R v Gauci

[1997] QCA 233

IN THE COURT OF APPEAL	[1997] QCA 233
SUPREME COURT OF QUEENSLAND

C.A. No. 189 of 1997

Brisbane

Before McPherson J.A.
Williams J.
Byrne J.

[R. v. Gauci]

T H E Q U E E N

v.

GEORGE GAUCI	Appellant
McPherson J.A. Williams J. Byrne J.

Judgment delivered 1 August 1997

Judgment of the Court

THE APPEAL AGAINST CONVICTION IS DISMISSED

CATCHWORDS:	CRIMINAL LAW - Section 127 Criminal Code - Corruption of a witness - Whether taped telephone conversations admissible - Whether identification direction to jury required - Domican v. R. (1992) 173 C.L.R. 555 considered.
Counsel:	Mr A. Rafter for the appellant Mr P. Rutledge for the respondent
Solicitors:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	24 July 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 1 August 1997

The appellant was convicted at trial in the District Court at Southport of having, between 1 September and 30 October 1992, attempted by violence or threats of violence to induce John Kenny, a person about to be called as a witness at a trial of the appellant, to withhold true testimony on that trial. This is his appeal against that conviction.

On 30 September 1992 Mr John Kenny, who is a Gold Coast businessman, went as he often did after work for a drink at Upton’s Restaurant at the corner of Ashmore Road and Upton Avenue. He left the restaurant at about 7.30 p.m. and went to his car, which was parked outside. As he was about to get into it, someone spoke to him. Kenny turned to him and was struck a heavy blow, which knocked him to the ground. His assailant proceeded to kick him in the head, and then began kicking him all over his body. For a time he partially lost consciousness. When he recovered he staggered back to the restaurant, from which he was taken to hospital for treatment. He later reported the matter to the police, but was not able to identify his assailant.

Less than a fortnight later, on 13 October 1992, Kenny was in his office at work when a man called to see him. He was of very muscular build, with a distinctive tattoo on his right arm, and he was on crutches. He had a conversation with Kenny. The man, who subsequently gave evidence at the trial, was Zoheir Artoui, otherwise known as Tom or Tommy. He told Kenny he had come about “the bit of trouble” Kenny had had a couple of weeks before, by which Artoui meant the bashing Kenny had received on 30 September. Artoui, said Kenny, seemed to know “an awful lot about him”. He told Kenny he had been hired through Sydney by a Gold Coast businessman to “clip” him. Two men had previously been sent up for that purpose but they had not done the job properly, and four men had now been sent. Artoui instructed Kenny that he was to leave his office but was to leave his car where it was. He was not to go home, or to go to work. He was not to speak to the police or to his lawyers. He was to continue behaving in that way until the trial came up, and for a couple of days after it. Then everything would be alright. It would be better for Kenny, he said, not to go to court than to get two broken legs or arms and a bullet in the back of the head. A threat was also made against his wife and children. Kenny was told the Gold Coast man had paid $30,000 for this service. Kenny drew a diagram on paper, to which Artoui added a mark. It became ex.1 at the trial.

After this visit, Kenny received a number of anonymous telephone calls. Being an ex-policeman, he arranged to tape-record the calls. There were five in all and they were admitted in evidence at the trial as exs. 2 to 6. The first was on 15 October 1992; the last on 21 October 1992. The first is perhaps the most informative. The caller mentioned Tommy, the “bloke on crutches”, as having come up and had a talk with Kenny. He discussed with Kenny the “job” he and others were being paid to do. He said it was being done because Kenny had not paid $50,000 commission to a bloke, or that was what they had been told. Kenny said that this was Trevor Jones and he had got his money. The caller said, No, this was apparently a guy who was going to court over it. Kenny said it must be the court case over criminal charges of fraud, in which he was subpoenaed to go to court.

After further discussion about what the caller had been told, Kenny asked if it was tied up with the court case that was coming up. The caller said they wanted Kenny out of the action so that he would not be a witness at the trial, and that they had been asked to keep him away from the “first” court case. He thought the people at the back of it were either Turkish, Maltese or Italian, and they wanted him out of town until after the 26th [October]. Kenny responded that the trial was not coming up until 2 November. The caller said he thought it was the 26th. Kenny explained that that was when the sittings started, and that the date for the trial had not yet been set. The caller understood: it could be any day after that, he said. Later on, Kenny suggested the person who was hiring the caller was the appellant George Gauci; but the caller did not know that person, and said they did not know who the “third party” was. Some of the details mentioned in the course of the conversation suggested that the caller on that occasion was the man who had attacked Kenny at Upton’s restaurant.

