R v Gassy
[2004] SASC 338
•28 October 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v GASSY
Reasons for Rulings of The Honourable Justice Vanstone
28 October 2004
EVIDENCE - ADMISSIBILITY AND RELEVANCY - FACTS SHOWING STATE OF MIND - MOTIVE
Accused charged with murder by shooting - victim involved in sequence of events which led to accused's deregistration in 1997 as a medical practitioner - admissibility of that course of events including expressions of opinion as to mental state of accused during relevant period and responses of accused to such opinions as demonstrating motive - admissibility of documents found at home of accused showing personal details of other persons also involved in accused's deregistration - whether exclusionary rule attracted by such evidence.
Medical Practice Act 1992 (NSW), s 51; Diagnostic and statistical manual of mental disorders: DSM-IV (4th ed., Washington DC, American Psychiatric Assoc, 1994), referred to.
R v Von Einem (1985) 38 SASR 207; R v Turney (1990) 52 SASR 438, applied.
Makin v Attorney-General (NSW) [1894] AC 57; R v Perry (1982) 150 CLR 580; R v Thompson (1989) 169 CLR 1; R v Harriman (1989) 167 CLR 590; Pfennig v R (1994-95) 182 CLR 461; R v Ball [1911] AC 47, considered.
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - RELEVANCE - PROOF OF IDENTITY OF ACCUSED
Admissibility of evidence of suspicious incident not amounting to crime occurring at a psychiatrists congress attended by victim six months prior to her death - evidence identifying accused as man at centre of incident - parallels between accused's conduct during both periods - whether exclusionary rule attracted.
Hoch v The Queen (1988) 165 CLR 292, applied.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - ISSUE AND VALIDITY
Searches of home of accused conducted under authority of warrants issued under Search Warrants Act 1985 (NSW) - whether warrants invalid - whether court should conduct inquiry into events leading to application for warrant and issue of warrant - whether police conduct in relation to accused's mother unlawful or improper.
Search Warrants Act 1985 (NSW), s 5, s 6, s 11, s 12A, s 13, s 14, referred to.
Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; Bunning v Cross (1977-78) 141 CLR 54; Ousley v The Queen (1997) 192 CLR 69; R v Williams (1976) 14 SASR 1; R v Bradshaw (1978) 18 SASR 83; Question of Law Reserved (No 5 of 1999) (2000) 76 SASR 356, applied.
R v Ireland (1970) 126 CLR 321, considered.
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION
Whether conversations between accused and police during the search admissible - whether unfair to admit evidence against accused - evidence excluded.
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE
Evidence of identification by selections from photographic arrays - whether parade should have been offered after arrest - whether some procedures flawed - whether evidence of second procedures admissible.
Evidence of opinion of the identity of man seen in security camera footage on day following shooting - whether admissible - evidence not admitted.
Festa v The Queen (2001) 208 CLR 593; R v Sutton (1990) 159 LSJS 96; R v Britten (1988) 51 SASR 567; Smith v The Queen (2001) 206 CLR 650, applied.
Craig v The King (1933) 49 CLR 429; Alexander v The Queen (1980-81) 145 CLR 395, considered.
R v GASSY
[2004] SASC 338Criminal
VANSTONE J: The accused Jean Eric Gassy was charged with the murder of Margaret Julia Tobin, on 14 October 2002 at Adelaide.
At the time of her death Dr Tobin was Director of Mental Health Services for South Australia. Her office was on the 8th level of the Citi Centre Building, Hindmarsh Square, Adelaide. On the day of her death she had lunch with a colleague at an establishment within Gays Arcade before returning to her office. She travelled in a lift with three other persons. Two of those persons left the lift at Level 7 and Dr Tobin and a male person travelled to Level 8. Soon after she left the lift Dr Tobin was shot four times to the back and right side with a Glock 9mm handgun. She died later that afternoon.
In November 1993 Dr Tobin had become Director of Psychiatry, St George Hospital, Kogarah, New South Wales. At that time the accused was a staff specialist psychiatrist within that unit and Dr Tobin became his immediate superior. Towards the end of November 1994 Dr Gassy resigned from that position. As far as is known there was no further contact between them. On 1 August 1997 the New South Wales Medical Tribunal ordered that Dr Gassy’s name be removed from the Register of Medical Practitioners.
Upon Dr Tobin’s killing extensive police investigations took place. The investigation was conducted by members of the Major Crime Task Force. On 29 October 2002 police searched the accused’s home in Oyster Bay, a suburb of Sydney. At that time the accused was living with his parents who owned those house premises. Various items, including firearms, were seized. On 9 November 2002 the accused was arrested at those premises. He was extradited to South Australia on 11 November. On 11 March 2003 a further search of the house premises at Oyster Bay was conducted. Both searches were conducted pursuant to search warrants obtained from the Kogarah Local Court by New South Wales police officers.
The accused’s trial commenced before me on 5 May 2004. However the jury panel was not summoned until 8 July 2004. The time between those two dates was occupied with pre-trial argument. Both prior to and during the trial a number of Rule 9 Notices were filed seeking various orders, including exclusion of evidence. More than 130 such orders were sought. On 17 June 2004 I ruled on the great majority of those applications. I said I would give detailed reasons at a later time, if it became necessary.
On 23 September 2004 the jury returned a verdict of guilty to the charge. Consequently it is necessary to publish reasons for the rulings I made. I now set out those reasons under various headings.
Events leading to deregistration; psychiatric evidence; later documents in accused’s possession referring to personnel involved
Among the papers are numerous documents relevant to a series of events which ultimately led to Dr Gassy’s name being removed from the Register of Medical Practitioners in New South Wales. On one view, Dr Tobin could be seen to have initiated that procedure, because in July 1994 she wrote to the Medical Board bringing to its attention the fact that Dr Gassy, a staff member, had taken leave from his position at the St George’s Hospital, and that psychiatric grounds had been cited for that absence. She did so in her capacity as Director of the Psychiatric Unit at the hospital and as Area Director Mental Health, Southern Sydney Area Health Service.
In response, the Medical Board initiated a process in which Dr John Woodforde, a psychiatrist, was asked to examine Dr Gassy and report to the Board as to his fitness to practise. As a result of consideration of his report, an Impaired Registrants Panel was convened, pursuant to the Medical Practice Act 1992 (NSW), for the purpose of providing a “non-disciplinary alternative” for the establishment of a diagnosis, the review of treatment and protection of the public interest. The Panel consisted of Dr Peter Arnold and Dr Michael Pasfield. Dr Tobin gave evidence before the panel. Dr Woodforde’s report expressing the view that Dr Gassy suffered from a delusional disorder, was before it. On 2 September 1994 the Panel published its report. It found that Dr Gassy was “currently suffering from delusional disorder” and it recommended that Dr Gassy’s right to practise be made subject to certain conditions.
The recommended conditions were apparently endorsed on Dr Gassy’s registration. One of those conditions required him to attend for a review of his situation in November, having undergone a further consultation with Dr Woodforde. Dr Gassy failed to so attend. He advised that he would not attend as required. In any event the matter was reviewed and in due course that led to the convening of a Professional Standards Committee to hear a complaint against Dr Gassy laid under s 51(1) Medical Practice Act 1992 (NSW). The complaint alleged non-compliance with the conditions imposed and that Dr Gassy was “not competent to practise medicine”.
The Professional Standards Committee comprised Dr D Child (chairperson), Dr Kathleen Wilhelm, a psychiatrist, and Ms Ruth Cotton. It sat on 10 April 1995. The Committee took evidence from Dr Jonathon Phillips, Dr W Andrews and Dr Woodforde. Dr Tobin played no part in the Committee hearing, although her July 1994 letter to the Medical Board was tendered. The Committee’s findings were that Dr Gassy was guilty of “unsatisfactory professional conduct” in breaching undertakings arising out of the conditions recommended by the Impaired Registrants Panel. The Committee accepted that Dr Gassy had been psychotic, albeit transiently, in late 1994 but it found no evidence of paranoid ideation or psychotic thought processes during the hearing. Dr Gassy was found to be competent to practise medicine upon certain conditions.
As a result of Dr Gassy declining to comply with the conditions prescribed the matter of his registration was referred to a Medical Tribunal. The Tribunal sat in June 1997. It comprised Judge Bell of the District Court and Drs Tucker and Gordon and Ms Sexton. Evidence taken by the Tribunal included that of Drs Woodforde and Phillips. Dr Woodforde’s views were unchanged. Dr Phillips had by now moved from an earlier more restrained view to a position at one with Dr Woodforde’s. On 1 August 1997 the Tribunal delivered its reasons for finding that Dr Gassy’s name should be removed from the Register of Medical Practitioners.
Mr Brebner QC, who appeared with Ms Telfer for the Director of Public Prosecutions, indicated in the course of pre-trial argument that he wished to lead evidence of the process I have just outlined and that he wished to do so in some detail. That detail extended not only to proof of the process itself and the relevant events comprising it, but also of the medical reports and affidavits compiled by each witness whose opinions were placed before the various bodies I mentioned, a transcript of their evidence (where applicable), as well as the reasons for decision of each of the bodies concerned. Many, if not all of those documents were found among Dr Gassy’s belongings upon police search of his home on 29 October 2002.
Mr Brebner put this material forward as being relevant to two issues. In the first place he submitted that it was relevant as evidence of motive. He submitted that whilst Dr Tobin had not played a prominent part in the chain of events which more proximately led to deregistration, it was her initial complaint to the Medical Board which precipitated those events. If the accused was aggrieved at the process which led to his deregistration and by the deregistration itself, which grievance the prosecution claims to be able to prove, then he might well have resented the role of each person who played a significant part in that process and he could have desired revenge. Upon the face of this evidence, the accuracy of the diagnosis offered by Dr Woodforde and others would be immaterial as, well-founded or not, it would conceivably have the potential to provide a motive to kill Dr Tobin.
But Mr Brebner went further. He submitted that the diagnosis of Dr Gassy by Drs Woodforde and Phillips was relevant in itself. He submitted that the fact that Dr Gassy suffered from this condition, the symptoms of it and the signs of it which he exhibited tended to explain Dr Gassy’s thought processes and actions in the ensuing years. In Dr Woodforde’s view such disorders as that from which Dr Gassy suffered do not resolve without treatment. Indeed they can become more profound over time. If the jury were allowed to evaluate the expert opinions of Drs Woodforde and Phillips for themselves, then, it was said, they would be better able to understand how the seemingly innocuous actions of such persons as Dr Tobin, Dr Burke (who had worked with both Dr Tobin and Dr Gassy), Dr Arnold and – more pointedly – Drs Woodforde and Phillips themselves could be seen by Dr Gassy as being of such magnitude as to give rise to a deep sense of grievance to be harboured for many years. Put another way, this evidence could cast light on Dr Gassy’s perception of the events which led to the deregistration, as well as explaining why those events might have made such an indelible impression on him, so as to motivate him to act in a violent way towards the instigator of them. Further, they could be seen to throw light on pejorative statements about the actions of Dr Tobin and others which, on the prosecution case, Dr Gassy made over the period leading to and following deregistration. For example, Dr Gassy’s friend Robert Strand claims that the accused told him that a woman (whom the jury could conclude was Dr Tobin) was giving him trouble by influencing the [deregistration] trial. Former patient Ms A said that on the last occasion she saw Dr Gassy he told her that Dr Tobin had finally won: that he was no longer able to practise.
