R v Gazzignato and Stevens

[2004] TASSC 6

[2004] TASSC 6

CITATION:                 R v Gazzignato and Stevens [2004] TASSC 6

PARTIES:  R
  V

GAZZIGNATO, Scott John

STEVENS, Wayne Owen

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  338/2003
DELIVERED ON:  20 February 2004
DELIVERED AT:  Hobart
HEARING DATE:  16 February 2004
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Admissions recorded by listening device – Whether breach of Act.

Listening Devices Act1991 (Tas), ss5, 14 and 19.
R v Swaffield; Pavic v R (1997) 192 CLR 159, referred to.
Aust Dig Criminal Law [423]

REPRESENTATION:

Counsel:
             Crown:  T J Ellis SC and C J Rheinberger
             Gazzignato:  C Mackie
             Stevens:  G A Richardson

Solicitors:
             Crown:  Director of Public Prosecutions
             Gazzignato:  Legal Aid Commission
             Stevens:  G A Richardson

Judgment  Number:  [2004] TASSC 6
Number of paragraphs:  24

Serial No 6/2004
File No 338/2003

THE QUEEN v SCOTT JOHN GAZZIGNATO
and WAYNE OWEN STEVENS

RULING  COX CJ

20 February 2004

1. Pursuant to the Criminal Code, s361A, I am called upon to determine the question whether evidence of recordings of a conversation between the two accused while in police custody, surreptitiously recorded by means of a listening device, should be admitted on their trial.

1. Both men have been charged with the murder of one Jamie Blenkinsop on 30 November 2002 at a flat in Glenorchy.  The Crown case is that the deceased, a female named Tania Bone, and the two accused were present when, as the result of a dispute, the deceased received multiple stab wounds in consequence of which he shortly thereafter died.  Another female, Iris Green, now deceased, observed the start of a fight in which the two accused were observed assaulting the deceased.  She left and returned about ten minutes later with others and there is evidence that Gazzignato was seen holding a broken knife while the deceased was expiring from stab wounds in the nearby bathroom. 

1. Both accused men were interviewed twice by police in early December 2002.  Gazzignato claimed that he had been attacked by the deceased and defended himself, but denied using or touching a knife.  He claimed that he saw Stevens holding a knife on one occasion and saw him slash the deceased on the face with it.  In his second interview, he maintained that version and said that he saw Stevens stab the deceased twice in the face.  Stevens claimed that he was drunk at the time and had taken Valium.  He had a recollection of seeing the deceased bleeding from the neck and stomach and gave him first aid, which accounted for the presence of the deceased's blood on his clothing.  He denied stabbing the deceased at any time.  He claimed to remember little of the incident and made no accusation against anyone. 

1. Acting Detective Inspector Matthew was in charge of the investigation and sought a warrant from Magistrate Tennent pursuant to the Listening Devices Act 1991 ("the Act"). The magistrate purported to grant such a warrant on 22 January 2003. The warrant followed Form 2, the appropriate form for a warrant laid down by the Regulations made pursuant to the Act, but it omitted the operative part. Form 2 identifies the magistrate, recites his or her satisfaction that there are reasonable grounds for the belief of the complainant (Matthew in this case) that a prescribed offence or offences (in this case murder and accessory after the fact to murder) had been committed and that for the purposes of the investigation into the offence(s) or of enabling evidence to be obtained of the commission of the offence(s), the use of a listening device is necessary and then proceeds to give the following specific authorisations:

(I, the Magistrate)

"(a)     authorize the use by ………………………………………..…………….

(Names)

and on his or her behalf …………………………………………………..

(Names or descriptions of persons)

of a listening device by which to record or listen to the private conversations of ………………………………………………………….

(Name)

subject to the *condition/*conditions that ¾

(b)     authorize the installation of a listening device by

………………………………….on………………………………………

(Name)   (Description of premises)

(c)     authorize and require the retrieval of the listening device;

(d)     authorize entry on to ……………………………………………………..

(Description of premises)

for the purpose of that installation and retrieval, subject to the *condition/*conditions that ¾

(e)     fix the period       am on                 19          

until           pm on              19         , as the period during which this warrant shall be in force."

There is then provision for the name and signature of the magistrate.

1. In this case, the operative words in (a) namely, "authorize the use by" were omitted.  Instead, at the end of the above recitals concluding "the use of a listening device is necessary", the warrant states "by: Acting Detective Inspector Neville Matthew" and a large number of other named officers, together with all employees of the Tasmanian Department of Police and Public Safety who are or who during the currency of the warrant may be attached to Investigation Support Services:

"… by which to record or listen to the private conversations of (the two accused):

subject to the condition/ conditions that:

(a)authorisation of the installation of the listening device by:

(8 named officers)

on a Police Van Mercedes registration number RME 466 (Victorian Registration) operated by Tasmania Police Service.

