R v Eastman (No 40)
[2018] ACTSC 174
•14 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 40) |
Citation: | [2018] ACTSC 174 |
Hearing Dates: | 27 March 2018 – 28 March 2018; 5 April 2018 |
DecisionDate: | 14 June 2018 |
Before: | Kellam AJ |
Decision: | See [78] – [82] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility of evidence – objection to Crown to evidence in s 67 notices served by defence pursuant to s 65(8) of the Evidence Act 2011 (ACT) – that part of the evidence set out in the s 67 notices which is relevant to a fact in issue is admissible pursuant to s 55 of the Evidence Act 2011 (ACT) – in criminal matters the court is slow to exclude evidence presented by the defence on the basis that the risk of unfair prejudice substantially outweighs its probative value pursuant to s 135 of the Evidence Act 2011 (ACT) |
Legislation Cited: | Evidence Act 2011 (ACT) ss 55, 65 and 67 |
Cases Cited: | R v Eastman (No 32) [2018] ACTSC 12 R v Taylor [2003] NSWCCA 194 |
Texts Cited: | Australian Law Reform Commission, Evidence (Interim Report), Report No 26 (1985) Report of the Board of Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester (29 May 2014) |
Parties: | The Queen (Crown) David Harold Eastman (Accused) |
Representation: | Counsel Mr M Thangaraj SC, Ms M Campbell and Mr K Lee (Crown) Mr G Georgiou SC, Mr M Stanton and Ms L Line (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 111 of 1992 |
KELLAM AJ:
Defence s 67 notices
The defence has filed a number of notices pursuant to s 67 of the Evidence Act 2011 (ACT) (‘the Act’). The prosecution objects to the defence leading the whole or part of the evidence referred to in a number of the notices which have been filed and served. The s 67 notices at present under consideration are as follows:
(a)Section 67 notice relating to John Nicolas Weel filed by the defence on 22 February 2018;
(b)Section 67 notice relating to Bob Blissett filed by the defence on 6 February 2018;
(c)Section 67 notice relating to [redacted] filed by the defence on 19 March 2018;
(d)Section 67 notice relating to Colin Stanley Winchester filed by the defence on 19 March 2018.
John Nicholas Weel
The defence seeks to rely on the previous representations of John Weel who is now deceased. The representations to be relied upon are contained in two statements, the first dated 11 July 1988 and the second made on an unknown date and at an unknown place. In essence the evidence of Mr Weel is that on 31 March 1982 he was a detective sergeant of police attached to the drug bureau of Victoria police and that he was involved in the apprehension of two vehicles occupied by Robert Enterkin, Antonio Barbaro and Gianfranco Tizzone. Both vehicles contained a substantial amount of marijuana. Enterkin, Barbaro and Tizzone were arrested. Subsequently on 6 April 1982, Mr Weel had a conference with Mr Colin Winchester about evidence to be led at a forthcoming bail application relating to the arrested men. Mr Winchester expressed a desire that, if at all possible, Canberra was not to be mentioned ‘so as to avoid pressure’ on his informant.
In May 1982 Antonio Barbaro attended upon Mr Weel and introduced a person by the name of Esperanto, but who was revealed to be [redacted]. [redacted] told Mr Weel he would give him $30,000. On 7 or 8 May 1982 Mr Weel contacted Mr Winchester and informed him of [redacted] having been in Melbourne and having offered him a bribe. On 9 November 1982 charges against Enterkin, Barbaro and Tizzone were withdrawn.
The prosecution submits that even though the arrest referred to by Mr Weel apparently relates to marijuana grown at Bungendore 1, it has no relevance to [redacted] or his alleged motive to kill Mr Winchester. The arrest took place six years before the murder, thus making it remote in time and the circumstances of the arrest are not relevant to any fact in issue. Furthermore, and in the alternative, the prosecution submits that the admission into evidence of Mr Weel’s representations will unfairly prejudice the prosecution. In this regard the prosecution makes a number of points. First, the representations relied upon by the defence contain a threat made by [redacted], and what appears to be a veiled threat by Mr Antonio Barbaro, as well as representations regarding the attempted bribery of police. It is argued that the jury may ‘irrationally draw a link’ between these threats made in relation’ to an arrest made six years earlier and the murder of Mr Winchester.
In addition to the above submissions, a number of complaints are made that the notice contains impermissible second‑hand hearsay representations from Mr Winchester, [redacted] and Antonio Barbaro. In addition it is argued that [redacted] is available to give evidence if such evidence is held to be admissible and that it would be unfair for the evidence to be admitted without the prosecution having the opportunity to test the evidence of [redacted].
In order to understand the manner in which the defence argues that the representations of Mr Weel (together with the representations of others which I will refer to separately) are relevant and admissible by virtue of s 65(8) of the Act, it is necessary to examine briefly the arguments which the defence seeks to advance in response to the prosecution case. As part of the defence case it will be argued that it is reasonably possible that Mr Winchester was killed by someone on behalf of an organised Italian crime group involved in the cultivation of cannabis at Bungendore in the early 1980s, and that the person directly responsible was possibly [redacted].
Section 65(8) of the Act provides as follows:
(8) The hearsay rule does not apply to –
(a) evidence of a previous representation presented by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or
(b)a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
Thus the hearsay rule does not apply to a document tendered as evidence by the accused so far as the document contains a previous representation or another representation to which it is reasonably necessary to refer in order to understand the representation. Furthermore the defence relies upon the fact that satisfying s 55 of the Act requires an undemanding definition of relevance. The defence relies upon the Australian Law Reform Commission, Evidence (Interim Report), Report No 26 (1985) at [641] where it is stated:
…. minimal logical connection between the evidence and the ‘fact in issue’ ….. An indirect connection with a matter in issue is sufficient …. The concept extends to evidence affecting the credibility of a witness (relevant because it affects the weight of testimony) and evidence which relates to the admissibility of other relevant evidence.
