R v D, CM
[2016] SASC 38
•15 March 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, CM;
R v W, AW; R v M, RP
Criminal Trial by Judge Alone[2016] SASC 38
Reasons for the Verdict of The Honourable Justice Sulan
15 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - EXTORTION AND LIKE OFFENCES - EXTORTION OR DEMANDING WITH MENACES - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
The three accused were jointly charged with two counts of blackmail. The alleged offending occurred within the Adelaide Remand Centre where two of the accused, CMD and AWW, were on remand. The third accused, RPM, was not in custody. The prosecution alleges that CMD, AWW and RPM were party to a joint enterprise, and that they obtained money from fellow remandee, SMC, via threats made to him in custody by CMD and AWW. The money was paid to RPM by the alleged victim's girlfriend, FWP.
The prosecution accepted that before the accused could be convicted, it must be established beyond reasonable doubt that SMC was an honest and reliable witness. The prosecution accepted that the Crown case relied solely upon SMC's evidence, and there was no additional evidence to corroborate or support SMC's version of the conversations with CMD and AWW.
Held:
1. The victim's evidence cannot be relied upon. It cannot be established beyond reasonable doubt that SMC's evidence of conversations with CMD and AWW, including the alleged threats, is true.
2. It is agreed that there was an agreement to pay the amount of $50,000 to CMD and AWW for protection. It is not established beyond reasonable doubt that this arrangement was pursuant to threats made to harm SMC and his family and friends if he did not comply.
3. Each of the accused is not guilty on each count.
Criminal Law Consolidation Act 1935 (SA) s 171, s 171(1), s 172, s 172(1), s 172(2), referred to.
R v D, CM; R v W, AW; R v M, RP
[2016] SASC 38Criminal
SULAN J: The accused, CMD, AWW and RPM, are charged with two counts of blackmail. Their alleged offending occurred at the Adelaide Remand Centre (‘the remand centre’). CMD and AWW were prisoners on remand. RPM was an associate of theirs. He was not in custody at the time of the alleged offending.
The prosecution case is that CMD and AWW obtained money from a fellow remandee, SMC, by threatening him, thereby causing him to arrange to pay them two amounts of $25,000 which were delivered by SMC’s girlfriend, FWP, to RPM on two separate occasions.
The prosecution case is that CMD, AWW and RPM were involved in a joint enterprise to blackmail SMC and obtain monies from him.
Each accused is charged with two counts of blackmail. The Information is as follows:
First Count
Statement of Offence
Blackmail. (Section 172(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[CMD], [AWW] and [RPM] between the 16th day of December 2014 and the 19th day of December 2014 at Adelaide and other places, menaced [SC] by unwarranted threats to harm him intending to get him to submit to a demand that he pay them a sum of $25,000.
Second Count
Statement of Offence
Blackmail. (Ibid).
Particulars of Offence
[CMD], [AWW] and [RPM] between the 20th day of December 2014 and the 30th day of December 2014 at Adelaide and other places, menaced [SC] by unwarranted threats to harm him or another intending to get him to submit to a demand that he pay them a sum of $25,000.
Each accused has pleaded not guilty. They have elected to be tried by judge alone.
Overview
On 30 December 2014, the accused RPM was arrested at Millswood and charged with two counts of blackmail. On 4 February 2015, CMD and AWW, who were prisoners held at the remand centre, were arrested and charged with two offences of blackmail. It is alleged that CMD, AWW and RPM were involved in a joint enterprise to blackmail SMC on or about 16 December 2014 by threatening SMC and demanding that he arrange to pay $25,000 for his protection whilst SMC was in custody in the remand centre. A further demand for payment of another amount of $25,000 was made some days after the first demand.
In short, the case against each accused involves events occurring at the remand centre and at Millswood at the relevant times alleged. SMC, who is aged 39, was in custody at the remand centre, charged with 21 counts of trafficking in drugs. It was the first occasion upon which he had been arrested and the first occasion when he was in custody in the remand centre. After he had been in custody for about three weeks, he was placed in a cell at the remand centre with a prisoner who threatened him. The prisoner had a shiv, which is a make-shift knife. He threatened to cut SMC’s throat. The threats continued late into the night. SMC was frightened.
SMC told a fellow inmate, JB, with whom he had developed a friendship, of his fear. JB told SMC not to speak to the guards as he, JB, could “get it sorted”. CMD and AWW were prisoners in the same unit at the time that SMC was threatened. They both had been members of the Finks Motorcycle Club. JB was an associate of CMD and AWW. Not long after SMC had complained to JB, AWW approached SMC and told him that he could transfer from his cell to another cell. AWW told SMC there was no need to speak to the guards, as it was all organised. SMC moved and then shared a cell with another prisoner who posed no threat to him.
Later, SMC was invited by AWW to speak to CMD. The prosecution case is that CMD and AWW offered to protect SMC whilst SMC remained in custody. The prosecution allege that the offer for protection was accompanied by threats that SMC and SMC’s family were at risk of physical harm if he refused their offer. SMC was required to pay $10,000 per week to secure his protection.
The prosecution case is that there were two separate demands of $25,000. SMC organised and effected the first payment through his girlfriend, FWP, who arranged the money, which was then collected by RPM at a house at Millswood where FWP resided. On the occasion when RPM attended to collect the second payment, police were in attendance and arrested him.
The defence case is that it has not been proved beyond reasonable doubt that SMC was threatened and that it is a reasonable possibility that he sought, or was offered, protection and the money was paid in furtherance of a voluntary arrangement made between SMC, CMD and AWW.
The primary issue is whether I can be satisfied beyond reasonable doubt that a demand amounting to a threat was made, and that the three accused had the required intention and knowledge (in the case of RPM) to obtain the monies from SMC by the threats of physical harm made to SMC by CMD and AWW.
Each accused did not give evidence.
That is a short overview of the evidence. Later in these reasons I will set out in detail the matters which are not in dispute. The issue to be decided is whether I can be satisfied beyond reasonable doubt that a demand accompanied by a threat was made by CMD and AWW. If I am so satisfied, can I conclude beyond reasonable doubt that RPM was a participant in a joint enterprise to blackmail SMC?
History of the proceedings
The election for trial by Judge alone
The trial was to be conducted before a jury. The first jury was empanelled on Friday, 5 February 2016. After Ms Matteo, counsel for the prosecution, had opened, a successful application for a mistrial was made.
The second jury was empanelled on Monday, 8 February 2016. After the opening, a juror indicated that he was friendly with a person who worked in the remand centre who may know about the details of the case. I declared a mistrial and discharged the jury. It was agreed that a third jury should be empanelled.
The case recommenced on the following day with a third jury. Once the jury had been empanelled, I gave the following direction:
A trial, ladies and gentlemen, is a trial in this court. We try people on the evidence in this court. It is a careful, as I have said, consideration of the material in this court. In this modern day ladies and gentlemen where we have newspapers, television, nowadays the internet, Google, various other search tools, many of which I am not acquainted with but many of which you might be acquainted with, there is a lot of ways of getting information. I direct you ladies and gentlemen that you should decide this case purely on the evidence that is given in this courtroom and I direct you that if you are inclined to do any of your own researches to try and find out anything more about this case than you are hearing in this case, that would be inappropriate and it would cause a mistrial. There is a very good reason for that. We try people in this court on admissible evidence in this court. There is a lot of material out there which would never be appropriate in a court of law. Some of it is misinformation, some of it is inaccurate, some of it is just not relevant to the determination of a case in this court and so, ladies and gentlemen, I direct you that whilst you are sitting on this case you should not do your own researches about what might or might not have happened or what you might be able to find out nor should you speak to any other people about the case.
Ms Matteo opened, as did Mr Boucaut SC, counsel for CMD. The primary witness SMC, commenced his evidence.
At about 2.00 pm on Friday, 12 February 2016, I received information that two jurors had conducted internet searches. I asked members of the jury to indicate whether they had conducted a search on the internet and obtained information which related to persons involved in the trial. One juror indicated that she had searched and obtained information about one of the accused and the details of why he was in custody. CMD had, at the time of trial, been convicted of a serious offence of violence. Another juror had searched the internet and obtained information about the case.
Mr Allen, counsel for AWW, Mr Anders, counsel for RPM, and Mr Boucaut each applied for discharge of the jury. Ms Matteo did not resist the application. I granted the application and declared a mistrial. Counsel for each accused flagged that, subject to obtaining instructions, they intended to apply for abridgment of time in which to apply for a trial by Judge alone. The transcript of evidence in the aborted trial would be tendered by agreement, allowing the trial to resume without the witness, SMC, having to commence his evidence again.
On Monday, 15 February 2016, each accused made a formal election for trial by Judge alone. Ms Matteo did not oppose the application. I granted an abridgment of time in which to make the election. The trial commenced without a jury. The transcript of evidence was tendered by consent, and the exhibits tendered in the previous trial were tendered in the re-trial with the same exhibit numbers.
