R v Derek Bellington Sam
[2000] QSC 368
•20 October 2000
SUPREME COURT OF QUEENSLAND
CITATION: R v Derek Bellington SAM [2000] QSC 368 PARTIES: THE QUEEN
v
DEREK BELLINGTON SAM
(applicant)FILE NO: No 306 of 2000 DIVISION: Trial Division DELIVERED ON: 20 October 2000 DELIVERED AT: Brisbane HEARING DATE: 28 September 2000 JUDGE: Mackenzie J ORDER: 1. Pursuant to s592A of the Criminal Code, I make the rulings set out in these reasons. CATCHWORDS: CRIMINAL LAW – EVIDENCE – ADMISSIBILITY – telephone conversations between accused and former de facto – Swaffield discretion – recording of poor quality – equivocality of statement - oral evidence of conversations – circumstantial case – admissibility of statements which are not admissions or lies.
Criminal Code s592A
R v Doolan (1962) QdR 449
Swaffield v The Queen; Pavic v The Queen (1997) 192 CLR 159COUNSEL: Mr J Devereaux for the accused
Mr B Campbell for the CrownSOLICITORS: Legal Aid for the accused
Department of Public prosecutions for the Crown
MACKENZIE J: The accused is charged with the murder of Jessica Kim Gaudie. The girl was last seen in the early hours of the morning of Sunday 29 August 1999. No trace of her has been found since.
The outline of the case which the Crown proposes to present is that at the time of her disappearance the girl was baby sitting for the former de facto wife of the accused while she attended a birthday party in Nambour. The former de facto wife, Ms Summers, had been separated from the accused for 9 weeks. The Crown proposes to lead evidence that the accused had been introduced to the girl on one occasion some months before her disappearance. It is also said that there will be evidence from a work colleague of the accused that the accused had spoken in sexual terms of a girl who did baby sitting for Ms Summers.
The accused also attended the birthday party. During the course of the evening, he was seen drinking and acting jealously and possessively in regard to Ms Summers. During the course of the evening he assaulted a man who was displaying affection towards her.
The accused left the party, apparently in an angry and aggressive mood, shortly before 2 am. It is the Crown's case that he then travelled to Ms Summers' home. When Ms Summers and others returned to her home shortly after 2.30 am the house was locked. It was not noticed that the girl was not in the house until at about 6.30 am. Her clothing and other possessions were still in the house.
The night had been cold and wet. It is said there will be evidence from which it can be inferred that when she left the house she was wearing only shorts and a pullover and was barefoot. She took no money or any of her other possessions with her. The Crown will lead evidence with a view to establishing that she had not run away from home. There will also be evidence led tending to prove that the accused attended at Ms Summers' house after he left the party and that the girl left the house with him. This includes a shoe print found on the rear patio of the house, admissions by the accused and evidence from a young child that she heard the accused talking to the girl in the house and that she then left.
Police who had been advised of the girl's disappearance went to the house where the accused was staying. The Crown case will be that the accused deliberately avoided responding to the presence of the police and left the house shortly after they left. When he returned to the house that afternoon, he was advised that the police were looking for him about the baby sitter being missing. He told another occupant that he had dropped the girl off at about 3 am at her boyfriend's home.
The accused contacted the police by telephone. He informed them in that call and subsequently in a statement and a recorded interview that he had gone from the party to Ms Summers' house. He had requested the girl to come with him in an attempt to force Ms Summers to leave the party and return home. He reasoned that if the girl appeared at the party Ms Summers would realise her children were unattended and would immediately go home. He said that he dropped the girl off at a corner about 300 metres from the house where the party was in progress.
The girl did not arrive at the party and a number of other persons leaving at around that time saw neither the girl nor the accused's vehicle. It is said that the Crown will ask the jury to infer from this evidence and from the geography of the corner where the girl was said to have been dropped that the opportunity for someone else to have abducted the girl is negligible. The Crown will be alleging that there are variations in versions given by the accused and that his claim that he dropped the girl at the corner is false. It will be submitted that the only inference to be drawn is that the accused drove her to an unknown location, killed her and disposed of her body.