The defence therefore submits that when relevance is assessed, it is to be assessed not in isolation, but in light of all of the evidence admitted or to be admitted in the proceeding. It is argued that the relevance of the notices relating to evidence of the activity of the Italian organised crime group in the Bungendore plantation should be viewed in the light of the Report of the Board of Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester dated 29 May 2014 (the ‘Martin Report’). Obviously the specific findings of the Martin Inquiry have no relevance and are not admissible in any way in the forthcoming trial, but they do provide a convenient summary of matters which may be the subject of evidence upon which the defence seeks to rely. In this regard the defence relies upon the following excerpts of the Martin Report at [1276]:
Shortly after the murder of Assistant Commissioner Winchester, one line of investigation focussed upon the possibility that a Calabrian organised crime syndicate known as ‘Ndrangheta was responsible…The motive was thought to arise out of the deceased’s involvement in a joint AFP/NSW police operation which commenced in 1980 (NSW Police code name for the operation was ‘Seville’). The police permitted two plantations of Indian Hemp to be grown (known as Bungendore 1 and Bungendore 2) in order to gain intelligence about the organised crime syndicate through an informant, [redacted]. Later police became aware of a third plantation at Guyra.
The defence relies upon the above paragraph as explaining the motive of the crime group to kill Mr Winchester. The Martin Report continues at [1277]:
The deceased took part in the operation from 1980 to 1982 during Bungendore 1. [redacted] was responsible for the organised crime syndicate believing that the deceased was corrupt and protecting their interests. It appears that the organisation held that belief until late 1988…
The defence relies upon the above finding to the effect that there is reason to believe that the crime group believed until late 1988 that Mr Winchester was corrupt and protecting their interest, the Martin Report at [1278] states:
Eleven of the participants in the Bungendore and Guyra plantations (known as the Bungendore Eleven) were belatedly arrested and a prosecution was instigated by the National Crime Authority. The committal commenced in 1988. The police investigation of the murder proceeded upon the basis that members of the crime syndicate possessed a possible motive for the murder by way of ‘pay back’ for the arrests and prosecution, the organisation having previously believed they had paid for police to ‘turn a blind eye’ ….
The findings referred to in the above paragraph set out how eleven of the participants in the Bungendore and Guyra plantations were belatedly arrested and a prosecution instigated by the National Crime Authority (‘NCA’). The defence relies upon the fact that a committal commenced in 1988 is temporally proximate to Mr Winchester’s murder and that one avenue of investigation into the murder proceeded on the basis that the crime group may have possessed a motive to ‘pay back’ Mr Winchester for the arrests and prosecution, the group having previously paid police to ‘turn a blind eye’ as to the cannabis cultivation at the plantations.
In addition the defence relies upon the following paragraphs of the Martin Report as being important to understanding the relevance of the s 67 notice in relation to Mr Weel and to others who made similar representations in relation to the Italian crime group.
1280.The [accused’s] submission was outlined in the following broad terms:
The question of motive featured in the prosecution case against [the accused]. It was asserted that [the accused’s] motive to kill Winchester arose out of Winchester’s refusal to intervene in an assault case against Eastman.
In the Coronial Inquest a substantial body of evidence was accumulated about others who had powerful motives to kill Winchester. The ‘others’ were members or associates of the Calabrian organised crime syndicate referred to as the 'Ndrangheta.
The Inquest documents MFI 23 and MFI 130 and Briefs 20 and 32 (referred to in the Coronial Inquest as the ‘also-ran’ briefs) identify the nature of the evidence and other available criminal intelligence about the involvement of persons associated with the 'Ndrangheta in the murder of Winchester.
The alternative hypothesis that persons unconnected with [the accused] had a strong motive to kill Winchester and were responsible for his murder was not adequately investigated by police.
1282.Mr Best from the NCA/AFP gave evidence about his secondment to the NCA to assist with the preparation of the prosecutions which arose out of Operation Seville. He outlined his knowledge of the progress of the Bungendore committals, [redacted] failure after the murder to give evidence for the prosecution as previously agreed and the ultimate unsuccessful outcome of the prosecutions. Mr Best gave evidence that on 12 January 1989 (the date set for subpoena arguments in the Bungendore Eleven committal), on behalf of some of the defendants Dr Woods submitted that the murder could have an impact on his case. There was no record of any application for a witness subpoena addressed to the deceased, but he was named in subpoenas for production of documents. The prosecution never intended to call the deceased as a witness. Mr Best also detailed the meetings he had with [redacted] during and after the end of the committals, in particular after the murder (Inqu 3280–3485).
It should be observed that the prosecution has stated that it intends to call Mr Best to give evidence in the trial. The Martin Report continues:
1283.Commander Robert McDonald of the AFP began working on the Winchester murder investigation in June 1989. He gave evidence at the Inquest about a report dated 28 September 1989 he prepared for the Coroner which became MFI 23 (Inqu 5182‑5913). In the report Commander McDonald supported the existence of a significant motive to murder the deceased arising out of his association with persons involved in an Italian organised crime group and Operation Seville. The deceased was perceived as a ‘corrupt’ police officer who failed to protect the families in return for the money he had been paid. The report recognised a motive based on the deceased’s association with [redacted] and proffered a link to two individuals, Mr Bruno Musitano and Mr Giuseppe Ielasi, who may have been brought over from Italy to commit the murder. The report was based on information received from a number of police informers, interviews with people involved in Operation Seville, information provided by Italian authorities and covert recordings.
1286.Another report was prepared by the Australian Bureau of Criminal Intelligence in December 1990 and became MFI 130 at the Inquest (Inqu 7122). This report (Ex 243) focussed on the method and motive for the murder. In relation to the motive the report considered the existence of a power struggle between two Italian organised crime families for control of the Indian hemp production and distribution in NSW and the ACT in the 1980s. The report postulated that the deceased may have been murdered because:
•he was perceived by organised crime groups as going against his word to provide protection in relation to the plantations; and/or
•the organised crime groups believed he was going to give evidence about the Bungendore plantations which would threaten senior members in Australia.