Directions of the law
Presumption of innocence
Each accused is presumed innocent. He cannot be convicted of any offence unless and until I am satisfied that each element of the charge in each count has been proved beyond reasonable doubt. I can draw no adverse inference against the accused because they elected not to give evidence.
Joint enterprise
The prosecution case is that the three accused were parties to a joint enterprise to blackmail SMC.
The principle of joint enterprise is that if two or more persons reach an understanding or an arrangement that together they will commit a crime, and whilst that understanding or arrangement is being pursued and is not called off, one of them does or all of them do between them all the things that are necessary to commit the crime, they are liable for that crime, regardless of what part each played in its commission. A person can join into a joint criminal enterprise after steps have been taken in furtherance of that joint enterprise, so long as the Court is satisfied beyond reasonable doubt that the person was party to a joint criminal enterprise, that is, he was aware of the conduct which was being undertaken to commit the crime and he became a party to the commission of that crime. Mere knowledge is insufficient. There must be participation by the accused. The Court must be satisfied beyond reasonable doubt that an accused was a party to an agreement to commit the specific offence charged and that crime was committed.
The Crown case is that CMD and AWW were directly involved in the crime of blackmail on each occasion it is alleged. They had come to an arrangement to blackmail SMC into paying money. In the case of RPM, it is alleged that he became involved in the crime, he was party to it, and that he collected the money. Although he was not involved directly in making any threats, and although he may not have known the exact words that were said to SMC, it is the prosecution case that he was aware that SMC had been threatened and thereby induced by unwarranted threats to part with his money. RPM’s role was to collect the money.
Elements of the offence of blackmail
Section 172 of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’) provides that a person who menaces another intending to get the other to submit to a demand, is guilty of blackmail. The section provides that the object of the demand is irrelevant.
For an accused person to be guilty of the crime, the accused must menace the alleged victim in order to induce the alleged victim to submit to a demand. A mere demand is not enough.
The terms “demand”, “harm”, “menace”, and “threat” are defined in the Act. The Act provides:
171—Interpretation
(1) In this Part—
"demand" includes an implied demand;
"harm" means—
(a)physical or mental harm (including humiliation or serious embarrassment); or
(b) harm to a person's property (including economic harm);
"menace"—a person who makes a threat "menaces" the person to whom the threat is addressed (the "victim") if—
(a)the threat is a threat of harm to the victim or a third person (to be inflicted by the person making the threat or someone else); and
(b) the threat is unwarranted; and
(c) either—
(i)the threat would be taken seriously by a reasonable person of normal stability and courage; or
(ii)the victim in fact takes the threat seriously because of a particular vulnerability known to the person making the threat;
"serious offence" means an offence punishable by imprisonment;
"threat" includes an implied threat but, unless the threat is a threat of violence, does not include a threat made in the course of, or incidentally to—
(a) collective bargaining; or
(b) negotiations to secure a political or industrial advantage;
(2) The question whether a defendant's conduct was improper according to the standards of ordinary people is a question of fact to be decided according to the jury's own knowledge and experience and not on the basis of evidence of those standards.
Section 172 provides:
172—Blackmail
(1)A person who menaces another intending to get the other to submit to a demand is guilty of blackmail.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for 20 years.
(2) The object of the demand is irrelevant.
Examples—
1The person who makes the demand may be demanding marriage or access to children.
2The person who makes the demand may be seeking to influence the performance of a public duty.
Harm can be physical, mental or economic harm. Further, the threat must be unwarranted. Section 171(1) states that a threat is unwarranted if:
(a)the carrying out of the threat would (if it were carried out in the State) constitute a serious offence; or
(b) the making of the threat is, in the circumstances in which it is made—
(i) improper according to the standards of ordinary people; and
(ii)known by the person making the threat to be improper according to the standards of ordinary people.
In summary, a person who makes a threat to someone menaces that person if the threat is a threat of harm to the person or to a third person and the threat would, if carried out, constitute a serious offence, or the threat is improper according to the standards of ordinary people, and the person making the threat knows it is improper according to the standards of ordinary people. Further, it must be a threat which would be taken seriously by a reasonable person of normal stability and courage, or the alleged victim, in this case SMC, in fact takes it seriously because of a particular vulnerability known to the person alleged to be making the threat, in this case CMD and AWW.
In determining whether a defendant’s conduct is improper, that is a question of fact to be decided according to the standards of ordinary people. In other words, a threat is unwarranted if the carrying out of the threat constitutes a serious offence in South Australia, or the making of the threat is in circumstances in which it is made improper according to the ordinary standards of ordinary people, and the person making the threat knows it to be improper according to those standards.
The evidence
The prosecution case relies substantially on the evidence of SMC. He gave evidence and was extensively cross-examined over a period of approximately three days.
SMC was born on 27 May 1976. At the time of giving his evidence he was in custody awaiting sentence for 21 counts of trafficking a controlled drug, to which he had pleaded guilty. At the time he gave evidence, submissions on penalty had been made on his behalf to the District Court.
SMC was educated in South Australia and the Northern Territory. Upon completion of Year 12 in 1993, he travelled to Brazil on exchange. During that time, he developed an interest in computer science and, in particular, the internet which was in an early stage of development. Upon return to South Australia, he commenced studying commerce and computer science at Flinders University. After about two and a half years, prior to completing the course, he was offered and obtained full-time employment as a web developer. By that stage, he had become familiar with the workings of computers, including their programming.
He gave evidence that the internet was still at an early stage of its development. He was offered a position in the United State of America in about 1998. He was based in Los Angeles, doing similar work to the work he had performed in Australia. Subsequently, he returned to Australia and resumed work in Perth with his previous employer. His role was a senior web developer. He then commenced his own business venture and developed a website for online credit card payments. The business was highly successful. The business expanded. SMC was successful and developed a number of tools using the internet.
SMC moved to Sydney, where the business further expanded. At that time, he was in a relationship with a woman named T. They were married in 2006.
The business was so successful that it expanded into the United States of America. Eventually, the business opened an office in New York. SMC and his wife moved to New York. In 2007, SMC sold his stake in the business for approximately $US6,000,000. SMC continued to work in the business until October/November 2008. By that stage, he was living and working in Las Vegas. He then started and developed products with another company. That venture ceased in about October 2011. In November 2011, he and his wife and their eight-month-old son moved back to Australia.
SMC gave evidence that, prior to moving to the United States, he had developed a drug habit. He was using marijuana, ecstasy and cocaine. That continued after he moved to the United States. He was also using prescription tablets, which were opium-based. He became addicted to those drugs.
In about 2009, whilst they were living in Las Vegas, he entered an out-patient rehabilitation program. After completing that program, he did not continue to use opiate drugs, but he continued to use other drugs which he described as “recreational drugs”. When he returned with his wife to South Australia he was using drugs, including smoking ice. He commenced using that drug in 2012 and his use of it accelerated to the point where he was smoking it six or seven times each day. It was costing him approximately $2000 per week.
In about August 2012, his wife discovered that he was still using illicit drugs. She and SMC separated. After they separated, he lived in various places. He was working as a consultant and exploring other business opportunities. He had considerable assets from which he also earned an income.
In about March or April 2013, he began to purchase drugs through the “dark net”. The dark net is an encrypted part of the internet. It is used for various clandestine purposes, including downloading pirated movies and other illegal activities. Included on the dark net are a number of sites which enable a person to purchase illicit drugs. SMC described how someone can order product on the dark net, and that it would be delivered, usually the next day. Payment for drugs was by “bitcoin” which is a digital currency that enables a person to buy and sell services on line. SMC described how a person obtains bitcoins. It is a form of currency used on the internet. It is used by offenders as it is difficult to trace.
SMC described how he and his friend, GC, had purchased more drugs than they required. They started to sell the surplus online. They dealt in ice, ecstasy, sleeping medication and prescription pain medication. GC was a long-term friend who SMC described as being his best friend at that time. SMC and GC anticipated that they could earn in the vicinity of $750,000 profit in the first year of trading.
The business came to an end when, on 22 November 2013, they were arrested and charged with drug trafficking offences. On 26 November 2013, SMC was granted bail.
In around November 2013, prior to his arrest, SMC met FWP on an online dating site. She lived in New South Wales. After their relationship commenced, she travelled to South Australia to be with SMC. They commenced living together in about mid-December 2013, when FWP moved into a house which SMC was renting at Kingston Park.
In about March 2014, they moved to premises at Millswood. The premises at Millswood were spacious. SMC set up an office at the house and was conducting business from that office. FWP was assisting SMC in managing his legitimate businesses. She dealt with landlords in relation to rental properties that SMC owned, and she undertook a management role in respect of his businesses. SMC was on bail and, as a condition of his bail, he was not permitted to access computers.
After his arrest and whilst he was on bail, SMC continued to use ice but on a much less regular basis. On 27 October 2014, SMC was arrested for breaching bail. The breaches included him being found in possession of ice and using computers. He applied for bail. His counsel submitted that he had not accessed the computers, and that it was FWP who owned and used the computers at Millswood. He admitted in evidence before me that was a lie. He was refused bail.