In response Dr Gassy submitted that evidence to the effect that he suffered from a psychiatric disorder, whatever its nature, was prejudicial and fell to be excluded for that reason. He submitted that within the community there is a general lack of understanding of psychiatric or psychological disorders and that a jury would be inclined to give undue weight to evidence that he was so suffering. In addition he disputed the correctness of the opinions advanced by Drs Woodforde and Phillips. In particular, he put that the suggestions, especially those in Dr Phillips’ statements, as to the association of violence with persecutory delusions really belong to a diagnosis of personality disorder rather than delusional disorder. Although he acknowledged that there was a small increased risk of violence among those suffering from delusional disorders, such an inclination was “not a mindset” and only a very small number of such sufferers went on to commit violent acts. He said the best indicator of the commission of acts of violence in the future was proof that violent acts had been committed in the past.
The accused further put that the link between his misdiagnosis, the deregistration process and Dr Tobin was tenuous in any event. Dr Tobin’s role ended not far beyond the outset of the process. If she were instrumental in precipitating the sequence of events, her agency was effectively overtaken by Dr Woodforde’s reports to the Board, which attributed to Dr Gassy a delusional disorder. He submitted that even given the prosecution’s analysis, the range of people who might be at risk would be very large and would include all persons associated with the investigation by the Medical Board, the prosecution of him, the solicitors who appeared, as well as the doctors who advanced opinions. Once the class of people said to be at risk was widened to that extent, then the alleged propensity became, he submitted, so non-specific as to amount to a general propensity to violence.
In my view both the evidence of the events leading to deregistration and the psychiatric evidence as to Dr Gassy’s then mental condition and the suggested continuation are relevant in the ways put forward. Indeed I consider they have a strong probative value. I decline to exclude this evidence as an exercise of discretion. The jury can be directed not to bring to bear any prejudice against those who suffer from disorders of the mind, although I think most people these days are more enlightened than to harbour such feelings.
That probative value particularly emerges when the evidence is considered alongside certain other evidence, which is also the subject of objection. That is a compiled document (which I shall call “the list”) consisting of clippings and what is said to be the accused’s handwriting, showing photographs, personal details and some annotations in respect of some of the persons concerned in the deregistration process; and also, a torn train ticket, upon the reverse side of which are written several initials, which the prosecution assert are those of Drs Woodforde, Arnold and Phillips. The train ticket itself can be dated to 1996. It was found in Dr Gassy’s wallet on 29 October 2002. The list was found in the accused’s filing cabinet in a file marked “Doctors”, on the same occasion.
It is noteworthy that there was no mention of Dr Tobin’s name either on the list or on the torn train ticket. Mr Brebner suggested that nonetheless her name and role would have been prominent in the accused’s thoughts by necessary implication. Further, he pointed to other evidence, to which I shall soon turn, of an incident in Brisbane, as showing that Dr Gassy’s interest in persons concerned in the deregistration process extended to Dr Tobin as well.
I do not consider that evidence of the list and the train ticket is evidence of other conduct of such a nature as to attract the exclusionary rule expounded in Makin v Attorney-General(NSW) [1894] AC 57, 65. In that case Lord Herschell referred to the rule as being aimed at “evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment.” More recent formulations are in comparable terms: R v Perry (1982) 150 CLR 580 at 585 per Gibbs CJ:
The prosecution cannot adduce evidence tending to show that the accused has been guilty of criminal acts other than those with which he is charged if the evidence shows only that he had a propensity to commit crime, or crime of a particular kind, or that he was the sort of person likely to have committed the crime charged.
R v Thompson (1989) 169 CLR 1 at 15-16 per Mason CJ and Dawson J:
It is established that similar fact evidence ought not be admitted if it tends to show only that the accused has committed another offence or other offences. Proof of the commission of other offences, without more, merely demonstrates a criminal propensity and the prejudicial nature of evidence of this kind is greater than any relevance which it might have.
R v Harriman (1989) 167 CLR 590 at 593-4 per Brennan J:
Evidence that an accused has committed other offences of the same or similar character is inadmissible unless the evidence is of such probative force in the instant case that it would be an affront to common sense not to admit it. Or, to put it another way, unless the probative force of the evidence clearly transcends the merely prejudicial effect of showing that the accused has committed other offences.
See also Pfennig v R (1994-95) 182 CLR 461 at 475-481.
What is almost invariably under consideration in these cases is proof of previous criminal conduct designed to found an inference of a disposition towards criminal conduct of the same type. It is the proof of one or more prior (or subsequent) offences which is seen to carry such prejudice as to demand a stringent exclusionary rule.
So far as the list and rail ticket are concerned, all they demonstrate is an interest – perhaps an unhealthy interest – in the persons alluded to within them. It is said that such an interest must have extended to Dr Tobin. However unnerving possession of such items might be seen to be, in my view, the principle developed in these cases does not readily apply.
I have attempted to find other cases where evidence which might be thought to be discreditable though not criminal in nature was under consideration in a similar context.
In R v Von Einem (1985) 38 SASR 207 the Court of Criminal Appeal confirmed the admissibility of evidence demonstrating that Von Einem was a homosexual. It was held that proof of the accused having a particular type of appetite or inclination could be relevant to the question of motive for committing a crime suggestive of gratification of that inclination. It was said that such evidence did not attract the exclusionary rule as it was not evidence of previous misconduct or bad character, as opposed to “the proof of human tastes, preferences, appetites or inclinations, the gratification of which does not necessarily involve criminal conduct…” (at 213). In R v Turney (1990) 52 SASR 438 the Court of Criminal Appeal referred again to that distinction. There the evidence in issue was the accused’s asserted predilection for particular types of sexual intercourse. However the Court suggested that the proffered evidence was not of sufficient probative value in any event; c.f. R v Ball [1911] AC 47.
As I said, in my view there is no warrant to treat the challenged evidence as attracting the exclusionary rule. Neither the allegations of mental illness made against the accused in the course of the deregistration process nor the possession of copy photographs or personal details of any of the doctors involved amounts to criminal conduct, nor – with one possible exception, as will be seen below – does it point to a tendency towards criminal conduct.
I consider that all this evidence has strong probative force. It goes to the question of identity, which is at the heart of this case. It tends to reinforce that the accused bore profound resentment towards those involved in the deregistration process. It has the capacity to show that those feelings endured over many years, and that during those years the accused followed the progress of those persons to the extent of gathering up-to-date information as to the addresses of some of them.
As I said, there is a third aspect to the deregistration evidence. Relying on the opinions of Drs Woodforde and Phillips Mr Brebner suggested that persons who suffer from delusional disorder and particularly those who suffer from the persecutory manifestation of this condition are known to be at risk of violence towards the persons who are the object of their delusions. There is some support for those opinions in the Diagnostic and statistical manual of mental disorders: DSM-IV (4th ed., Washington DC, American Psychiatric Assoc, 1994) which, in its description of the “Persecutory Subtype of Delusional Disorder”, provides as follows:
This subtype applies when the central theme of the delusion involves the person’s belief that he or she is being conspired against, cheated, spied on, followed, poisoned or drugged, maliciously maligned, harassed, or obstructed in the pursuit of long-term goals. Small slights may be exaggerated and become the focus of a delusional system. The focus of the delusion is often on some injustice that must be remedied by legal action (“querulous paranoia”), and the affected person may engage in repeated attempts to obtain satisfaction by appeal to the courts and other government agencies. Individuals with persecutory delusions are often resentful and angry and may resort to violence against those they believe are hurting them.
(emphasis added)
On the prosecution analysis Dr Tobin would have been perceived as one such person. Mr Brebner told me that he would seek to elicit this opinion from Dr Woodforde and indeed from Dr Phillips by asking them a question along the lines of:
Are there recognised ways in which a person suffering from a delusional disorder (such as the one which you have said you believe Dr Gassy suffers) might behave towards persons who are the subject of their delusions?
Mr Brebner suggested that such a question would be designed to elicit specific evidence of propensity, as opposed to a general propensity to violence. He argued that the evidence tended to put Dr Gassy in a class of people who might have committed the crime. Or, to put it differently, the evidence was capable of showing why the accused might have been able to construct “a bridge” from mere resentment towards the victim to actual violence towards her.
In my view evidence of the chain of events leading to Dr Gassy’s deregistration is plainly capable of being viewed by the jury as evidence of motive and should be admitted. The events can be proved by the oral evidence of those who participated in them. Insofar as the various written decisions contain assertions of fact, those will be received only insofar as the documents can be demonstrated to have been seen or retained by the accused, and then only as evidence of the making of such findings, and not as evidence of their truth or accuracy. I reject Dr Gassy’s submission to the effect that the probative value of this evidence is outweighed by its prejudicial effect. Indeed I consider that the prejudicial effect is not marked in any event. The evidence has potential to demonstrate motive irrespective of whether the diagnosis offered by Dr Woodforde and later joined in by Dr Phillips was correct.
The question of the extent to which the jury should have the detail of the various steps is a difficult one. Inasmuch as the written reasons of the Impaired Registrants Panel and Professional Standards Committee, Medical Tribunal, the transcript of the Medical Tribunal and other associated documents were found at Dr Gassy’s home, it seems to me that they are relevant and admissible. Again, they are admissible not as evidence of the truth of the assertions contained within them but rather as evidence of events, the occurrence of which is relevant. His possession of the documents is some proof that Dr Gassy knew of the events and of the detail of them. Whilst I was originally inclined to restrict to some extent the quantity of documentary material which would go to the jury, in the end I have determined that I should not do so. Plainly the jury’s attention will be directed to certain facets of the material and they will have to be warned as to the permissible and impermissible uses of the documents.
There is another reason for declining to restrict the scope of the material presented. During the argument the accused indicated that whilst he had an overall objection to the admissibility of this topic, if the evidence were ruled admissible then he would wish to have all the transcript before the Medical Tribunal admitted. It was plain from his argument that he wished to challenge the correctness of the psychiatric opinions proffered by Dr Woodforde and Dr Phillips and that it would be convenient for him to have in evidence the various accounts that they have given.
As to the question of proof of the asserted propensity to violence found in some persons suffering from a delusional disorder, I decline to admit the evidence in the form foreshadowed. I consider that the evidence really amounts to evidence of general propensity. I have not reached that position without some difficulty. This aspect of the evidence would seem to be evidence of a (possible) predisposition to violence towards a limited class of people. As such the exclusionary rule would be attracted. I consider that its probative value cannot be said to transcend its prejudicial effect; nor would it be an affront to common sense to exclude it. On the contrary, I consider that a jury might attach weight to it beyond that which it truly deserves. I consider that the jury might be tempted to categorise such an asserted propensity as a factor pointing to proof of the accused’s guilt, when arguably this aspect of the description of delusional disorder could only properly be seen as evidence which could confirm the correctness of the diagnosis, if it were assumed that the accused committed the killing.
