R v. Drury

[2007] QSC 399

SUPREME COURT OF QUEENSLAND

CITATION:

R v Drury [2007] QSC 399

PARTIES:

THE QUEEN
(respondent)

v

VICTORIA LOUISE DRURY
(applicant/defendant)

FILE NO/S:

Indictment Number 376 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application to exclude evidence

DELIVERED EX TEMPORE ON:

16 August 2007

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

10 August 2007

JUDGE:

Wilson J

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – PARTICULAR CASES – the applicant allegedly attempted to procure the murder of her estranged husband and another – the person she attempted to procure to carry out the murder contacted the police – that person made ‘pretext phone calls’ to the applicant and her co-accused which were recorded – whether the Ridgeway discretion (to exclude evidence of an offence where its commission was brought about by illegal or improper conduct by the police) extends to these circumstances

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – PARTICULAR CASES – a police officer also made pretext phone calls which were recorded – whether the evidence of those calls should be excluded

Bunning v Cross (1978) 141 CLR 54, cited
Ridgeway v R (1995) 184 CLR 19, discussed

COUNSEL:

C W Heaton for the applicant defendant
M Whitbread for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant defendant
Director of Public Prosecutions (Queensland) for the respondent

1. Wilson J:  The applicant, Victoria Louise Drury, has been charged with two counts of attempting to procure one Alexander Ellul to commit a murder in South Australia.  The offences were allegedly committed on the Gold Coast between 14 February and 16 April 2006.  The intended victims were her estranged husband, Robert Drury, and one Brett Haygreen both of whom were in South Australia.

1. The applicant has been charged with a co-accused, Andrew Pattie. Pattie has been convicted on his own pleas of guilty and sentenced. The applicant has been charged not as the instigator of a conduct but as a party pursuant to section 7 of the Criminal Code.

1. This is an application to exclude evidence in exercise of the Court’s discretion under the principle in Ridgeway v R.[1]  The evidence sought to be excluded consists of –

(a) evidence of pretext telephone calls made by Ellul to Pattie; and

(b) evidence of covertly tape-recorded telephone conversations between a covert police officer and Pattie.

[1](1995) 184 CLR 19.

1. Under the principle in Bunning v Cross[2] the Court has a discretion to exclude evidence illegally or improperly obtained.  The Ridgeway discretion is a separate but sometimes related discretion to exclude evidence of an offence or of an element of an offence in circumstances where its commission is brought about by illegal or improper conduct on the part of law enforcement officers.  In exercising the Ridgeway discretion the Court has to strike a balance between discouraging unlawful or improper conduct on the part of law enforcement officers on the one hand and the need to bring to justice those who commit crimes on the other.

   [2](1978) 141 CLR 54.

1. In this case counsel for the applicant asks the Court to extend the Ridgeway principle to cover evidence of conduct of Ellul and its adoption by the police as well as to apply the principle directly to evidence of conduct by the covert police officer (I refer to the transcript page 39).

1. The applicant and Pattie were in a relationship.  The applicant had told Pattie that her estranged husband Robert Drury had been violent and abusive towards her and that he had raped her on several occasions.  She had also told him that her husband’s friend, Brett Haygreen, had raped her.  In February 2006 the applicant and Pattie travelled from South Australia where they lived to the Gold Coast on holiday.  They quickly struck up a friendship with Alexander Ellul, a labourer working on the motel premises where they stayed when they first arrived.  Pattie told Ellul that he wanted Robert Drury and Haygreen dead for what they had done to the applicant.  Both the applicant and Pattie represented that they were flush with funds.  Ellul offered to have them killed.

1. The applicant and Pattie had repeated contacts with Ellul and his wife.  Pattie said on several occasions that he wanted Drury and Haygreen dead.  Ellul made initial contact with the police but at that stage police did not pursue the matter.  About three weeks after the initial conversation Ellul wanted a deposit.  The applicant and Pattie had a private conversation after which they gave him two notes.  The first was in these terms:

“I owe $10,000 for sale of car.  Will be paid on or before 90 days from today.  However assets in lieu from said car/s to be held by vendors in excess of $300,000 until then.”

1. It was signed “Andrew Scott per partner Andrew Scott Pattie”.  Written across the top of the notes was “NB.  Bonus if done by 6 p.m. 15/3/06”.

1. The second note was written by Pattie at the dictation of the applicant.  It contained name, address and telephone numbers and the words “Rob Drury”.

1. The next day, 10 March 2006, the applicant and Pattie returned to Adelaide.

1. On 15 March 2006 Ellul made further contact with the police.  There were three pretext calls on 15, 16 and 18 March which were recorded.  In the call on 15 March 2006 Ellul said the price was $10,000, half to be paid before and the other half after the job was done.  Pattie said that it was not a good time to talk, he was in a restaurant.

1. The call on 16 March 2006 was made by Ellul to Pattie at a time when Pattie and the applicant were outside a police station in Adelaide.  They seemed to be upset and expressed fear that there was a contract on their own lives.  Ellul pressured them not to talk to the police saying, “You’ll get me killed.”

1. In the call on 18 March 2006 from Ellul to Pattie, Ellul said he would pass on Pattie’s phone number to the person who could assist them.

