R v Borg (Ruling No 3) - [2012] VSC 33

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.99 of 2011

THE QUEEN

LEONARD BORG

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 January 2012
DATE OF RULING:	8 February 2012
CASE MAY BE CITED AS:	R v Borg (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2012] VSC 33

---

CRIMINAL LAW – Pre-trial ruling – Admissibility of evidence from telephone intercepts – “Pre-text” calls – Section 90 of the Evidence Act 2008 – Admissions – Pavitt v The Queen (2007) 169 A Crim R 452 – WK v The Queen [2011] VSCA 345 – Evidence relevant and admissible.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Mark Gibson Ms Raelene Sharp	Office of Public Prosecutions
For the Accused	Ms Carmen Randazzo SC Ms Samantha Poulter	Theo Magazis & Associates

HIS HONOUR:

Leonard Borg is charged with the murder of Peter Rule. The Crown case is that the accused murdered Rule on 15 November 2009 at Campbellfield. The accused has been arraigned and pleaded not guilty, and senior counsel for the accused has indicated that the accused will deny any involvement in the death of the deceased. A summary of the factual basis of the Crown case against the accused is set out in DPP v Borg (Ruling No. 1).[1]
[1]DPP v Borg (Ruling No. 1) [2012] VSC 26R.

Background

The witness, Michael Spiropoulos, approached the police and made a statement on 6 April 2010 about his involvement in the alleged murder of Peter Rule. Later in April 2010, the police obtained a warrant to intercept Spiropoulos’ phone for the purpose of recording conversations that he had with Borg. In particular, a number of telephone conversations were recorded on 21 and 22 April 2010.[2]
[2]The recordings of the intercepts were played in Court on 25 January 2012 and have been marked as Exhibit AC on the voir dire. Transcripts of the calls are set out in the depositions at 1088.

In the written summary of the Crown opening, it is put that these recorded conversations amount to relevant and admissible evidence about a number of important issues in the trial, including:

(a)that Borg had a guarded attitude consistent with an involvement in the murder (rather than a questioning attitude);
(b)a power imbalance, shown by Borg’s authoritative instructional position over Spiropoulos, and an interest by Borg in the involvement of the police;
(c)an involvement in the cannabis crop at the Thomastown factory;
(d)a knowledge or involvement in matters pertaining to the blue Volvo;
(e)a sense of urgency and desperation in Borg to speak with or deal with Spiropoulos before he spoke with police following the police having left a business card with Spiropoulos’ mother (which the Crown say show a concern by Borg that Spiropoulos might incriminate Borg);
(f)a knowledge of the relevance of the blue Volvo and the importance of providing an innocent explanation for why Spiropoulos might have been driving it; and
(g)a desire to avoid any conversation with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Borg (Ruling No 3)

Details

AGLC: R v Borg (Ruling No 3) [2012] VSC 33
Case: [2012] VSC 33
Decision Date: 8 February 2012

CaseChat Overview and Summary

The case of R v Borg (Ruling No 3) was heard in the Supreme Court of Victoria, where the respondent, Borg, sought to exclude evidence obtained from telephone intercepts. The nature of the dispute centred on the admissibility of evidence derived from "pre-text" calls made during an investigation, with the respondent contending that the evidence should not be admitted due to its manner of procurement. The court was required to determine whether the evidence complied with the provisions of section 90 of the Evidence Act 2008 and whether it was relevant and admissible in the context of the case.

The central legal issue before the court was whether the evidence obtained from the "pre-text" calls was admissible under section 90 of the Evidence Act 2008. The court needed to examine the manner in which the evidence was obtained and assess whether it adhered to the statutory requirements. Furthermore, the court had to consider the principles established in Pavitt v The Queen and WK v The Queen, which addressed the admissibility of similar evidence in prior cases. The respondent argued that the evidence should be excluded on the basis that it was obtained through deceptive means, while the prosecution maintained that the evidence was relevant and admissible.

In reaching its decision, the court meticulously analysed the statutory framework provided by section 90 of the Evidence Act 2008 and the jurisprudence set out in the cited cases. The court concluded that the evidence obtained from the "pre-text" calls was relevant and admissible. It found that the statutory requirements were met, and the evidence did not fall foul of any exclusionary principles. The court also noted that the manner of obtaining the evidence did not render it inadmissible, as it did not contravene the spirit of the legislation or established legal precedents. Consequently, the court ruled that the evidence was admissible and could be considered by the trier of fact.

The final orders of the court were that the evidence obtained from the telephone intercepts, including the "pre-text" calls, was admissible and could be used in the trial. The respondent's application to exclude the evidence was dismissed.

Orders