R v Griffith

[2000] QSC 101

SUPREME COURT OF QUEENSLAND

CITATION:

R v Griffith & Ors [2000] QSC 101

PARTIES:

THE QUEEN
v
BRETT RANDALL GRIFFITH
TODD DAVID MARSHALL
FAY ELIZABETH MARSHALL

FILE NO:

597 of 1999

DIVISION:

Trial Division

DELIVERED ON:

10 May 2000

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2000

JUDGE:

Mullins J

ORDER:

Application to exclude parts of the evidence of the recordings of conversations identified in Exhibit 1 refused.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – Application for pre-trial ruling under s592A Criminal Code – Whether admission of evidence would be so unfair to the accused as to be a miscarriage of justice.

Criminal Code, s592A

R v Bercolli & Ioannou (unreported, CCA (Q), 18 May 1990)
R v McLean and Funk, ex parte Attorney-General [1991] 1 QdR 231

COUNSEL:

Mr G M McGuire for the accused Brett Randall Griffith
Mr D J Walsh for the accused Todd David Marshall and Fay Elizabeth Marshall
Mr D L Meredith for the Crown

SOLICITORS:

AW Bale & Son for the accused
Queensland Department of Public Prosecutions for the Crown

1. MULLINS J:  The accused are charged that between 20 August 1998 and 23 September 1998 at Brisbane they carried on the business of unlawfully trafficking in the dangerous drugs heroin, methylamphetamine and cannabis sativa.

1. This is an application pursuant to s592A of the Criminal Code that certain parts of recordings taped from the Arunta Call Telephone System tapes belonging to the Borallon Correctional Centre ("Borallon") be excluded from the jury.  At first the application was formulated in respect of all the conversations which had been transcribed in the transcript marked Exhibit 1.  Ultimately, the application seeks to exclude any conversation identified in Exhibit 1 not relied upon by the Crown solely to prove contact between the accused Todd Marshall and the accused Fay Marshall or knowledge by the accused Fay Marshall of the existence of the accused Brett Griffith.

1. The case against the accused depends principally upon the evidence of two witnesses Tupou Allan Noga and Jennifer Leone.  The witness statements of each of those persons were marked respectively Exhibits 2 and 3 for the purpose of this application. 

1. At all relevant times Noga and Todd Marshall were prisoners in the Borallon Correctional Centre.  Griffith was also a prisoner at Borallon until he was released on parole on 16 September 1998.  Fay Marshall was a friend of Todd Marshall.  Leone and Noga were in a de facto relationship.

1. In brief outline, it is alleged by the Crown that during the relevant period, firstly, Noga was prevailed on by Todd Marshall to use Leone to bring drugs into Borallon which were then sold by Marshall to inmates and, secondly, after Griffith was released that it was arranged for him to throw a package of drugs over the fence at Borallon on 22 September 1998 which were then to be collected and passed onto Marshall to sell to inmates.  It is alleged by the Crown that Fay Marshall assisted in organising the scheme involving Leone and the scheme involving Griffith's throwing the drugs over the fence.    

1. The Arunta System operates at Borallon so that all telephone conversations of prisoners are recorded.  At the commencement of each call, the recipient of the call hears the following message:

"This call has originated from an inmate at Borallon Correctional Centre and is subject to monitoring and recording.  If you do not wish to accept this call hang up now.  Go ahead please."

1. Each prisoner has up to 10 pre-approved telephone numbers which they are allowed to call using some sort of PIN system.  The telephone service to which the call is made is identified by the system.  The caller is identified by the PIN used.

1. The summary of the conversations which are identified in Exhibit 1 are as follows:

Conversation  Date  Commencement Time     Duration

Conversation #1         15/09/98         18:49   3min 37sec

Tape 1

Conversation#1          17/09/98         12:14:08   5min 9sec

"#217/09/98         12:58   2min 58sec

" #4                   20/09/98         10:27   1min 45sec
" #5                   20/09/98         12:53   1min 6sec
" #6                   20/09/98         15:42   1min 27sec
" #7                   20/09/98         17:36   43 sec
" #8                   20/09/98         19:16   1min 28sec          
" #9                   21/09/98         10:58   1min52sec
" #10                 21/09/98         12:24   14min 28sec

Tape2

Conversation #1         21/09/98         18:08   3min 13sec

" #2                   22/09/98         9:22   6min 19sec
" #3                   29/09/98         15:36   14min 59sec

1. These conversations were isolated from the Arunta System by Detective Sergeant Kevin Burger from the Proactive Intelligence Network.  In the transcript for each conversation Detective Sergeant Burger has identified the caller as Todd Marshall on the basis of the PIN used.

1. Conversation #1 on 15 September 1998 was to service number 33487785 which belonged to Todd Marshall's mother, Lorraine Marshall.  It is alleged that that conversation and Tape 1 conversations #1 and #2 both held on 17 September 1998 were with Lorraine Marshall.