1287.In relation to the method of the murder the report drew significant parallels between the murder of Donald MacKay and the murder of the deceased in that they were both:
• public figures;
• publicly opposed to drugs;
• perceived by organised crime as informants against the organised crime families;
• shot in the head with a .22 calibre weapon; and
• shot in association with their vehicles (getting in or out of the car).
1288. The report concluded that, on the balance of probabilities:
… the murder of Assistant Commissioner Winchester on 10 January 1989 was committed by, or on behalf of, an organised group of Italian residents in Griffith and Canberra to protect the assets and liberty of those persons involved in the past and continued large scale production and marketing of Indian hemp in Australia.
1291.The informant, [redacted], gave evidence at the Inquest, but often answered questions by saying he did not recall whether things happened or refused to answer on the basis that the answer might incriminate him. He said he had been told by someone prior to the murder that the deceased was going to be a defence witness in the Queanbeyan committals (Inqu 4979). He denied telling Mr Best it could have been the Calabrian mafia who were responsible for the murder, but he did say that if the murder was drug related he might have an idea about who would have done it (Inqu 4982). [redacted] confirmed he had been working with the AFP and said it was his belief the AFP had not honoured his agreement with them to pay him for his work.
1292.[redacted] said the deceased could have been murdered due to his involvement in setting up the NCA. He denied knowing that the deceased was not involved in Bungendore 2. He thought he was still getting his instructions from the deceased via Mr Lockwood. [redacted] said his role was not as an informant, but as a special agent (Inqu 5002–5003). He was in fear for his life. A noose had been hung on his door several times and threats made via letter both before the committals and after the murder (Inqu 5009).
1327.The [accused’s] submissions are found in annexure 7 paragraphs 149–187. Based on the papers, in summary, the [accused] advanced the following propositions:
•The deceased supervised AFP contact with [redacted] from 1980 to 1982. He played the dangerous role of a supposedly corrupt police officer and a paid protector of members of the ‘Ndrangheta.
•After being arrested in relation to the third plantation near Guyra, [redacted] spent six months in custody and agreed to cooperate with the NCA. In March 1988 the NCA belatedly charged 11 men with cannabis offences arising out of the plantations. They were connected by their involvement with [redacted] in the cultivation of cannabis. [redacted] was given immunity from prosecution and was an essential witness.
•By late 1988 it would have been obvious to those charged that they had not been protected by the deceased. MFI 23 and MFI 130 support the strong inference that the deceased’s deception had dishonoured the ‘Ndrangheta members and this provided a powerful motive to exact revenge. It was irrelevant that the deceased was unlikely to be a witness. His murder was not to silence him as an important witness, but rather to make an example of him and to assert the power and authority of the organisation itself. It also provided [redacted] with the excuse he needed not to give evidence for the prosecution. The prosecution against the 11 men collapsed.
•[redacted]
•The recorded conversation between [redacted] and another on 2 June 1989 records [redacted] talking about ‘the shepherd who killed Winchester’ and saying ‘There are two of them. Do you want to know the two of them.’ The related information concerning the two ‘shepherds’, Mr Musitano and Mr Ielasi, is in MFI 23. Although MFI 97 says the translation of part of the covertly recorded conversation involving Mr Musitano was mistaken, it still reveals that he was discussing the police and later conversations implicated Mr Musitano in a plan to murder a number of Italian speaking interpreters who were assisting the AFP with their translation services. Mr Musitano talked about the fact that ‘they had caught him – but he’s a mad one, inside, and makes our things better’. The plans to execute interpreters working for the AFP is consistent with a philosophy of seeking to silence through intimidation those who might be working against the ‘Ndrangheta.
•There was evidence at the Inquest that [redacted] knew where the deceased lived.
•Information from Mr Grieve, the resident who lived approximately six or seven houses away from the deceased’s house, about hearing a V8 engine start and speed off immediately after hearing two gunshots was more consistent with a V8 [redacted] than with the sound of the [accused’s] Mazda 626.
•During a covertly recorded conversation between an informer and [redacted] in April 1989, [redacted] told the informer to ‘shut up’ otherwise they would both be killed. He stated that ‘somebody in Brisbane was talking’. Pasquale Barbaro had been speaking to the NCA in Brisbane. He was shot, but not killed, on 21 April 1989. [redacted].
1331.Notwithstanding these defects, the material relied upon by [the accused] establishes or tends to establish the following facts:
•Members of a criminal group involved in illegal drug activities paid money for protection and believed that the deceased received the funds.
•A number of those members were charged with drug offences and believed that the deceased had not honoured his commitment.
•Arising out of these circumstances, members of the crime group possessed a strong motive to kill the deceased.
•Members of the crime group had access to weapons (Buffington).
•Prior to the murder, members of the crime group had in mind the killing of the deceased.
•Immediately after the deceased was shot, a vehicle that sounded like a V8 started up and drove away (Grieve).
•At about 6 am on the morning after the murder, two members of the crime group were out and about. One of them was driving a V8.
•The alibi of one of the members was not properly investigated.
•After the murder statements were made by members of the crime group to the effect that one or more members were involved in the murder.
In addition to the above matters the defence relies upon the statement of Australian Federal Police (‘AFP’) member John Best dated 14 June 1990. In the 1980s Mr Best worked in the AFP for the Australian Bureau of Criminal Intelligence (‘ABCI’) investigating hemp plantations and people associated with this activity who were suspected to be members of the Italian crime group. As stated above, Mr Best is on the prosecution witness list and the defence relies upon the fact that it is likely that evidence of the matters addressed in his statement will be led through him at the retrial. Mr Best’s statement is dated 14 June 1990. It was handed up by the prosecution to me on 5 April 2018 as part of Exhibit PTADH ‘A’. The statement is forty-six pages in length and contains a detailed history of the Bungendore plantation and the police and Italian connections with those plantations and in particular the dealings with [redacted].