In addition to that, the Crown will establish that there was a positive presumptive test for the presence of blood on the accused's shoes and on the back seat of his vehicle. However, there was insufficient material for DNA comparison.
There will also be evidence that the accused's vehicle which had been washed on the day preceding the day when the girl disappeared had mud on the bull bar and was dirty on the morning after she disappeared. His account also did not reconcile with the amount of fuel that had apparently been used during that period. It is also to be led in evidence that the accused's clothing which he had worn to the party had been laundered. He denied doing so and said that it must have been washed by another occupant of the house. However, all of the other occupants deny doing so and when asked for the clothes the accused immediately located the T-shirt in the dryer.
The Crown also wishes to lead conversations with Ms Summers and with a work supervisor, Mr Johnson. It is these conversations which are the subject of the present application.
Admission of Recording of Conversations with Ms Summers Generally
On 30 August 1999, the accused rang Ms Summers and in effect asked if she could help him remember because he wanted to help the police. She said that she could not speak to him.
On 15 September 1999 he rang her again and she has given a statement containing her recollection of that phone call, which was not recorded. After receiving that phone call she contacted the police. She then recorded telephone conversations initiated by the accused by means of a device provided to her by the investigating police. The giving of instructions by the police was tape recorded. The two most relevant portions of the conversation are as follows:
"WRIGHTAlright, (sic) Mia um, just in relation to the tape, do you agree that we have previously explained to you that ah, if your willing to ah, we'd like to construct a situation whereby you have a telephone conversation with Derek, and by doing that conversation, we're going to tape record it, are you happy to do that?
SUMMER Yeah.
..........................................WRIGHTNow, um, also in relation to this conversation, do you agree that we've mentioned to you, that we'd like to try this with Derek.
SUMMER Yep.
WRIGHTUm, have we in any way told you what to say in relation to ........?
SUMMER No, you you haven't.
WRIGHTOkay, now, in relation to this conversation, do you fully understand that you are free to discuss whatever you like with Derek. You are also free to say anything or however you want the conversation and whatever matters U/I. Be mindful, that we are investigating the dissappearance (sic) of Jessica GAUDIE. Is there anything that you want to ask us?
....................................... ."
Unfortunately very little, and then only fragments, of the accused's part of the conversation on the clandestine recordings can be heard. Even though the conversation has been enhanced and placed on CD, it was impossible to hear most of the accused's part of the conversation when it was played through the ordinary system used in trials where tapes form part of the evidence. Subsequently, by consent of both counsel, I listened to the tapes in their entirety again using the infra-red headphone technology in Court 3. These headphones would be available to the jury if that technology were to be used. However, even using them there was no material improvement in what could be heard.
Mr Devereaux has objected to the admission into evidence of the tapes or the enhanced CD. Subject to what is said below that objection should be upheld. Several observations should be made about the recordings.
Firstly, the overall impression to be gained from listening to what can be heard, principally Ms Summers' parts of the conversation, is that the accused made no direct admission of inflicting any harm on the girl. Secondly, where the accused's voice can be heard there are only fragments of what he said. This is generally so with respect to individual sequences of words spoken by him when responding to what Ms Summers had said. Also, where there are sequences of conversation between the parties there are generally gaps, with the result that some contributions by him in the sequence are incapable of being heard. In some instances, the gaps are lengthy. Thirdly, much of the conversation is irrelevant. Fourthly, where subjects touching upon the girl's disappearance are discussed many of Ms Summers' contributions are argumentative and the accused's responses, to the extent that they can be heard or inferred, are defensive rather than incriminatory.
Specific objection was taken to admission of the transcript. It follows from the finding as to the admissibility of the CD and the tapes that the transcript should not be admitted.
Conversations with Ms Summers – specific passages
The next issue is whether oral evidence of the conversation between Ms Summers and the accused should be admitted. The transcript prepared has some passages in bold type which are inaudible on the tapes and the CD. These passages in bold type represent the subject discussed, according to Ms Summers memory, at that point. It can be seen from the form of the transcript that in most cases it does not attempt to reproduce the precise words used.
