R v Campbell (No 3)

[2019] ACTSC 121

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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. On 4 December 2018, I made decisions in respect of each of the relevant conversations.…