Finally, in dealing with the relevance of the s 67 notices under consideration the defence submits that the statement contained in [14] of the prosecution’s written submissions filed on the 26 March 2018 that the ‘fact in issue is whether or not the Accused murdered Mr Winchester. The Accused says Mr Winchester was murdered by [redacted]’ is an overly simplistic description of the defence. It is submitted that whilst the defence does rely upon the evidence pointing to [redacted] as being the killer, independent of that evidence there is other evidence that:
(a)the group, more broadly, is responsible for arranging the killing; and
(b)that the accused is not responsible for the killing in the manner argued by the prosecution.
It is submitted that the ‘various strands of the defence are complementary but independent’. Thus it is contended that the prosecution submission (at [17]) that:
However, even though the arrest, as presented in Mr Weel’s notice, apparently related to the marijuana from Bungendore 1, it is difficult to see how that arrest and the representations relied upon could be relevant to Mr Barbaro or his claimed motive to kill Mr Winchester.
suffers from an ‘incorrect conclusion as a result of the prosecution’s characterisation of the defence’.
The defence submits that the relevance of the representations in the hearsay notice relating to Mr Weel is that those representations are capable of rationally affecting the probability of the existence of the Italian crime group’s motive to kill Mr Winchester. It is submitted that the arrest of the three men in question was a significant setback to the Bungendore operation and the profitability of the group, at a time when the group believed that it was paying money to Mr Winchester for protection. It is submitted that due to this interception and arrest, Mr Barbaro and Mr Tizzone, and by extension the other participants in the Bungendore plantation, had a reason to bear malice towards Mr Winchester as early as 1982 for failing to prevent the arrests and the loss of the marijuana. It is submitted that this was in circumstances where other evidence demonstrates that several days before the arrests on 31 March 1982 AFP member Lockwood had been paid $5,500, and that only two days before the arrest [redacted] had paid $15,000 to AFP member Lockwood.
It is argued that in these circumstances the evidence in the Weel s 67 notice is rationally capable of increasing the likelihood that Antonio Barbaro, [redacted], and more broadly the group behind the Bungendore plantations, would have had reasons to bear hostility and anger towards Mr Winchester as early as 1982, with such anger reaching its peak in late 1988 with the arrest of the Bungendore group. Furthermore, reliance is had upon Mr Weel’s statement concerning the dangerousness of the group as a demonstration that the group was willing to kill if it could not be satisfied in relation to escaping criminal responsibility for their cannabis activities.
However, the prosecution argues that whilst it is obvious that the jury needs to know about the general matters relevant to the Italian crime group’s involvement in the marijuana plantations, an emphasis upon the specific evidence referred to by Mr Weel is not necessary or, alternatively, is highly prejudicial to the prosecution case. Ms Campbell on behalf of the prosecution referred to the fact that Mr Best, a former AFP member, is on the witness list and will be called, and that there will be every opportunity for the defence after the prosecution has called evidence from Mr Best, to cross‑examine him on any relevant issue. It is submitted that what the prosecution is seeking to achieve by making Mr Best available and presenting other evidence in relation to the involvement of the Italian crime group, is to put that information before the jury in a way that is not prejudicial to the prosecution case. Furthermore, the evidence of Mr Weel relating to an attempted bribe of him by [redacted] and of a threat by [redacted], a person who the prosecution submits has no credit, is likely to be evidence which is capable of being misused by a jury who might make an illogical leap from events which took place in 1982, to the time of the murder.
The prosecution points out that [redacted] is available to give evidence. The prosecution submits that if the evidence contained in the s 67 notice relating to Mr Weel is ruled to be admissible, there would be unfairness to the prosecution if representations relating to [redacted], and contained in the Weel material, were admitted without giving the prosecution the opportunity to test [redacted]’s evidence. The prosecution submits that the fact that [redacted] made a threat referring to a bullet, the same means by which Mr Winchester was murdered, increases the risk of misuse of the evidence by the jury. Further, the prosecution submits that there is a risk that the jury will irrationally draw a link between the threats by the mafia, regarding an arrest made six years earlier, and the death of Mr Winchester. It is submitted that no judicial direction can cure such prejudice.
It is clear that the material relied upon by the defence, as was I think conceded by Ms Line on behalf of the defence, does contain a number of impermissible hearsay representations. However that is a matter that can, no doubt, be sorted out by the parties. The question presently before me is twofold.
First, does the s 67 notice in relation to Mr Weel contain relevant material? In my view the connection between the arrest of the three members of the Italian crime group and the way in which the defence puts its case is relevant.
The second issue to be considered is whether or not the evidence in question causes such unfair prejudice to the prosecution as to render it inadmissible? It appears to me that at least some parts of the evidence of Mr Weel do create a risk that the jury may become engaged in impermissible reasoning. However, based on the material before me I am not able to determine the extent of the prejudice that might arise by reason thereof. In my view, apart from saying that at this time the evidence proposed to be led pursuant to the s 67 notice in relation to Mr Weel does appear to have (subject to redaction for opinion, hearsay and the like) some general relevance to the issues in the trial, at this stage I cannot determine either the extent of that relevance nor the extent of unfair prejudice to the prosecution.
I consider that further consideration of the admissibility of that evidence should be deferred for the time‑being. I consider that the issues in question are much more likely to be clear, to me at least, after witnesses such as Mr Best, who are relevant to the issues presently under consideration, have given evidence and have been cross‑examined.
The defence do appear to be seeking to lead evidence from a variety of sources about the same topic. I would have thought that there is a possibility that agreement could be reached with the prosecution for admissions to be made by the prosecution as to such facts as are relevant and which would avoid the prejudicial aspect of some of the evidence that, at present, the defence proposes to lead. This approach would save considerable cost, inconvenience and time.