In principle, where the details of the conversation are given from recollection because there was not an attempt to electronically record it at all, or there was a failed attempt, the evidence is admissible. The questions of whether the conversation occurred and the accuracy of the recollection, if it did occur, are for the jury. Therefore, if Ms Summers is able to say that during the conversations certain things were said by the accused and by refreshing her memory from the tape, she was able to place those statements in context, the evidence would be admissible. Exclusion would depend on an exercise of the discretion.
Mr Campbell pressed the argument that certain parts of the conversation should be admitted. Mr Devereaux objected to each of them. These objections are not capable of being dealt with in a blanket fashion so each will require individual attention.
The first appears at transcript 1 page 2. It concerns the accused going for a ride and driving around to see what places the girl or perhaps the accused might have been. One of the answers appears to be dialect and Ms Summers has translated it. This evidence seems to duplicate evidence which will be given by Mr Johnson and appears to be unnecessary to lead, particularly if there is no dispute that Mr Johnson and he went to the places and there is no inconsistency between that evidence and other evidence. That was not adverted to in submissions before me. If there is any such point, it can be raised before the trial judge.
At transcript 1 page 3 there is a passage of conversation which is relatively intelligible, but the unintelligible answer to Summers' third question makes it difficult to be sure that an adequate context is established for what follows, especially as Summers' fourth invention seems to suggest that the unintelligible response did not shed any light on what had happened. Further, taking what can be heard on the recording in conjunction with Ms Summers' recollection of what was said in the passages which are unintelligible, there is some force in Mr Devereaux's submission that what the accused says about going to gaol "No matter what" (the emphasis on each word being the same) and that if the police do not find her they have enough to put him away are as consistent with an apprehension on his behalf that he would be going to prison irrespective of his guilt, on the basis of what he believed from the police, as with an admission that he was guilty.
In R v Doolan (1962) QdR 449, a statement by the accused, on reading a co-accused's statement, that "he has dubbed us all in" was held to be equivocal and not to be taken as an unequivocal admission of the truth of the contents of the statement. In such a case the practice has been to exclude such evidence in the exercise of the discretion, even though it is technically admissible. In my view this passage should not be admitted. The ruling is based on the evidence as it stands on the transcript.
There is another passage at page 5 concerning the option of suicide and that the accused will suffer. In my view this should also be excluded in the exercise of the discretion of the same basis.
In the context of a rhetorical question what she should tell the children, the passage from the middle of page 6 to the middle of page 7 is recorded and is audible on tape. The critical part which might be interpreted as betraying a greater involvement than was revealed to the police is the following:
"SUMMERS: Well how did it happen, I don't ...
SAM: How do I know?
SUMMERS: Well I just can't understand how you can't rememberSAM:You know I didn't do it deliberately or I didn't, well I don't know, please just get it out of my brain for once
SUMMERS: No
SAM: leave me alone
SUMMERS: I need to know things
SAM: Mia
SUMMERS: but yeah it was an accident maybe
SAM: Mia
SUMMERS: but tell, what happened
SAM: I didn't know
SUMMERS: did you rape her
SAM: I don't know Mia I don't know."
Excluding the emotional part of the conversation, the prosecution wishes to use the second intervention by the accused as indicating that there was a concession, perhaps inadvertently in the heat of the conversation, that he was involved in the death of the girl. This conversation is self-contained to a sufficient extent, in my opinion, to avoid unfairness or imbalance.
In transcript 1 page 17 there is a passage where Ms Summers recalls the accused saying that he has told the police everything he knows, and that he did not want to talk to her because his barrister had told him not to ring her because she would call him a murderer and killer. The subsequent intervention by the accused is unintelligible on tape, but according to Ms Summers it is to the effect:
"Its not murder its manslaughter. I'll do the time and then I'll go to the family and let them do what they want to do to me. I don't want to talk to you about it any more. You'll know when the body's found. Everything will come out when the body's found."
Ms Summers then asked whether he thought that he had hurt her. There is then a long unintelligible passage. That is followed by Ms Summers' recollection that the accused talked about his barrister and that the charge would be dropped to manslaughter, and that they were giving him time to remember. The difficulty as the matter stands on transcript is that the words marked as recollection are, in context, just as capable of being interpreted as a recounting of what his barrister had told him as of an unequivocal admission of guilt.