(b)       authorise and require the retrieval of the listening device;

(c)authorise entry onto and into the said vehicle for the purpose of installation and retrieval, subject to the condition/ conditions that any of the persons specified in paragraph (a) may assist.

(d)fix the period from, …0600        am on 23 January 2003

until …2359pm on 24 January 2003

as the period during which this warrant shall be in force."

The document was dated 22 January 2003 and signed by Magistrate Tennent with her name being printed below it as that of the magistrate issuing.  This poorly drafted document not only fails to specifically authorise the use of a listening device, but does not make grammatical sense at all.

1. In purported reliance on this document, a listening device was installed in the vehicle in question which was used on 23 January 2003 to transport the two accused from Risdon Prison to the Hobart Police Station where they were to be interviewed in respect of another unrelated crime.  In the course of the journey there and back, male voices can be heard engaged in conversation.  The conversation is at times indecipherable, but there are certain statements of an incriminatory nature in respect of the death of the deceased which the Crown seek to prove.  They are especially incriminating of Gazzignato.  Stevens, on the other hand, seeks to have the material placed before the jury as it is arguably exculpatory of himself.  The fact that it may be of forensic advantage to him is not a valid factor in the making of the determination sought by Gazzzignato.  Should I rule in favour of the latter, Mr Richardson, on behalf of Stevens, foreshadows an application for separate trials so that that material can be adduced on Stevens' trial.

1. Mr Mackie for Gazzignato argues that the evidence should not be admitted for a number of reasons.  His first submission is that it should be excluded as unfair pursuant to the Evidence Act 2001, s90. He submits that Stevens elicited the admissions from Gazzignato and relies on R v Swaffield; Pavic v R (1997) 192 CLR 159. In Swaffield's case, evidence was sought to be led of the secretly recorded conversations of an undercover police officer with a suspect who had been previously charged but not proceeded against through lack of evidence.  The officer did not caution the respondent and the trial judge excluded the material.  The High Court held that the absence of the caution triggered the exercise of the discretion to exclude the admissions which were elicited by the officer in clear breach of Swaffield's right to choose whether to speak or not to the authorities.  In Pavic's case, admissions were covertly recorded by a friend of his at the request of the police.  The majority held that the admissions occurred in the course of a conversation between the two men and that the friend had not interrogated or elicited them from the appellant.  There was no reason to exclude them.

1. In my view, the admissions of either man were not elicited by the other.  Neither knew of the presence of the listening device, nor sought to trap the other into making an incriminating admission.  They chose to speak to each other and there was nothing in the circumstances of the venue or their status as persons in custody which involved any unfairness of the kind adverted to in Swaffield and Pavic's case.

1. The second aspect of unfairness alleged is the fact that the statement of one accused out-of-court cannot be used against another accused unless adopted by him.  This is a perennial problem in joint trials, but save in exceptional cases such as Leaman v R [1987] Tas R 187 (NC 4) 9/1987, it is not regarded as sufficient of itself to warrant the ordering of separate trials so as to effectively exclude such material on the trial of the co-accused referred to in the out-of-court statement. An appropriate direction from the trial judge can confidently be regarded as sufficient to counter any such alleged unfairness.

1. Third, it is submitted that the right of the accused to remain silent was infringed because he was taken against his will to be interviewed at the police station about an unrelated matter.  Even assuming, as they indicated in the van, that it was their intention not to say anything on interview and that their reluctance to go was for reasons other than the fact that they might miss seeing a visitor who appears to have been expected that afternoon, their right to silence was not infringed.  That is a right to choose whether to speak to the authorities or to remain silent.  They spoke by their own choice and must be taken to have accepted the risk that they might be overheard and their admissions repeated in evidence (cf the observations of McLachlin J in R v Hebert (1990) 2 SCR 151 at 185). These considerations apply equally to Mr Mackie's fourth submission as to unfairness that the police failed to comply with an obligation to caution his client.

1. Fifth, Mr Mackie submits that the quality of the recording is so poor that it is difficult to discern what is being said and by whom.  Despite technical enhancement of the recording, it remains poor, but the principal admissions are, in my view, discernable, even if concentrated effort is required for that purpose.  Evidence is available from Detective Sergeant Kregor of repeated study of the tape resulting in his identification of what was said and by whom.  A careful warning of the dangers of mis-identification of voices will be necessary on trial, but subject to appropriate directions from the trial judge, I see nothing unfair in admitting the tape into evidence, notwithstanding the deficiencies in its acoustic quality.

