R v Campbell (No 3)
[2019] ACTSC 121
•4 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Campbell (No 3) |
Citation: | [2019] ACTSC 121 |
Hearing Date: | 3-4 December 2018 |
DecisionDate: | 4 December 2018 |
Reasons Date: | 10 May 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [58]. |
Catchwords: | CRIMINAL LAW - EVIDENCE – Judicial discretion to admit or exclude evidence – whether representations amounted to consciousness of guilt – whether evidence should nevertheless be excluded under s 137 of the Evidence Act 2011 (ACT) |
Legislation Cited: | Evidence Act 2011 (ACT) s 137 |
Cases Cited: | R v BI (No 2) [2016] ACTSC 355 |
Parties: | The Queen (Crown) Aaron Kenneth Campbell (Accused) |
Representation: | Counsel Mr M Fernandez (Crown) Mr J Moffett (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused) | |
File Number: | SCC 124 of 2018 |
LOUKAS-KARLSSON J
Introduction
Aaron Kenneth Campbell (the accused) pleaded not guilty to one count of contravening a family violence order, one count of unauthorised use of a prohibited weapon, one count of attempted aggravated robbery, one count of assault occasioning actual bodily harm, and one count of wounding.
The offences relate to an incident on 19 January 2018 at the carpark of a KFC outlet in Fyshwick. In short summary, Mr Carpenter, who was attempting to purchase methylamphetamine on behalf of his housemate Ms Hehir, organised a drug deal with Ms Collier. Mr Carpenter and Ms Hehir drove to the KFC with a friend, Mr Beaver, and his father. On the prosecution’s case, Ms Collier drove with Mr Holz and the accused to the drug deal. On arriving at the KFC, the prosecution alleges that Ms Collier let Mr Holz and the accused out of the car.
On the prosecution case, as Ms Hehir approached the vehicle Ms Collier was in, two men came out of the bushes, then one man tasered her neck and that man then attempted to take her handbag, dragging Ms Hehir along the ground in the process, occasioning actual bodily harm.
Mr Beaver, seeing that Ms Hehir was in difficulty, attempted to assist. When he got close to the man, he was stabbed in the left abdomen. The man then ran from the scene. On the prosecution’s case, Mr Holz did not participate in the offences.
The prosecution intended to call Mr Holz as a witness at the trial. A subpoena to Mr Holz was issued, but was unable to be served, as Mr Holz’s whereabouts was unknown.
On 3 December 2018, I heard an application from the prosecution to adduce evidence of consciousness of guilt. The prosecution sought to adduce 11 redacted transcripts of calls between the accused and his associates, namely, Ms Collier, Ms Smith and Ms Kresteska. The calls took place while the accused was on remand at the Alexander Machonocie Centre (AMC). The basis of the application was that records of conversation are evidence that the accused has been interfering with witnesses using the agency of his associates.
On 4 December 2018, I made decisions in respect of each of the relevant conversations. What follows are my reasons for those decisions.
Relevant Law
In R v BI (No 2) [2016] ACTSC 355 (BI (No 2)), Refshauge J described the relevant principles in relation to consciousness of guilt as follows at [17]-[26]:
17. The law has long, if not always, recognised that some conduct of an accused person after the offences with which he or she has been charged may legitimately be adduced by the Crown and relied on by the jury (or other judge of the facts) to support the prosecution case.
18. Most commonly, the Crown relies on lies told by the accused and the High Court has set out in Edwards v The Queen (1993) 178 CLR 193, a detailed consideration of that issue and the appropriate approach that the courts should take. Other such conduct includes an accused's silence in response to an allegation that he or she may be expected to deny (R v MMJ (2006) 166 A Crim R 501), the destruction of evidence (R v Nguyen (2001) 118 A Crim R 479), attempts to influence the evidence of witnesses (R v Smit [2004] NSWCCA 409), flight (Quinlan v The Queen (2006) 164 A Crim R 106), and the hiding of evidence (Pollard v The Queen [2011] VSCA 95; 31 VR 416). No doubt there are other examples and many more will be addressed over time in the future.
19. Such evidence is, of course, circumstantial evidence and so must be addressed by the Court in the same way as other circumstantial evidence. See R v Connors (No 2) [2016] ACTSC 333 at [346]. That, however, is relevant to the way in which the judge must direct the jury and is not directed to the question of admissibility which is what concerns me in this application.