This interpretation is somewhat reinforced by Ms Summers' fifth intervention on that page where she asks "Can I ask you once do you think you have hurt her?". The long unintelligible passage follows and her recollection of what followed that was that the accused talked about his barrister and that the charge would be dropped to manslaughter, and that the police were giving him time to remember. In all of the circumstances, I am of the view that as the passage stands the evidence should not be admitted.
On page 19 at the bottom there is a passage where Ms Summers says that she had pictured that he had "tried it" and that he had raped her. He replied in a passage where there is some unintelligible material that "The coppers know I didn't rape her". This is not capable of being treated as an admission and is not otherwise probative. It should therefore be excluded.
On transcript 2 page 10 there is a passage which the prosecution seeks to admit. To the extent that the context of the conversation can be inferred from Ms Summers' part in it, (her sixth intervention on), it seems to be the case that the accused was not giving any information concerning events of the evening. This is supported by the second last intervention on that page which punctuates, on listening to the recording, "But you've told the police everything you know? And there's nothing else you are keeping a secret?"
The prosecution applies to lead evidence which is not on tape but which Ms Summers says was given in answer to a question "But in your heart do, do you want to tell me anything, deep inside your heart do you think ... ." She says he replied "Yes I do. Ammen bub knows what happened and he knows how sorry I am." She included in her recollection a translation that "Ammen bub" meant God. This highlights the issue referred to previously that in at least two other places the accused seems to speak in some sort of dialect (Transcript 1 page 2, second intervention, Transcript 1 page 3, sixth intervention). How much else in the unintelligible portions may have been in dialect is unknown. That words are spoken in dialect is, of course, not a ground for refusing to admit evidence. However, it increases the possibility of the process of translation shifting the emphasis and idiom of words inadvertently.
The prosecution wishes to lead this comment as evidence of guilt. The difficulty is, that if it is to be used as an admission it fails the test of being sufficiently unequivocal (R v Doolan). What he is saying that he is sorry for is not unequivocal since it seems not to be a departure by him from his story that he was responsible for removing the girl from the house and leaving her near the party. Especially in the context in which it appears, there is no reason to prefer the interpretation of the remark as an admission of guilt for the death of the girl in preference to an expression that he is feeling guilty for his admitted actions on the night, or their consequences.
On transcript 2 page 19 Ms Summers says words to the effect that she is just trying to get something that he may be scared to say, and that it might save him something if he said it. The accused's answer is unintelligible. Ms Summers says "I just thought it would make you wild and you might say it to me, that's all". According to Ms Summers' recollection he kept saying he told the police everything he knew and didn't want to say anything to her. He also said words to the effect that she should just wait until the body was found and then it would all be over. In my view this suffers from the same problem as the preceding passage and is incapable of favouring the interpretation that finding the body may prove him guilty over the interpretation that it will prove him innocent. Where such evidence is pressed on the basis that it should be construed as an admission rather than a circumstantial fact, the fact that it is equivocal is critical to admissibility. In the circumstances it should not be admitted.
Conversations with Ms Summers – Swaffield Argument
The remaining matter is whether the circumstances in which the taped telephone conversations were taken from the accused contravened the principles laid down in Swaffield v The Queen; Pavic v The Queen (1997) 192 CLR 159. I do not accept that there is any basis for refusing to admit the evidence on this basis. The accused had indicated that he intended to ring Ms Summers. There may be some force in Mr Devereaux's submission that he was principally concerned with his children in making those phone calls. However, the passages quoted above indicate that the police did not contrive to cause the accused to speak unwillingly of the events of the evening. Nor did he seek to steer the conversation away from the subject for the vast majority of the time.
Further, the subject of discovering what had happened was one in which Ms Summers herself had a legitimate interest, because it was from her house that the girl had disappeared. In my opinion, the case falls on the side of the line drawn in Swaffield v The Queen; Pavic v The Queen which favours admissibility.
Basis on which rulings have been given
The rulings in relation to Ms Summers' evidence have been given on the basis upon which the evidence has been presented to me. Should any further issues concerning her evidence arise on consideration of these reasons, the party raising them should put the other side on timely notice, with any supporting material being reduced to writing. Any such issues should be notified in a timely way to the trial judge.
