369; McDermott v The Queen (1948) 76 CLR 501; R v Lee (1950) 82 CLR 133; R v Ireland (1970) 126 CLR 321; R v Harbach (1973) 6 SASR 427; R v Congressi (1974) 9 SASR 257; R v Demirok [1976] VR 244; Bunning v Cross (1978) 141 CLR 54; Collins v The Queen (1980) 31 ALR 257; Cleland v The Queen (1982) 151 CLR 1; R v Glover (1987) 46 SASR 310; Van der Meer v The Queen (1988) 62 ALJR 656; R v Domican and Thurgar (1989) 43 A Crim R 24; R v Farrell and Cotton (1990) 48 A Crim R 311; R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; R v Webb and Hay (1992) 59 SASR 563; Pollard v The Queen (1992) 176 CLR 177; Foster v The Queen (1993) 67 ALJR 550; Webb v The Queen (1994) 181 CLR 41; R v Piller & Ors (1995) 86 A Crim R 249; McAuliffe v The Queen (1995) 183 CLR 108; R v Swaffield (1998) 192 CLR 159; R v Zappia & Kamleh [2002] SASC 133 (Besanko J); R v Tran and To (2006) 96 SASR 8, considered.
R v BASCOMBE AND SPILIOS
[2015] SASC 129
PEEK J Rulings on the voir dire prior to a criminal trial.
The two accused Bascombe and Spilios[1] have each pleaded not guilty to one count on a joint Information that they each did murder the deceased, Luciano Caruso on 22 November 2013.
[1] Spilios entered his plea without prejudice to his application for a separate trial.
Counsel for Bascombe filed a Rule 49(1) Notice as to certain evidentiary matters and later indicated in writing some further objections. In due course, I was informed by counsel for Bascombe and for the prosecution that all such objections had been resolved and no ruling in relation to Bascombe was required from me.
Counsel for Spilios filed a Rule 49(1) Notice which essentially made the following applications:
A. That Spilios be tried separately to Bascombe [application paragraph 1; grounds at paragraphs 17-26].
B. That the record of interview with Spilios on 7 May 2014 be wholly excluded [application paragraph 2; grounds at paragraphs 27-33].
C. That, in the alternative to B, certain particularised portions of the record of interview with Spilios on 7 May 2014 be excluded [application paragraph 3; grounds at paragraphs 28-34].
D. That certain particularised items of evidence and portions of the statements of certain proposed witnesses be excluded [application paragraphs 4-15; grounds 4-15 (at paragraphs 35-46)].
E. That certain particularised portions of the recording of certain conversations between Spilios and Ms Chambers witnesses be excluded [application paragraph 16, grounds at paragraphs 47(a)-(r)].
During the course of a voir dire hearing from Tuesday 7 April to Thursday 9 April 2015, I heard a “mini opening” of the prosecution case against both accused; oral evidence from Major Crime Detectives, Sheridan and Swan;[2] and detailed and helpful submissions from both prosecution and defence counsel as to the various applications. I also had the advantage of having previously received from counsel their detailed outlines of argument and lists of authorities.
[2] I also heard some evidence from Detective Bengel which did not relate to the interview of Spilios. As events transpired, it is not necessary to consider this evidence further.
On Thursday 9 April 2015 I reserved judgment on all of the applications. I now provide my rulings and orders, together with short reasons. Since consideration of the separate trial application by Spilios depended in part on the proposed evidentiary matrix (as to which there were various objections), it is convenient to consider that application last in order.
In considering the applications B to E inclusive, I have regard to the relevant authorities including the decisions of the High Court in: McDermott v The Queen,[3] R v Lee,[4] R v Ireland,[5] Bunning v Cross,[6] Collins v The Queen,[7] Cleland v The Queen,[8] Van der Meer v The Queen,[9] Pollard v The Queen,[10] Foster v The Queen[11] and R v Swaffield.[12]
[3] (1948) 76 CLR 501.
[4] (1950) 82 CLR 133.
[5] (1970) 126 CLR 321.
[6] (1978) 141 CLR 54.
[7] (1980) 31 ALR 257.