My ruling in this regard raises the question of whether Dr Woodforde’s opinion, expressed in his affidavit of 15 May 1997 filed in the proceedings before the Medical Tribunal, to the effect that there was a risk of the accused exhibiting violence, should go to the jury. In my view his opinions as a whole are, for reasons which I have already outlined, admissible. The only question is whether editing should take place to excise that aspect of Dr Woodforde’s opinion. Dr Woodforde’s opinion was based on his own interviews with Dr Gassy and was given before there was any suggestion that Dr Gassy had committed any act of violence. If the opinion was not based on anything particular in Dr Gassy’s presentation, but was only consequent upon the diagnosis arrived at and the hallmarks of such a diagnosis, then I consider, for the reasons already expressed, it should be excluded. However if Dr Woodforde can demonstrate a basis specific to Dr Gassy for fearing violence, then I would find the evidence admissible. It would potentially bear on both motive and on the intensity of the feelings harboured by the accused. A direction to the jury that it should not use that opinion as evidence that Dr Gassy committed the crime, but should only use it as bearing on the question of motive would be, in my view, sufficient to neutralise any prejudicial effect.
(In the event Mr Brebner did not lead from Dr Woodforde his 1997 opinion that the accused was at risk of violent behaviour.)
Brisbane
I move to deal with evidence which can conveniently be called “the Brisbane evidence”, which is also challenged. The fulcrum of the Brisbane evidence is proof of an incident said to have occurred at the Brisbane Convention and Exhibition Centre on 27 April 2002. That was the first day of a Royal Australian and New Zealand College of Psychiatrists Congress. The Congress was held at that Centre and Dr Tobin was present and convened a workshop on that day. Advance notice of the various workshops held on that day and the fact that Dr Tobin was to convene one of them was given to Fellows of the College (of which Dr Gassy remained one) as well as being available on the website of the College. The Congress was to officially open on 28 April and so it is likely that the number of participants would have been less on the day the workshops were held.
On that day several persons who were working at the Convention Centre noticed a particular individual in the public areas of the Centre acting in what was seen to be a suspicious manner. The observers included audio-visual contractors, the catering manager and security staff. At one point, one of the witnesses, Mr Champion, heard the individual drop an item which sounded to him like a handgun. Other witnesses thought that the man seemed to be attempting to conceal something on his person. The registration number of a car driven by the man was taken and said to be recorded in the security log of the Convention Centre. When, in the days following Dr Tobin’s killing, an identikit picture of the man thought to be the shooter was published, one of the audio-visual contractors present at the Convention Centre made contact with the Major Crime Investigation Branch of the South Australian Police Force to advise police of the incident. Although the individual’s activities were not observed on that day to be referable to Dr Tobin’s presence, the contractor knew Dr Tobin had been at the Convention Centre at that time and must have seen a possible link between the two incidents. In December 2002 two of the witnesses selected a photograph of the accused as being most similar to the individual seen.
Further evidence emanating from Brisbane was that of an employee, Ms Wood, of the Edmondstone Motel which is situated a few blocks away from the Convention Centre. She described a man who had booked into the motel on 26 April under the name of Chris King. He paid cash for one night’s accommodation. The personal details he gave were false. He provided a car registration number very similar to that noted in the Convention Centre security log and similar again to that of a vehicle said to be rented by the accused on the previous day in Sydney. That vehicle was returned by the accused on 29 April having travelled some 2,067 kms, an odometer reading consistent with being driven to Brisbane and back. A document handed to the man “Chris King” was, on the prosecution case, found at the Renmark dump on 20 November 2002 in circumstances suggesting that it might have been left at the Renmark Mobil Service Station, on the day after the killing, by a man said by the prosecution to be the accused, as he travelled from Adelaide and made his way back to Sydney.
The other aspect of the Brisbane evidence was material from a Mr Allen of the Queensland Gun Exchange, who said that a person giving details consistent with those of the accused attended at his shop and ordered a spare slide for a Glock 26 pistol on the same day as the incident at the Convention Centre. Mr Allen picked out the accused’s photograph from an array in November 2002.
The prosecution put forward the Brisbane evidence as demonstrating a continuing interest by the accused in Dr Tobin, and a sinister one at that. The prosecutor did not suggest that the evidence necessarily showed the accused embarking on an attempt on Dr Tobin’s life on that occasion. It was a question of judgment whether the observed actions of the individual concerned would justify such an inference. However, it was said that at least the evidence could amount to “a false start” or an attempt at reconnaissance or an exploration of the possibilities of an attempt to harm Dr Tobin. It was said that the April 2002 incident represented “a bridge” between the events leading to the accused’s deregistration and the killing of Dr Tobin in October 2002.
In my view it is at least arguable that this evidence does not attract the exclusionary rule. For one thing, even were I to assume for the sake of my ruling that the individual concerned was Dr Gassy, it is by no means clear on the papers that he was intent on undertaking any criminal conduct on that day. What his intentions might have been would be a matter of inference for the jury. However, recognising that the jury could accept Mr Champion’s evidence that a small metal object which sounded like a handgun was carried and bearing in mind that the jury might well accept that the accused had driven to Brisbane and checked into a nearby motel using a false name, I acknowledge they could readily conclude that even if he was not intent on making an attempt on Dr Tobin’s life, he was at least preparing himself for some conduct inconsistent with her well-being.
There is another reason why it seems to me to be at least arguably inappropriate to subject this evidence to the exclusionary rule. This is not evidence to the effect that the accused committed a crime on another occasion against a different victim, which bears common features to the offence charged. Rather, this is, taken at its highest, more akin to a prior attempt on the life of the person who was subsequently killed; although, as I have said, the incident fell short of that. Had the incident in Adelaide in October been preceded by a similar incident three weeks earlier in which the assailant shot and missed and had the police charged the one person with both the failed attempt and the completed crime, then the idea of holding two separate trials would seem far fetched. Plainly there would be cross-admissibility. The prejudicial effect of the evidence of the earlier attempt would not be of the same order as attaching to, say, an earlier similar crime committed upon a separate victim.
In any event there is no need to be coy about the application of the exclusionary rule. If that test of admissibility is to be applied, then I am to “apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused”: Hoch v The Queen (1988) 165 CLR 292 at 296. If I make the findings and draw the inferences which the prosecution suggests are available then that question must be answered in the negative, that is, that there is no rational view of the evidence inconsistent with guilt. If the jury were to find that the individual at the Brisbane Convention Centre was indeed the accused, that he had hired a car to make the journey to Brisbane, that he checked into a motel using a false name, that he was armed and that he was there with the knowledge that Dr Tobin would be present on that day and for the purpose of finding her and potentially doing her some harm; and if the jury were to have regard further to the nature of the killing of Dr Tobin six months later in Adelaide and all the circumstances attending it, then it seems to me that the Brisbane evidence could have a decisive impact on the jury’s reasoning as to the identity of the person “David Pais” (allegedly the accused) who travelled to Adelaide on 13 October and then as to his reason for being in Adelaide and his activities whilst here.
Accepting the prosecution view of the Brisbane incident, there are parallels between the accused’s conduct at that time, as compared with his conduct during the period when Dr Tobin was killed. In essence that evidence is that on 11 October the accused rented a Nissan Pulsar RSX-366 from the Avis Rent-a-Car business at Hurstville. He did so at 3 o’clock in the afternoon. That vehicle was returned on 17 October, soon after 2 o’clock in the afternoon, a day earlier than the contract required. It had travelled 3,110 kms. Such a distance is consistent with the vehicle having been taken to Adelaide and back. On the day after the rental commenced, at about 10 o’clock at night, a man, who on the prosecution case was the accused, booked into the Shamrock Motel at Balranald. He used the name “David Pais” and the details he gave were false. On 3 November 2002 the witness who took the booking selected the accused’s photographic image from an array.
At some stage of the afternoon of 13 October, Mr Smith, the proprietor of the Lindy Lodge Motel at Torrens Road, Woodville Park, booked in a man calling himself “David Paes”, giving a similar address to the Balranald man and giving a mobile telephone number which was one digit away from the mobile number which the accused formerly had. Initially the man booked for one night, but on the following day he extended his stay for a further night. At both Balranald and Woodville Park the man calling himself Pais/Paes paid cash. During his stay Mr Smith saw the man three or four times. He said that on the afternoon of the killing the man sought directions to a barber and was directed to the Arndale Shopping Centre. Later on that day Mr Smith saw that the man had had a complete shave. Prior to that time the appearance of the man’s beard was consistent with descriptions of a man seen at the Citi Centre Building where Dr Tobin died, whom the prosecution allege was the killer. Mr Smith selected the accused’s photographic image from an array.
At about 10.00 am on 15 October the arrival of a man at the Renmark Mobil Service Station was captured on videotape. The man stopped for petrol and purchased a bottle of water. The footage of him was both on the service station driveway and within the shop. The man bore a striking resemblance to the accused (clean shaven) but the clarity of the film was not sufficient to enable a definite identification to be made. Whilst on the driveway the man was seen to dispose of a white plastic bag of rubbish. Police later searched the Renmark Dump and located such a white plastic bag in the vicinity of other rubbish emanating from that Mobil Service Station. Within that rubbish was the invoice in the name of “Chris King” from the Edmondstone Motel, to which I have already referred, together with part of the comparable document from the Shamrock Motel at Balranald. On the prosecution case the finding in one location of those two documents forges a clear link between the Brisbane and Adelaide incidents.
The accused’s parents, with whom he lived at the relevant time, left Australia on the evening of 11 October and did not return until 17 October. During what it says was the accused’s absence from the home for his trip to Adelaide in this period, the prosecution pointed to an unusual lack of activity on one of the computers within the accused’s home, together with a gap in the record of outgoing calls from the residence (with one exception) and a series of calls to the residence which remained unanswered.
If the jury accepted that there were parallels and links between the accused’s trip to Brisbane and the actions of the man calling himself Pais/Paes then they could use the Brisbane evidence to assist in a conclusion that Pais was the accused.
If the jury concluded that the accused travelled to Adelaide in the hire car, then the Brisbane evidence could be conclusive as to his reason for doing so; because the timing of his arrival and his departure, the clandestine nature of his visit, the alteration to his appearance during his stay and the lack of any apparent reason to visit Adelaide – apart from Dr Tobin’s presence here – would be telling. The jury would be entitled to consider the very unusual nature of both the incident in Brisbane and Dr Tobin’s killing. The accused’s presence in both cities could be seen as extremely significant.
Accepting for this purpose the prosecution’s contentions as to the Brisbane incident and as to the identity of the man “David Pais”, in my view there is an underlying unity between the accused’s activities during both periods which is strongly probative of the identity of Dr Tobin’s killer. In my view it would be an affront to common sense to exclude the evidence.