1. The second limb to Mr Mackie's argument is an appeal to the general discretion to exclude evidence under the Evidence Act, s135. That section provides:

"135     The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might –

(a)  be unfairly prejudicial to a party; or

(b)  be misleading or confusing; or

(c)  cause or result in undue waste of time.

It is submitted that the evidence is misleading or confusing because the last-mentioned difficulties in the quality of the tape will make it hard for the jury to ascertain what out-of-court statements (if any) by Stevens were adopted by Gazzignato and hence become admissible against him and that any judicial directions will become so complicated as to result in confusion. As Mr Ellis SC for the Crown submits, it is necessary to weigh these disadvantages against the probative value of the evidence. I accept his submission that its probative value is very great. In addition to the face value of the admissions, the exchange in the van sheds considerable light on the credibility of the versions offered by each accused to the police on interview and raises the possibility that lies were told to the police through a consciousness of guilt. As to the possibility of confusion in respect of the admissibility of adopted statements, I think the remedy in this respect is best left to the trial judge. It may be that the wisest course would be to ignore the possibility that any statement by one accused was adopted by his co-accused and to instruct the jury that none of the statements made by one accused in the van is admissible against the other. I do not consider that there is any occasion to exclude this evidence by virtue of s135.

1. Mr Mackie next resorted to the Evidence Act, s84, and submitted that Gazzignato's admissions were the result of oppressive conduct by Stevens. In my view, there is no substance to this contention. There is no reason to suppose that Stevens in any way influenced what Gazzignato said to him in the van. I am satisfied that it was said quite voluntarily.

1. Section 85 was the next section adverted to.  It provides:

"85      (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant –

(a) in the course of official questioning; or

(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or continued.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purpose of subsection (2), it is to take into account –

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning –

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned."

1. The admissions of Gazzignato were not made in the course of official questioning.  Assuming, without deciding, that they were made in the circumstances alluded to in subs(1)(b), I have no hesitation in saying that the circumstances in which the admissions were made make it unlikely that their truth was adversely affected.  There is nothing in the circumstances which render it likely that these unguarded admissions are unreliable.  On the contrary, the fact that both men were unaware they were under electronic surveillance and were discussing subject matter with which both were familiar, make it likely that they were true.  Observations have been made of the capacity of some prisoners to falsely boast of misdeeds or to exaggerate them to gain notoriety within the prison community.  Fitzgerald P in R v Davidson and Moyle; ex parte Attorney-General [1996] 2 Qd R 505, spoke of the necessity in dealing with inculpatory statements made by criminals to other criminals at the instigation of law enforcement personnel:

"… for an understanding of criminal, especially prison, culture to be developed; for example, to understand the extent to which false boasts of criminal behaviour are common and perhaps sometimes even necessary in that environment."

However, wise though that note of caution is in some circumstances, I do not find it compelling here where both men were well known to each other, involved in the same episode which had resulted in their being charged with murder and had no need to impress the other with boasts which the other, because of his presence at the scene, was likely to know were untrue.

1. Mr Mackie next submitted that there were several breaches of the Act which rendered the use of the listening device unlawful. The Act, s19, states:

"19      A person to whom a warrant has been granted under this Part authorizing the use of a listening device shall, within 3 months after the warrant has ceased to be in force, furnish a report, in writing, to the Attorney-General and the Chief Magistrate –

(a) stating whether or not a listening device was used pursuant to the warrant; and

(b) if a listening device was so used –

(i) specifying the name, if known, of any person whose private conversation was recorded or listened to by the use of the device; and

(ii) specifying the period during which the device was used; and

(iii) containing particulars of any premises on which the device was installed or any place at which the device was used; and

(iv) containing particulars of the general use made or to be made of any evidence or information obtained by the use of the device; and

(v) containing particulars of any previous use of a listening device in connection with the prescribed offence in respect of which the warrant was granted."

In the present case, the warrant was granted on the complaint of Acting Detective Inspector Matthew.  It alleged his rank and his possession of reasonable grounds to suspect or believe that a prescribed offence had been committed and that for the purposes of the investigation and the gathering of evidence, the use of a listening device was necessary.  His statutory declaration in support sought:

"… the authorisation for Detective Inspector G JOHNSTONE, Detective Sergeant Timothy DOOLEY, Acting Detective Sergeant Virgil ROWE, Detective Constable D HODGE, Detective Constable J COOPER, Constable Michael BOWDEN, Constable M NEWMAN and state servant Alan SMITH and any other member of the Tasmania Department of Police and Public Safety who are attached to, or utilised by the Police Technical Support Service, to install and retrieve the listening device."