[8] (1982) 151 CLR 1.
[9] (1988) 62 ALJR 656.
[10] (1992) 176 CLR 177.
[11] (1993) 67 ALJR 550.
[12] (1998) 192 CLR 159.
Application B: The application to exclude the record of the interview with Spilios on 7 May 2014
The record of the interview with Spilios consisted of two computer discs received as VDP2 and VDP3, which recorded the interview visually and aurally, together with a transcription of that interview in the form of an aide memoire which was received as VDP1 and consisted of some 66 typed pages.
The facts surrounding the interview may be shortly stated. At about 9:24am on Wednesday, 7 May 2014 a contingent of about seven police officers attended at a house at Berri where Spilios was residing. The visual/audio recorder was on and working at all times.
The police knocked, asserted loudly that they had a warrant to enter the premises and demanded entry forthwith. Spilios came to the door and let them in. The police entered the house and found him to be there alone. He had still been in bed when the police arrived and was in the process of getting dressed when he let the police in. After some short preliminaries and introductions, Sheridan gave Spilios a correct formal caution (page 3, line 94) and then stated “I’m investigating the murder of Luciano Caruso” (page 3, line 98). Shortly after that, Sheridan said “John I’m now placing you under arrest … for the murder of Luciano Caruso”. (page 4, lines 119-121)
The following passage of conversation then occurred at page 4 and constitutes the first mention by Spilios of a lawyer:
129 Q I’m arresting you for his murder, do you understand that?
130 A I’m not, I haven’t, no what for, haven’t murdered him. What are you talkin 131 about, I gonna ring the lawyer what.
132 Q All right.
133 A What the hell is goin on?
134 Q Okay, I’m just gonna give you some rights, now you’re an arrested person 135 you have some rights.
136 A Ah you’re kidding me.
137 Q You have the right to make a phone call to advise a friend or relative of your 138 whereabouts. Do you understand that?
139 A This is ridiculous.
140 Q Okay do you understand that right, that you’ve got the right to make a phone 141 call?
142 A No I don’t even understand what’s going on here just sit down please.
143 Q Okay.
144 A What the fuck what, what?
145 Q Let me go through your rights here.
146 A Yeah you go no, no I want to know what’s going on. (Emphasis added)
The primary submission for Spilios: the interview should be excluded from the first mention of a lawyer at page 4 line 131 of the transcript
Counsel for Spilios submits that the interview should be excluded from the first mention of a lawyer at page 4 line 131 of the interview (reproduced above) as a matter of discretion on the basis that there has been a serious infringement of s 79A Summary Offences Act 1953. This section relevantly provides as follows:
79A—Rights upon arrest
(1) Subject to this section, where a person is apprehended by a police officer (whether with or without a warrant)—
(a)the person is entitled to make, in the presence of a police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts; and
(b)where the person is apprehended on suspicion of having committed an offence—
(i)the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subjected while in custody; and
…
(3) A police officer must, as soon as is reasonably practicable after the apprehension of a person—
(a) inform that person of his or her rights under subsection (1); and
(b)warn the person that anything that he or she may say may be taken down and used in evidence. [Emphasis added]
The principles concerning the application of s 79A Summary Offences Act 1953 to cases of the present kind are helpfully set out in the ruling of Debelle J concerning the accused Fuller in R v Andrews & Ors. His Honour stated:[13]
[13] [2005] SASC 15.
[58]It is implicit in s 79A that a reasonable opportunity must be afforded to an arrested person to exercise the rights being recited to him. If that were not so, the rights provided by s 79A would be rendered nugatory. When an arrested person expresses a wish to have a solicitor, relative or friend present while being questioned by police officers, the interviewing officer should take reasonable steps to enable the arrested person to exercise that right. That obligation is the greater if the arrested person has on a former occasion and in relation to the same matter expressed a desire to have a solicitor present and has acted on advice given by that solicitor. The officer is not discharged from that obligation by the arrested person not promptly identifying who that person should be.