As I said, I consider that the evidence has the capacity to go directly to the question of the accused’s intentions in relation to Dr Tobin and that it could be seen as a step in the process which led to her killing. Because the evidence does not disclose a crime the prejudicial effect associated with it is quite limited. That is, it does not seem to me to carry significant prejudicial effect over and above the probative weight that it possesses. In any event even at this stage of the trial when the facts are fairly briefly sketched, the Brisbane incident seems to me to have probative value which can only be described as powerful and compelling and which, on any analysis, transcends its prejudicial effect.
If it is accepted that the Brisbane individual was indeed Dr Gassy then I do not consider there is a rational view of all this evidence that is inconsistent with the accused’s guilt. I consider that the evidence is admissible and that there is no reason to exclude it in the exercise of my discretion.
Police Conduct in Relation to Mrs Gassy
There were several aspects to the defence contention that the fruits of the police search of Dr Gassy’s premises on 29 October 2002 should be excluded. At a time when Dr Gassy was acting for himself he sought a voir dire hearing in relation to the legality of the execution of the warrant. Two particular issues were able to be distilled, namely whether there was illegality or impropriety in relation to police conduct towards Mrs Gassy prior to police attending at the Gassy residence and whether the police tricked their way into the premises by falsely engendering a belief in Mrs Gassy’s and Dr Gassy’s minds that they had a valid warrant to search the premises. The argument on these topics commenced on 13 May 2004.
The factual context in which those arguments arose was this. On 28 October Detective Sergeant Moss obtained a search warrant relating to the premises where Dr Gassy then lived with his parents. On 29 October both police officers of the New South Wales Police Force and South Australian detectives were present in the vicinity of the Gassy home. That premises had been under surveillance for a day or so. At about 9.00 am Mrs Gassy was seen to leave the premises in her motor vehicle. At this time police had set up a “staging post” at a nearby shopping centre. Mrs Gassy proceeded past the shopping centre and at that point the officer in charge of the New South Wales detectives, Detective Inspector Leonard, stepped out from the footpath and flagged down Mrs Gassy. A conversation took place between them following which Detective Inspector Leonard and Detective Kinsman of the Major Crime Squad, Adelaide, drove with her first to a school where she was due to give a class or lecture and then back to the Gassy home. Upon arrival Mrs Gassy approached the front door with the detectives and opened it. Dr Gassy was seen to be in close proximity to the front door and a conversation took place. At that stage no warrant or occupier’s notice (as required under the New South Wales legislation) was produced to either Mrs Gassy or Dr Gassy. Rather, police outlined the facts relating to their possession of a search warrant and advised that a search would not commence until certain other officers arrived. A delay was foreshadowed. In the ensuing hour or so police waited in and around the premises. On the police case it was during the ensuing hour or two that the fact that the warrant bore an incorrect address was adverted to. Detective Sergeant Moss, to whom the warrant was issued, told me that upon realising the situation he took steps to contact the court at which the warrant had been issued so that the situation could be addressed. He travelled to that court and returned to the house premises soon after noon carrying with him a warrant now recording the correct address.
Dr Gassy put to me that his mother’s version of events was to the effect that she was effectively arrested and forced to accompany police to her home. He detailed what she would say if called on a voir dire as to the events. He further argued that the events suggested that even at the time when Mrs Gassy was stopped on the roadway police knew that their warrant was defective and that their intention was to use her to let them into the premises to overcome the difficulty arising from that defect.
Having heard Dr Gassy’s submission I ruled that there was sufficient material constituted by Dr Gassy’s instructions as to what his mother would say to raise an issue of illegality and impropriety in relation to police conduct with respect to Mrs Gassy. I ruled that I would permit a voir dire examination of that issue. In respect of the second matter I ruled that even on the assumption that police had in effect tricked their way into the house by implying to Dr Gassy that the warrant they possessed was free of defects I should not allow a voir dire hearing on that matter, because no searching had taken place by authorisation of the allegedly defective warrant in any event and so, even assuming the original warrant were defective in a significant way, it could not be said that evidence had been obtained by means of its use. It can readily be observed that the link between police conduct towards Mrs Gassy and the subsequent obtaining of evidence is equally tenuous. But my thinking at the time was that if it could be shown that the police had acted so scurrilously as to arrest Mrs Gassy and take her, against her will, back to her home with a view to there using her to facilitate their search, then that might be a matter of such gravity that the discretion might be enlivened.
As it turned out, notwithstanding my attempt to delineate these two issues they largely merged at the point when evidence was taken. That was partly because Mr Brebner, perhaps unwittingly, widened the issue, but more probably because of a disinclination on my part to unduly rein Dr Gassy’s cross-examination and further still, that Mr de Robillard commenced to represent Dr Gassy during the period when the issue remained a live one. Perhaps because of the fragmentation of a number of pre-trial arguments Mr de Robillard did not seem to immediately appreciate the confined nature of the voir dire examination I had permitted and his cross-examination tended to raise wider issues. And so, as it turned out, both issues were examined, although it is quite possible that the second was not examined as fully as it might have been had my original ruling been to permit it. However, I have ultimately formed the view that even had the accused made good either of his factual positions on these two topics, I should not have exercised my discretion to exclude the results of the search because, as I shall explain, I am satisfied that irrespective of police conduct towards Mrs Gassy and irrespective of what was said and done by police when they originally arrived at the Gassy residence, no evidence was thereby obtained. I am satisfied that no searching commenced until some time after midday when the corrected warrant (Exhibit VDP1) was executed.
I turn to the evidence led.
Mrs Gassy told me that on the morning of 29 October 2002 soon after 9 o’clock she left her home in her motor car. She was driving on a road not far from her house in obedience to the road rules when three men in plain clothes stepped across the road telling her to stop. An object similar to a badge was produced by at least one. She said that they told her that she had to come back with them to her house and that her son was armed and violent. They asked her if she knew the name “Margaret Tobin” and she responded that she did not. When she told them she had to take a scripture class at school they announced they would come with her and they got into her car. She said that although she realised they were police officers, none of them introduced themselves. She did not consider that she had any choice about the police accompanying her to the school at which she was to give the class. Mrs Gassy said that she drove her motor vehicle, now containing two police officers who turned out to be Detective Inspector Leonard of the New South Wales Police Service and Detective Senior Constable Kinsman of the South Australian Major Crime Investigation Section.
When they arrived at the school a fire drill was in progress. Mrs Gassy said she was ashamed and crying. One of her friends approached the car and Mrs Gassy told the friend that she did not know what was happening. The friend asked the police whether she could come back to the house later and was told she could. Mrs Gassy passed on the information that she could not take the class and then drove the car, still containing the two police officers, back to her home. She said there she got out of the car, opened the front door and her son, the accused, appeared. She said she then went upstairs to her quarters. She said she needed to use the lavatory. She said one police officer stayed with her while she was in the house but at 10.45 she was permitted to leave and go to her friend’s house. In cross-examination she acknowledged that the police spoke to her using a normal tone of voice, that she was not threatened and that the word “arrest” was not used. She said that during the car journeys the police were “very nice”. She complied with their suggestions because she is a “good citizen”.
Both police officers who accompanied Mrs Gassy in her motor car gave evidence. In addition, Detective Sergeant Moss, who was at the “staging point” where Mrs Gassy was flagged down and who was also the authorised officer to whom the warrant was granted, gave evidence. The police said they had not made notes of this aspect of the matter. Detective Kinsman said that it was Leonard who had flagged down Mrs Gassy. He said Leonard was wearing jeans and a T-shirt but he had his police identification badge in one hand as he waved to the approaching vehicle. Leonard spoke to Mrs Gassy and then beckoned Kinsman to the driver’s door whereupon Leonard introduced Kinsman to Mrs Gassy. Kinsman was described as being a South Australian police officer investigating a shooting of a woman in Adelaide. He also heard Leonard say that police had a warrant to search her premises. Mrs Gassy became very upset upon learning that her son was being investigated for such a crime. Much of the conversation was designed to calm her and in response to her question she was assured that her son would not be arrested on that day. Kinsman said that Leonard asked Mrs Gassy for her assistance in relation to the safe conduct of their enquiries, he wishing to be assured that any firearms at the house did not present a danger. Mrs Gassy was extremely upset. She raised the matter of the class she was soon to give at the nearby school and her need to go there to cancel it. All three of them went to the school and Kinsman thought that at one stage Leonard had driven because of Mrs Gassy’s state of upset. At no stage did she say that she did not wish to have the police with her. The journey to the school was accomplished and Kinsman said they then returned to the “staging area” where he separated from Mrs Gassy and Leonard. A little later he attended at the Gassy home.
Detective Inspector Leonard said that it was planned that the search warrant obtained on the previous afternoon would be executed on the morning of 29 October. Several officers convened at the Oyster Bay Shopping Centre, referred to as the “staging area”. Various options as to how the house would be approached had been discussed. At about 9.50 am Leonard was advised that Mrs Gassy had left the premises in a motor car. The geography of the area was such that it was likely she would pass by the shopping centre. In due course he saw her and determined to wave her down.
He said when the vehicle came to a stop he walked to the driver’s door, showed his identification to Mrs Gassy and introduced himself. He said he explained to her that he had members of the South Australian Police with him and that they were investigating the murder of Mrs Tobin. He told her that he wanted to execute a search warrant on her premises and believed her son had two pistols. He said he was interested to avoid any incident associated with the execution of the warrant and he sought her assistance in that endeavour, in which she acquiesced. Leonard assured Mrs Gassy that her son was not going to be arrested on that day and that their interest was to execute the search warrant. He said when she indicated the need to attend the school he asked if she minded the police travelling with her and she agreed.
The differences between the two accounts of the incident are in many ways quite minor. I do not consider that any of the witnesses were deliberately inaccurate in their evidence. In my view such differences as there are are explicable on the basis of the passage of time, the fact that notes were not made contemporaneously, the fact that this aspect of the investigation was not of central importance to the police and the fact that from Mrs Gassy’s point of view the episode was frightening and upsetting. Having said that I prefer the police account of the incident. Specifically I accept that police introduced themselves and explained their purpose. I find that Mrs Gassy was prepared to assist. I accept that no pressure was placed upon Mrs Gassy to return to her house premises nor to have the police with her in her car. I accept Leonard’s evidence that he sought her permission in relation to those matters. I found the police evidence on this issue to be impressive. Moreover their version of events accords with the inherent probabilities of the situation. By that I mean this. The police had no interest in unnecessarily alarming Mrs Gassy nor in being high-handed with her. Their interest was to secure her co-operation and plainly the best way to do that was to treat her with respect and in an even-handed manner. Her own statement that in the motor vehicle the police were “very nice” to her tends to confirm that that was the tone they affected.
As to the defence theory that the police were motivated by their knowledge that the warrant was defective and that that accounted for their conduct with respect to Mrs Gassy, in my view such an hypothesis is barely plausible. It was rejected by all three police officers and I found their evidence convincing. It is noteworthy that once the error of the description of the address on the warrant was noticed it was quite readily addressed and corrected. If the police had recognised the error prior to stopping Mrs Gassy then it is inconceivable that they would have acted as they did, only to then delay proceedings at about 10.30 am whilst the warrant was rectified. In other words, if they had chosen to proceed to search the house in the knowledge that the warrant was defective, then it is obvious that they would have proceeded with the search once entry to the house had been gained. The actions that were taken, in particular by Detective Sergeant Moss, to take the warrant to the Kogarah Local Court and have it rectified, clearly indicate a genuine wish to act in a bona fide manner.