Further calls followed the same day and again on 20 and 21 October. Nothing much more emerged from the later calls except that Kenny was complaining that the callers had originally said only one day in court on 26th; then the 2nd, and now the 9th, which he said was “impossible”. He could not stay away for as long as that. The caller advised him to “relax”: everything would be “smooth”. He would ring again in a couple of days. In fact he never did. Possibly they realised the calls were being recorded. Perhaps Kenny’s tactic of trying to sow distrust between the hirer or customer (who he believed was the appellant) and those being paid to threaten him had had a measure of success. More likely, it was that they had been paid only to keep him out of court until 26 October 1992, and were not prepared to go on doing more without further payment. Whatever the reason, the calls ceased after 21 October 1992.

At the time the only imminent trial in which Kenny was involved was the trial of the appellant Gauci on a charge of fraudulent misappropriation, at which Kenny was to be a witness for the prosecution. It is readily capable of being identified as “the first court case” referred to by the caller on 13 October 1992. Gauci had previously been a participant in a business venture with Kenny involving a large development at the Coast. Arising out of the same matter, there was a civil action by Kenny against Gauci and a man named Wade as defendant; but it was being deferred at Gauci’s request pending trial of the criminal proceedings against Gauci. The only other dispute Kenny had was with a Mr Trevor Jones, who had claimed Kenny owed him $50,000 as commission; but there was no question of going to court over it with Trevor Jones. Jones had no money and so could not have paid $30,000 to have Kenny assaulted or threatened.

The criminal trial of Gauci was set down in the Southport District Court sittings due to begin on 26 October 1992. The provisional starting date was 2 November 1992, although in the end it did not come to trial until early in 1993. These circumstances suggested it was Gauci who was the Gold Coast businessman spoken of by Artoui. His was the only trial at which Kenny was going to give evidence in October or November 1992.

Some additional support for this hypothesis came from the evidence of David Beer, who also testified at the trial. He lived in Sydney and conducted a debt collection business known as Harbour Investigations, which specialised in collecting “difficult” debts. In July or August 1992, Beer was asked by a Sydney acquaintance named Ronnie to do a job for someone. He asked to see the man, and arranged to meet him for lunch at the Gold Gate Park Plaza at Chinatown in Sydney in August or September. The man he met, who said his name was George, told him he had been cheated of money, $100,000 or $200,000, by someone, and wanted to pay him back by having him bashed. They settled on a fee of $15,000. Beer was to fly to Surfers Paradise and do the job as soon as possible. Their lunch-time meeting lasted an hour, or perhaps an hour and a half.

Beer was given details of the target (who was Kenny), his name, residence, business address, and where he normally drank after work. In September 1992 he flew up to the Gold Coast in company with George Elmurr, who was a man he recruited for jobs of this kind, and another man named Graham Stoltz. They stayed at Acapulco Apartments and hired a car. George Elmurr was, he said, the man instructed to do the first job, and Tommy [Artoui] the second. After the first occasion, a complaint was relayed to him by Ronny that the customer was not happy with the job and wanted it done again. Beer insisted on payment of another $15,000, making a total of $30,000 in all.

On the second occasion he arranged for Elmurr to go to the Gold Coast with Artoui. In his evidence at the trial, Artoui confirmed that on 9 or 10 October 1992 he had gone to the Gold Coast with Elmurr. Artoui was on crutches at the time. He was instructed by Elmurr to visit Kenny and to tell him not to turn up at the court. He had a conversation with Kenny at his office, in which he told him not to go to court but to have a holiday with his family; otherwise he would be hurt.

The case against the appellant was circumstantial, but it was very strong. The only reasonable inference is that someone who knew Kenny’s personal details and habits had passed that information on to others including the man (who was evidently Elmurr) who assaulted him at the restaurant on the evening of 30 September 1992, and also to Artoui, who threatened him at his office on 13 October 1992. Having been Kenny’s associate in the development enterprise, the appellant would have been in a position to know those details. People from Sydney would not have known them, nor would they have had any apparent reason for finding them out unless they were paid to do so. The appellant was the only one in October 1992 with an impending case in which Kenny was to give evidence. Kenny’s evidence would obviously be damaging to him at the trial, which was then expected to take place in or after late October. The circumstantial evidence therefore pointed very strongly in the direction of the appellant as the person who had arranged for Kenny to be dealt with in the way that happened in September and October 1992.

Both Beer and Artoui had pleaded guilty to offences in connection with their part in threatening Kenny, and had been sentenced before the trial and conviction of the appellant in 1993. They were accomplices. Beer also admitted at the trial that he had prior convictions for assault. The trial judge warned the jury in clear terms of the danger of acting on their evidence and of the need to look for corroboration. Ground 4 of the notice of appeal complains that the judge failed to give adequate warnings to the jury; but this complaint is quite untenable when the terms of the summing up are considered. In any event, Kenny’s evidence of what had passed between him and his various anonymous callers provided ample confirmation of the testimony of Beer and of Artoui. As evidence of motive on the part of the appellant, it was, contrary to Ground 3 of the notice of appeal, capable of corroborating Beer’s evidence; but that was far from being its sole function.