[59]That conclusion is, I think, reinforced by the principle that police should desist from questioning an arrested person who wishes only to speak in the presence of a solicitor or who asks to see a solicitor before answering. Before the enactment of s 79A, the common law rules relating to the interrogation of persons in custody had been reaffirmed in R v Evans [1962] SASR 303 at 306 - 307 in these terms:
…it is apparent that there are police officers who are under some misapprehension as to their duty, and we think that the time has come for this Court to say, quite bluntly, that it is not permissible for a police officer to persist in interrogating persons in custody beyond the point at which they intimate the desire to say nothing more. It is, we think, a fortiori, that the questioning ought to stop when the suspect declines to speak save in the presence of his solicitor.
The rule of practice was affirmed by the High Court in R v Ireland (1970) 126 CLR 321 at 333 where Barwick CJ said:
In Reg v Evans…the Supreme Court of South Australia in conformity with its earlier decisions in Lenthall v Curran and Bailey v The Queen decided that it was improper for police investigating the commission of a crime to persist in questioning a suspect after an indication that he did not wish to answer any more questions. [Citations omitted]
All other members of the Court agreed. In later decisions of the Full Court of this Court, it was clearly and repeatedly stated that there was all the more reason for the police to desist from questioning an arrested person when that person has asked to see a solicitor before answering questions. So in R v Stafford (1976) 13 SASR 392 at 398 Bray CJ said:
As I said in Collins’ case, it is now clear from Reg v Evans, Reg v Ireland (No 1), and in the High Court, and Harris v Samuels that the police should not persist in questioning a man who has signified his unwillingness to answer them and a fortiori when he has asked to see a solicitor before answering. [Citations omitted]
See also Harris v Samuels (1973) 5 SASR 439 at 452; R v Collins (1976) 12 SASR 501; R v Killick (1979) 21 SASR 321 at 328 - 329. These principles apply with equal force in respect of rights provided by s 79A: see, for example, R v Harris (1995) 64 SASR 85; R v Williamson (No. 2) (1997) 69 SASR 486; R v Bondareff (1999) 74 SASR 353.
[60]The rationale for the principle stated in those cases is that, once an arrested person expresses a desire to obtain legal advice before answering questions, the police should desist from questioning and the accused should be given a proper opportunity to obtain that advice. …
[61]What steps must be taken by a police officer interviewing an arrested person to assist that person to decide whether a person should be present during an interview will plainly depend upon the circumstances of each case.
Counsel for Spilios submits that there is a clear requirement that police facilitate an expressed wish of a person who has been arrested to see a lawyer, or to have one present during questioning. He complains that, in the face of the expressed wish “I gonna ring the lawyer”, all the police did was to continue to read out the accused’s rights and to then immediately proceed to put questions and allegations to the accused, without in any way addressing his indication that he wanted to ring the lawyer and without making any attempt to facilitate that wish.
In exercising my discretion, I am to take into account all relevant circumstances in this particular case and not merely the short form of words that appear at page 4 of the written transcript of the interview.
I note from the evidence before me that the accused is a rather boisterous individual who admits to having been a drug dealer and having had various prior dealings with police. I find that he well knew of his right to contact a lawyer before the police ever referred him to that right and that he was also well aware of his right not to answer police questions. Further, various passages between pages 4 and 17 of the transcript confirm that Spilios was interested in finding out what evidence the police had against him and that he wished to talk about that while he was considering whether, and when, he would exercise his right to speak to a lawyer.
After the statement “I gonna ring the lawyer”, there followed a passage of conversation during which Sheridan was attempting to read Spilios his arrest rights and Spilios was both protesting his innocence and demanding to know on what evidence the police purported to arrest him. Thus at page 6 line 172 appears the passage:
172 A But I haven’t murdered Luche CARUSO, what you just come here and you 173 can just say, I’ve murdered Luche CARUSO?
174 Q We’ll go back to Police Station where we can discuss the matter, but at the 175 moment I’m arresting you for it and I’m taking you back the Police Station.