I should say that I am not convinced in any event that the error on the address on the warrant as originally issued was such as to render it defective. But since that issue was not argued fully before me (for the reasons I have mentioned already) and because I have determined this issue on the basis of other matters, I need not reach a decision as to that.
As I foreshadowed there is, in my view, an overriding reason why the defence arguments on these issues must fail. The discretion to exclude evidence on the basis of the public policy discretion only arises where it can be said that the evidence was secured by means of that illegality or impropriety. Statements of principle in numerous cases since R v Ireland (1970) 126 CLR 321 have made that clear but the point is particularly made in Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281.
Mr Brebner QC put to me that even were I against the prosecution position as to the enlivening of the discretion I should yet decline to use that discretion to exclude any of the evidence of things seized upon the search. He referred to the factors going to the exercise of the discretion as set out in Bunning v Cross (1977-78) 141 CLR 54. In my view those points were well made. In a case such as the present where a crime of profound seriousness is at issue, it would take proof (on the balance) of deliberate police misconduct of serious magnitude to persuade me to exercise my discretion to exclude real evidence of the kind gained upon the police search of the premises. Even had the defence made out in full their allegations both as to conduct with Mrs Gassy and as to what was said and done upon arrival at the Gassy premises, I cannot conceive that I would have thought that public policy would justify exclusion of that evidence.
Validity of Search Warrants
The accused challenges the legality of two searches conducted at his home at 23 Georges River Crescent, Oyster Bay, by police on 29 October 2002 and 11 March 2003.
Each search was conducted under authorisation of separate warrants. They each purport to be issued pursuant to the provisions of the Search Warrants Act 1985 (NSW) (“the NSW Act”). Each warrant purports to be issued by J. Wiseman, “a Justice authorised and empowered to issue search warrants under Part 2 of the Search Warrants Act 1985” and was granted to Matthew Robert Moss, a “Detective Senior Constable of Homicide Crime Team” and to “all other police officers”. Both warrants were tendered in the voir dire hearing before me, along with two affidavits, one of which was said to have been provided to the issuing Justice in support of each application.
The first such affidavit is that of Daniel Alan Lacey of the Major Crime Investigation Section, Adelaide Police Station. That is dated 27 October 2002. The second is that of Steven John Kinsman, also of the Major Crime Investigation Section, Adelaide Police Station. That is dated 7 March 2003. Although the warrants do not refer to any police officer apart from Detective Senior Constable Moss, there is some circumstantial evidence on each affidavit which tends to link it to the search warrant to which it is said to relate.
Dr Gassy put a number of arguments to me in support of his contention that each warrant was bad on its face. His principal argument was that neither warrant demonstrated on its face that all prerequisites to the grant of a warrant stipulated in the NSW Act had been met. In particular he submitted that each warrant should have demonstrated on its face that the jurisdictional criteria had been met, if indeed that was the case. He also put that the reference in the warrant to the section number providing the offence of murder should have referred to the South Australian section rather than the New South Wales section. On any view the reference to the section number for murder was unnecessary. But if it was to be specified then it was not incorrect to refer to the New South Wales provision.
The NSW Act is divided into four parts. Part 1 is headed “Preliminary” and includes the definition section. Part 2 deals with applications for search warrants, the grant of them and seizure pursuant to warrants. Section 5 entitles a member of the police force to apply to an “authorised Justice” for a search warrant if he has reasonable grounds for believing (inter alia) that there is in any premises a thing connected with a particular indictable offence. Section 6 provides that the authorised Justice may issue a search warrant if satisfied that there are reasonable grounds for doing so. Section 11, in Part 3 of the NSW Act, provides that applications for such warrants must be in writing in the form prescribed by the regulations and the information provided to the authorised Justice must be on oath. Section 12A stipulates what information which must be included in the application. The authorised Justice is required by s 13 to make a record of all relevant particulars of the grounds relied upon in issuing the warrant. Section 14 requires that the search warrant is to be in the prescribed form. Section 15 provides for preparation and furnishment of an “occupier’s notice”. Part 4 of the NSW Act deals with ministerial arrangements for things seized in connection with extra-territorial offences.
Regulations to the NSW Act were made in 1999. In Schedules to the Regulations are set out the forms to be used for applications for warrants and for the search warrants themselves. Form 3 is the form for search warrants. Information required to be included includes the expiry time of the warrant, the date on which it is granted, the name of the authorised Justice granting it, the person to whom it is granted (name, rank and place of work), the hours between which entry is permitted, the address of the premises which may be entered, the type of those premises, the things which may be searched for at those premises, the offence with which those things are thought to be connected, and the powers given to the applicant by the NSW Act and the name of the issuing person.
In Ousley v The Queen (1997) 192 CLR 69 the High Court considered the extent to which a warrant issued under the Listening Devices Act 1969 (Vict) needed to show jurisdiction on its face. The Court held that issue of such a warrant is an administrative act. It is not open to a trial judge to adjudicate upon the sufficiency of the information provided to the issuing authority. By majority, and in separate judgments, Toohey, McHugh and Gummow JJ held that a warrant is not open to attack on the basis of failure to recite satisfaction with jurisdictional factors, provided that its form complies with the legislative requirements as to its contents.
I consider that the warrant (Exhibit VDP1) does comply with the requirements of the legislation as to its content and that there being no defect of substance on its face, I should decline to go behind it. Consequently the form of the warrant does not give rise to any public policy discretion. For the same reasons the corresponding challenge to the legality of the second search must fail.
Further Application for Voir Dire Hearing
On 26 May, prior to the morning break, we concluded the evidence of Detective Sergeant Moss taken on the voir dire in relation to claimed impropriety or illegality arising from police dealings with the accused’s mother, Mrs Gassy, on 29 October 2002. Counsel indicated that it was not proposed to call further evidence in relation to that issue. I had not yet heard submissions as to that matter.
However, at the conclusion of Mr Moss’ evidence, Mr de Robillard, who now appeared for Dr Gassy, asked to be permitted to further cross-examine Detective Moss on a number of quite separate issues. I heard Mr de Robillard extensively as to that application. Indeed I would estimate that he addressed me for at least one and a half hours in relation to it. At his request we took an extended lunch break so that he could attempt to prepare a document setting out the topics on which he said he should be entitled to cross-examine and the justifications for that entitlement or, at very least, a list of such topics with relevant statutory references and references to the papers filed in court or the evidence given already before me. When Mr de Robillard attended at court after the appointed time for our resumption, he produced a document which I found helpful in clarifying both the ambit of his submission and the justifications for it.
I then heard submissions from Mr Brebner QC who opposed any further voir dire in relation to the matters raised. Mr de Robillard replied to Mr Brebner’s submissions. There being only a few minutes left in the day I reserved my decision until the morning. In the event argument as to whether there should be a further voir dire in relation to the search of the accused’s premises on 29 October 2002 occupied almost an entire day’s hearing. Nonetheless I consider it is important that before any further voir dire hearing is embarked upon the issues are properly identified. It is for the accused to point to material in the papers or in his brief which raises a real issue as to either the unfairness of using material against an accused or, as here, the legality of what was done. Moreover, any suggested impropriety or illegality would have to be seen as sufficiently significant to have the potential of persuading me to exclude the evidence thereby gained: R v Williams (1976) 14 SASR 1, 3; R v Bradshaw (1978) 18 SASR 83, 86. Indeed in Williams Justice Wells observed that whether a voir dire is or is not granted is a matter of discretion and a Judge would require there to be “proper and adequate material” before the court as a prerequisite to such a hearing.
As I have said, the warrant under consideration was issued pursuant to the NSW Act. A copy of it is in evidence. It bears the date 28 October 2002. The NSW Act sets out not only the basis upon which warrants may be issued but how they are to be executed and it also provides for proper recording of both processes.
Mr de Robillard’s submission particularly focussed on, but was not restricted to, certain events leading to the execution of the warrant. The prosecution case is that on 28 October 2002 when the warrant was issued the address nominated in it was incorrectly given as “23 St Georges Crescent, Oyster Bay”, instead of 23 Georges River Crescent, Oyster Bay. That error was – on the prosecution case – not adverted to until about 10.30 am on the following morning when police were already at the Gassy residence. By that time police had already approached the front door and informed the accused that they had a warrant but were not going to execute it until a video operator and an independent officer were present.
The officer named as the applicant within the warrant, Detective Sergeant Moss, gave evidence before me (in the course of the earlier voir dire) asserting that once the error was recognised he notified personnel at the Kogarah Local Court, where the warrant had been issued, and travelled there in the hope of rectifying the matter. He said that when he arrived there a fresh “cover sheet” had been prepared, that he re-swore the warrant and took away with him a document which now reflected the correct address of Dr Gassy. The date on the warrant remained as 28 October. Mr de Robillard argues that accordingly the warrant shows an error on its face. In addition he asserts that “the face” of the warrant is not only the order to be executed, complying with the regulations in its form and given to the applicant to be shown to the occupant of the premises, but that it includes all the records which the NSW Act requires be generated and kept. As I understand the submission it is that in order to show that a warrant is valid on its face the prosecution must produce all documents which demonstrate that all provisions of the NSW Act have been satisfied.
Another aspect of the procedure which the defence seeks to explore arises under reg 10 of the Regulations made under the NSW Act. It appears from a letter tendered by the defence, apparently signed by the Registrar of the Kogarah Local Court, that a request from Dr Gassy’s parents to inspect the documents relating to this search warrant and a subsequent one was not met, as the documents had been certified as not being available for inspection. Under reg 10 an authorised Justice may issue such a certificate upon being satisfied of one or more of various criteria. Mr de Robillard submitted that he should be entitled to cross-examine Detective Sergeant Moss as to any reasons provided by him to the authorised Justice justifying such certification.
I note that at an earlier stage of this pre-trial argument, at a time when Dr Gassy was representing himself, he prepared a subpoena directed to the Registrar of the Kogarah Local Court requiring production to this court of all documents held in relation to issue of this and a later warrant. Indeed I asked an officer of the criminal registry of this court to forward the subpoena to the Registrar, by registered mail, with an accompanying letter explaining that the trial was underway and that compliance with the subpoena could be achieved by returning the documents to this court in a specified (and pre-paid) manner. However on the morning when the subpoena was to be sent to the Registrar, Dr Gassy indicated that he wished to abandon that procedure and I had the mail stopped.
Mr de Robillard also indicated he wished to explore the issue of the time at which the execution of the warrant ceased and how the seized items were dealt with subsequent to that time.
In my view none of the issues raised by Mr de Robillard amount to a serious question as to the legality of the issue or execution of the search warrants. In my view there is no requirement that the prosecution prove compliance with all the various requirements of the NSW Act. There is nothing before me to indicate that there was not that compliance.