Evidence of Mr Johnson – admissibility generally
With regard to the evidence of Mr Johnson, the reason why the prosecution attaches importance to it is that it will wish to submit that it discloses conduct inconsistent with the accused's version of events that he let the girl off near the party and did not see her again. The Crown says that the evidence will establish that the accused directed Mr Johnson to other locations as well as the place where he said the girl was let off, ostensibly to try to jog his memory. The prosecution will argue that such conduct may persuade the jury that his account of only limited involvement with the girl was false.
There is also some conversation with Johnson which the prosecution says may be interpreted as evidence that he did things to the girl, particularly having sex with her, grabbing her around the neck and that the girl was injured in the head, although such statements are only to the effect that it was possible that he might have done so.
Evidence of this kind would be, in principle, generally admissible. Objection to its admission was made, firstly, on the ground that it was inadmissible and, secondly, that it should be excluded in the exercise of the discretion.
Mr Johnson was the chief executive officer of Piabun Aboriginal Corporation for whom the accused worked. There is nothing of significance in the first 31 paragraphs of his statement. However, the remainder of his statement with the exception of the last few paragraphs is concerned with dealings with the accused which have reference to the case.
It was submitted that since the conversations between Mr Johnson and the accused were statements made out of court they would be inadmissible hearsay unless they fell within a recognised exception to the rule against hearsay. It was submitted that the statements made by him were neither admissions nor statements or lies going to guilt. It was submitted that the evidence of Mr Johnson contained no unequivocal admissions or statements inconsistent with the statement he had given to the police that he had dropped the girl off.
Reliance was placed on several factors which were particularised under the following headings:
(a) the statements were made in answer to suggestions by Mr Johnson;
(b) the statements were vague;
(c) statements were made in an apparent state of confusion; and
(d) the statements were the product of reconstruction and possibly imagination rather than memory.
With regard to category (a), some specific instances of which complaint was made become academic in view of the reasons which follow but the specific references relied on by Mr Devereaux in his outline of argument illustrate that some subjects of conversation were or may have been raised by Mr Johnson. That of course would not of itself be fatal to admissibility. The complaints that the statements were vague fall into two categories. One is based on the proposition that statements made by the accused did not state definitely that certain things had happened. The second category is common to this objection and to category (c) and (d), in that the argument is based on assertions of opinion by Mr Johnson of dubious admissibility in the form in which the opinions were given.
The point is that if the evidence was given in the appropriate form of stating what he noticed rather than asserting an opinion it would really be a jury question whether the statement made was vague or the statement was confused or based on reconstruction. The jury in considering this issue would also have to consider whether, while the accused expressed himself in a way which did not definitely commit himself to doing various acts, it could be inferred that what he said really represented reality.
I should note one particular aspect of these arguments. In the passage in paragraph 77 and 78 of the statement the accused was asked by Mr Johnson "Can you remember the sex?" and the accused replied "Not really". Standing alone that would not be of any probative value. However, it post-dates in the conversation a series of events where they had driven to a car park outside the child care centre where the accused sat, apparently concentrating, for 10 to 15 minutes. The conversations at paragraphs 52 to 59 followed. It will be seen that the reference to sex, according to the statement, was initiated at that time by the accused. The passage at paragraph 77 was prompted by returning on another day to the same car park. I do not consider that the fact that the conversation was initiated on that occasion by Mr Johnson renders the conversation inadmissible.
Subject to the detailed discussion of what is admissible and what is inadmissible which follows shortly, I am satisfied that there is no basis in principle for excluding the conversation in its entirety on the ground relied on. It is too restricted a view of what is admissible in a circumstantial case to say that the evidence is inadmissible because it does not contain explicit admissions or statements or lies going to guilt.
An inference in a circumstantial case can be drawn from what a person said and what he did. Admission into evidence of what he said is not necessarily dependant upon the ability to characterise it as an admission. The basis of admissibility is the fact that he directed Mr Johnson to places and said things, whether in answer to question or spontaneously, which allowed that it was possible that he might have done more than he originally told the police. That evidence at the least would raise issues concerning the credibility of the account of limited involvement. As such it would be an element in the circumstantial case which the prosecution hopes to make. The submission in my view takes too narrow a view of the basis of admissibility.