1. All other conversations which have been identified (except Tape 2 conversation #1) are to telephone service 38430887.  That telephone number is identified as that of Fay Marshall.  Except for Tape 1 conversation #10, all calls to that service are alleged to be to Fay Marshall.  Although in the transcript Tape 2 conversation #3 is given the date of 29 September 1998, Mr Meredith stated that other evidence will show that that is incorrect and that conversation took place on 22 September 1998.  Tape 1 conversation #10 on 21 September 1998 to the telephone service of Fay Marshall was with a man who it is alleged by Detective Burger was Griffith.

1. Tape 2 conversation #1 on 21 September 1998 is shown in the transcript as recording a telephone call to telephone service 38930803.  Todd Marshall calls the recipient "Wayne" and it is alleged that the conversation was with Wayne Smith who it is alleged was in a relationship with Lorraine Marshall. 

1. At the committal of Todd Marshall and Fay Marshall, Detective Sergeant Burger was cross-examined about the taping of the conversations which are identified in Exhibit 1.  Detective Sergeant Burger admitted that there were other tapes of conversations between Todd Marshall and other persons, other than the conversations which are identified in Exhibit 1.  Detective Sergeant Burger admitted that he found only one telephone conversation he believed was between Todd Marshall and Griffith being Tape 1 conversation #10.

1. Detective Sergeant Burger stated that there were other conversations between Todd Marshall and Fay Marshall which were not specifically extracted from the Arunta System.  He could not hazard a guess about how many such conversations there were.  When asked whether he would be able to produce copies of all conversations between Todd Marshall and Fay Marshall and Todd Marshall and Lorraine Marshall, Detective Sergeant Burger answered:

"I could produce recorded copies of all the conversations, but it's going to be a very long and tedious process."

1. The following exchange during the cross-examination of Detective Sergeant Burger then took place:

"Q.But you see, isn't it important when one determines – when one determines a code, that one sees the whole context, you'd agree with that, wouldn't you?—

A.               There's nothing on those other conversations -----

Q.According to you and you may well be right, but you would admit, wouldn't you that you could be wrong, couldn't you, may be room for other interpretations, you'd agree with that wouldn't you?--  

A.         There may be some room for other interpretations, yes."

1. When asked how long it would take to produce in transcript form the other conversations, Detective Sergeant Burger responded:

"If I was doing nothing else except that I would say possibly anything up to six months."

1. At the commencement of the hearing of the application Mr Walsh of Counsel on behalf of Todd Marshall and Fay Marshall requested Mr Meredith on behalf of the Crown to identify which of the conversations in the transcript the Crown intends to rely on and the relevance that is attributed to each of those conversations.  In general terms, Mr Meredith stated that all the conversations were relevant in that they showed contact consistent with what the Crown case is, but conceded that some of the contents of the conversations may be irrelevant and that it may be a matter of discussion between the parties that some of the text be excluded because of irrelevance. 

1. Irrelevance was not the ground argued by the accused on this application to exclude the evidence of the conversations identified in Exhibit 1.  In relation to Tape 1 conversation #10, it was argued that that conversation should be excluded on the basis that there was no adequate identification of the recipient of the call as Griffith.  Apart from that ground, it was argued that the recordings of the conversations identified in Exhibit 1 should not be allowed to go to the jury, because of unfairness and that it required the jury to speculate as to the code used by the parties to the conversations.  The basis for this submission was that the Crown contended that some of the conversations were coded or cryptic and that the accused were deprived of putting forward other interpretations of those conversations which may have been available by reference to the other conversations of Todd Marshall with Fay Marshall and Lorraine Marshall respectively that were recorded by the Arunta System, but which were not extracted by Detective Sergeant Burger.  The accused therefore were relying on the general discretion to exclude otherwise admissible evidence, if acceptance of it was unfair to the accused:  R v McLean and Funk, ex parte Attorney-General [1991] 1 QdR 231, 236, 241-242.

1. Mr Meredith went through each of the conversations and by reference to background facts and identified paragraphs of the statements of  Noga and Leone indicated the reliance placed by the Crown on each of the conversations and, where necessary because of the cryptic nature of the conversation, the interpretation for which the Crown contends of the relevant parts of the conversations.

1. Mr Walsh relied on the decision of the Court of Criminal Appeal in R v Bercolli & Ioannou (unreported, CCA (Q), 18 May 1990).  That was an appeal by both appellants against their convictions on count 1 of the offence of attempting to procure the murder of one Andare.  The appellants had been found not guilty on count 2 of the offence of conspiracy to murder Andare.  The ground of appeal on which the appellants were successful was that the two verdicts could not stand together.  It was not necessary for the court to consider other grounds of appeal, but McPherson J (as he then was) (with whom Moynihan and Byrne JJ agreed) did consider the ground that there was insufficient evidence to support the count of attempting to procure to murder.

1. That required an examination of the conversation involving the appellants that was recorded by an undercover police officer.  Substantial portions of the conversation were inaudible or unintelligible or both and were not capable of being transcribed in the transcript that went to the jury.  It was estimated that as much as 25 per cent of the whole transcript was identified as being unintelligible.