Bob Blissett
Mr Blissett was the officer in charge of the Bureau of Criminal Intelligence (‘BCI’) for the New South Wales (‘NSW’) Police force in late 1980 until his retirement on 15 November 1982. In August 1981 he was contacted by Mr Winchester who was then a Detective Superintendent. The conversation he had with Mr Winchester included a proposal for a joint operation between the AFP in Canberra and NSW Police, and covered an informant who had a property near Bungendore in NSW, and Italian members of the community who had approached the informant. Mr Blissett was later in touch with the Assistant Commissioner for Crime in NSW who agreed to the proposal made by Mr Winchester regarding the setting up of an operational group to run a covert operation. A Detective Sergeant George Slade was given the role of operational sergeant and the operation was named ‘Seville’.
The representations sought to be relied upon by the defence were made by Mr Blissett in a statement dated 11 June 1990 at an unknown time in an unspecified place and in the course of giving oral evidence on 26 June 1990 in Canberra at the coronial inquest of Colin Winchester.
The basis upon which it is alleged that Mr Blissett is not available to testify about the facts to be proved, is that enquiries to date indicate that it is likely that Mr Blissett is deceased. The efforts made by the defence to locate Mr Blissett are set out in an affidavit affirmed by Ms Davis on 26 April 2018.
The defence argues that the Blissett s 67 notice sets out the background details about the Bungendore operations and Mr Winchester’s role in the matter. It is argued that this is ‘crucial context evidence for the jury to properly understand the defence’. It is submitted that a reasonable possibility exists that [redacted] told the group that Mr Winchester and the AFP were protecting it, that the group believed this, and that the group was angered when the 1982 Victoria Police arrests occurred and drugs from Bungendore 1 were seized. The group was further angered when the police did not prevent the Bungendore 2 raids which detracted from the group’s profitability, and when members of Bungendore 1 and Bungendore 2 were arrested and prosecuted. The defence argues that it is a relevant fact that Mr Winchester was assassinated the month prior to the committal proceedings of the eleven persons who were said to be involved in Bungendore 1 and 2. It is conceded by the defence that the ‘evidence required to be adduced to establish the above’ scenario (or perhaps speculation is an equally applicable word) is ‘relatively complex’. It is submitted that:
If only oral evidence is adduced, or if police documents are admitted that do not give a global picture or the operation, the jury will be lost in a confusion of detail as various witnesses from different police agencies give evidence.
The defence submits that:
The Blissett notice provides a global picture to clarify the situation to the jury.
Although the prosecution concedes that some parts of the material in the notice have relevance to facts in issue, its principal objection, to a considerable part of the evidence contained in the notice being led, is its relevance. The prosecution also raises issues as to opinion evidence contained in a number of the representations, and the risk of unfair prejudice arising by reason of the real possibility that the jury will give more weight to the representations than is appropriate.
The prosecution does not take exception to a number of matters referred to in the s 67 notice in relation to Mr Blissett, who prepared a statement dated 11 June 1990 and gave evidence at the coronial inquest on 26 June 1990. However objection is taken on the basis of relevance to the following matters referred to in the s 67 notice.
Representation (5) is to the effect that Mr Blissett discussed with Mr Winchester a concern held by the BCI as to the ‘vast amount of marijuana’ being grown in Australia. The prosecution submits that this representation is irrelevant. The prosecution submits that also irrelevant is representation (10), that following the setting up of an operation team, information was received in Canberra by a Detective Sergeant Slade that the bulk of the Seville plantation was to be moved, and that the marijuana was moved south. I agree with the prosecution’s submissions in this regard.
The prosecution submits that the representations of Mr Blissett at representations (11) and (12) are all that needs to be said about the arrest of the group of Italians in relation to the plantations at Bungendore 1. I agree with that submission.
The prosecution objects to the admission of representation (13) which is to the effect that Mr Blissett was aware that Detective Sergeant Lockwood’s informant continued to provide information in respect of the Honoured Society of Italians and that as a result of that information a number of arrests were effected by Detective Sergeant Slade and other members of the ABCI, and that operation Seville One was finalised when those persons were arrested. It is submitted that there is no connection between Mr Slade and Mr Winchester, and the representation is not relevant. I agree with the prosecution’s submission in this regard.
The prosecution objects to the admission of representation (15) which is to the effect that not long after the completion of Seville One, Mr Blissett was contacted by Mr Winchester who proposed a meeting in Canberra to consider the future of operation Seville. Mr Blissett attended the meeting. At the meeting it was proposed that Seville should run again because Mr Lockwood’s informant was still safe to continue operating. The arrest of the offenders in Victoria had not affected the informant’s position. The prosecution submits that the whole of representation (15) is inadmissible as the fact that there was an ongoing, or a second, Bungendore 2 is not in dispute, and there is other evidence as to that matter. Further it is submitted that the details of any conference to discuss that matter are not relevant, particularly as it is unknown what was discussed, or who said what.
In response the defence submits that it is clear that the informant was [redacted], and the reference to the safety of the informant is relevant as it gives rise to inferential reasoning that the concern about the safety of [redacted] was because the group was dangerous and violent. Whilst it is true that, as submitted by the prosecution, no inference can be drawn as to whether or not Mr Winchester was at risk, I consider the fact that it was a concern as to whether the informant, [redacted], was able to continue, is marginally relevant. I accept the defence submissions in relation to the relevance of representation (15).
The prosecution does not oppose the admission of representation (16) which relates to permission being granted by Mr Blissett’s superior to conduct a further operation in conjunction with the AFP to be known as ‘Operation Seville Two’.
Representation (17) is that ‘Mr Blissett knew that an informant who might be termed as an Agent Provocateur was used to infiltrate the Honoured Society structure’. The prosecution argues that the representation is misleading, particularly taking into account the evidence given by Mr Blissett at the Inquest (at T 3653) which is to the contrary. I agree that representation (17) has no probative value.
The prosecution observes that representation (18) needs to be modified in accordance with the rulings regarding the previous representations, and that is obviously so.