It also sought:

"… the assistance of the following police officers in monitoring the use of the listening device:

Acting Detective Inspector Neville MATTHEW
Detective Constable Kathryn BARWICK
Detective Constable Grant BLIGH
Detective Constable Kriss LAWLER
Detective Constable Trevor MANING
Detective Constable Gary WILLIAMS
Constable Jason WILLIAMS
Constable Robert BLACKWOOD
Detective Constable Thomas JARVIS
Detective Constable Phillip SLISKOVIC
Detective Constable Simon VOUT
Constable Nicholas BROWN

Constable Lisa CRANEFIELD

Detective Inspector Geoffrey JOHNSTONE
Acting Detective Inspector Shane SMITH
Detective Sergeant Timothy DOOLEY
Detective Constable Dean HODGE
Detective Constable John COOPER
Acting Detective Sergeant Virgil ROWE
Constable Michael BOWDEN
Constable Michael NEWMAN

and also State Servants Alan SMITH (who may assist with technical assistance)"

The declaration continued by stating:

"45The applicant seeks the assistance of the following State servants: Janine WIGGINS, Janelle CLIFFORD, Allison DIMSEY, Sally PAINE, Sandra LANGRIDGE. Sally RANSLEY and Robyn MAYS who may assist with transcription of private conversations which are recorded by the listening device.

46The applicant seeks the assistance of all employees of the Tasmanian Department of Police and Public Safety who presently are, or who during the currency of any warrant issued may be attached to Investigation Support Services."

1. Despite its drafting deficiencies, the warrant can properly be regarded, I consider, as authority to the persons named to carry out the functions adverted to in the statutory declaration and was a valid warrant under the Act, Pt 4. If I am wrong in this view, the prohibition against adducing evidence of the conversation recorded on the listening device where that evidence is procured in contravention of s5, does not render it inadmissible in proceedings for an offence punishable, as are murder and being an accessory after the fact to murder, by imprisonment for life or for 21 years if the Court considers that the evidence should be admissible (the Act, s14(3)(d)(i)). In determining whether to admit evidence as referred to in subs(3)(d), the Act, s14(4) states that:

"… the court shall –

(a) be guided by the public interest, including where relevant the public interest in –

(i) upholding the law; and

(ii) protecting people from illegal or unfair treatment; and

(iii) punishing those guilty of offences; and

(b) have regard to all relevant matters, including –

(i) the seriousness of the offence in relation to which the evidence is sought to be admitted; and

(ii) the nature of the contravention of section 5 concerned."

Guided by the above considerations, I have no doubt that the evidence ought to be admitted even if the warrant is defective.

1. Acting Detective Inspector Matthew left the police force on 3 February 2003 and by that date he had relocated himself to Brisbane. He did not make any report to the Attorney-General or to the Chief Magistrate. As he was the complainant, I think it can fairly be said that he was the person to whom the warrant was granted. On 15 April 2003 within the three month period, Detective Sergeant Kregor, who was not named in the warrant but who had been involved in the investigation and had interviewed both accused in December 2002, made a report to the Attorney-General in purported compliance with s19. No such report was made to the Chief Magistrate within the three month period set out in that section. On 12 June 2003, an identical report to that submitted to the Attorney-General was sent by Detective Sergeant Kregor to the Chief Magistrate. On 1 August 2003, identical reports were sent to the Attorney-General and to the Chief Magistrate by Detective Inspector Timmerman, correcting errors in the reports by Detective Sergeant Kregor in respect of two earlier warrants and adding certain details concerning those warrants which Detective Inspector Timmerman considered ought to have been included in the reports from Detective Sergeant Kregor.

1. The provision regarding the inadmissibility of evidence unlawfully obtained is s14, which for present purposes relevantly provides:

"14 (1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5 –

(a) evidence of the conversation; and

(b) evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person –

may not be given by that person in any proceedings before any court or person authorized to receive evidence.

(2) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device pursuant to a warrant granted under Part 4 or in circumstances referred to in section 5(2)(c) –

(a) evidence of the conversation; and

(b) evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person –

may not be given by that person in any proceedings before any court or person authorized to receive evidence unless the reports required to be forwarded to the Chief Magistrate under section 5(4) and (7) have been forwarded to the Chief Magistrate within the periods specified in those subsections and the report required to be furnished to the Attorney-General under section 8 has been forwarded to the Attorney-General within the period specified in that section."