20. The first matter that is required before post-offence conduct is admissible is that it must be precisely identified together with the circumstances and events that are said to indicate that, by engaging in the conduct, the accused demonstrated a consciousness of having committed the offence with which he is charged: R v Nguyen at 489-90; [20]-[21], R v Ciantar [2006] VSCA 263; 16 VR 26 at 48; [70]. This matter is satisfied in this case by the evidence that I have identified above (at [10]-[16]) and the facts and circumstances as also set out above (at [8]-[9]).
21. As to the evidence itself, Simpson J with whom Ipp JA and Adams J agreed, held in R v Cook [2004] NSWCCA 52 at [24] that, before it can be admissible, it must be shown to be capable of meeting five conditions.
22. Her Honour had considered the principles in relation to lies that had been established by Gleeson CJ in R v Heyde (1990) 20 NSWLR 234 at 236, which set out some conditions which had to be fulfilled before the jury could rely on the evidence. Her Honour continued at [22]-[23]:
The conditions to which his Honour referred were stated in R v Lucas (Ruth) [1981] 1 QB 720 and adopted in the judgment of Clarke JA in Heyde. It is apposite to note that the conditions are directed to the determination of whether or not the lies upon which the Crown sought to rely are capable of amounting to corroboration. The four conditions laid down in Lucas are:
(i) that the lie is deliberate;
(ii) that it relates to a material issue;
(iii) that the motive for the lie is a realisation of guilt and a fear of the truth;
(iv) (where relevant) that it is shown to be a lie by evidence other than that of an accomplice who is to be corroborated, that is, by admission or by evidence from an independent witness.
To these I would add that the lie must be capable of being seen as indicating consciousness of the guilt of the specific offence with which the accused is charged.
23. This approach was followed more recently in Gall v The Queen [2015] NSWCCA 69 at [83]-[86]. Although dealing with lies, these conditions can be applied to different situations where the Crown relies on post-offence conduct as consciousness of guilt.
…
25…. The mere fact, however, that there is a credible explanation consistent with innocence is not sufficient to render inadmissible post-offence conduct tendered as consciousness of guilt. See R v Power and Power (1996) 87 A Crim R 407 at 409.
26. It is, of course, a matter for the jury, properly directed, to consider whether the explanation, if any, given by the accused is sufficient to prevent it from relying on the conduct as consciousness of guilt. As Simpson J said in R v Cook at [43]:
I am satisfied that it is not the role of a trial judge in NSW, under the Evidence Act, to make a finding of fact about the actual reasons for flight where such evidence is given on behalf of the Crown. That remains the province of the jury.
Analogously, in this case, for consciousness of guilt, the conditions can be expressed in the following manner:
the statement or representation said to be consciousness of guilt is deliberate;
that it relates to a material issue;
(iii) the motive for the statement or representation is a realisation of guilt and a fear of the truth;
(iv) (where relevant) that it is shown to be consciousness of guilt by evidence other than that of an accomplice; and
that it is capable of indicating consciousness of guilt of the specific offence charged.
Submissions on Consciousness of Guilt
10. Generally, in relation to the matters set out in BI (No 2), counsel for the accused submitted that if the representations are taken to be identified with sufficient particularly, it could be accepted that the first three conditions as set out in BI (No 2) had been met. That is, the representations were deliberate, that they related to a material issue and that the motivation for the representations was a realisation of guilt and fear of the truth (T 573-4).
11. In respect of the fourth matter, “that it is shown to be a [representation] by evidence other than that of an accomplice who is to be corroborated, that is, by admission or by evidence from an independent witness”, counsel for the accused referred to the plausibility of an alternative hypothesis consistent with innocence. Specifically, counsel for the accused submitted there was an “equally available hypothesis” in relation to the involvement of Mr Holz and that there was evidence to suggest his involvement. No issue was taken with the fifth matter. Nor was any issue taken with the condition “shown to be consciousness of guilt by evidence other than that of an accomplice”, apart from the submission made in relation to an alternative hypothesis consistent with innocence.
12. On the issue of the fourth matter in BI (No 2), the prosecution submitted that the material had not fallen from an accomplice and there was no suggestion it was inaccurately recorded. Regarding the evidence supporting the proposition of Mr Holz’s involvement, the prosecution submitted all the evidence consistently identifies two people (T 579.40).
Section 137
13. Counsel for the accused submitted that, should the relevant extracts of conversations be admitted as consciousness of guilt, they should nevertheless be excluded under s 137 of the Evidence Act 2011 (ACT) (Evidence Act).
14. Section 137 provides as follows:
Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
15. Counsel for the accused conceded that the relevant representations, if considered to be evidence of consciousness of guilt, would be highly probative. Nevertheless, it was submitted that this was outweighed by the danger of unfair prejudice. It was submitted that there are two available alternative hypotheses and that the accused was acting in such a manner in order to protest his innocence. In addition, it was submitted that as the jury would not hear evidence from Mr Holz himself, there was risk the jury could misuse such evidence.