Evidence of Mr Johnson – specific issues
As already noted the relevant parts of the statement of Mr Johnson commence at paragraph 32. In that and the paragraphs to paragraph 40 he relates how he became involved in the events concerning the present case. The effect was that initially he was unaware that the accused's absence from work on 30 August 1999 because he was helping the police find a missing girl was as directly connected with her disappearance as he subsequently learned. That evening at the accused's request he attended with him at an interview with the police. Paragraphs 32 to 40 are essentially narrative and are in my view admissible. The degree of detail in which the evidence is given is a matter for counsel.
Paragraphs 41 to 46 contain no relevant material except that it can be inferred from paragraph 45 that the accused's motor vehicle was retrieved from the police station the following Saturday. Paragraph 47 is admissible. It is simply an invitation to the accused to come to Mr Johnson's home on Sunday morning.
During the course of the morning (paragraph 48) the accused said he wanted to go into Nambour and try and backtrack his movements. In paragraph 49 Mr Johnson offered to accompany him and the accused accepted the offer. Those parts of the evidence are admissible. However, I think that that part of section 48 which relates to discussing options if he had done something should not be led because of its undue prejudicial effect and lack of probative value.
The evidence in paragraphs 50 and 51 of driving to various locations with the accused giving directions is admissible. Paragraphs 52 to 54 contain conversation about thinking that he may have grabbed the girl around the neck. In paragraphs 52 and 55 there is reference to the accused being confused. This is an example of the numerous expressions of the witness' opinion or assessment of the accused's mood at various times. That kind of evidence generally cannot be led, at least in that form, by the prosecution. Evidence can of course be given of factual matters from which the jury might be asked to draw such an inference if it is relevant. However, the defence should not be precluded from exploring matters which have a bearing on credibility and weight of evidence. Whether the Crown attempts to lead the evidence or it is left to the defence to make judgments as to what is important and what is not in connection with his physical and emotional state is a matter for counsel.
Paragraphs 56 and 57 recount a conversation concerning going to the place where the accused said he let the girl off. In paragraph 57 the accused said "I can still see the girl getting out of the car" and Mr Johnson replied "But the coppers said that didn't happen". There was no responsive answer to this in the statement and this is confirmed at page 132 of the depositions. In my opinion the last mentioned comment is inadmissible as part of the prosecution evidence since there was no response and no inference can be drawn from the silence in the particular circumstances. The rest of those two paragraphs is admissible. Paragraphs 57 to 60 relate to the conversation about having sex to which reference has already been made. With the exception of the assumption in the last sentence of paragraph 59 the evidence is admissible. Paragraph 61 appears to be irrelevant unless the defence believes it serves some purpose.
To the extent that the parties may wish to lead evidence of going back to Piabun as part of the narrative of events paragraph 62 is unobjectionable. Whether evidence of his condition is led and by whom is a matter for counsel. The explanation of Mr Johnson's motivation for not questioning the accused further at that time is irrelevant and therefore paragraph 63 should not be led unless the defence wishes it to be led.
Paragraphs 64 and 65 are narrative. Paragraphs 66 and 67 are in my view irrelevant unless the defence wishes to have the evidence admitted. With regard to paragraphs 68 to 70 in my view the prejudicial effect outweighs the probative value. The evidence should not be admitted at the instance of the prosecution.
Paragraphs 71 to 74 are admissible as a narrative of where the accused and Mr Johnson went subject to the same caveat concerning opinions as previously referred to. Subject to the same caveat, paragraphs 75 to 78 are in my view admissible. Paragraph 79 should not be admitted except for the last sentence if it is wished to complete the narrative. Paragraphs 80 to 82 are of questionable relevance although not obviously inadmissible. Whether any of the content of paragraphs 83 to 86 is admitted is a matter for counsel.
The rulings given with regard to Mr Johnson's evidence are not intended to preclude other parts of his evidence being led by agreement between the parties. The ruling simply represents a view as to what, in terms of strict admissibility or consideration of discretionary grounds, is able to be led without infringing principle.
Pursuant to s592A of the Criminal Code, I make the rulings set out in the preceding paragraphs of thee reasons.
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