SMC was held at the City Watch House in Adelaide from 28 October 2014 to 10 November 2014. Those cells are police cells designed to hold people who have been arrested, for relatively short periods. For most of the period at the City Watch House, SMC was held in a cell on his own. He spent 23-and-a-half hours each day in his cell. Meals were served in the cell. In the morning and in the afternoon, he was allowed to walk around a restricted area for about 10 to 15 minutes. No visitors were allowed. During the two 10-15 minute walks, he could meet and talk to other prisoners. At any one time, only two prisoners were permitted to walk in the corridor.
I pause to observe that to house a person in a cell for 23-and-a-half hours a day and permit that person short periods to walk in a narrow corridor with one other person is, in my view, an intolerable situation. For a person in the position of SMC, who had never been in custody for any length of time before, this must have been a confronting experience. The environment was strange and challenging to SMC.
Whilst he was held at the City Watch House, SMC met JB. JB had previously been a member of the Mongols Motorcycle Club. JB told SMC that he had previously been a member of the club, but did not want to be involved with it any longer. They spoke about their personal lives. SMC told JB that he had had a successful business, that he had done very well, that he owned various properties around the country, and that he had spent time in the United States. He spoke about life in Las Vegas and about his drug use. SMC was naïve in disclosing details of his wealth to another prisoner.
On 10 November 2014, both men were transferred to the remand centre. Both men were placed into unit 1. SMC spent about one week in that unit. The remand centre had a different regime to the City Watch House. Prisoners were permitted to be outside their cells during the day and to eat their meals outside their cells in a common area.
SMC gave evidence that when he arrived at the remand centre, there was no formal induction procedure. Although he was allocated a case officer, he did not see or meet that officer. He said he learned both the official and unofficial rules and procedures from other prisoners. SMC’s evidence conflicted with the evidence of Mr Muller, an investigations officer employed by the Department of Correctional Services. Mr Muller gave evidence that there is an induction unit. Prisoners are allocated a supervisor. He gave evidence that information was provided to prisoners about the procedure and rules which apply at the remand centre. There was an extensive induction procedure
The officer in charge of SMC’s induction was not called. No corrections officer who worked in the unit gave evidence. SMC’s supervising officer was not called. The state of the evidence is unsatisfactory.
Whilst JB and SMC were in unit 1, SMC gave JB more information about his personal financial situation. Eventually, SMC was moved to unit 3. SMC described the conditions in unit 3. Prisoners were in cells, either together or alone. They were allowed out of their cells during the day. They ate their meals in a common area. In that common area, there were telephones which prisoners could use when they were out of their cells. Meals were served in the common area and prisoners sat at tables in that area during meal times.
Initially, SMC occupied cell 4. He spent one night in the cell. He was then moved to cell 19. He was asked about the circumstances of him moving out of the first cell. He gave the following evidence:
On the first night when I was in that cell the person I was celled up with was violent towards me during the evening, at around 9.30 at night. He just popped up to my bed and said ‘I heard you talking about me’ and threatened me, showed me a shiv, like a makeshift knife, and threatened me while I was in my bed; told me if I would go to sleep he would cut my throat.
SMC was terrified. He said that the threats continued until about 12.30 am when the other prisoner fell asleep. The following morning, SMC intended to tell the guards about his experience. He gave the following evidence:
QDid you do anything in relation to that the following day.
AAs soon as I left the cell I was ready to go and tell the guard about it. I was terrified and on the way there I told [JB] about it and he said ‘Don’t worry, we can get it sorted’, told me not to go to the guards.
QWhat did you say to [JB].
AI just told him everything that had happened, this guy was crazy, been making threats to me all night, said I was terrified and needed to get something done, I wasn’t game to go back into the cell with him.
QWhat did [JB] say.
A‘Don’t go to the guards, we can’t help you if you go to the guards’, he said, ‘I’ll organise to take care of it’.
QWhat did you do.
AI left it with [JB]. I trusted that he would be able to help and do something.
QDid you hear any more about that matter.
AYeah, probably within about 45 minutes of that, the next thing I know [AWW] came to me and just said ‘Get your stuff and move to cell 19, no need to ask the guards, it’s all organised, just move to cell 19’.
SMC said that he had seen AWW prior to that exchange, but had not spoken to him. When AWW spoke to him, AWW told SMC not speak to the guards about moving. SMC was moved to cell 19, which he occupied for about one week or more. He was then moved to cell 2, which he shared with JB.
Procedures in the Adelaide Remand Centre
Mr Muller described the various procedures which are employed at the remand centre.
The telephone system
Prisoners are entitled to make telephone calls to nominated persons. Each prisoner provides details of persons and telephone numbers to whom calls are to be made to the officer-in-charge. No calls are permitted from persons to prisoners. Prisoners are permitted to make calls to their nominees. The prison provides a pre-set telephone list for those who are nominated. A prisoner is entitled to make calls to nominees during the period when prisoners are not in their cells. All telephone calls are recorded and the authorities can listen in and monitor calls. These calls are known as “arunta” calls. During the trial, the transcripts and recordings of a number of arunta calls were tendered. These calls were mainly calls made by CMD and AWW to their respective partners, and some calls which were made to RPM. Prisoners can amend the list of nominees and, if they do so, that is recorded on the computer system at the remand centre.
Visitors
A similar procedure applies to the visitor list. A prisoner may nominate persons who the prisoner wishes to visit them. A computer record is kept by the authorities of persons whose names are on each prisoner’s visitor list. Prisoners may change or add to the persons who are on the visitor list, and those changes are recorded and kept on the computer system. The lists of prospective visitors provided by prisoners is a confidential document kept by the authorities and not made available to the prisoner or other prisoners. When a visit is arranged, the visitor must make a time, either in the morning or afternoon, to visit a prisoner. The visitor is allocated a time and prisoners are informed each morning whether they have visits arranged and whether those visits are in the morning or afternoon.
When visitors arrive, they are required to identify themselves and go through an identification procedure, either by providing a fingerprint or iris scan. A record is kept of all visits.
Prisoner movement records
Records are kept of all movements of prisoners. A record should exist detailing any movements of prisoners from units to units or from cells to cells. In the case of SMC’s movements between 21 November 2014 and 1 December 2014, the cell information record is blank. This happens to include the period when SMC changed cells at the direction of AWW. There is no explanation for the deficiency in the records. Mr Muller stated that he had not encountered a previous occasion when cell information had not been recorded. According to Mr Muller, the allocation of cells was the responsibility of the supervisor in charge of the unit who would consult with officers who are working in the unit. He gave evidence that any movement of a prisoner from one cell to another required authorisation of the supervisor or an officer in the unit.
No satisfactory explanation was given about how it could occur that SMC was re-allocated to cell 19 without any prison official authorising the re‑allocation. The supervising officer did not give evidence. Records are kept in each unit indicating in which cell and in which unit a prisoner was housed on any particular day. In the case of SMC, the records are deficient in that there is no record of which cell he was housed in from 21 November to 1 December 2014. The records indicate that he was in cell 19 from 1 December to 3 December, and cell 2 from 3 December to 30 December 2014.
No officer from the unit who was on duty on the day SMC relocated under the direction of AWW was called. No evidence was adduced to explain the failure to record the cell in which SMC was placed at the relevant time. When Detective Sergeant McManus, the supervising officer in charge of the investigation, and Detective Sergeant Robinson, who investigated the offences, were asked about whether enquiries were made to explain these matters, they gave evidence that a number of the correctional services officers were interviewed, but before their enquiries could be completed, the union to which the officers belonged became involved and the union refused to have other correctional services officers provide statements. It appears that the police investigators made no further attempt to interview persons who may have been in a position to provide information. The fact that a full investigation was not completed is unsatisfactory. The correctional services officers who were on duty in the unit during relevant times may have provided evidence which is highly relevant. It is unknown whether their evidence might have provided some support for SMC’s evidence. Further, there was no evidence of how it might be that the record of SMC’s cell movement was not properly maintained.
Prisoners’ expenditure accounts
SMC gave evidence about the provision of tobacco and sweets to prisoners. Each prisoner had an account into which money could be placed. Each week prisoners would fill out a form indicating their needs. Those items would then be provided to the prisoner, who was required to pay for them from his account. There was a maximum amount of $70 which could be spent each month.
SMC was able to obtain more than his quota of tobacco and sweets by arranging with other prisoners that he place money into their accounts and they would purchase, particularly, tobacco for him on the understanding that they were entitled to keep half the proceeds of monies that were paid into their account. It also assisted SMC to make acquaintances within the remand centre.
FWP placed money into SMC’s account to pay for phone calls and for tobacco and other items. She also placed monies in other prisoners’ accounts at the direction of SMC. This totalled up to $850 per week.
The role of CMD and AWW in the remand centre
SMC gave evidence about the manner in which prisoners conducted themselves in the unit. He said that CMD, AWW, JB and another prisoner always sat at one table in the dining room, which SMC described as the head table. The head table was the closest table to where food was served. It was an unwritten rule that no other prisoners would sit at that table unless invited to do so. According to SMC, it appeared that those who sat at the head table were privileged. They were given special treatment when it came to access to the phone. They were treated with deference by other prisoners.