I have considered the question of the date on the warrant, a copy of which is before me. I have considered Mr de Robillard’s submission that arguably the warrant is defective on its face. In my view there is no serious question justifying examination of that issue. Both Mr de Robillard and Mr Brebner have expressed a view that in the circumstances which pertained it might have been better had the authorised Justice corrected the address by striking out the incorrect one, inserting the correct one and then initialling the correction. But plainly the Justice chose to substitute for the original page one a new page one showing only the correct address. I do not agree with Mr de Robillard’s submission that the NSW Act or Regulations provided for a different procedure. Nor do I necessarily agree with the submissions to the effect that another procedure might have been preferable. In my view the error as to the address was one of form, not substance. Indeed it was in the nature of a clerical error, although I acknowledge that it was plainly desirable to have the error corrected before execution of the warrant. On the evidence which I have already heard touching this issue I can find no impropriety or illegality. On the contrary, I consider that faced with a situation which plainly required addressing, Detective Sergeant Moss did what he considered best to rectify it. The way in which the Justice went about rectifying it was really a matter for him. Even were I to find that the procedure followed in some way flawed the warrant, I should not be inclined to exercise my discretion to exclude items seized under the purported authorisation of the warrant. The factors mentioned in Bunning v Cross could not in this case conceivably justify the exercise of the public policy discretion in a way contrary to the prosecution case.
It would be inappropriate for me to undertake an inquiry into the sufficiency of the material before the issuing Justice: either the material justifying the issue of the warrant or the material justifying certification that the records not be made available: Question of Law Reserved (No 5 of 1999) (2000) 76 SASR 356. Whilst there can in some circumstances be a collateral challenge to a warrant, in my view no material has been raised here to justify exploration of the issues enumerated by Mr de Robillard. In particular there is in my view nothing in the material already before me which raises any real question as to the warrant having been regularly issued.
Conversations between police and accused during search on 29 October 2002
As has been seen, police executed a search warrant on the premises occupied by Dr Gassy and his parents on 29 October 2002. This was the occasion of the first contact between police and Dr Gassy. As already recorded, police arrived at the premises soon after 9.00 am in company with Mrs Gassy. There was a conversation with Dr Gassy at the front door which was recorded on videotape. That conversation was principally concerned with advising Dr Gassy of what was to happen and as to his rights. The transcript of that conversation is before me as VDP10.
The search itself commenced at about 12.30 pm. Again, it was recorded on videotape. The transcript of it is now before me as VDP50. Mr Brebner has indicated that he wishes to tender only certain parts of the conversation which occurred between the various searching officers and Dr Gassy. The topics covered in those excerpts include the location of two Glock pistols and various firearm parts and ammunition, the so-called “persons of interest” list and train ticket (VDP33A and VDP34A), a videotape of the professional premises of Dr Nelson showing his vehicle, a receipt in relation to the ordering of a slide suitable to a Glock pistol (that order having been lodged with the Queensland Gun Exchange business run by Mr Allen), Medical Board and Tribunal papers, photographs of a solicitor connected with the proceedings leading to deregistration, computers used by Dr Gassy and a map of a part of St Vincents Hospital which the prosecution say is linked to Dr Wilhelm, a doctor concerned in the Professional Standards Committee hearing.
Immediately upon starting to speak to Dr Gassy a dichotomy was set up by police. On the one hand the accused was told by Detective Inspector Leonard of the NSW State Crime Command that he was not under arrest, that police had a warrant to search the premises and would commence to execute it upon the arrival of certain other persons; that the search would be videotaped in accordance with current practice and that it was a matter for the accused as to whether he wished to remain during the search and to answer any questions during the search. However, the accused was further advised by Detective Leonard at the outset that South Australian police were also present and wished to interview him. Leonard introduced the South Australian officers, who included Detective Senior Constable Kinsman. Detective Kinsman introduced his fellow South Australian officers and advised the accused that they were in New South Wales investigating Dr Tobin’s death by shooting. Detective Kinsman reiterated that the accused was not under arrest and did not have to speak with them. He told the accused that anything he did say in answer to their questions might be given in evidence. The following interchange then occurred:
DETECTIVE KINSMAN: O.K. Do you wish to speak with us?
ACCUSED: So what happens if I say no?
DETECTIVE KINSMAN: You don’t speak with us.
ACCUSED: But what’s the next step. You’ve got to search the …
DETECTIVE INSPECTOR LEONARD: Yeah, well that’s the, what I propose to do.
ACCUSED: Well why don’t you do that first and then decide if there’s anything else you want to …
DETECTIVE INSPECTOR LEONARD: Well it’s, let’s say its something a two-fold issue Eric that these officers, as they’ve outlined wanted to speak to you if you so wish to answer questions which you’ve had your, you’ve had the situation explained to you.
ACCUSED: Yeah.
DETECTIVE INSPECTOR LEONARD: And your rights and again I repeat you’re certainly not under arrest.
ACCUSED: Mmmm.
DETECTIVE INSPECTOR LEONARD: Yes as a New, I’m an Inspector with the New South Wales Police Service. I want to co-ordinate a search warrant on the premises. I have a search warrant which I’ll show you and your mother, O.K., to see the details as to the, the items that we want to search for.
ACCUSED: Mmmm.
A little later in the same conversation Detective Inspector Leonard said this:
DETECTIVE INSPECTOR LEONARD: Well if, yeah look I think that’s what I’ll do during the search warrant I’ll have to get an independent uniformed policeman from Sutherland to come down and a video operator. If you want to remain present whilst we do the search, when we finish the search again that issue might be visited as to whether or not you, what we normally do is if you, if you wanted to participate in an interview, we’d go back to a police station where we could sit down in an interview room to conduct a formal interview.
ACCUSED: Yeah.
DETECTIVE INSPECTOR LEONARD: Now your rights again would be explained to you back at the police station.
ACCUSED: Yeah.
DETECTIVE INSPECTOR LEONARD: But you’re not under arrest but you’re free to leave at any time and that as you’ve been told your rights, cautioned in effect, but you’re not obliged to answer questions unless you want to.
ACCUSED: Right.
DETECTIVE INSPECTOR LEONARD: That’s for your consideration as to whether you answer further questions in relation to the issue that I’ve explained to you. Do you understand all that.
ACCUSED: Yes I understand all that.
At the conclusion of that conversation Kinsman again spoke to the accused, as follows:
DETECTIVE KINSMAN: Well while we’re waiting Eric can we come inside and have a talk with you.
ACCUSED: Well if I’m not obliged to discuss anything I’ll just wait to see what they come up with in the search, if there’s a ground to pursue further.
DETECTIVE INSPECTOR LEONARD: All right.
ACCUSED: And if I have to I will, if I don’t have to …
The execution of the search warrant commenced at about 12.30 pm and concluded at 8.58 pm. Whilst the South Australian detectives were present, they did not play an active role. During the search various New South Wales officers spoke with the accused about items located and areas being searched. He made admissions as to such things as ownership of items and authorship of documents. At one point Dr Gassy left the house to attend a medical appointment. Upon his return he was questioned about items which had been found in his wallet and clothes found in a “cupboard”. At that point he was warned that he was not obliged to answer questions, that what he said would be recorded and might later be used in evidence. The reference to the possibility of use of things said by him in evidence was the first mention of that after the commencement of the search. That advice came at question 490 of a transcript containing 900 questions.
My concern about the admission of statements by the accused made in the course of the search arises from the way in which the exercise was undertaken. I do not suggest that police intentionally set out to confuse the accused or to trap him. On the contrary their treatment of him seems to me to have been very even-handed. However because of the way in which the twin aims of the New South Welsh and South Australian police were presented, in my view the accused could quite reasonably have formed the view that such questions as were asked of him during the search of his home were being asked to facilitate the search and not to obtain evidence against him which might be used at a trial. Indeed, the accused said as much to me in the course of his submissions in relation to this material. His refusal to undergo interview, compared with his willingness to answer questions during the search, supports that statement.
During the argument I considered the question of whether the issue on the voir dire was one of voluntariness or the exercise of a discretion. If the accused was effectively “tricked” into making the admissions he made, in the sense that statements made by the police led the accused to form a quite false view of what was to occur, then it seems to me that arguably on the basis of R v Noakes (1986) 42 SASR 489, that could raise the issue of voluntariness. In Noakes it was held that acquiescence with the suspect’s request that he be allowed to speak to police “off the record” amounted to an improper inducement to the suspect to make a further statement. The Court of Criminal Appeal held that the statements which followed should have been excluded as being involuntary. The former Chief Justice, who was president of the Court on that occasion, touched on the same principle in R v Dolan (1992) 58 SASR 501, 504, when what was at issue was the conducting by police of a systematic interrogation at a police station, without a caution being administered. There, King CJ said:
The cautioning of a suspect that he is not obliged to answer questions, is the offspring of the rule rendering inadmissible in evidence confessions which have not been made voluntarily. It is also related to the discretion which a trial judge has to exclude evidence, including confessional evidence, if the admission of that evidence would be unfair to the accused. The caution tends to negative any suggestion of involuntariness or unfairness. The omission of the caution in circumstances in which it ought to be given, is not decisive as to the voluntariness of the confession nor of the fairness of admitting evidence of it. The judge must decide those issues by taking all relevant circumstances into account including the omission to administer the caution.
In Dolan although exclusion of the interview had been sought, the accused did not give evidence of his state of mind as to whether he was obliged to answer questions.
Mr Brebner QC addressed to me a powerful argument to the effect that in relation to conversations taking place during the search of Dr Gassy’s house no question of voluntariness arose. He put that the only statements which can be classified as involuntary are those which are made as the product of a threat, promise or persistent importunity which overbears the will of the suspect and produces in the suspect’s mind fear of prejudice or hope of advantage. He relied on statements of general principle to that effect in McDermott v R (1948) 76 CLR 501, 511-512 per Dixon J; McPherson v R (1981) 147 CLR 512, 519 per Gibbs CJ and Wilson J; R v Swaffield; R v Pavic (1998) 192 CLR 159, 188-189, 201-202 per Toohey, Gaudron and Gummow JJ, 169-171 per Brennan J. As to the question of whether a false understanding in Dr Gassy’s mind to the effect that things said by him to the police during the search would only be used to facilitate the search and whether that false understanding could raise the issue of voluntariness, Mr Brebner pointed to observations made by Dixon J in McDermott upon the notion of inducement and his Honour’s observation at 512 to the effect that s 410 of the Crimes Act 1990 (NSW) – which provided that confessions by accused persons which were induced by an untrue representation made by a person in authority should not be received – was possibly an extension of the common law. That such a provision was indeed an extension of the common law was put more positively by Gibbs CJ and Wilson J in McPherson at 519.
Mr Brebner drew further support for his argument that Dr Gassy’s complaint could at most raise the discretion from Swaffield and Pavic and the facts of those cases. There the suspects were encouraged to speak about the crimes of which they were suspected by, in Swaffield, an undercover police officer, and, in Pavic, a friend who was acting as a police operative. In both cases the High Court held that the circumstances raised issues related to discretionary exclusion rather than voluntariness.