The Evidence
16. The 11 transcripts that the prosecution sought to admit can be summarised as follows.
Record of Conversation dated 6 February 2018
17. The prosecution sought to admit passages of a telephone call between the accused and Ms Collier dated 6 February 2018. Those passages contain a conversation between the accused and Ms Collier referring to aspects of the brief of evidence and to Mr Holz’s record of interview with police, including that Mr Holz had “sunk everything”.
18. Later in the conversation, the following exchanges occur:
CAMPBELL: …I’ve started to write you a letter. I’m –
COLLIER: Yeah.
CAMPBELL: I’m probably gonna be here for a few years, [Ms Collier].
…
CAMPBELL: Can you, um, can you go see that person?
COLLIER: Yeah?
CAMPBELL: And ring John and get John to go see him, please?
…
CAMPBELL: Yeah. I fucked up with something I didn’t do ‘cause my wallet was left in the car. That’s - that’s why I got pulled into something I didn’t do, babe? You know what I mean?
…
CAMPBELL: He fucked it –
COLLIER: He said I had you sitting in the car.
CAMPBELL: He fucked it on you, babe. He even done –
COLLIER: Yeah?
CAMPBELL: Even done – he even done a thing on you.
…
CAMPBELL: …Um, I’m gonna beat this shit at court. Um, that cocksucker need – that cocksucker needs to go and do was Desmond done. Remember what Desmond done, babe?
COLLIER: Um -
CAMPBELL: The same thing? Forgot everything?
COLLIER: Yeah, yeah, yeah, yeah, yeah, yeah, yeah, yep.
19. The prosecution submitted that it could be inferred from the conversation that the accused and Ms Collier were “essentially getting their heads together in relation to the evidence that Collier will inevitable give”, and that Ms Collier had a version of events for which Mr Holz’s record of interview created difficulties.
20. The accused submitted that there was another plausible explanation for the contents of the conversation, being that the accused is simply explaining to Ms Collier the scope of the brief of evidence and its contents, and explaining that Mr Holz was caught “red handed” at the scene. Further, the accused submitted that references in the same conversation, including “I fucked up with something I didn’t do ‘cause my wallet was left in the car” indicate there are alternative explanations, inconsistent with consciousness of guilt. The accused further noted that there was no evidence of actual interference with witnesses.
21. Ultimately, it was conceded by counsel for the accused that this was a representation that could constitute consciousness of guilt (T 624.36).
22. In my view, applying the principles outlined in BI (No 2), the relevant portion of the record of conversation sought to be admitted by the prosecution is admissible as consciousness of guilt. Further, the probative value is not outweighed by the danger of unfair prejudice.
Record of Conversation dated 7 February 2018
23. The prosecution sought to admit a passage of a telephone call between the accused and Ms Collier dated 7 February 2018.
24. Ultimately, the prosecution did not proceed on this conversation as evidence of consciousness of guilt (T 514, 624).
Record of Conversation dated 8 February 2018
25. The prosecution sought to admit passages of a telephone call between the accused and Ms Collier dated 8 February 2018. The conversation includes Ms Collier informing the accused that Mr Holz has “taken off”, and that Ms Collier is unaware of where he has gone. The prosecution submitted this was admissible as consciousness of guilt.
26. The accused submitted that it should not be admitted in respect of consciousness of guilt because it is merely a commentary on the fact that the witness is not present.
27. In my view, applying the principles outlined in BI (No 2), this record of conversation is not admissible as consciousness of guilt.
Record of Conversation dated 14 February 2018
28. The prosecution sought to admit passages of a telephone call between the accused and Ms Collier dated 14 February 2018. The conversation includes Ms Collier informing the accused that a Johnny Westway is “looking for [Mr Holz]…He’s on a mission to get [Mr Holz] for you”. Later in the record of conversation, the accused and Ms Collier discuss what evidence Ms Smith may give. Ms Collier states that “[s]he won’t stand up. She won’t stand up in court and say nothing”.
29. The prosecution submitted that this latter part was the “salient part” of this conversation in relation to consciousness of guilt.
30. The accused submitted that this record of conversation was merely an independent attempt made by Ms Collier to assist the accused and that the evidence is insufficient to establish she was being used an intermediary.
31. In my view, applying the principles outlined in BI (No 2) the relevant portion set out above of the record of conversation is admissible as consciousness of guilt. Further, in my view, the probative value is high and is not outweighed by the danger of unfair prejudice.