SMC said that he was introduced to CMD by JB. Other than a short introduction, they had little interaction until the events leading to the charges. During the time that SMC shared a cell with JB, they discussed personal matters, including that SMC was financially comfortable.
Evidence relating to Count 1
SMC said that when he was occupying cell 2, AWW approached him and asked him to come and have a chat to CMD. AWW said to SMC that CMD wanted to talk to him about his safety in gaol. SMC followed AWW to the head table, where he met CMD. The following occurred:
QWhat did [CMD] say.
AHe started out by saying that ‘[SMC], I know you are a man of means and you are obviously a smart person. You need to understand that it’s a jungle in here’. He then went on to say that ‘You are smart enough to know that this is obviously not your domain and that’s why your safety is at risk while you are in gaol’. He said ‘That’s where we come in’.
QDid you say anything to that point.
ANo, I just listened.
QDid [AWW] say anything to that point.
ANo.
QWhat happened next.
ASo he went on to say that ‘For the right price we can give you the protection that you need to ensure your time in gaol is safe and as easy as possible’. He said ‘Before we get started I would like to give you a piece of advice. Don’t share your personal information with anyone’. He said he had heard from at least three people that I was a man of wealth and that’s not a good thing to know about people in gaol because there is a lot of bad people in there.
QDid you respond to any of that.
ANo, I was just listening.
QWhat happened next.
AHe said ‘Cutting to the chase, for a fee of $10,000 we can provide you with the protection that you need’.
QDid you say anything.
ANo, I still just listened.
QWhat happened next.
AHe continued on really giving me a bit like a sales pitch about what that $10,000 would cover. He said ‘I want you to know that protection would apply beyond the ARC, in other prisons’. He said that their organisation extended throughout the entire prison system. He told me that I could ask around, he was one of the most respected people within the prison system so should he send me with a note that said I should be protected I can be sure I could be protected; whether that was Cadell, Mobilong, Port Augusta, Yatala, a few other prisons in South Australia. He continued to speak about, you know, the positives, just saying that, you know, I would get the support of he and [AWW] whilst in the ARC so I could know that I would be safe. He then went on to say ‘But I need to touch on the downsides’. He said ‘I don’t want to scare you but there is the risk that you’ll screw us over and by that I mean that you will go report the matter or choose not to take our protection service’. He made it clear that, you know, should I not take the protection that my safety can’t be guaranteed anyway.
QIn what way did he make that clear.
AIn the words that he used.
QWhat were those words that he used on that topic.
AHe said ‘You won’t be safe anywhere in the gaol system should you not take our protection service’.
QDid you say anything.
ANo, I still just listened.
QWas anything more said.
AThere was more said along those lines, but I don’t recall the exact specifics, other parts of the conversation.
QAbout how long did this conversation last
AIt would have been four or five minutes.
QDuring that time, did [CMD] remain seated.
AYes, he did.
QWhere was [AWW] during that time.
ATo his right, seated as well.
QWhat was [CMD’s] tone of voice like when he had this conversation with you.
AClinical.
QWhat do you mean by that.
AJust very direct like he’d done it before. Like it was sort of a sales pitch, very similar tone, very serious, similar tone.
QWhat was his body language like during this conversation.
AI would still describe it as clinical as well where there wasn’t much emotion showing when he was saying it, it was very direct, so sort of a lot of eye contact.
QWhat, if anything, did [AWW] do during this conversation.
AHe didn’t say much at all.
QWhat was said in this conversation about a price or a fee.
AAs I mentioned, he said ‘Cut to the chase, for a fee of $10,000 we can provide you with the protection that you need’.
QHow was that conversation left.
AHe finished up the conversation by just saying ‘I want you to go away and think about it overnight and you can let me know in the morning’. He said ‘I want you, if you have any questions to take them up with [AWW]’ because he wanted to minimise the direct communication between us.
QWhat did he say about that.
AHe said, specifically, that ‘I want to minimise the direct communication between us so take up any questions with [AWW]’.
QDid he say anything about whether you should speak to anyone else about that.
AHe said to be very careful who you speak with and definitely don’t say anything on the phone.
QYou told the members of the jury that you talked about the ‘downsides’ of not accepting the protection.
AYes.
QWhat did he say on that topic; as best you can recall, what words did he use.
AHe just said ‘Should you not take up our protection there will be repercussions and your safety will be at risk’.
QDid he say what the repercussions might be.
AHe mentioned I could look up what happened to the last people that didn’t choose to take up their protective service but chose to take up the gaol protection service’.
The next morning, SMC told CMD and AWW that he would accept the fee. He told them he did not think he had any other option. It was discussed that SMC would organise payment through his girlfriend, FWP.
Subsequently, SMC had a visit from FWP. Later, on the day after he had told CMD he would accept protection, he told FWP that he would tell her what amount of money she needed to obtain by using a code. When he said, “You will have to get five”, that meant $5000.
After SMC had spoken to FWP, he spoke to AWW who indicated that $5000 per week should be okay. That discussion took place after CMD had indicated that the amount of $10,000 was a weekly amount. SMC was hoping that he would be able to obtain bail within the next five weeks. SMC gave the following evidence:
QWhat happened when you got to the table.
AHe just said to me, he said ‘I don’t know where the misunderstanding has come from, but $10,000 is not a one-time fee. $10,000 is a weekly fee’.
QDid you say anything.
AI said ‘I actually did understand it was a one-time fee’ and that ‘I thought $10,000 a week is a bit over the top.
QWhat was [CMD’s] response to that.
AHe was quite agitated and he said ‘I don’t think you are taking this as seriously as you need to, because it’s your safety at risk. I want to make it clear this is purely a business arrangement, we are not your friends, and also I want to remind you what we talked about in regards to, don’t even think about trying anything here because there will be dire repercussions for you and your girlfriend’.
QWhere was [AWW] during this conversation.
AHe was at the table.
QHow was he position [sic] at the table.
AHe was seated.
QDid you say anything in response to those things that [CMD] said.
AI just said ‘I guess I will have to pay’.
QHow long did that conversation last for.
AProbably only three or four minutes.
QDid [AWW] speak during this conversation.
ANo.
SMC gave evidence that CMD appeared to be agitated. SMC said that he will get it paid.
I conclude that, if I am satisfied that the conversations as stated by SMC took place, then that amounted to a threat by CMD that SMC would be physically harmed if he did not take up the offer. I consider that the statements by CMD to SMC amount to a demand by menace at it was unwarranted in that it threatened physical harm to SMC which constituted a serious offence. It is implied by the words used by CMD in the context and the circumstances in which he allegedly spoke that SMC was at serious risk of physical harm if he did not agree to CMD’s proposition.
SMC gave evidence about a visit he had from FWP, when AWW was also receiving a visit from a female friend. After the visiting session, when the two women were leaving, FWP was approached by AWW’s female visitor who handed her a paper with a telephone number on it and told FWP to telephone that number. After that visit, AWW approached SMC. The following conversation occurred:
AHe said ‘I don’t know if you have already spoken to [CMD] but we should be okay with the weekly fee of $5,000, rather than the $10,000’. And he actually made the joking remark saying ‘$10,000 would be extortion’.
QWhen you say it was a joking remark, what do you mean.
AHe was referring to the fact that $10,000 was too much.
QWhat was his demeanour like when he made that reference.
AHumorous.
QWhat was his demeanour like when he spoke to you about $5,000.
AVery casual.
QDid you respond to him.
AYes, I did.
QWhat did you say.
AI said ‘Okay I will organise with [FWP] to pay 25,000’.
QDid you refer to [FWP] by name.
AYes, at that point I was, yes.
QHow is it that the figure of 25,000 was arrived at in that conversation.
ABecause I had about three to five weeks, I felt until, I would get my bail, that was the time I thought I had an obligation or no choice but to pay the money, so I worked out five weeks would be the longest, so that would be 25,000, five times five.
QDid [AWW] say anything else to you in that conversation.
ANo.
QDid you say anything to him about the arrangements that you had in place.
AYes, I told him I had already worked out the code with [FWP], I explained to him how the code worked and I would tell her $25 and she would know to pay $25,000.
QWhat was [AWW’s] response to that.
AHe said okay. He also said that ‘You know if need be she can go into the tattoo shop to make the payment’.
QDid you say anything in response to that.
AYeah I said ‘Which tattoo shop?’, to which he answered ‘The only one on Hindley Street the one we own’.
QWhy did you tell [AWW] about the arrangement that you had made with [FWP] about conveying the amount of money.
ABecause they told me to be careful who I spoke to on the phone on the phone, so to assure him I was taking the necessary precautions to make sure I would not alert anyone to what was happening when I spoke on the phone.
QWas anything else said between you and [AWW] after this visitor session on the topic of the money or arrangements to pay it.
ANot in that discussion, that was the end of that discussion.
QDid you speak about anything else after discussion.