Section 5(1) contains the general prohibition against using a listening device to record private conversations. Section 5(2) exempts from that prohibition (a) the use of a listening device pursuant to a warrant granted under Pt 4; (b) the use of a listening device authorised by the law of the Commonwealth and:

"(c)      the use of a listening device to obtain evidence or information in connection with –

(i) an imminent threat of serious violence to persons or of substantial damage to property; or

(ii) a serious narcotics offence –

if the person using the listening device believes on reasonable grounds that it was necessary to use the device immediately to obtain that evidence or information."

Section 5(4) to (7) provide:

"(4)      Where a listening device is used in the circumstances referred to in subsection (2)(c) and its use would, but for subsection (2)(c), be contrary to this section, the person who used the device shall, within 3 days after first using the device, furnish a report to the Chief Magistrate containing particulars of the circumstances in which the device is being, or was, used.

(5)       If, on receipt of a report referred to in subsection (4), the Chief Magistrate is not satisfied that the use of the listening device was justified under subsection (2)(c), the Chief Magistrate shall order that the use of the device immediately cease.

(6) Where the Chief Magistrate has ordered that the use of a listening device cease, a person shall not use the listening device after such an order is made unless it is used pursuant to a warrant granted under Part 4.

(7)       If, on receipt of a report referred to in subsection (4), the Chief Magistrate is satisfied that the use of the listening device was justified under subsection (2)(c), the Chief Magistrate shall so notify the person using the device and that person shall, within one month after the device ceases to be used, furnish a report in writing to the Chief Magistrate –

(a) specifying the name, if known, of any person whose private conversation was recorded or listened to by the use of the device; and

(b) specifying the period during which the device was used; and

(c) containing particulars of any premises on which the device was installed or any place at which the device was used; and

(d) containing particulars of the general use made or to be made of any evidence or information obtained by the use of the device."

Sections 6 and 7 empower the Chief Magistrate to make orders on receipt of the reports under s5(4) or s5(7) to make known to the person whose conversation has been recorded such information concerning the use of the listening device as the Chief Magistrate may specify.

1. Section 5(2)(c), in effect, authorises the emergency use of a listening device; but subs(4) requires a report within three days so that the Chief Magistrate can monitor the situation and call a halt to it if need be. It is understandable that in the public interest, this requirement should be rigorously enforced upon pain of the evidence being made prima facie inadmissible as provided by s14(2). That subsection, however, does not have any effective application in respect of conversations other than those recorded in the circumstances referred to in s5(2)(c). It purports to apply as well to conversations the knowledge of which results from the use of a listening device pursuant to a warrant granted under Pt 4, but the reports referred to are only required if the listening device was used in the emergency situation. No similar penalty of inadmissibility is contained elsewhere in the provision dealing with reports to the Attorney-General and Chief Magistrate where a warrant has been issued (s19). I can only assume that the reference to a warrant in s14(2) was inadvertent.

1. The police had a practical difficulty in complying with s19 as Acting Detective Inspector Matthew had left the Force so soon after the warrant was executed. He could have been approached to complete the reports within the required time, but this was overlooked by those then in charge of the investigation. Mr Mackie cannot point to any prejudice to his client as the result of the failures to observe the reporting requirements. In my view, there was nothing unlawful in the manner in which the evidence was obtained, even if there was a subsequent failure to submit the reports on time. The only express provision dealing with inadmissibility is s14, and that is only activated by a contravention of s5. That section, however, was not contravened in this case.

1. Finally, an appeal was made to the Evidence Act, ss137 and 138. The first of those sections requires the Court to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. For the reasons already advanced, that is not the case here. Section 138(1) provides:

"138     (1) Evidence that was obtained –

(a)improperly or in contravention of an Australian law; or

(b)in consequence of an impropriety or of a contravention of an Australian law –

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."

Once again for the reasons already set out by me above, I am of the view that this evidence was not obtained improperly or in contravention of an Australian law, nor in consequence of an impropriety or of a contravention of an Australian law.  The evidence will be admitted.

1. In the course of the voir dire, I was asked to rule on whether, in the event that the conversation recorded on the listening device was admitted, a transcript ascribing the identity of the speakers to each of the accused and their words should be permitted.  Such a course has been held to be within the discretion of the trial judge and is often a very practical and helpful means "to regulate and control the proceedings so that the issues for adjudication can be investigated fully and fairly" (per Barry J in Mooney v James [1949] VLR 22 at 28, cited by Neasey J in Williams v R [1982] Tas R 266 at 272 where the issue is fully discussed).

1. I do not regard it as appropriate to make a ruling on this point at this stage.  The trial judge will be in a much better position to determine the best and fairest means of conveying to the jury what was said and who said it.  This will depend, to some extent, on the state of the evidence already adduced at the time the listening device evidence is tendered.