The prosecution objects to representations (19), (20) and (22) which refer to the perception of Mr Bissett that, at the time of the operation, there were ‘downside risks’ and that the risk of a substantial amount of marijuana being grown and being placed on the streets was not considered, and that it was uppermost in his mind that the integrity of the informant should be maintained, which made it difficult to make any arrests that might compromise the integrity of the informant. The prosecution’s objection is that those representations are opinion evidence and not relevant to any fact in issue and that along with representations (5) and (10) are prejudicial to the prosecution, as they may be misused by the jury or given more weight than is appropriate. In my view the representations are irrelevant to any fact in issue.
The prosecution opposes the admission of the evidence contained in representation (21) which is to the effect that ‘It was in the uppermost of his mind and the AFP mind that the integrity of the informant should be maintained at all times’. The prosecution submits that that matter is not relevant. On the other hand the defence submits that the representation is relevant on the basis that concerns about the safety of the informant give rise to inferential reasoning that that was because the group was dangerous and violent. Whilst that inference might be open, it is equally the case that the AFP may have been concerned that if the integrity of the informant was not maintained, then the potential for a successful operation would be minimal. In my view the representation is not relevant to any fact in issue and is more likely to invite speculation as to its meaning.
The defence does not press representation (23) however it submits that representation (24) is relevant. Representation (24) is to the effect that ‘Apart from 213 pounds [of marijuana] that was apprehended on Tizzone and Barbaro in March 1982, [Mr Blissett] did not know of any other part of that crop that he could say was effectively seized by police’. In my view the representation is irrelevant to any fact in issue.
The prosecution opposes the admission of representations (25) and (26) which assert that [redacted] coming ‘to the AFP was the commencement of the penetration by the AFP into the’ Honoured Society and that Mr Bissett ‘described the penetration as information about the structure, administration, funding’ and leadership of the Society. The prosecution submits that these representations are irrelevant because ‘unless the group were aware of this information that their secrecy was compromised’ there is no relevance to the defence hypothesis. On the other hand the defence submits that it would have been 'quite apparent to the group when they were arrested and charged in relation to the activities in Bungendore 1 and 2 that they had been penetrated [and] their secrecy was compromised’. Furthermore it was ‘no secret that [redacted] was a Crown witness who was going to give evidence at the committal against those individuals’ but that subsequent to Mr Winchester’s death, [redacted] changed his position and decided to no longer give evidence because of his fear. In my view, representations (25) and (26) are marginally relevant.
[redacted]
[redacted] gave evidence on 8, 9 and 10 October 1990 in Canberra before the coronial inquiry into the death of Mr Winchester. [redacted] did not know Mr Winchester, however he had during the early 1980s been friends with [redacted], who had mentioned the name of Winchester to him on more than one occasion. [redacted] had suggested that he should meet Mr Winchester who could be helpful to [redacted] if he needed help in dealing with the authorities. In February 1983 [redacted] was charged with possession of marijuana at Canley Vale and was, ultimately, acquitted by a jury. He spent a period of time in prison. After his release from prison he worked for a [redacted]. Whilst he was in jail he was approached by a John Franklin who said that his boss was Colin Winchester. Mr Franklin told [redacted] that Mr Winchester would be able to help him if [redacted] provided information about where people were growing marijuana.
The basis upon which it is alleged that [redacted] is not available to testify about the facts to be proved is that he is not able to be located.
The prosecution submits that none of the evidence of [redacted] sought to be relied upon by the defence should be admitted into evidence. As stated above the defence seeks to rely on a number of representations made by [redacted] in the course of giving evidence before the coronial inquest on 8, 9 and 10 October 1990. The prosecution submits that [redacted] was a possible person of interest in the murder of Mr Winchester due to his possible involvement in the Bungendore crops, and therefore there is a strong element of self‑interest to his evidence. It is observed by the prosecution that [redacted] was permitted by the Coroner to claim privilege against self‑incrimination and that he was evasive at times, and that his evidence contained inconsistencies and was, at times, confusing. It is submitted that as a result there is a real issue as to the reliability and credibility of [redacted]’s evidence, and that permitting the representations to be admitted into evidence would be highly prejudicial to the prosecution given that it is in no position to test the evidence. It is submitted that this factor also impacts upon the probative value of the evidence.
In response the defence submits that the s 67 notice gives rise to the strong inference that [redacted] was associated with the Calabrian mafia. It is submitted that [redacted] had been a long‑standing friend of [redacted], Mr Winchester’s informant in Bungendore 1 and 2, and that [redacted] was a participant in Bungendore 1 and 2 and was charged with cannabis activities arising out of Bungendore 1 and 2. It Is submitted that his long‑standing friendship with [redacted] increases the likelihood that [redacted] told [redacted] that Mr Winchester and the AFP were protecting the Bungendore participants from prosecution.
I have read the whole of the transcript of the evidence given by [redacted] at the coronial inquest. It should be observed that the defence seeks to rely on only selected excerpts of his evidence. It is apparent that [redacted] had nothing to do with Mr Winchester and the only reference to Mr Winchester in his evidence is hearsay. I am at this time unable to see the relevance of [redacted]’s evidence to any fact in issue in the trial. It may be that I do not have a full understanding of how the evidence may develop, but as presently informed I am not prepared to rule the representations in the s 67 notice relating to [redacted] as being relevant. However, as with the s 67 notice relating to Mr Weel, it may be that after Mr Best gives evidence, some relevance may arise and I will not shut‑out the defence from making a further application in due course.
Colin Stanley Winchester
The defence has given notice that it intends to adduce evidence of previous representations made by Colin Winchester. The representations are contained in two documents, the first being a tape recording of an interview between Detective Chief Inspector McDonald of the AFP attached to the NCA and Mr Winchester. The interview took place on 29 July 1987. The interview of Mr Winchester was in relation to enquiries being made by the NCA into the circumstances of the joint operation being conducted by the AFP and the NSW Police into the growing of marijuana crops in the Bungendore area of NSW. The defence does not rely upon the whole of the transcript of the interview, but does rely upon selected passages in the interview as containing fifty‑three separate representations.