ANo.
If I am satisfied that AWW was present when the conversation with CMD occurred, and that he participated in subsequent discussions as described by SMC, that conduct would amount to participation in a joint enterprise to blackmail SMC.
SMC later spoke to FWP and told her that the amount was “25”. FWP confirmed to SMC that she was going to the bank and it was being organised in the afternoon. SMC advised AWW that it was happening that afternoon.
Evidence relating to Count 2
Either later that day or the next day, AWW took SMC to speak to CMD. The following exchange took place:
AI am not sure if it was later that day or the next day, [AWW] took me to speak to [CMD] outside his cell and [CMD] said ‘We obviously had our first misunderstanding about how much to pay, now I am confused as to why you have only paid $25,000’.
QDid you respond to that.
AI didn’t really say much at that time, [AWW] responded on my behalf and he said ‘Don’t worry he knows he needs to pay the other $25,000’.
QDid you say anything.
ANo, in that conversation I remained fairly quiet except to end, where I said ‘Don’t worry I will make payment’.
QWhen you say [AWW] responded on your behalf, what do you mean.
AIt was, like, he realised that he told me it was $25,000 but then realised that [CMD] wanted another $25,000.
QUp until that point had there been any discussion between you and [AWW] about the payment of the further $25,000.
ANo.
QWhere did this conversation occur.
ANear [CMD’s] cell.
SMC gave evidence that CMD was agitated and he reminded SMC that it was a serious matter and that SMC’s safety would be at risk if he did not pay the money. He also said to SMC, “I need to remind you of what will happen if you decide to alert anyone”. SMC then telephoned FWP and told her that another 25 was required.
SMC said that, later, AWW came to see him in his cell. SMC gave the following evidence:
QWas anything said.
AYes, he showed me – pulled two pieces of paper out of his pocket and showed me a list of my visitors including their addresses and said to me that I needed to understand the seriousness of my situation and if the money was not paid on Monday, it would not only be me at serious risk but all the people on that list.
QDid you see the paper.
AYes, I did.
QWhat opportunity did you have to see the paper.
AI was able to see that it definitely – it was definitely my visitors’ list and had a list of names and addresses of those visitors.
QWhere was the paper when you saw it.
AIn his hand.
QDid you take possession of it at any stage.
ANo.
QDid you have a clear view of it.
AYes.
QHow big was the paper.
AIt was two A4 sheets of paper.
QWhat opportunity did you have to look at it. Over what period of time.
AProbably for about 20 seconds.
QDid you take in any of the information on the paper.
AYes, I was able to see the names and the list of visitors.
QWere there any particular quirks in the information that was on that piece of paper.
AYes, I noticed for my younger brother’s name and address that his last name was – there was a punctuation error in his last name. There was a full stop instead of a C at the start of his surname.
That conversation and the production of the visitor list by AWW was the subject of cross-examination of SMC.
Counsel for AWW asked the following questions:
QHe never ever came to see you with a prisoner list.
AYes, he did.
QYou told us that there were two pieces of paper.
HIS HONOUR: I don’t know it was a prisoner list.
MR BOUCAUT: A visitor list.
XXN
QYou understood that I meant a visitor list.
AYes.
QTwo pieces of paper.
AYes.
QDescribe those pieces of paper.
AA4 sheets of paper with visitors names and addresses printed down the piece of paper.
QPrinted.
AYes.
QHow many visitors.
AI think around six, seven.
QYou think around six or seven.
AYeah.
QYou told us that you saw this list.
AYes.
QSo, who were the visitors that were on the list.
AThere was [FWP], my brothers, my mum and dad, [FWP’s] parents and [FWP’s] friend [R].
Q[FWP’s] friend [R].
AYes.
Q[R] is the housekeeper.
AShe was a friend as well.
Q[R] is the housekeeper who lives at your house.
AShe didn’t live at the house, no.
QBut she was the housekeeper who would look after the house.
AYes.
QShe would look after your son [T] when he would come to stay.
ANo, she wasn’t the nanny.
QNot her.
ANo.
QThat was someone else.
ANo, he didn’t have a nanny.
QIn any event the list, if it were merely that number of names how came it to be in two pages.
ABecause it has a full address and there is a space in between the names and addresses.
QYou have told us there are no computers in Unit 3.
ANo, but if you ask the guards for a visitor list they give you a print-out of your visitor list.
QDo you say the guards would give you a copy of other prisoner’s visitor lists.
AI don’t know how it was obtained.
QThere is no computer, correct.
ACorrect.
QNo printer anywhere around the place.
AOnly for the guards access.
QYou are not making this up, are you.
ANo, I am not.
...
QAnyway you told us that your brother’s name was on the visitor list as [.O]’.
ACorrect, that is what I thought I saw.
QThat is what you thought you saw.
AYep.
QAre you either saw it or you didn’t see it.
AI did see it.
QAnd [FWP’s] parents names were on there.
AYes.
QHow many times had your brother been to see you.
AHe hadn’t been to visit me there
QDid he ever go to see you.
AYes, he came. I think he has come on a couple of occasions.
Q[FWP’s] parents.
AThey came I think it was just the once while I was at the Remand Centre.
QWhere did this take place again.
AAt my cell.
I conclude that if the conversation with CMD outside his cell occurred, as described by SMC, CMD was threatening SMC in a manner that amounted to blackmail. The conversation with AWW was a direct threat of harm to SMC and the persons who it is alleged were listed on the visitor list. The statements, if made, amounted to blackmail.
The evidence relating to visitors’ lists
Mr Muller gave evidence that there is a computer in the guard’s office at unit 3. Officers are able to print from the computer. If a guard wishes to print a document, the guard nominates the document and the print of that document is then available in the unit manager’s office, which is not attached to unit 3. The computer system also records whenever the computer is interrogated and details of the officer who has interrogated it. Mr Muller gave evidence that there was a way of printing a document where no record was available.
Mr Muller gave the following answer:
AThere is two methods of printing off data from the visitor list, there is the physical print through the JIS system and that is recorded and that – we catch them on the audit trail. But if you do a print screen function, which is external to the JIS system but within windows frame, that would be captured.
XXN
QThe act of printing wouldn’t be captured but the act of viewing the visitors list would be captured.
AThat is correct.
QSo we would know who was looking at the list.
AYes.
HIS HONOUR
QYou can interrogate it over say a week or two and see who had actually looked at the list in that period.
ACorrect.
Tony Antoniou is employed within the Corporate Information Section of the Department of Correctional Services. He has worked in that role for 30 years. He has an information technology background. He is familiar with the computer systems used within the department. He was able to produce from the computer system an audit log report for the period 14 November 2014 to 31 December 2014 relating to the prisoner, SMC. By referring to that report and from a record relating to SMC’s nomination record for visitors, he gave evidence that on Wednesday, 12 November 2014, a visitor was entered into the system with the name L.O. That name was given a unique visitor identification number. “L.O” referred to the brother of SMC. The entry was an error in that the first initial, which should have been “C”, was represented by a full stop. It should have read “LC” not “L.O”.
On 14 December 2014, there was a recorded visit by LC, the brother of SMC. The name L.O was changed to LC, the correct name, at that time. It was obvious when he visited, that the error in his name was discovered. It was clear that the original entry of L.O was an error. On Friday, 19 December 2014, two additional names, BWP and CWP, were added to SMC’s visitor list. Prior to that date their names had not been on the list.
Mr Antoniou confirmed that after 14 December 2014 the entry L.O no longer appeared on the visitor list as it had been replaced by LC. Mr Antoniou was asked:
QSo it is a physical impossibility after the two [BWP and CWP] names are placed onto that list on 19 December to have a list that has those two names and the [L.O] name, isn’t it.
AIt is not impossible but it’s very – unless somebody intervenes to do that – in a printed form, it is not possible.
When he was asked if there was such an intervention he said there had not been. It follows that, for the names L.O, BWP and CWP to be on the same list of names was not possible. Mr Antoniou was able to identify the correctional services officers who would have been booking visitors in at the relevant time and who might explain the change of names to the visitor’s list. No officers were called to explain the circumstances under which the list had been altered.
SMC was cross-examined about his allegation that AWW showed him the visitor list. He was asked:
QAnyway you told us that your brother’s name was on the visitor list as ‘L.O’.
ACorrect, that is what I thought I saw.
QThat is what you thought you saw.
AYep
QAre [sic] you either saw it or you didn’t see it.
AI did see it.
QAnd [FWP’s] parents names were on there.
AYes.
QHow many times had your brother been to see you.
AHe hadn’t been to visit me there.
QDid he ever go to see you.
AYes, he came. I think he has come on a couple of occasions.
Q[FWP’s] parents.
AThey came I think it was just the once while I was at the Remand Centre.
QWhere did this take place again.
AAt my cell.