Mr Brebner suggested that in the light of these powerful High Court authorities it may be that R v Noakes was wrongly decided.
On reflection, what really seems to me to be an issue here is whether it is fair to use against the accused the admissions he made in the circumstances outlined. Since in an inquiry focussed on the issue of fairness the onus falls upon the accused, it might be thought that it would be necessary for the accused to give evidence supporting his false reading of the situation and the way in which it operated upon his reactions. However in this case I have been persuaded that his evidence on the topic is not necessary. I consider that the accused’s state of mind in relation to undergoing an interview and answering police questions during the search is adequately demonstrated by the transcripts which are before me.
I note two other matters in passing. As seen, the search of the premises occupied from about 12.30 pm to 8.58 pm. The accused was present for most of that time. Perhaps not surprisingly the conversation between police and the accused from time to time descended into informality. For example there was conversation about travelling, the playing of a guitar and police conduct in another case. Such conversation, although perhaps natural, was apt to minimise in the accused’s mind the importance of the questions he was being asked and the seriousness of his situation. Furthermore there was lengthy conversation about medications which the accused had in his possession which were apparently obtained with the aim of treating the condition of HIV which the accused considered he had. Plainly he was anxious to ensure that these medications were not seized by police. During submissions he told me that was a factor playing on his mind and a motivation to co-operate with police.
There is one further consideration. The accused was represented by counsel for part only of the pre-trial argument. By the time the matter of the particular conversations at issue was raised, his counsel had withdrawn. Whether or not to give evidence upon a voir dire hearing is a matter which may sometimes be finely balanced. There is a question whether the prosecution might seek to make use later in the trial of the accused’s evidence given on the voir dire. For that reason I would not wish to advise the accused of the need to give evidence unless I thought it was really necessary.
In all the circumstances I have reached the conclusion, without needing to hear from the accused, that it would not be fair to use against him admissions made by him to the police during the protracted search. Accordingly I exercise my discretion to exclude from evidence all the conversations occurring between the police officers executing the warrant and the accused from 12.30 pm to 8.58 pm.
Identification Evidence
Dr Gassy objected to the evidence of a number of witnesses whose evidence bears on the identification of a man seen in the vicinity of the Citi Centre building, who is likely to have been the killer, a man seen at other locations where the prosecution allege the killer was in the days leading to or following the killing and a man observed at the Brisbane Exhibition and Convention Centre on 27 April 2002, who, it is said, was the accused. Some of those witnesses were shown, in electronic form, what I shall call an array of photographs. For the most part the same collection of photographs was used and the men depicted were bearded. However, in some instances an array of unbearded men was presented. The justification for the difference in approach is accounted for by the contention of the prosecution that during the afternoon of the killing, the accused had his beard shaved off by a witness called Pellicone, who is a hairdresser at the Arndale Shopping Centre.
A number of issues going to admissibility and to the matter of discretion are raised in relation to various of these witnesses. There is no contest to the fact that on 29 October 2002 during a search of his home in Oyster Bay, New South Wales, the accused was offered and declined to take part in an identification parade. It was subsequent to that date that the police resorted to use of photographic arrays. However the accused contended that after his arrest on 9 November 2002 police should have again raised with him the matter of an identification parade. Dr Gassy puts that as at that time the situation in which he found himself had changed markedly and his attitude to participation in a line-up might have been different (t/s 244ff). For that reason, he argued that identification procedures carried out by reason of photographic images after his arrest should be excluded.
Dr Gassy told me in the course of submissions that after his extradition to Adelaide he raised the matter of an identification parade with a solicitor, Mr Ey, who was then acting for him, but had been advised against participating. There the matter rested, the accused apparently accepting that advice. He acknowledged that at no stage did he approach police to indicate that his attitude might have changed, if indeed it had.
The procedure followed was such that immediately prior to producing photographic images to witnesses the police officer concerned went through a standardised introduction, advising of the process to be followed. It included advice that the person seen by the witness might or might not be represented in the twelve images to be shown and that the witness was not obliged to make a selection. The witness was usually asked to determine whether a “positive identification” could be made.
The method adopted by police in presenting photographs to the witnesses was to show a collection of twelve photographs of men in electronic form to each witness and then to show each photograph individually, taking instruction from the witness as to when to move on to the next one. The photographs were either shown on a large screen or, if the procedure was adopted at a location other than police premises, on a laptop computer. Where selections were made the witnesses were usually asked to indicate on a hard copy of the complete array which numbered image had been selected.
Not surprisingly while some witnesses were confident in their selection of a single photographic image, others were only able to narrow down their selection to two or three men and others were unable to make a selection at all. In most cases a video recording was made of the identification process and, for the rest, audio tapes were made.
I viewed or listened to all the electronic recordings of identification procedures where those were to be tendered by the prosecution and a number where it was not the prosecutor’s plan to use them. As with other witnesses, Mr Brebner QC agreed to present at Dr Gassy’s request any witness whose name appeared on the information and who would otherwise not have been called.
I also had available to me transcripts of those procedures in which one or more selections were made, to assist in understanding the recordings.
In the case of the witness Barker, I heard evidence on the voir dire so that I could better understand several features of his statement. The prosecution wished to present to the jury the electronic recordings of the procedures, not only in the instances where Dr Gassy’s photograph was selected, but also where his photograph was one of two or three selected. Indeed in the case of the witness Francis, who, it seems clear, shared an elevator with the killer in the seconds leading up to the killing, the prosecution wished to present the video recording of his identification procedure, notwithstanding that he ultimately settled on a photograph which was not of Dr Gassy.
Dr Gassy mounted a number of objections to the admission of much of this evidence, both general and specific.
Drawing on the work of various academics he asserted that eye-witness evidence is dangerous and is the greatest cause of wrongful conviction. He referred to the statement of Evatt and McTiernan JJ in Craig v The King (1933) 49 CLR 429 which sets out the logical components of the superficially straightforward statement of a witness to the effect that he recognises a person presented as the person who committed the crime. Dr Gassy argued that a retained image can alter over time, particularly if displaced by a photograph, or if the witness receives suggestions as to the appearance of the person originally seen.
It was further argued that over time a witness’ purported recognition can become more confident and thereby the jury can be misled.
The accused referred extensively to the judgment of Gibbs CJ in Alexander v The Queen (1980-81) 145 CLR 395, at 399ff, where his Honour explained the rationale for requiring out of court identifications to be by way of parade and to be undertaken as soon as possible after the event, and in which he referred to the dangers of dock identification if not preceded by such a procedure. These matters are not controversial. Of course in Alexander the High Court was dealing with an investigation in which, after the detection process had ended and the accused was in custody, at least three identifying witnesses were shown photographs and in which the failure to hold an identification parade remained unexplained.
The accused further argued that the intrusion of the displacement effect into the process should preclude admission of evidence of a second photographic identification procedure (such as occurred in respect of the witnesses Durrington and Pellicone).
As to dock identifications, the accused submitted that in circumstances where I ruled against him and admitted out of court identifications, a dock identification should only be permitted where a witness had “positively identified” him out of court.
Apart from those general matters the accused took me through each identification to which objection was taken and expanded upon that objection, both by reference to the papers and having regard to the electronic recording.
Specific objection was taken to the identification procedures carried out in respect of Ms Durrington, Ms Robinson, Mr Barker, Mr Roc Harry and Mr Francis.
For his part Mr Brebner QC submitted that it was now “beyond question” that identification by photographs was admissible irrespective of whether the witness expressed certainty about the identification or merely that the image selected was “similar” to the person observed. He put that where such evidence had any probative force, it should be left to the jury with appropriate directions. He accepted that the judicial discretions to exclude such evidence were available and he acknowledged that the public policy discretion could operate where the police failed in their duty to use the best means of identification available to them. He suggested that there was no question of such a failure here. He said the question of weight was for the jury. Even in an instance of suggestion or where an identification was very weak, he submitted the evidence should be left for the jury to evaluate, accompanied by appropriate directions. He reminded me that the onus of pointing to considerations justifying the exercise of the discretion remained on the accused.
Reference was made to Festa v The Queen (2001) 208 CLR 593, where several identifications of different strength going to add to the circumstantial evidence against the accused were under consideration. Gleeson CJ (Hayne J agreeing on this point) referred to the principle that weakness in identification evidence does not affect admissibility. His Honour said (at 599-600):
Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury’s verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury’s consideration. It is not enough to say that it is “weak”, and, as already mentioned, whether it is weak might depend on what use is made of it. …
For any one of a number of reasons, evidence of observations, including evidence of positive identification, may be made in circumstances which adversely affect its reliability. Those circumstances may be beyond anybody’s control, or they may result, for example, from the way police have conducted an investigation.
His Honour held that, generally speaking, those matters go to the weight and sufficiency of the evidence. McHugh J was of like opinion. He said (at 609-610):
But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
Mr Brebner justified the admissibility of the electronic recordings of acts of identification by reference to R v Sutton (1990) 159 LSJS 96. In that case it had been argued by the appellant that only the very fact of an out of court identification is admissible, that is, that the words and actions of the identifying witness are not. In repudiating that argument King CJ (with whom Cox and Matheson JJ agreed) said (at 98-99):
What is admissible is the act of identification. Words and conduct which are extraneous to the act of identification must be excluded. In general that will exclude any utterances which purport to relate to circumstances of the crime in respect of which the identification is taking place, although there may be situations, such as that which arose in R v Collings & Ors [1976] NZLR 104, in which some reference to the incident is necessary to give meaning to the identification.
In respect of permitting the witness to attempt a dock identification where the witness has previously selected a photograph of the accused, Mr Brebner referred to R v Britten (1988) 51 SASR 567. There King CJ was critical of the failure of the prosecutor to ask the central witness whether she could see in court the man involved. By reason of the prisoner having declined to take part in an identification parade, police had there resorted to an array of photographs and the witness had selected that of the prisoner. The former Chief Justice said (at 572):
It is not to be thought that because courts have stated that dock identification is of little value where the accused is not previously known to the witness, the witness should therefore not be asked whether he can see the person concerned in court. This should be done in every case depending upon identification notwithstanding that the evidence principally relied upon by the prosecution is the out of court identification.
I respectfully agree with that statement. It would be quite unsatisfactory for a jury faced with the task of evaluating an out of court identification by means of photographs to be deprived of learning of the witness’ reaction upon seeing in person the man previously selected. Such evidence might tend to either confirm or undermine the strength of the out of court identification.
I agree with Mr Brebner’s summary of the relevant law. In particular I find that resort to identification by photographic images was justified in this case. The way in which the great majority of the procedures were carried out was unexceptional. In my view the fact of making an identification and the recording of the process are admissible, not only where the witness was confident in his or her selection – as was the case with the witnesses Allen, M Smith and Conway, but also where the witness indicated that the image selected was probably of the man in question, for example, Ceron, Fisher, Pellicone, Tuffin and Durrington. In relation to all those named witnesses I formed the view that evidence of the selections they made and the electronic recording of the process was admissible and that there was no reason to exclude that evidence as an exercise of judicial discretion.