1. McPherson J expressed the view that the conversation set out in the transcript that was relied on as evidence for the two counts did not amount to evidence on which a jury could properly find beyond reasonable doubt the existence of an agreement between the appellants to procure or attempt to procure the murder of Andare.  McPherson J stated that the ambiguities in the critical conversation fell to be resolved by the jury and that was where the deficiencies in the recording and transcription of the conversation assumed decisive importance.  McPherson J stated at pp11-12 of the reasons:

"If, as was the case, substantial portions of recording and transcript were inaudible or unintelligible, then as my brother Moynihan observed in the course of the appeal it was not logically possible for the jury to be satisfied beyond doubt that they had all the necessary evidence on which to found a verdict of guilty.  What was not intelligible may very well have included statements by one or both of the appellants demonstrating that they or either of them had not finally agreed to the plan to kill Andare.
...
What remained was insufficient to justify the conclusion that the unintelligible portions might safely be ignored as containing nothing tending to exculpate the appellants or either of them."

1. Mr Walsh sought to draw analogies between the comments made by McPherson J in R v Bercolli & Ioannou with the existence of numerous other telephone conversations between Todd Marshall and Fay Marshall and also between Todd Marshall and Lorraine Marshall, on the basis that denying the jury the opportunity to consider the conversations identified in Exhibit 1 in the context of all the conversations was equivalent to there being unintelligible parts of the conversations which may hold the key to understanding the identified conversations.  Mr Walsh placed significance on Detective Sergeant Burger's concession in supporting the submission on the relevance of the conversations which have not been transcribed for the purpose of this charge (and the recordings of which are no longer in existence to permit transcription).

1. There was only one critical conversation in R v Bercolli & Ioannou which the jury had to consider.  That 25 per cent of that conversation was unintelligible assumed great significance for the question of whether the conversation amounted to the agreement between the appellants to the effect relied on by the Crown. 

1. Mr Meredith argued that in respect of the conversations identified in Exhibit 1, each was a complete recording of that conversation (with negligible amounts being unintelligible) and the Crown relied on the temporal context and factual context in which the conversation took place.  Unlike R v Bercolli & Ioannou, where the recorded conversation was the critical event, the Crown is relying on other evidence such as that of Noga and Leone to give significance and meaning to each of the conversations.  In addition, if Mr Meredith is correct about being able to show that Tape 2 conversation #3 took place on 22 and not 29 September 1998, the conversations took place over a limited period 15 to 22 September 1998 with five of the conversations alleged to have taken place on 20 September 1998 and three of the conversations alleged to have taken place on 21 September 1998.  This is in the context of a package of drugs being arranged for a drop over the fence at Borallon on 22 September 1998. 

1. Mr Meredith also relies on the fact that the jury will listen to the tapes themselves and therefore hear the voices and the pattern of the conversations, in order to assist in deciding whether, with the other evidence, they can determine what the conversations mean. 

1. The facts of the recorded conversation in R v Bercolli & Ioannou are very different to the facts of the recorded conversations identified in Exhibit 1 in this case.  I accept Mr Meredith's submission that, having regard to the temporal and factual context of the conversations, it will be for the jury to decide whether the conversations have the meanings attributed to them by the Crown.  The concession made by Detective Sergeant Burger at the committal does not necessarily make this a case where it is not possible for the jury to consider whether meaning can be given to the identified conversations. 

1. In relation to Tape 1 conversation #10 which the Crown alleges is a conversation between Todd Marshall and Griffith, Mr Meredith foreshadowed that the Crown would rely on identification of Griffith's voice with that on the taped recording, the content of the conversation and other background facts which support the allegation that the conversation which took place on 21 September 1998 at 12:24 pm at the telephone service of Fay Marshall was between Todd Marshall and Griffith.  If the earlier conversations relied on by the Crown had the meaning attributed to them by the Crown, then there was an arrangement for Griffith to be at Fay Marshall's residence to take the call from Todd Marshall at approximately 12.30 pm on 21 September 1998.  I accept the submission of Mr Meredith that it will be a question for the jury to decide whether there is sufficient evidence to show that it was, in fact, Griffith who had that conversation with Marshall. 

1. It was also argued on behalf of the accused that the recordings of the conversations identified in Exhibit 1 should be excluded on the basis of the best evidence rule.  Mr Walsh was under the impression that the recordings originally done by the Arunta System were on a CD.  Mr Meredith explained that the recordings were never on a CD, but the original recordings are a computer record that requires a particular programme to turn it into an audible form and the running of that programme allows conversations to be recorded on audio tapes.  It is the tapes of the conversations extracted by Detective Sergeant Burger which Mr Meredith submits are the tapes that are relied on for evidence in this case.  If the system of recordings occurs as explained by Mr Meredith, it appears the subject tapes are the best evidence.  At this stage, no basis has been established by the accused to exclude the tapes in reliance of the best evidence rule.

1. The application to exclude parts of the evidence of the recordings of conversations identified in Exhibit 1 not relied upon solely to prove contact between Todd Marshall and Fay Marshall or knowledge by Fay Marshall of the existence of Brett Griffith is refused.