Record of Conversation dated 15 February 2018
32. The prosecution sought to admit passages of a telephone call between the accused and Ms Collier dated 15 February 2018. It was later agreed between the parties that the relevant passage would not be considered in relation to consciousness of guilt (T 561-2). This accorded with my view of the conversation, that it is not admissible as evidence of consciousness of guilt.
Record of Conversation dated 16 February 2018
33. The prosecution sought to admit passages of a telephone call between the accused and Ms Collier dated 16 February 2018. The conversation includes a discussion about a record of conversation between Ms Collier and two detectives approximately a few days after the accused was arrested. The conversation includes the following:
CAMPBELL: Oh, good. Because I wasn’t with you that night.
COLLIER: Exactly right. I was with [Mr Holz] and, remember, I had the stuff in the car ---
CAMPBELL: Oh -
COLLIER: Because I was gonna get him to drop it off to you.
34. The prosecution submitted that it was to be inferred from this that Ms Collier was making the point clear to the accused that he was not to be nominated as the person that was with her on that night. It was submitted that conversation was about explaining the presence of the accused’s possessions in the car, which were seized by the police.
35. Later in the record of conversation, the accused states the following:
CAMPBELL: Now, I was at fucking grandmas eating steak and fucking sausages with uncle Mark like I fucking told the dogs, mate.
COLLIER: (Laughing)
36. Ultimately, counsel for the accused indicated that it was sought to have the two conversations in evidence as they were exculpatory conversations (T 625.22).
Record of Conversation dated 8 March 2018
37. The prosecution sought to admit passages of a telephone call between the accused and Ms Collier dated 8 March 2018. This conversation includes a statement by the accused, “[d]on’t say too much” which the prosecution submitted should draw the inference that the accused was aware he was being recorded. Subsequently in the conversation, the following exchange occurs:
COLLIER: Yeah. Well, anyways, [Ms Smith] turned around and does, “I already told you to fuck off. I’m not going to do it”, and closed the door in their faces (laughing).
CAMPBELL: Oh, God bless it , honey. Fucking hell. So have you got it in your pocket?
COLLIER: Have I got her?
CAMPBELL: In your pocket. Like, you know what I mean.
COLLIER: Yeah.
CAMPBELL: Yeah.
COLLIER: If I wanted to, yeah.
CAMPBELL: I know you do, bub…
38. The prosecution submitted that this was a reference to Ms Collier having control over a witness, Ms Smith.
39. The accused conceded this passage gives rise to consciousness of guilt (T 564.1).
40. This concession was properly made. This accords with my view that the evidence is admissible as consciousness of guilt, applying the established principles set out above. Further, in my view, the probative value is high and is not outweighed by the danger of unfair prejudice.
Record of Conversation dated 11 March 2018
41. The prosecution sought to admit passages of a telephone call between the accused and Ms Collier dated 8 March 2018. That conversation included the following:
COLLIER: Well, all the checkies went over to [Ms Smith’s] and, um pretty much begged her to an, um, statement type thing.
….
COLLIER: Yeah. Yeah, and, um, just, like, begged her to – um, pretty much, you know, begged her to do a statement saying pretty much, you know, whatever. Trying to say that you were in the car or some shit.
42. The prosecution submitted “checkies” refers to police. The accused then conveys a discussion he had with his solicitor regarding the attempt by police to attain a statement from Ms Smith. The prosecution submitted the statements went to the accused’s state of mind concerning the consciousness of guilt.
43. The accused submitted that this is an independent attempt made by Ms Collier which cannot give rise to consciousness of guilt. Moreover, the accused submitted that an obvious inference to draw from the conversation in respect of “checkies” is that Ms Smith may not like speaking to police and did not wish to give a statement.
44. Ultimately, the prosecution indicated it was not proceeding with this conversation as consciousness of guilt (T 624.1).
Record of Conversation dated 15 March 2018
45. The prosecution sought to admit passages of a telephone call between the accused and Ms Collier dated 15 March 2018. In that conversation, the accused makes the following statement:
“Oh, okay. I – when you say that, it sounds like you’re over me, babe. You don’t want to be with me. I’m just gonna sit in here and not gonna have a girlfriend anymore. You know what I mean? That’s what it sounds like and I hope that’s not the case, [Ms Collier], because fucking hell, I’ve – I fucked up. You know what I mean. Out there, that night – whatever. And I’m in here now and you’re out there and it’s fucking hard for me in here, [Ms Collier], not being with you.