Ms Matteo accepted that SMC could not have seen the document he described in evidence, as it was not possible that that document had the name ‘L.O’ and the names of FWP’s parents at the same time. She submitted that the explanation might be that SMC was mistaken in what he claims he saw. Contrary to that submission, counsel for each accused submitted that there is no room for error or mistake and that I should conclude that SMC lied about the list. That lie, it is submitted, involved crucial evidence against AWW and, if I conclude that SMC lied about the document, then he is so discredited that I should not accept his evidence in respect of matters which are the subject of dispute.
Ms Matteo agreed that if I conclude that SMC fabricated his evidence about the list, then that would impact in a significant way upon what SMC had said about the relevant conversations with CMD and AWW. Such a finding would have a knock-on effect in relation to conversations he had with CMD in respect of count 2.
SMC’s evidence that a prisoner could obtain a copy of his visitors list was contradicted by Mr Muller who said no lists were made available to prisoners. No officer who worked at the unit was called. No officer who interrogated the computer at the relevant time, and who had access to SMC’s visitors’ list, was called. I accept Mr Muller’s evidence. He spoke of the practice which existed. No officer who could have given direct evidence was called. Mr Muller’s evidence calls into question SMC’s evidence that AWW showed him a visitors’ list with details of his relatives and other persons he had nominated to visit him.
The failure by the investigating officer to obtain statements of all relevant prison officers in the unit to ascertain any relevant information about whether AWW had in his possession a visitor list of SMC, and how that list could possibly have been in AWW’s possession, is of concern. It is extraordinary that the police did not fully investigate matters of relevance because the union refused to make its members available for interview. In assessing whether SMC was mistaken or lying about AWW producing a visitors list, I have been left with the evidence in an unsatisfactory state.
The evidence of SMC that he viewed the visitors list is unsatisfactory. I conclude that he could not have seen the list he described. I conclude that there is significant doubt that AWW could have obtained a visitors list of SMC. In the circumstances, SMC has lied, or his evidence is so unreliable on a crucial matter, that I conclude that I cannot rely on his evidence. The fact that I consider him to be an unreliable witness on what is a significant issue throws into doubt his reliability on other significant issues in the case.
Returning to SMC’s evidence. He said he had numerous contact with AWW over the ensuing days and over the Christmas period. He assured AWW that the further amount of money would be paid. SMC said that, as at 30 December 2014, he had not had confirmation that any further amount had been paid. On that day there was a lock-down and, after that time, he had no further contact with CMD or AWW.
I will return to the cross-examination of SMC later in these reasons.
FWP gave evidence about her contact with the accused, RPM. Her evidence was not in dispute. She gave evidence about how she met SMC over the internet and how their relationship developed. At the time when they first made contact, she was living in Sydney. In November 2013, she moved to live in Adelaide. She and SMC lived at Kingston Park until they moved to the house at Millswood in March 2014. She said that when they were living together she was assisting SMC with his business affairs.
FWP was aware that SMC had been arrested on 22 November 2013 and that, on 26 November 2013, he had been granted bail. She was aware that SMC was again arrested in late October 2014 when his bail was cancelled. She continued to live at Millswood and RH continued to attend the house at Millswood to assist with the housekeeping. FWP gave evidence that after SMC was removed from the City Watch House and was imprisoned at the remand centre, she regularly visited him. She visited him five times every fortnight. He was permitted a maximum of three visits each week. Every second week his parents made one visit. She described the conditions during visits. FWP regularly spoke to SMC on the telephone. She said that SMC telephoned her, sometimes up to five times per day. Each phone call was limited to seven minutes duration.
Turning to the arrangement that SMC was to organise payment to CMD and AWW through a third person, FWP gave evidence that there was an occasion when she visited SMC and he told her he would give her a number which would represent $1000 and that she had to meet someone to give that person the money. He told her that the person who would collect the money was a friend of another prisoner, AWW. She said that after the visit ended, a woman who had been visiting AWW at the same time approached her. The woman told FWP that she would need to get in contact with a person via a phone number that the woman would provide to FWP. The woman said, “I’ll just give it. I’ll have it in my bag and I will give you the number of the person that you are going to meet”. As they were collecting their possessions in the locker room prior to leaving, the woman gave FWP a note, upon which she had also written a number. The woman told FWP that if the person did not answer the phone, FWP could ring her. She said that the person was waiting for a phone call, so there should not be any problem.
That afternoon FWP spoke to SMC who told her to take out 25, which FWP understood was code for $25,000. She told SMC she would do so but, as far as she was concerned, this was a one-off payment. She rang the number that she had been given. She spoke to RPM who agreed to come to the house at Millswood to collect the money. Initially, he wanted her to take the money to the city and deliver it to a tattoo parlour in Hindley Street, but she refused to do so. Later that afternoon, RPM came to the house at Millswood. FWP told him that she would have the money the following day. She said that she needed to go to the bank and that she hoped to have the money by 12 pm. She said the man was polite and good mannered.
The following day, 19 December 2014, she managed to obtain $20,000 from two banks. SMC telephoned her whilst she was at the bank and she told him that she was at the bank getting the money. During that visit to various banks, she withdrew $20,000. She had contact with RPM and told him that she did not have all of the money. Nevertheless, he came to the house at 12 pm. She told RPM that she had to go to the bank to get a further amount of money. He remained at the house at Millswood. RH was there during that time. RH gave evidence that RPM remained at the house waiting for FWP to return from the bank. At all times RPM was well mannered. He said very little to RH and FWP.
FWP said that before she left to go to the bank, she gave RPM an envelope containing $20,000. FWP went to the bank, obtained the additional money, returned to Millswood and gave the additional $5000 to RPM, who then left.
The two visits by RPM to Millswood were recorded on CCTV. There were cameras which captured him in his car. He was filmed walking into the property and leaving the property. He did not seek to avoid being filmed.
FWP continued to visit SMC at the remand centre. On Sunday, 21 December 2014, FWP spoke to SMC on the telephone. In that conversation he referred to her having to obtain a further $25,000. That conversation was in code. She said that she was very angry, but she agreed to do as he asked. She gave evidence that it was not easy to obtain another $25,000 in cash as SMC’s money was deposited in various funds which were not due to mature for some time. During the period, SMC and FWP had several conversations in which SMC requested FWP to get the money. During the conversations, she told SMC that it was impossible to get the money before the banks opened on 29 December 2014.
On 28 December 2014, FWP contacted the police. Police came to the house at Millswood. FWP informed them about having to pay a further amount of money to RPM.
Arrangements were made for police to attend when RPM came to collect the second tranche of $25,000. FWP had a number of exchanges with RPM, mainly by text message. During this time she spoke regularly to SMC, who was asking her whether she was able to get the money. She visited SMC on 30 December 2014. She informed SMC that she was trying to meet RPM to give him the money.
On 30 December 2014, RPM attended at Millswood. Police were in attendance. FWP had been provided with $25,000 by police, which she gave to RPM. As he was leaving the premises, he was arrested and charged with the offences.
Returning to the evidence of SMC. Counsel for CMD asked SMC about the environment and the rules at the remand centre. SMC said that, upon arrival at the remand centre, he received no induction from the prison officers, and that he was not assigned a case officer to assist him to fill out the necessary forms. He said, “You find out the system from other prisoners”. His evidence was that he received some brief instructions from the guards, but most of the rules and systems pertaining to the remand centre were learned from other prisoners.
SMC described how he was taken to unit 3 after lockdown had started. He was placed in a cell with an Aboriginal prisoner. He said he was not introduced to the prisoner, who was physically larger than SMC. He said that the atmosphere in the cell was tense. Not long after he was put in the cell, the other prisoner threatened him. He threatened to slit SMC’s throat. The prisoner had in his possession an improvised prison knife. SMC said he was terrified. He thought his co-prisoner was crazy. He described the events of that evening as one of the most frightening things that had ever happened to him. SMC had gained the clear impression that his co-prisoner did not want to share a cell. It is unsurprising that SMC, who had spent time locked in a cell at the City Watch House in a strange and unfamiliar environment and then in a cell with a prisoner who threatened him, would have felt intimidated and frightened. The environment in which he found himself was completely alien to his way of life. It is little wonder that he was seeking assistance from JB.
SMC was moved to cell 19 with another prisoner and, eventually, moved into a cell with JB. SMC was cross-examined about his net worth. He has assets worth some millions of dollars. He agreed that he had a great deal of expendable income. In the five months leading up to his arrest in 2013, he had spent approximately $57,000 on drugs purchased from the silk road website.
He agreed that he had paid money to other prisoners in order to be able to purchase a greater amount of tobacco than he was entitled to purchase. Whilst he was in custody, he was able to obtain prescription drugs.
He was cross-examined in some detail about his drug trading on the dark net. He accepted that he had created false names and false passports on the net. He created a fake Telstra account, a fake bank account, and a re-mailing facility in order to avoid detection. He had prepared a cash flow document setting out an annualised revenue from illicit drug dealing of $784,329 to be made in a year.
I conclude that SMC was involved in a sophisticated scheme which required him to create a false trail so that drugs could be delivered into Australia without detection. It was an illegal and dishonest enterprise.