176 A But you, you can’t, what how?
177 Q I can and I am.
178 A How where is the evidence that I murdered Luche?
179 Q We’ll talk about that back.
180 A No talk about it now I’m not coming to the Police Station mate.
(Emphasis added)
Having regard to the portions of the visual and audio recording that correspond to the “I gonna ring the lawyer” passage at page 4, and to various passages of the transcript between pages 4 and 16 respectively, I find that Spilios’s above statement at page 4 was not in the nature of communicating a specific wish to the police but rather an indication by Spilios that he well knew of his right to have a lawyer present, and that he was considering whether he would exercise it, but that he had not yet determined that he would do so.
I therefore decline to exercise the fairness or the public policy discretion to exclude the whole of the interview from page 4 onward.
The alternative submission for Spilios: the interview should be excluded from the second mention of a lawyer at page 17 line 544 of the transcript
Following the passages referred to above, Sheridan commenced a lengthy passage of questioning occupying some ten pages of transcript (from page 7 line 205 to page 17 line 544) in which he asked Spilios relevant questions and put to him relevant allegations. In response, Spilios made a number of denials and gave a number of explanations.
By the bottom of page 16 of the transcript, Spilios is being closely questioned as to whether he was at the house where the deceased was killed on the day of the death of the deceased. In the following passage of conversation (from page 16 line 539 to page 17 line 549) the accused becomes agitated and then refers to ringing a lawyer for a second time.
539 Q But you’re at the house with him?
540 A Look I rang.
541 Q Is that correct?
542 ANo.
543QYou’re definitely not at the house?
544 A Mate a hundred and fifty percent (150%), I’ll ring Harry PATSOURIS
545 now my lawyer all right, a hundred and fifty percent (150%) I, ah, I have 546 not done anything to that he has said, okay.
547 Q Just say it you talk.
548 A Yeah just tell me.
549 Q Go.
550 Detective Sergeant Brian SWAN speaking
551 Q You say that it’s on the morning of the twenty second (22nd), Detective
552 Sergeant SWAN speaking. You say on the morning of the twenty second 553 (22nd) of November?
554 A Yep
555 Q You drove to MILDURA in the green Mercedes? (Emphasis added)
[Questioning continues]
There are at least three important aspects of this passage from lines 544 to 549.
“I’ll ring Harry Patsouris now”
The first important aspect is that the statement “I’ll ring Harry Patsouris now” is much more clear and specific in tone and content than the previous statement “gonna ring the lawyer”. As explained below, the police reaction to this statement was simply to ignore it and to engage the accused’s attention elsewhere; however, the accused very soon after confirmed his wish to speak to Patsouris and actively attempted to do so.
The meaning of lines 547 to 549 of the transcript
The second aspect is that the meaning of lines 547 to 549 of the transcript, and the relationship of those lines to the accused’s preceding comments at lines 544 to 546, is not immediately clear on the face of the transcript alone but is in fact of high importance.
I find that there is a distinct pause between the end of the accused’s words “… has said, okay” on page 17, line 546 and the beginning of the words “Q. Just say it you talk” on page 17, line 547. On a careful listening to the disc, exhibit VDP2, it becomes evident that during this pause whispering between Sheridan and Swan occurs, although it is not possible to say what is actually whispered.
I find that the content of the whispering, obviously designed to be inaudible to Spilios, was what led Sheridan to say to Swan “Q. Just say it you talk”, meaning “take over the questioning”. Equally, it prompted the accused to then chime in and say “Yeah just tell me”, meaning “tell me what you are whispering about”.
Given that the accused had just made a firm statement that “I’ll ring Harry Patsouris now”, I find it to be more probable than not that the significance of that statement about ringing a lawyer would have been most obvious to these two experienced detectives and was being considered by them during their whispered conversation.
A disregard for the accused’s expressed wish to telephone a lawyer
The third important aspect is that from page 17, line 550 of the transcript there is a complete disregard by Sheridan and Swan for the accused’s clearly expressed wish to speak to his lawyer, Patsouris. It is remarkable to note that they make no response at all to the accused’s statement “I’ll ring Harry Patsouris now”. Instead, at line 544 Swan, in response to Sheridan’s words “Just say it you talk”, simply took over the questioning and launched into a number of new topics which he and Sheridan wished to pursue. He continued questioning Spilios as to his movements on 22 November 2013 (from page 17 line 551 to page 18 line 599) after which Sheridan again took over the questioning of Spilios as to his movements on 22 November 2013 (from page 18 line 600 to page 20 line 674) until the following passage of conversation occurred which constitutes the third mention of a lawyer (at page 20 line 664):
664 A Yeah but that doesn’t mean I’ve fuckin killed Luche, for God’s sake sir. Are 665 you gonna believe this fuck, this guy injects mate, injects fuckin
666 amphetamines. Do you understand what I’m saying here?