The second document upon which the defence relies is a copy of the guest list held at the reception desk of the Italian Club and dated 6 January 1989 where Mr Winchester wrote his name and address.
The prosecution objects on the basis of relevance to the evidence the defence seeks to lead. This objection is made to both the transcript of the record of interview and to the entry in the visitor’s book of the Italian Club.
First, the prosecution submits that the nature of the interview is highly prejudicial to the prosecution, irrespective of the fact that the defence no longer seeks to lead the evidence that Mr Winchester was cautioned prior to giving the interview. It is submitted that there is a real risk that the jury will misuse the circumstances to impermissibly reason that Mr Winchester was corrupt. It is submitted that no judicial direction can overcome the unfairness of admitting the evidence sought to be relied upon and the risk of misuse by the jury. It is submitted that there is no evidence that Mr Winchester was corrupt. In this regard the prosecution relies upon the Coroner’s strong statements to the contrary, and the fact that in making that finding the Coroner had considerably more material before him than merely the transcript of the interview and the NCA material.
It should be observed that in the course of oral submissions I pressed the defence as to whether or not it was to be a part of the defence case that Mr Winchester was corrupt. The position of the defence as stated by Ms Line (T 477 on 27 March 2018) is as follows:
The defence does not have instructions to say Mr Winchester was not corrupt because no‑one can ever know this and we don’t know and we can’t admit something that is within our knowledge or our clients’ knowledge.
At the trial there is nothing stopping the prosecution submitting to the jury that Mr Winchester was not corrupt and nor has the defence suggested that he was corrupt. Your Honour can also comment to that effect to the jury and in closing the defence can say to the jury, we do not suggest that Mr Winchester was not [sic?] corrupt, however we cannot admit something that is not within our own knowledge and that’s the position.
The sting in leading the evidence of what Mr Winchester said to the NCA is the inference that the NCA was investigating what had occurred in relation to the Bungendore arrangements involving both the NSW Police and Mr Winchester and others on behalf of the AFP because of the NCA’s concern of corrupt conduct on the part of police. Notwithstanding the somewhat equivocal response of the defence to my enquiry as to its position in regard to this matter, there is no evidence of corruption on the part of Mr Winchester. However, there is some substance to the prosecution’s concern that the spectre of corruption suggested by the interview has the capacity to be prejudicial to the prosecution case. However in the end I consider that any suggestion arising from the circumstances of the interview can be appropriately dealt with by judicial direction.
Accordingly, the further issue to be considered in relation to the evidence in the s 67 notice relating to Mr Winchester’s interview with the NCA is whether or not it, or parts of it, have any relevance to the issues in the trial.
The prosecution, as stated above, submits that the interview contains nothing of relevance. The prosecution also submits that the volume of the evidence sought to be relied upon in the s 67 notice creates further risk as it may well lead the jury to give the evidence undue weight.
The defence submits that the record of interview is relevant and is of significant probative value. It contends that Mr Winchester was at the heart of the Bungendore 1 operation and had first‑hand knowledge of his dealings with [redacted] as to what the operation involved. It is submitted that an understanding of Mr Winchester’s role in the operation, the payments made to [redacted], the marijuana and the money received by police, and [redacted]’s role as an informer, is all necessary if the jury is to understand the group’s motive to kill Mr Winchester when charges were laid in in 1988 in relation to Bungendore 1.
In terms of the complaint made by the prosecution that the record of interview is prejudicial, as stated above, the defence does not press representation (4) regarding the caution of Mr Winchester. In respect of the prosecution’s submission that the volume of the representations in the s 67 notice is substantial, it is submitted that a large volume of material does not equate with the proposition that the jury will give it undue weight. The defence submits that it does not follow that the jury will weigh the import of the representations more heavily because a greater number are relied upon. Furthermore, it is submitted that the representations of Mr Winchester are of particular probative value as it is evidence from the victim about matters that are relevant to the defence’s competing hypothesis.
In addition the defence submits that the court should be slow to exclude evidence under s 135 of the Act that is presented by the defence. In this regard the defence relies upon R v Taylor [2003] NSWCCA 194 at [130] where Bell J stated:
I consider that the occasions on which the exercise of the discretion under s 135 to reject evidence tendered by an accused in the course of criminal proceedings will be few.
I have carefully read the interview had between the NCA and Mr Winchester on 28 July 1987 and some parts of it are relevant to the way in which the defence puts its case. Clearly the defence relies upon the events that took place at Bungendore 1 and Bungendore 2 as being important in establishing facts to support what it has called ‘the alternative hypothesis’ to the effect that others than the accused had the motive and means to kill Mr Winchester. Ms Line on behalf of the accused submitted to me that:
The jury need to clearly understand Mr Winchester, his role, what Bungendore 1 and 2 was, how [redacted] was involved as an informer, how [redacted] was linked to the rest of the group, what payments were made by [redacted] to the AFP, how the crops were transported, how the crops were raided, how members of the group were arrested.
Ms Line argued that ‘the group’ were:
…. disappointed in 1982 because they were arrested by Victoria Police 45 and their drugs were seized. They were disappointed in Bungendore 2 when there were three raids by outsiders on the property, again losing drugs. They were disappointed when ultimately Bungendore 2 failed and the crops were destroyed by the authorities. The final disappointment came in 1988 when the members of Bungendore 1 and 2 were charged for their activities in relation to those operations. In February 1989, they were due to stand for committal. In January 1989, Mr Winchester was assassinated.
Thus Ms Line contends that:
…. all that evidence is necessary to build a picture in the jury's mind that the mafia were involved, the mafia believed they would be protected, the mafia believed they were wronged, and the mafia believed they were wronged because they believed Mr Winchester was corrupt .…
It is submitted that in the context of the defence case:
…. the defence needs to have evidence from the deceased as to what the deceased was doing in relation to these operations, what he was doing in relation to [redacted], that the group was dangerous, that the operation was dangerous and sensitive.