1. There were then six calls from the covert operative to Pattie between 21 March and 5 April 2006.  In a call on 21 March from the covert operative to Pattie (who was in Adelaide) Pattie said that he was serious, that he relied on a property settlement, that it would have been at the end of the month.  The police officer said that he wanted to meet them face-to-face first; that he needed money, a photo and car registration, et cetera.  He also said that at that planned meeting Pattie must be sober and not on drugs.

1. On 27 March there was a two-minute call from the covert operative to Pattie in Adelaide.  The applicant answered the phone and almost immediately put Pattie on.  There was some background conversation between the applicant and Pattie about when the house settlement was due.  Pattie told the police officer he was still serious.

1. On 31 March there was a one-minute call from the covert operative to Pattie.  Pattie again said they had still not sorted out their domestic affairs in Adelaide so they were not yet in a position to be able to come to Queensland.  Pattie offered to sort out an airfare for the covert operative to go to Adelaide.  The phone line was unclear and it was agreed that the covert operative would call back in half an hour.  Later that day there was a call from the covert operative to Pattie.  The covert operative gave Pattie instructions to book plane tickets to Queensland for Monday, 3 April 2006; to book a theme park pass and book into a hotel, presumably for alibi evidence.  None of these instructions were later followed.

1. Pattie explained, “The guy’s name is Brett Haygreen.  Now, to start with it was going to be someone else but I’ve gone cool on him, but there’s one guy I particularly want and it’s this Brett guy.”  Pattie then went into the reason why he wanted Haygreen killed.  The only details he gave were that Haygreen lived alone and was a member of the Cobras motorcycle gang.  The applicant was brought into the conversation when they discussed arrangements to come to Queensland, when they would be able to do that, how they would get there and where they would stay.  There was no direct conversation involving the applicant in any plan to kill Drury or Haygreen.  Pattie said, “If I decide to pull out, I’ll still give you some fucking dollars and shit so I don’t mind doing that either, you know.”

1. On 3 April 2006 there was a call from the covert operative to Pattie.  Pattie said he didn’t want to do anything right then as he was suspicious they could keep getting broken into.  The covert operative again asked Pattie to book into a hotel and again Pattie asked for a couple more days.

1. The last call was on 5 April 2006.  Again Pattie said he had a cash problem and the covert operative offered to do the job and be paid later.  Pattie told him he didn’t want to do that.  Pattie mentioned that they had taken out a loan against the settlement.  In fact, none of that money was ever offered as a down payment or used to make the bookings that the covert operative requested.  The covert operative asked Pattie if he could get his hands on enough money to fly up to Queensland.  Pattie said he could hock his car but he didn’t want the extra interest.  He said he “would like to wait until it’s sorted so I don’t have to pay extra interest but if it’s desperate to be done, you know, it can be but I just prefer not to”.

1. The covert operative told Pattie to text him the letter “A” if he could get himself to Queensland to make it happen and reiterated the offer to do it and be paid later.  He also said to text the letter “A” if he wanted the covert operative to call him.  That was the last contact.  No attempt was ever made by Pattie or the applicant to again contact the undercover police officer as they were invited to do.

1. On 15 April 2006 a warrant was issued for the arrest of Pattie and the applicant.  They were arrested in Adelaide the next day and on 18 April 2006 extradited to Queensland.

1. The applicant’s counsel submitted that Ellul’s conduct was illegal and that that factor tainted the police investigation because they capitalised on that illegality. The basis of the alleged illegality was explained in this way: it was as a result of Ellul’s offer to provide a person who would carry out the killing that the offence was committed at all. Ellul then encouraged, enabled and aided the further commission of the offence making him a party to it pursuant to section 7 of the Criminal Code.

1. Counsel for the applicant relied in the alternative on impropriety, the pressure exerted by Ellul in the conversation on 16 March when he told two vulnerable, emotionally fragile people not to go to the police, and the pressure exerted thereafter by the covert officer.

1. The Crown did not accept that Ellul had acted unlawfully or attempted to do so.  He had not put his intention into execution.  The offences were complete before the involvement of the police; they were complete when the note containing Robert Drury’s contact details was handed over.

1. I cannot determine on this application whether Ellul’s conduct was unlawful.  It was certainly quite bizarre.  There is force in the Crown’s submission that the offences had crystallised before the involvement of police but this is ultimately a question of fact for the jury.  It would only be if something were done in furtherance of the offence after police became involved that the Ridgeway discretion might arise.

1. I am prepared to assume for the sake of the argument that both Ellul in the second pretext call and the undercover police officer acted improperly in exerting or attempting to exert undue pressure on Pattie and the applicant.  I have some doubt whether the Ridgeway principle could be extended to evidence of Ellul’s conduct but it may be that evidence of it would come within the Bunning v Cross principle.  But on the evidence, Pattie and the applicant did not succumb to this pressure.

1. The challenged conversations were such as might reasonably have been expected when someone was being procured to carry out two murders.  These are serious offences which, by their nature, are difficult to prove.  The Crown case, apart from the pretext calls and the calls by the covert officer, depends on the credibility of Ellul and his wife and two notes which do not speak for themselves.  In this case, the need to bring to justice someone charged with such an offence outweighs censure of the improper conduct by a police officer and, in my view, public policy requires the admission of the evidence.

1. I dismiss the application to exclude the evidence.