SMC was cross-examined about the circumstances of his arrest. In October 2014, he was refused bail. He appealed to the Supreme Court. On 24 November 2014, the Supreme Court refused his application.
On 22 January 2015, he applied to the District Court for bail. At that time, he knew that, in order to obtain bail, he had to satisfy the Court that his circumstances had changed. His then counsel submitted that the changed circumstance upon which he relied was that he had cooperated with police about the allegations of blackmail. SMC had sought a letter from police which could be handed to the Judge to support his application. No letter was provided.
Counsel for CMD and AWW submitted that SMC used his cooperation with police as a basis for arguing that his circumstances had changed and that he was at risk if he was kept in custody. He should, therefore, be granted bail. It was submitted that not only did SMC rely on his cooperation with police to support his bail application, but he continued to pursue his request for a letter of support from police to be used in support of a plea in mitigation of penalty. SMC was cross-examined and he agreed that his counsel had submitted to the District Court Judge who heard his plea in mitigation that he should be given credit for his cooperation. Counsel for each accused submitted that SMC was prepared to lie to advance his own interests whenever it suited his purpose.
In cross-examination, SMC agreed that he initially denied involvement in drug trafficking, and that he had blamed his friend, GC. He only changed his position, it was suggested, when he realised that GC, a friend of 15 years, did not have the computer skills that SMC had. When giving evidence, SMC continued to claim that GC was more to blame because it was his idea. It was put to him that he intended to blame GC to try and minimise his involvement. He agreed that was his intention. He accepted that when he made his application for bail, that was what had been put to the Judge and that that was a lie.
He denied that the reason he gave information to police was to create a situation in which his counsel could argue before the Court that there were changed circumstances, and that he required protection whilst in custody.
He agreed that he had lied to his wife about his drug abuse. He had lied to his parents about his drug abuse. He had breached his bail conditions and he had lied to the Court about his use of computers by suggesting that it was FWP who was using the computers. He said he lied because he was desperate to get bail.
The following questions and answers were given in cross-examination:
QHow many electronic devices did you have in breach of your bail agreement.
AFrom the first time?
QIn September.
AIn September I think It was about three or four computers and two phones.
QThree or four computers and two phones and that’s when the police came around to the Millswood house.
ACorrect.
QAnd found those computers.
AYes.
QThey were yours.
AThey were mine, yes.
QThey were yours, weren’t they, [SMC]; let’s not muck around with that answer.
AYes.
QThe mobile phones were yours.
AYes.
QAnd, in fact, when the police came you were downloading a pornographic movie.
AYes.
QDid you think that might have been in breach of your bail agreement.
AYes.
QWhen you were applying for bail in 2014, November, where your lawyer was telling you that it was a cutthroat defence; do you remember this.
AYou said – you told me this, yes.
QIt was put to the court that the computers belonged to [FWP].
AYes.
QThat was a lie, wasn’t it –
AYes.
Q– by you.
AYes.
QTo mislead the court.
AYes.
QWhy did you lie about that.
ABecause I wanted to get bail.
QBut you were desperate for bail.
AI really wanted to get bail, yes.
QYou presumably lied to your parents about your involvement since your arrest.
AYes.
QLied to your wife about your involvement
AMy ex-wife.
QYes.
AI wasn’t really communicating with her.
QBut you were indicating to all and sundry that this was going to be a cut throat trial.
AI wasn’t using the words ‘cut throat trial’.
QYou were going to be blaming [GC].
AI hadn’t talked a lot about the actual approach to the case by anyone. I was saying I wasn’t actually guilty, that is correct.
QIt was in April of 2015 a further bail application was made.
AYes.
QAt that stage one of the main thrusts of your argument for bail was that it was a cut throat defence, you would be blaming [GC], correct.
ACorrect.
Q[GC] had bail.
AYes.
QYou didn’t have bail.
AYes.
QYou were at Mt Gambier, you were in custody at Mt Gambier.
ACorrect.
QYou couldn’t properly instruct your lawyers given that geographical separation.
AYes.
...
QSo it was still not guilty, going to be a trial as at April.
AYes.
QYou were still living the lie.
AYes.
QYou were given bail in April.
AYes.
QThen you went back into custody, when was that.
AIn around June.
QStill not guilty.
AAs soon as I was taken back into custody is when I notified I would be pleading guilty.
QWho did you notify.
AMy solicitor.
SMC was asked about the payments that were made to other prisoners’ accounts and his reason for doing so:
QWere you trying to buy favour with other prisoners.
AA little bit with money orders I was putting into their account, yes.
QSo it is not just for you to get a little bit of tobacco but for you to buy friends.
AJust helping them out, yes.
QTrying to buy friends, [SMC].
AIf you put it that way.
It was suggested to SMC that AWW was not present when CMD told SMC that $10,000 was not a one-off fee. He disagreed. It was put to him that, at one stage, he told police that AWW was not present during the discussion with CMD. He agreed that this was the case. He agreed that he gave that statement to police on about 29 April 2015 but, subsequently, he reverted back to his original position that AWW was present. It was suggested to SMC that his evidence about his early contact with CMD and AWW was not correct and that he had contact with them prior to the first conversation when he claimed he spoke to CMD at the head table.
Counsel for AWW put the following questions:[1]
[1] T page 265 line 16 to page 276 line 4 (for proofing).
QIn any event, as at 28 November, where were you.
A28 November? I think I was in unit 3.
QDid you have a conversation with [FWP] on that date.
AI don’t recall.
QYou spoke to her most days.
AI spoke to her most days, yeah.
QLet me suggest to you that you spoke to her on 28 November 2014 and told her that you had been hanging out a lot with [AWW] and [CMD].
AThat was probably more just to big-note myself, just to make it sound like I was hanging around with the right people.
QTo big-note yourself.
AYes.
Q‘I’ve been hanging out a lot with [AWW] and [CMD] and they are asking me all about geography and bitcoins and that kind of stuff.
AI had a brief conversation about bitcoins. Maybe I was referring to a conversation with [JB].
QThat’s not what you said to [FWP].
AAs I said, I was big-noting myself.
QWhy were you big-noting yourself.
AJust to make her feel I was comfortable in gaol.
QThat was what you wanted, to be comfortable in gaol.
AOf course I wanted to be comfortable in gaol.
QThat’s why you offered to pay them money, so you could align yourself with them.
ANo.
QHad you spoken to [FWP] about [AWW] and [CMD] before this.
AI don’t think so.
QThat just came out of the blue.
AI had seen them around the place, yes.
HIS HONOUR
QHad you said anything to [FWP] about who [AWW] and [CMD] were or did you just say out of the blue the suggestion that you were –
AI’m not sure.
Q– friendly or hanging out.
AI couldn’t say if I mentioned that to her or not.
XXN
QWhy would it be big-noting yourself by saying you were hanging around with the right people.
ABecause it would suggest that I’m comfortable hanging around the right people.
HIS HONOUR
QWho were you big-noting yourself to.
A[FWP].
QWell, [AWW] and [CMD] wouldn’t have meant anything to her, would they.
ANo.
XXN
QSo why did you say it.
AWhen you speak on the phone, your conversation, you don’t have a lot to talk about. Not a lot of things happening.
QSo you just said you’re hanging out with [AWW] and [CMD] so she’d feel better.
HIS HONOUR
QI’m just not understanding how she would feel better by you saying that because she didn’t know who [AWW] and [CMD] were.
AIt was just something I said.
It was put to SMC that he sought protection from CMD, and that the reason he did so was that his friend, JB, was about to be released on bail and SMC needed protection. SMC denied that to be the case.
The responses given by SMC explaining his statements to FWP are, in my view, unconvincing. To suggest that he mentioned to FWP that he had been hanging around with CMD and AWW in order to “big-note” himself, is unconvincing and incredulous. In my view, it is more likely than not that SMC had become acquainted with CMD and AWW prior to 18 November 2014. It is likely that he was aware through his friendship with JB that CMD and AWW had influence amongst other prisoners in the remand centre, and that it was to his advantage to become acquainted with them for his own protection whilst in custody. Further, SMC needed to, and did, access drugs whilst in prison. It would have been to his advantage to ensure that he was associated with those who had influence within the prison.
Counsels’ submissions
Prosecution submissions
Ms Matteo submitted that I should accept SMC’s evidence and that I could rely on his evidence in respect of the conversations with CMD and AWW. Ms Matteo agreed that, before I could find any of the accused guilty, I had to be satisfied beyond reasonable doubt that SMC was an honest and credible witness. Ms Matteo accepted that the prosecution case depended upon the Court accepting SMC as an honest and accurate witness. Ms Matteo agreed that the Crown case relied solely upon his evidence, and there was no evidence which directly corroborated or supported his version of the conversations he had with CMD and AWW.
Before I can convict any of the accused, I must be satisfied beyond reasonable doubt that SMC agreed to pay the monies the subject of each charge, pursuant to a threat that he or his family would be harmed if he failed to make the required payments. If I conclude that it is a reasonable possibility that the arrangement to pay $25,000 on each occasion was consequent upon an arrangement arrived at between SMC, CMD and AWW, and I cannot be satisfied beyond reasonable doubt that a threat accompanied the arrangement, then the accused are entitled to an acquittal.