667 Q I understand what you’re saying.
668 A Right so, how, how, how the fuck, how the fuck, a, a, please give us a break.
669 Q Can you just wait for two (2) secs I’ll come back to you.
670 A I certainly can, can I ring my lawyer?
671 Q Yes you can.
672 A Do I need one?
673 A It’s purely up to you, it’s your decision if you want a lawyer.
674 A Well I’ve got, I’ve got to know what the bloody hell’s going on here, Jesus.
675 Detective Sergeant Justice THOMPSON speaking
676 Q All right.
677 A I’m sorry aye.
678 Q Ah that’s all right, like.
679 A What a piece of shit though boss.
680 Q I know it’s come as a shock for you, that we’re here, doing what we do.
681 A Yeah I know but fuck I’ve got little kids mate.
682 Q Yeah I understand that but.
683 A I’m not fuckin, I’ve not fuckin killed Luche CARUSO, I’ve not.
684 Detective Senior Sergeant David SHERIDAN speaking
685 Q Sorry…..
686 A I’ve not killed Luche CARUSO.
687 Q Okay, he’s ringing his lawyer, who you ringing?
688 A Harry PATSOURIS, that’s my cousin, this is ridiculous. So I get locked 689 up for what, for a long time now, aye? (Emphasis added)
At this stage Spilios takes positive physical steps to contact Patsouris, who he stated was his cousin. He is seen by the police talking into his mobile phone, but it transpires that he had telephoned his brother Terry in an effort to get the number for their cousin Patsouris. The following passage of conversation ensues, commencing with the recording of what Spilios was saying on the telephone to his brother Terry (at page 22 line 724):
724 A I got the Police here Terry they’re tryin to charge me with murder. Na, this 725 fuckin this idiot reckons that I’m fuckin you know I, I’ve bashed Luche over 726 the head with a bread ah board and all this shit you know. Okay, I don’t
727 know Terry, I really don’t know, can you have you got Harry’s number
728can you ring Harry for me. Or get him to ring the Police Station they want to charge me.
729 Detective Senior Sergeant David SHERIDAN speaking
730 Q Ring Terry?
731 A That’s my brother, aye.
732 Q That’s it hang up please.
733 Detective Sergeant Justin THOMPSON speaking
734 Q You ring your lawyer mate.
735 Detective Senior Sergeant David SHERIDAN speaking
736 Q You ring your lawyer, hang up, hang up now please.
737 A He’s just get the lawyer’s number for me.
738 Q Can I?
739 A All right, all right, I’m just get me brother to get the lawyer’s number.
740 Q Oh is that Terry is it? Hello, hello.
741 A He might have hung up, you want me to ring him again?
742 Q No we’ll get Harry’s PATSOURIS phone number when we get back to 743 the station, all right? You can ring him from there. (Emphasis added)
The evidence of Sheridan was that by the time he spoke the words into the phone “oh is that Terry is it. Hello, hello” the line had gone dead.
A little later that same phone rang with an incoming call. The following passage of conversation then ensues (page 24 line 789):
789 Phone ringing
790 A Can I just answer the phone quickly?
791 Detective Sergeant Brian SWAN speaking
792 Q No.
793 A That will be my brother.
794 Detective Sergeant Justin THOMPSON speaking
795 Q No we’ll sort that out at the station all right?
796 A Can you just ring him?
797 Q Hey yeah we’ll ring in a second. (Emphasis added)
The incoming call is not answered. A little later that same phone again rings with an incoming call. The following passage of conversation then ensues (page 25 line 847):