However in some cases the witness only narrowed down the possibilities to two or three photographs. Unlike in Festa where the witness named Hill selected three images because each person chosen had the same hair and skin type as the suspect, the witnesses Champion and Summers seemed to choose their “short list” on the basis of general appearance.
Whilst I appreciate that there is authority for the proposition that the selection of such a short list is some evidence going to identity and can be placed before the jury, and that by extrapolation it could be argued that Festa supports that proposition, it seems to me that there are dangers in admitting such evidence in a case such as the present. Particular factors which I have weighed included the fact that the identifications by Champion and Summers took place some seven months after the incident they observed and that, for reasons which were no doubt sound, they seemed to proceed on the assumption that the photograph of the man they had seen in Brisbane was indeed in the array presented. On any view the probative weight to be attached to the short list provided by each witness would be negligible, but the jury might be inclined to attach significance to it. For that reason I excluded evidence of the procedures carried out by each of those witnesses.
The situation in relation to Ms Durrington’s selection was quite unusual. She was a witness who worked within the Citi Centre Building and claimed to have noticed a man in one of the lifts of that building after 11 o’clock on the morning of Dr Tobin’s shooting. She said she had a very brief conversation with him. On 11 November 2002 she was presented with the series of photographic images. Taking quite some time over the procedure, she deliberated between photographs numbered 3 and 5 (Gassy). She seemed to settle on number 5 but at the last moment changed to number 3. The procedure was then brought to an end. During the ensuing 20 minutes or so when she was waiting to be driven back to work the officer who conducted the procedure questioned her as to why she had chosen number 3. Soon after that she asked whether she could undergo the procedure again. This time she chose the image of the accused. In a statement provided during the pre-trial argument and prepared specifically at my request, Ms Durrington indicated that her request to repeat the procedure was motivated not by the police officer’s question but rather by a conviction that she had erred in her selection.
It seemed to me that while many arguments could be mounted to suggest that little weight should be afforded to Ms Durrington’s final selection, these arguments were to be properly addressed by the jury rather than me. The process of reasoning followed by Ms Durrington during the first procedure was quite apparent as she was inclined to verbalise it. It was plain that one of the matters which persuaded her to veer away from the accused’s photograph was that his skin tone was not similar to that of the man she saw. In fact the photograph used by police was not a good representation of his skin tone. Moreover, there was so little time separating the first and second procedures that it seemed to me that it would be unfair to the witness and the prosecution to draw an arbitrary line between them and to preclude her from giving evidence of her final selection. In my view the decision to allow the evidence is consistent with the statements of the Chief Justice in Festa to which I have already made reference.
The witness Mr Pellicone also underwent two procedures. On the first occasion he was shown a group of bearded men and he picked out the accused’s photograph, although he expressed himself not to be 100 per cent sure. On the second occasion, which followed immediately upon the first, he was shown a group of clean-shaven men and he failed to make a selection. The reason for undertaking the two procedures was, as I have already mentioned, that on the prosecution case it was this witness who had shaved off the beard of the accused on the afternoon of the killing. (The timing of that procedure was fixed by the witness Mr M Smith, rather than by Mr Pellicone.) In my view in the particular circumstances of Mr Pellicone’s asserted interaction with the man no criticism could be levelled at police for presenting a second array to the witness. Indeed, inasmuch as Mr Pellicone had failed to select the accused’s photograph unbearded, it was to the accused’s advantage to have evidence of that procedure before the jury. However, the videotape of the second procedure in my view had no relevance, since no identification was made.
The witness Robinson claimed to have seen an unusual individual in the city on the afternoon of the killing. On 5 December 2002 she took part in an identification procedure. She selected the accused’s photograph. In my view the identification procedure was flawed on account of the conduct of it by the officer involved. In my mind there was an element of suggestiveness in the way it was conducted. Furthermore, quite wrongly, the witness was asked in the course of the procedure to describe her interaction with the man. I excluded the evidence as an exercise of the public policy discretion.
Mr Barker and Mr Roc Harry were employed at the Rowe & Jarman Seconds outlet on Pulteney Street, adjacent to the eastern entrance to the Citi Centre Building. Mr Barker described a man who came into that store at about 3 o’clock on the day of the shooting. He said the man appeared to be in a rush and that he asked for a piece of paper in order to write down a telephone number. He said the man made a “sarcastic comment directly related to the shooting that had just occurred.” Until that time Mr Barker had been unaware that the incident which had plainly taken place was in the nature of a shooting. His description of the man was something like that of the accused. Later, Mr Barker was shown what he called “a photo” of a man by police. It was probably the identikit image. He said it looked similar to the man. On 20 December he was shown a photographic array and picked out the accused’s image.
In evidence on the voir dire Mr Barker told me that the man looked like “a bum”. He could not now recall what the man said in respect of the shooting, other than that the man swore and used the word “shooting”. He was unsure whether he told police that the identikit looked like the man. (His statement suggested he did not.) Perhaps this accounted for the delay before he was shown the array. He could not recall the extent of time lapse between seeing the identikit, contacting police, being visited by police and undertaking the identification procedure.
Mr Barker’s co-worker, Mr Roc Harry, also provided statements, but I did not take evidence from him on the voir dire. His statement, like Mr Barker’s, implied that when they each were shown the identikit picture no indication of recognition was given. When he was shown the array on 5 December he nominated the image of an unrelated man.
I found Mr Barker’s evidence to be unsatisfactory. There was an element of danger in allowing Mr Barker to describe the man’s comment about the shooting as “sarcastic” when he was entirely unable to recall what it was that the man said which caused him to categorise it in that way. Moreover, it might be inferred from his evidence – although not safely – that the man had some esoteric knowledge of the nature of the incident and was indeed connected to it. In all the circumstances I considered that Mr Barker’s evidence should be excluded, its probative value being outweighed by its prejudicial effect. That being the case, Mr Harry’s evidence fell with it.
With one exception, Mr Brebner sought to ask witnesses to make a dock identification only where the witness had previously singled out the accused’s image, either confidently or with some reservation. (t/s 184) I consider that such an approach was consistent with principle.
The exception was in respect of Mr Francis’ evidence. (t/s 378) He was one of three people who accompanied Dr Tobin in her final journey in the lift on 14 October 2002. He and Ms Heath left the lift at Level 7. The person who accompanied Dr Tobin to Level 8 was very likely the killer. He was asked to describe the fourth occupant soon after the killing. On 3 November 2002 he undertook an identification procedure using photographic images. Working on what he called “a process of elimination” he excluded all but two photographs. One was of the accused and the other, the one he preferred, was of a man called Stanic. On 11 November 2002 he undertook another procedure and on this occasion selected Stanic’s image, saying that he was “possibly” the man. Mr Brebner wished to tender tapes of both procedures and to ask Mr Francis whether he could see in court the fourth occupant of the lift. I ruled against the admission of such evidence. In my view it could not be said that Mr Francis made an identification of the accused. The identification he made was of the man Stanic. If that is correct then the principle referred to in Sutton, whereby evidence of acts and words accompanying an identification can be admitted, could not apply and nor would it be appropriate to allow a dock identification.
A further matter in the nature of recognition or identification evidence arose. Part of the prosecution case was video footage, taken on the day after Dr Tobin’s killing, of a man who arrived at the Renmark Mobil Service Station at about 10.00 am. The film showed the man in question to arrive in a small vehicle, put some petrol into it, and remove a white plastic bag from the vehicle and place it into the rubbish bin alongside the pumps. He then proceeded into the shop area where he selected a bottle of water, waited for service and then paid for those items. On the prosecution case the man was the accused.
The film was not particularly clear. Movements of the persons depicted on it were rather jerky and at no time was there a plain view of the man’s face.
In order to assist the jury in making a finding about the identity of the man the prosecutor sought to lead evidence from two witnesses who had viewed the tape and expressed opinions as to whether the man might be the accused. The first of those was the accused’s cousin, Gilbert Malepa, who of course was very familiar with the accused’s appearance over many years. His statement contains the following passage:
I identified that person to [the police officer] as looking a bit like Eric Gassy. I would say that the person’s face looked a bit like Eric, although I could not remember Eric’s hair looking that way. When I saw Eric on 16 October 2002 I would say that his hair looked shorter and was more pushed back. The person on the video looked a bit too chubby for how I remember Eric. I did say to [the police officer] that if I had to take a guess I would say that the person in the video looked a bit like Eric.
The other witness who provided an opinion on this topic was one of the investigating officers, Detective Sergeant Kinsman. He described having had personal contact with the accused on 29 October 2002, when police attended at the accused’s home at Oyster Bay and remained there for some hours and on 9 November 2002 when the accused was arrested and during his charging. He further saw the accused on 10 November at the Parramatta Local Court and at the Sydney Central Court on 11 November where the accused was remanded into his custody for extradition. Detective Kinsman then accompanied the accused to the airport and flew with him to Adelaide. He presented him at the City Watchhouse where saw the accused charged and searched. He said that by reason of this contact he had become familiar with his appearance.
Detective Kinsman said in his statement that having viewed the Renmark video he could make no “positive identification” of the man, but considered him to be similar to the accused in height, build and hair colour and to be wearing clothing similar to clothing in which Kinsman had observed the accused. He further expressed the opinion that the man “had a similar manner of walking to Gassy.” In summary he expressed his opinion to be that “the male depicted on the videos is similar in all respects to the accused Gassy. There is nothing in the videos to suggest that the person is not Gassy.”
Dr Gassy objected to the admission of this evidence. He said the jury could see for themselves whether or not his appearance was comparable with that of the man in the video. Further he said that the police had taken video of him during the searches of his premises and his manner of walking was demonstrated in those videotapes.
The High Court dealt with this type of evidence recently in Smith v The Queen (2001) 206 CLR 650. In that case bank security cameras had taken photographs of a robbery, which included footage of the robbers. Two police officers gave evidence at trial to the effect that they had each had previous dealings with the appellant and recognised him as one of the men depicted in the videotape. There was no suggestion that the physical appearance of the appellant had changed materially between the time of the robbery and the date of trial or that the police, by reason of their dealings with the appellant, had acquired knowledge of physical features which would not be apparent to the jury.
The Court held that the evidence was irrelevant and should not have been received. The Court did not go so far as to say that such evidence could never be relevant, for instance, where the witness providing the opinion had some advantage in forming that opinion which would be unavailable to the jury. But short of that, the formation of the relevant opinion by the police officers could not assist the jury.
It seemed to me that the opinions of Detective Sergeant Kinsman and Mr Malepa fell to be excluded on the same basis as in Smith. The only advantage which Mr Malepa enjoyed in forming his opinion was his long standing knowledge of the accused’s appearance. However it was his appearance at the relevant time which counted. The police were able to produce the videotape of the accused taken on 29 October 2002 – just two weeks after the Renmark footage was taken – and in my view that fairly showed the accused’s hairstyle and his weight. By the end of the trial the jury was likely to have far more exposure to the accused’s appearance and manner of standing, and indeed walking, than Detective Kinsman had at the time of expressing his opinion.
For those reasons the opinion evidence was inadmissible, or, if it had a bare relevance, was more prejudicial than probative.
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