Ground 2 of the appeal is that the prosecution case ought not to have been allowed to go to the jury; but this would have been arguable only if Ground 1 had succeeded. It was that the evidence of Artoui and the taped telephone conversations ought not to have been admitted. That ground is based on the fallacy that the evidence of those conversations is hearsay. The fallacy is to treat it as being evidence of its truth, whereas in law it was admissible as original evidence of the fact that the words were said. The fact that the words were said proved, or tended to prove, the making of the threat, or attempted threat, to induce Kenny to withhold his evidence at the trial, which was an essential element of the charge. It also served as original evidence from which the inference could be drawn that the persons who were making those threats knew of the impending trial; of Kenny’s prospective part in it as a witness; and of personal details about Kenny, which it was open to the jury to conclude had been supplied by someone like the appellant who knew those facts. One of the details was the claim by Trevor Jones against Kenny for $50,000 for commission. The anonymous caller on 15 October 1992 knew of the claim for commission, but appeared not to have heard of Gauci beyond knowing that he was either Turkish, Maltese or Italian. His ignorance of the existence of Gauci coupled with his information about a claim against Kenny for $50,000 was what one would expect if the appellant was naturally trying to conceal his identity as the person arranging for the threats to be made. Paying Beer $30,000 was not the most economical way of recovering $50,000; but the appellant was not to know that those being paid it to do “the job” would pass that information on to Kenny.

The appellant was the most obvious source of the threats that were being made. He was the only one who would suffer if Kenny gave evidence at the trial. He had by far the most compelling motive or reason of anyone for keeping Kenny’s evidence out. In that way the threats could be linked to him. Who else would have been interested in doing that ? On appeal, the only alternative hypothesis suggested was that it was someone with a grudge against the appellant who was trying to implicate him in an offence against Kenny that he had not committed. It was an explanation which it was open to the jury to consider. The appellant had, it was said, many irate creditors on the Gold Coast. However, it was most improbable that someone would exact revenge on the appellant in that roundabout and (as it turned out) unreliable way. It would have been far simpler for someone bent on revenge to have paid the $30,000 to Harbour Investigations or someone else to bash the appellant himself rather than Kenny. No one beside the appellant had an interest in keeping Kenny away from the trial.

There was, moreover, a further item of evidence that linked the appellant with the threats. At the trial Beer identified the appellant as the man with whom he had lunch in Sydney in August or September 1992. He said he was the man who had introduced himself to Beer as George. That was some four and a half years before the trial in May 1997, and Beer did not see him again until the committal proceedings three and a half years later. Beer said he did not look different then compared to the first time he saw him, except that at the trial he had shorter hair and might also have had darker glasses.

The identification by Beer was not one that suffered from defects of the kind traditionally associated with evidence of that character. Beer’s view of him was not the fleeting view of a person who was partly disguised or involved in rapidly moving events. It took place while the parties were seated opposite each other in conditions of good light. The trial jury had a view of the appellant in the dock and would have been able to judge for themselves whether the appellant’s appearance was one that was likely to be forgotten. Nevertheless, it was contended that the trial judge was bound to give the warning required in Domican v. The Queen (1992) 173 C.L.R. 555. His Honour was not asked to give the warning; but, in any event, he did not give it. It was sought to amend the notice of appeal to incorporate the failure to warn as an additional Ground 5 on the appeal.

The Domican decision calls for such a warning when evidence as to identification represents “any significant part of the proof of guilt of an offence ... where its reliability is disputed” (173 C.L.R. 55, 561). It is doubtful whether in this instance the reliability of the evidence of Beer was put in issue in cross-examination. It was put to him that he had never had lunch with the appellant in Sydney in 1992 or at all, which was a challenge to his credibility rather than to the objective reliability of his evidence. The appellant elected not to give evidence himself, so that Beer’s evidence was uncontradicted. However, the High Court in Domican went on to say (173 C.L.R. 555, 565-566):

“A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused. The trial judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused.”

In the present case the other evidence satisfies the requisite description. Even if the direction now contended for ought to have been given at the trial, the evidence against the appellant, apart from the identification by Beer, is, for the reasons already given, so compelling as to lead to the conclusion that the jury must have convicted on that evidence independently of the identification evidence. It is very far from being a case in which the verdict might have been based solely on Beer’s evidence as to identity. Indeed, it may properly be said that the evidence of Beer in this case served only to confirm circumstantial and other evidence that of its own force identified the appellant as the procurer of the threats to induce Kenny to withhold his evidence. In so far as it was necessary here for the trial judge to give a direction of the kind required in Domican, his Honour’s omission to do so should in our opinion be considered as not having resulted in a miscarriage of justice.

The appellant was rightly convicted. The ground sought to be added to the notice of appeal cannot succeed, and the application for leave to amend should be refused. The appeal should be dismissed.