46. The prosecution submitted that this went to the accused’s state of mind concerning the consciousness of guilt.
47. The accused conceded this passage gives rise to a representation as to consciousness of guilt (T 624.10).
48. This accords with my view that this evidence is admissible as consciousness of guilt applying the relevant principles set out above. Further, the probative value is not outweighed by the danger of unfair prejudice.
Conversation dated 3 April 2018
49. The prosecution sought to admit passages of a telephone call between the accused and Ms Collier dated 3 April 2018. In that conversation, Ms Smith joins the call and greets the accused “Hello, Doggy”. Subsequently, the following exchange occurs:
CAMPBELL: No, I know – I know. I’m – I’m glad – I’m glad she’s sticking staunch, babe. Tell her I really respect her for that, eh.
SMITH: Because I will, darling. I got your back.
CAMPBELL: Yeah, make sure [Ms Smith], because all you – all they’re going to do, darling, is they’re going to try and get you to court for – because I wasn’t even there that night, [Ms Smith], you know what I mean? Yeah.
SMITH: Yeah, and I said I’m no dog, and they said “he’s not your friend” I said “don’t tell me – he is my friend, thank you very much”, they said, “he doesn’t think of you as a friend”, I said, “don’t tell me what he fucking thinks of me. I know he does.”
50. The accused accepted that this portion was evidence of consciousness of guilt and did not press s 137 of the Evidence Act, stating (T 588.6):
I concede that that’s representative of a consciousness of guilt and Your Honour would not refuse to accept that under section 137 of the Act.
51. This accords with my view that this evidence is admissible as consciousness of guilt.
52. The prosecution did not press the remainder of the conversation (T 588-592). Ultimately, the prosecution did not lead evidence of any conversation on 3 April 2018 whatsoever (T 965).
Conversation dated 26 November 2018
53. The prosecution sought to admit passages of a telephone call between the accused and Ms Kresteska on 26 November 2018. In that conversation the following exchanges occur:
CAMPBELL: Baby, um, oi, listen listen careful. I’ve just seen my solicitor and that.
KRESTESKA: Yep.
CAMPBELL: It’s looking really good, um, like if Holtzer doesn’t turn up and and and Ell-Shae
KRESTESKA: Yep.
CAMPBELL: From over the river.
KRESTESKA: Yep, the other one from fucking in there?
CAMPBELL: Nah, nah, just [Ms Smith].
KRESTESKA: Nah but listen, the other one is not in jail anymore.
CAMPBELL: Yeah. You need to go and have coffee with her tonight.
KRESTESKA: Yeah, I need to find her so yeah I will.
CAMPBELL: Just go. You need to baby, for tomorrow or its, its
KRESTESKA: Is tomorrow when they are going to, fucking
CAMPBELL: Yeah, yes yes yes. Um, coz if [Mr Holz] doesn’t come and she doesn’t turn up at all, I’m cashed. I’m out
KRESTESKA: Ok.
CAMPBELL: I love you, I call you. I might not be able to call you back but just go and have coffee babe
KRESTESKA: I’m back there tomorrow same time?
CAMPBELL: Just don’t answer door at all babe.
…
CAMPBELL: Babe, but she can’t turn up. That’s the whole point.
54. The prosecution submitted that “Holtzer” refers to Mr Holz and “Ell-Shae” to Ms Smith. Accordingly, it was the prosecution’s submission that this exchange was a “clear attempt by the accused to interfere with a witness”.
55. The accused conceded this passage gives rise to consciousness of guilt (T 624.16).
56. The concession was properly made. This concession accords with my view that the evidence is admissible as consciousness of guilt. Further, in my view, the probative value is not outweighed by the danger of unfair prejudice.
Conclusion
57. On 4 December 2018, I made the following orders in relation to the admissibility of consciousness of guilt evidence relating to the following particularised and redacted records of conversation:
(a)For the record of conversation dated 6 February 2018, the relevant portion is admissible as evidence of consciousness of guilt;
(b)For the record of conversation dated 14 February 2018, the relevant portion is admissible as evidence of consciousness of guilt;
(c)For the record of conversation dated 8 March 2018, the relevant portion is admissible as evidence of consciousness of guilt;
(d)For the record of conversation dated 15 March 2018, the relevant portion is admissible as evidence of consciousness of guilt;
(e)For the record of conversation dated 3 April 2018, the relevant portion is admissible as evidence of consciousness of guilt;
(f)For the record of conversation dated 26 November 2018, the relevant portion is admissible as evidence of consciousness of guilt.
58. Subsequently, the prosecution did not lead the 3 April 2018 conversation (T 965).
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 10 May 2019 |
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