Ms Matteo submitted that SMC’s evidence, when viewed against the background of the undisputed facts, supports the prosecution case that payments were made under a threat of harm to SMC. She pointed to the fact that AWW was under financial pressure, as evidenced by telephone conversations he had with his partner and daughter, and that he was pressing to obtain the money. The submission is correct so far as it goes. However, SMC’s evidence was that it was CMD who led the conversations about payment and it was CMD who was directly threatening towards SMC during the first conversation relating to the payment of monies. The conversation that AWW had with his partner about money and her need for money were made after the demand was made by CMD. I am not satisfied that AWW was pressing SMC for payment. Insofar as he attempted to urge SMC to make payment, I conclude that AWW was acting under CMD’s instructions. The evidence establishes that CMD controlled the negotiations. When AWW agreed that SMC could pay the lesser amount of $5000 per week, his decision was reversed by CMD.
The desire by AWW to ensure that SMC made the payments is consistent with there being an agreement that he would pay for protection. It does not follow that this was consequent upon SMC having been threatened. I draw no inference that AWW’s urging of SMC that money be paid was consequent upon a threatened demand.
Ms Matteo relied upon a number of the telephone calls made by CMD and AWW to their respective partners and to RPM. She submitted that they spoke in code and that I should conclude that supported the prosecution case. The difficulty with that submission is that their speech in code is equally consistent with there being a voluntary arrangement to pay monies for protection. It is hardly likely that CMD and AWW would openly discuss the fact that they were providing protection to another prisoner for a payment of money when they were aware that their telephone calls were recorded and monitored. The fact that they spoke in code is as consistent with there being a voluntary arrangement as with there being a threatened arrangement.
Ms Matteo submitted that the fact that the payment was made in two tranches of $25,000 supports SMC’s account of how the arrangements developed. Again, on one view, it could be accepted that SMC’s version of events supported the prosecution case. On the other hand, it is also consistent with there having been a voluntary arrangement. Further, when SMC questioned the amount to be paid, AWW unilaterally agreed that it should be $5000 per week, not $10,000 per week. CMD, not having been consulted and not having agreed to reduce the payment, then advised SMC that the arrangement of $10,000 per week was the arrangement to which SMC had originally agreed and that the protection would only be available if the full amount was paid.
I conclude that the evidence supports the conclusion that CMD was the primary negotiator, and that AWW was his assistant and the contact person between CMD and SMC. CMD was negotiating a business arrangement and wanted to be one level removed from direct contact with SMC in respect of the implementation of the arrangement. AWW was the messenger. My conclusion is equally consistent with a payment under threat or a payment by arrangement.
Ms Matteo submitted that I should accept SMC both as an honest and reliable witness. I should be satisfied beyond reasonable doubt that the prosecution has established its case.
Defence submissions
Mr Allen submitted that I could not exclude beyond reasonable doubt the hypothesis that SMC had entered into a voluntary agreement with CMD for CMD and AWW to provide protection to SMC whilst he was in custody. SMC had let it be known that he was a person who had assets. He paid money into other prisoners’ accounts in order to obtain an advantage for himself. He was accessing drugs whilst in custody. There is no doubt he would have found gaol an intimating atmosphere. In the circumstances, it was submitted that I could not exclude as a reasonable possibility that he had sought and agreed to pay monies to CMD and AWW for protection.
Mr Allen submitted that, before the Court could convict CMD, I had to be satisfied beyond reasonable doubt that SMC was both an honest and reliable witness. He submitted that SMC is not a person upon whose evidence the Court can rely. He submitted that I should reject SMC’s evidence. SMC had been proved to be a liar and a person who would do or say things to advantage himself. Mr Allen pointed to SMC’s evidence about the failure of the Department for Correctional Services to provide any induction, or sufficient induction, for new prisoners. He submitted that I should prefer the evidence of Mr Muller who gave details of the procedures adopted in the remand centre, and whose evidence contradicted that of SMC.
Mr Allen further submitted that I should reject SMC’s evidence on any significant matter in dispute, as it had been proved that he was a liar. He submitted that SMC has proved to be wrong in respect of his evidence that AWW showed him a list with a name L.O on it. Mr Allen submitted that it had been proved beyond any doubt that the list to which SMC referred could not have existed in that form at the time that AWW is alleged to have shown it to him. It was conceded by Ms Matteo that SMC’s evidence was inaccurate on what was a crucial item of evidence.
Mr Boucaut submitted that SMC had concocted the evidence about the list because it was the one piece of evidence which demonstrated that he had some esoteric knowledge. Mr Boucaut submitted that SMC had been caught out on the one piece of evidence which might have supported his evidence that AWW had threatened him. Both Mr Allen and Mr Boucaut submitted that I should conclude that SMC is a liar.
The evidence of Mr Muller was that prisoners’ visitors’ lists were not available to the prisoners. They were not even provided their own lists, let alone lists of other prisoners. I accept Mr Muller’s evidence that was the procedure. There was no direct evidence called from officers who actually worked in the unit. I have referred to that earlier in these reasons.
Mr Allen submitted that SMC had a motive to lie. In order for him to obtain bail after his bail had been refused and he had lost his application to the Supreme Court, it was necessary for SMC to point to a change in his circumstances. The fact that he had been threatened whilst in gaol and that, in those circumstances, his safety was at risk was a changed circumstance which his counsel used in submitting that he should be granted bail. Further, SMC used his cooperation with police as a basis for submitting that he should receive a discounted sentence. He attempted to obtain a letter from police about his cooperation. When that failed, he threatened to withdraw his support. Ultimately, he used his situation as a basis for a submission that his sentence should be reduced because of his cooperation and because it was unsafe for him to be kept in custody.
Mr Allen submitted that SMC’s life was a life of deception. He deceived his wife about his drug use. He created false addresses, a false passport and false names when purchasing drugs on the dark net. When he was eventually apprehended and charged, he blamed GC. When it became evident to him that he could not sustain a case of blaming GC, he then changed is position. He misinformed the Court on his bail applications. He breached his bail and lied to police and to the Court about his use of computers and his consumption of drugs.
Mr Boucaut and Mr Anders adopted Mr Allen’s submissions. They each contended that I cannot, and should not, accept SMC as an honest and reliable witness. They submitted that the case against the accused must fail.
Mr Anders submitted that, whatever my conclusions are as to CMD and AWW, there was insufficient evidence to conclude that RPM knew how the arrangement with SMC had come about. It is unnecessary for me to deal with Mr Anders’ submissions in detail. I am not satisfied beyond reasonable doubt that it has been proved that RPM was aware of the detail of any arrangements made by CMD and AWW with SMC to pay monies to RPM. I am satisfied that RPM knew that there was some arrangement pursuant to which SMC had agreed to pay monies. RPM was told he was to be in contact with SMC’s partner and to collect funds. I am not satisfied beyond reasonable doubt that he had any knowledge of the circumstances upon which SMC directed FWP to pay them monies. Even if CMD and AWW were guilty of blackmail, the evidence is insufficient to conclude that RPM knowingly participated in the criminal conduct of blackmail.
Conclusion
I conclude that, in order for the accused to be found guilty, I must be satisfied beyond reasonable doubt that SMC’s account of his conversations with CMD and AWW whilst in custody is both truthful and reliable.
I had the opportunity of observing SMC give evidence. I conclude that he is a highly intelligent person. He operated a successful business for a number of years and made a large amount of money. There is no doubt that he became addicted to various drugs, and that he had a significant amphetamine addiction at the time of his arrest. I conclude that he is a man who is self-absorbed, that he is selfish and that he is prepared to lie to achieve his own purpose. I conclude that he lied to his former wife. He had little regard for his family. His drug use ruled his life. In my view, he is opportunistic. His conduct before and after his arrest suggests he is prepared to lie if he sees some advantage to himself in so doing.
When he was first confronted with his offending, he blamed GC. He maintained that position until it became clear to him that was unsustainable and he would not be believed.
When SMC applied for bail, he maintained his innocence. When he obtained bail, he breached the conditions of bail by continuing to take drugs and by accessing his computers. When he was arrested for breaching the conditions of his bail, he denied accessing his computers and claimed that it was his girlfriend who was using the computer. That was a lie.
SMC has attempted to use his cooperation with police to support his plea that he should receive a lesser sentence for his crimes. He has a motive to paint himself as a victim of blackmail.
I conclude that I cannot rely upon his evidence. I cannot be satisfied beyond reasonable doubt that his evidence of conversations with CMD and AWW, and his allegation that he was threatened that if he did not cooperate and pay protection money he would be harmed either by them or others, is true.
I am satisfied that he made an arrangement to pay $50,000 to CMD and AWW for protection whilst he was in custody. I cannot be satisfied beyond reasonable doubt that the arrangement was pursuant to a threat by CMD and AWW to harm SMC and his family and friends.
I find each of the accused not guilty of each offence charged.
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