847 A … (Sound of mobile phone ringing). Hello.
848 Detective Senior Sergeant David SHERIDAN speaking
849 Q Excuse me?
850 A It’s my brother.
851 Detective Senior Sergeant David SHERIDAN speaking
852 Q I don’t care.
853 A What?
854 Q We’re opposing any phone calls.
855 A Oh.
856 Q Have any phone calls.
857 A So what happens to me now, that’s what I want to know?
858 Detective Senior Sergeant David SHERIDAN speaking
…
863 Q … Now you’ve been arrested for murder, like it or not you’ve been arrested 864 for murder okay?
865 A Yeah but you gotta prove it first.
866 Q We are going to take you to the BERRI Police Station.
867 A Yeah.
868 Q Where you’ll be charged with murder.
869 A Fuck, that’s fuckin serious mate.
870 Q There you’ll have an opportunity to apply for bail, okay?
871 A Yeah.
872 Q Obviously you can talk to your lawyer and I’m gonna try and get the
873 phone number for you in a moment, okay?
874 A Yep.
875 Q So you can actually ring him.
876 A Yep. (Emphasis added)
It was a little after this that Sheridan first asked Swan on the transcript to get the number for Mr Patsouris (at page 27 line 906): “Do you want to ring Berri and just get the phone number for Harry Patsouris on ah your phone, the work phone.”
A failure adequately to facilitate Spilios in communicating with his lawyer
I find the evidence by Sheridan and Swan on the voir dire hearing to be unsatisfactory. Their evidence was that at some stage, some police officer telephoned someone at Berri police station with a request to look up the number of Mr Patsouris and to then telephone back with this information. The evidence as to how and when this was actually done was very vague. This is largely due to the fact that no police officer appears to have made any notes concerning the conducting of the interview, apparently on the basis that if the camera is running, that is all that will ever be needed. This is simply poor police practice.
The evidence of Sheridan and Swan as to obtaining a telephone number for Mr Patsouris was that neither of them, nor any other police officer:
·asked Spilios whether there was a white or yellow pages telephone book in the house; or
·in the absence of a telephone book, dialled directory assistance; or
·used Sheridan’s internet enabled iPhone; or
·asked any of the five other police officers at the scene to do any of the above or to make use of any facilities in the two uniform police cars there.
Thus Swan stated in evidence:
QIn terms of any other of the police officers either having on their person or available to them with any of the core police cars there what one might call a smartphone, that is to say with some internet capability, you just can’t say whether any such thing was present on that day?
AAs for the other police officers present, I can’t speak for what technology they had. I certainly didn’t have a smartphone. I know Detective Sheridan has a smartphone, an iPhone, but it didn’t cross my mind to say ‘Listen, can I use your phone?’ I think it’s an easy phone call to contact the Berri Police Station.
…
QAs far as you can recall you didn’t make any attempts to look for Mr Patsouris’ number in the White Pages or look for some White Pages to find that number?
ANo not in the house, no.
QYou didn’t make any attempt on your phone to ring directory assistance to get a number for Mr Patsouris?
AIt was easy for me to ring the Berri Police Station.
It is interesting to note that a considerable time after Sheridan had directed Swan to telephone the Berri police station (at page 27 of the transcript), Swan later announced for the first time on the transcript that he was in possession of a telephone number for Patsouris in the following passage (at page 51 of the transcript):
1711 Q Ah Detective SWAN speaking, ah I’ve got the phone number ah from the 1712 lawyer, I’ll give them a ring now okay?
1713 A Thank you.
1714 Q Right.
1715 Detective Senior Sergeant David SHERIDAN speaking
1716 Q So it couldn’t be that you’ve taken Darren with you go around to see Luche 1717 over this debt just to be there cos he’s the big dude as your support person?
1718 A No.
1719 Q And it’s gone bad from there?
1720 A No mate, oh nothing like it.
1721 Q You know that’s what it looks like, you’d
1722 A Yeah I know, I know, I know, I know.
1723 Q You’ve got the big guy with you?
1724 A Yeah, I know.
1725 Q He there?
1726 A No, no, no, no, no.
1727 Q And the thing is it’s just gone horribly wrong.
[Questioning continues]
Thus, at a time after the police had finally succeeded in getting this elusive telephone number, instead of presenting it to the arrestee so that he could make a confidential call to his solicitor, Swan took it upon himself to call Spilios’s solicitor, while Sheridan carried on with further questioning of Spilios that lasted more than two pages of transcript (some of which rather closely resembles cross-examination).