Accepting that that is so, the evidence upon which the defence seeks to rely must never‑the‑less be admissible and, as is apparent, the interview with Mr Winchester contains a substantial amount of inadmissible material.
A significant amount of material appearing in the interview has second‑hand, and sometime third‑hand, hearsay and is thus impermissible. Representations (10), (12), (13), (16), parts of (23), (31), (34), (41), (49), (51) and (53) clearly fall into that category. Other parts are clearly irrelevant. Representations (35), (36), (37), (44) and (47) fall into this category. The difficulty is that once those parts of the interview that are inadmissible are redacted, the balance upon which the defence seeks to rely is disjointed and confusing. Furthermore, the interview does not provide the evidence which Ms Line submits could be divined from it.
Admissible parts of the interview make it clear that [redacted] was introduced to Mr Winchester by Sergeant Lockwood and that subsequently a decision was made that the AFP should utilise [redacted] services as an informant.
The admissible parts of the interview, which I consider are those parts set out in the following paragraphs, reveal that no promise or inducement was held out to [redacted] and that Mr Winchester instructed Sergeant Lockwood that his dealings with [redacted] were to be recorded and documented as Mr Winchester did not trust [redacted]. There was an occasion where Mr Winchester had cause to tell [redacted] that there was no corruption to be involved in the matter and that he would pull him out if he engaged in such activity. Mr Winchester met with NSW BCI following initial contact with [redacted] but, as Bungendore 1 was within the jurisdiction of NSW Police, any action that had to be taken, had to be taken by NSW Police and with their knowledge and consent.
Mr Winchester told NSW Police that all that the AFP would do would be to facilitate intelligence for them to act upon, and that any decision as to how they ran the operation was entirely that of NSW Police. He did not have discussions with NSW Police as to how they ran the operation. The operation was ‘that dangerous and that sensitive’ that ‘the least people knew about it’ the better. Mr Winchester stated that some reward monies were paid to [redacted], with the approval of the AFP Assistant Commissioner (Crime), but Mr Winchester had no recollection of how much.
Mr Winchester stated that after the first meeting with NSW Police and Mr Blissett there was only one further meeting, although he did speak to Mr Blissett by telephone. That second meeting was to discuss the intelligence which had been gleaned from the operation at Bungendore 1 and whether it would be viable to allow it to continue for another year to gather further intelligence, or whether or not it would be too dangerous to allow the informant to continue. Mr Winchester gave evidence that as a senior AFP Officer he had to be ‘happy’ with the arrangements of Sergeant Lockwood looking after [redacted] during this time ‘because it was such a dangerous, sensitive damn operation’ and he was worried about any other people finding out that [redacted] was the informant. He stated:
…. to my knowledge there hasn't been another Italian informant in this country that's been tied up with these Mafia families, been able to be turned around like this fellow and his attitude was always about his own security as well.
Mr Winchester said that his idea of utilising [redacted] was:
…. purely for intelligence because to use him to give evidence I would have put that man's life right on the line and it was never my intention unless he would have personally agreed to it that he would become a witness in any matters.
Mr Winchester’s original intention was that he was ‘an intelligence source’. Finally, Mr Winchester stated that:
…. some time after the arrests by the Victorian[s], Tissoni and somebody else who I don't know, made contact through Lockwood and eventually through me to offer a bribe to the Victoria Police not to go ahead or to do something with the brief in respect of Tissoni.
Mr Winchester stated that that information was passed on to Mr Delaney or Mr Bennett of the Victoria Police.
The evidentiary material which I have referred to in [70]-[74] above appears to me to be the only admissible material in the interview the NCA had with Mr Winchester. It can be seen that, except in the most minor way, that material does not provide evidence of the facts relied upon by the defence. That said, it appears to me that the matters I have referred to at [70]-[74] are likely to be marginally relevant to the way in which the defence puts its case. Obviously the interview record will need major redaction if the defence seeks to rely upon the matters I have referred to at [70]-[74] above.
Beyond identifying which parts of the NCA interview I rule to be admissible, I consider it is a matter for the parties to reach an agreement as to how that evidence might be put before the jury.
The final matter concerning the s 67 notice relating to Mr Winchester filed on behalf of the defence is the question of the admissibility of the entry in the visitor sign‑in book held at the reception area of the Italian Club on 6 January 1989. The defence argues that it is relevant as it demonstrates that four days before he was killed Mr Winchester signed his name and wrote his address in the sign‑in book. It is argued that just as the prosecution will admit into evidence the fact that the accused had the capacity to access Mr Winchester’s address by checking the electoral roll, so too does the defence rely upon this evidence to show that others, such as [redacted] and [redacted], who attended the Italian Club had the opportunity to access his address. In my view, looked at in the way the defence does, the evidence of Mr Winchester’s entry recorded in the sign‑in book on 6 January 1989 is sufficiently relevant to be admitted into evidence.
Orders
That consideration of the admissibility of the representations in the s 67 notice relating to John Weel be deferred until after the evidence of John Best has been given.
That representations (5), (10), (13), (17), (18), (19), (20), (21), (22), (23) and (24), relied upon by the defence in the s 67 notice relating to Bob Blissett, are inadmissible.
That for the time being the evidence set out in the s 67 notice relating to [redacted] is ruled as inadmissible, but I grant liberty to the defence to make a further application in relation thereto after the evidence of John Best has been given.
That in relation to the s 67 notice relating to Collin Winchester:
(a)The evidence of Mr Winchester signing into the Italian Club on 6 January 1989 is admissible;
(b)Parts of the interview with Mr Winchester conducted by the NCA on 29 July 1987 are admissible as detailed by me in [70]-[74] inclusive above.
Until further order these orders and the reasons for this ruling are not to be published or disclosed other than to the parties and their representatives.
| I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam. Associate: Date: 14 June 2018 |
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