Interestingly, Sheridan conceded in evidence on the voir dire that there was indeed something wrong here:
Q… Now, would you agree that, once again, that was a new topic that you’ve introduced to the mix, the conversation, rather than being responsive to something that Mr Spilios himself had raised?
AYes, I would.
QAnd you did that knowing that the phone call to the lawyer was just on the cusp of being made?
AYes, I concede that I went too far at that point.
QAnd I will put the question to you again: is this because you wanted the opportunity to get in and cover as many topics as you could whilst Mr Spilios was still talking?
ANo.
HIS HONOUR
QAnd what do you mean by conceding that you went too far at that point?
AI think that was probably a clumsy way of saying it but I can see now in hindsight, once Mr Swan was making that phone call, I should have stopped.
QWhat’s the difference between stopping when Mr Swan is about to make the phone call, as you say, and stopping at an earlier time when efforts were being made apparently to locate a number so as to make a phone call? What’s the difference between the two?
AThe difference is in the early part of the discussions he was pushing, he wanted to talk. He kept generating conversation and wanted to talk at that point. Really, we are not at that point, so he’s not pushing as much then.
QWas there anything stopping you at those various times when you say he was pushing, stopping you from saying, in effect, ‘Please wait until we resolve this matter of contacting your lawyer’?
AIn hindsight, that would have been a good thing to do but at the time, with the conversation going, he was pushing to talk and I went with the flow. In hindsight, yes, I probably should have clarified it a bit more.
This attempted explanation was lame in the extreme in so far as it is suggested to apply to the interview from page 17 of the transcript. I find that the police knew from page 17 of the transcript that Spilios was serious about wanting to call his solicitor but they chose to be less than diligent in facilitating his exercise of that right. Based on all of the evidence before me, and specifically including the demeanour of the police witnesses Sheridan and Swan when giving evidence, I find that the police approach to this interview after page 17 was to attempt to gain as much recorded dialogue with Spilios as possible (which provides good intelligence for the investigation and prosecution) and to take the risk that it might later be objected to and not be admitted into evidence.
For all of the above reasons, I exclude all evidence of the content of the interview after page 17 line 546 in the exercise of both the fairness discretion and the public policy discretion.
Application C: The application to exclude certain passages in the police interview with Spilios
Since I have determined that all of the interview after page 17 is to be excluded, it is only necessary to consider the exclusion of further delineated passages in the interview prior to page 17.
I exclude the following passages prior to page 17 on the basis that they are allegations based on prejudicial hearsay statements by Bascombe which, far from being accepted by Spilios, are specifically rejected by him:[14]
·page 7, lines 205 to 207 inclusive;
·pages 7 to 8, lines 221 to 242 inclusive;
·pages 11 to 12, lines 367 to 384 inclusive;
·page 15, lines 476 to 491 inclusive;
·pages 15 to 16, lines 506 to 514 inclusive; and
·page 16, lines 525 to 538 inclusive.
Application D: The application to exclude certain passages in the covertly recorded conversations between Spilios and Ms Chambers
[14] See R v Ireland (1970) 126 CLR 321; Barca v The Queen (1975) 133 CLR 82 as to the inadmissibility of such material. In any event, I would exercise the Christie discretion on the basis that any probative value is far outweighed by the prejudicial effect of that evidence.
Counsel applies for a number of passages in the covertly recorded conversation between Spilios and Ms Chambers on 24 April 2014 (and contained in Appendix 16 to the declaration of Ms Hadley dated 30 July 2014) to be excluded.
The passages complained of are set out at paragraphs 47(a) – (r) at pages 17 to 20 of the application of Spilios. A number of these passages were conceded by Mr Pearce prior to the argument.
I rule that all of the passages as set out at paragraphs 47(a) – (r) at pages 17 to 20 of the application of Spilios (with certain amendments made during the course of argument) are to be excluded. I do so in the exercise of the Christie discretion and the fairness discretion; I note that in relation to a number of the passages the application of s 34P Evidence Act 1929 also leads to exclusion.
The passages that I exclude are as follows:
(a) Page 16, line 39 – page 17 line 4 (“What he’s told you … baboon”)
(b) Page 24, lines 3–11 (You know how many … do things meself you know)
(c) Page 25, lines 23–25 (Now I know … help him OK?)
(d) Page 25, lines 47–49 (When you thought … heathenist bastards)
(e) Page 26, line 19–page 27 line 15 (“I’ve got to sue … you know”)
(f) Page 30, line 17–35 (“Cos I wanna … That’s correct”)
(g) Dealt with in paragraph (f)
(h) Page 31, lines 18–31 (Its bullshit … Macca said”)
(i) Dealt with in paragraph (h)
(j) Page 32, lines 15–43 (“All right. So … in Victoria”)
(k) Page 37, lines 6–45 (“I’ll give you … I went to gaol”)
(l) Page 38, line 32 – page 41 line 39 (“Yeah, yeah, yeah … I know that”)
(m) Page 43, lines 22–23 (“His name … kill them”)
(n) Page 43, lines 34–36 (“If he was … gonna do”)
(o) Page 45, line 1 – page 46 line 11 (“Whatever bloody happened … right out”)
(p) Page 46, lines 24–32 (“You know when … I would’ve, alright”)
(q) Dealt with in paragraph (p)
(r) Page 51, line 18 – page 52 line 30 (“Yeah, yeah, yeah … It’s really scary shit”)
Application A: The application for a separate trial
Spilios applies for a separate trial on three main grounds. First, it is said that there is a marked difference in the admissible evidence against him and Bascombe. Second, it is said that statements made by Bascome against Spilios in his police interview and in covertly recorded conversations with his partner Ms Chambers (as well as statements made therein by Ms Chambers), are inadmissible against Spilios and are unduly prejudicial. Third, it is said that the fact that the police used Ms Chambers, the partner of Bascombe, to facilitate covert recordings of conversations between Spilios and her tends to indicate that the police are siding with Bascombe against Spilios and would therefore be unduly prejudicial against Spilios.
I have been referred by counsel, and have regard, to well-known authorities on joint and separate trials including: R v Grondkowski;[15] R v Harbach;[16] R v Congressi;[17] R v Demirok;[18] R v Glover;[19] R v Domican and Thurgar;[20] R v Farrell and Cotton;[21] R v Collie, Kranz and Lovegrove;[22] R v Webb and Hay;[23] Webb v The Queen;[24] R v Piller & Ors;[25] McAuliffe v The Queen;[26] R v Zappia & Kamleh[27] and R v Tran and To.[28]
[15] [1946] 1 KB 369.
[16] (1973) 6 SASR 427.
[17] (1974) 9 SASR 257.
[18] [1976] VR 244.
[19] (1987) 46 SASR 310.
[20] (1989) 43 A Crim R 24.
[21] (1990) 48 A Crim R 311.
[22] (1991) 56 SASR 302.
[23] (1992) 59 SASR 563.
[24] (1994) 181 CLR 41.
[25] (1995) 86 A Crim R 249.
[26] (1995) 183 CLR 108.
[27] [2002] SASC 133 (Besanko J).
[28] (2006) 96 SASR 8.
I also have regard to s 34T Evidence Act 1929 when considering this matter of severance and give strong weight to the relevant matters referred to therein.
In the end, I come to the conclusion that this is a classic case in which two accused are blaming each other for the subject crime and which should usually be heard as a joint trial. I do not consider that any of the matters advanced by Mr Heffernan, or the possible courses that the trial may take, considered individually or cumulatively, lead to a real risk that Spilios will be unfairly prejudiced by a joint trial, provided that appropriate directions are given to the jury.
I reject the application for separate trials.
I supplied the above reasons to the parties on 15 May 2015 prior to trial. I have delayed publishing these reasons until after the trial was completed.
18
1