R v Griffith
[2000] QSC 9
•25 January 2000
SUPREME COURT OF QUEENSLAND
CITATION: R v Griffith & Ors [2000] QSC PARTIES: THE QUEEN
vBRETT RANDALL GRIFFITH
TODD DAVID MARSHALLFAY ELIZABETH MARSHALL
FILE NO: 597 of 1999 DIVISION: Trial Division DELIVERED ON: 25 January 2000 DELIVERED AT: Brisbane HEARING DATE: 19 January 2000 JUDGE: Chesterman J ORDER: Motion for ruling that evidence contained in statements of Noga and Leone should not be adduced in the trial against the accused refused. CATCHWORDS: EVIDENCE – ADMISSIBILITY AND RELEVANCY – IN GENERAL – application for pre-trial ruling under s 592A Queensland Criminal Code – whether admission of evidence would be so unfair to the accused as to be a miscarriage of justice OR whether evidence so incredible as to amount to no evidence – whether inconsistencies in evidence enough to make it inadmissible.
Criminal Code, s 592A
Drugs Misuse Act
Doney v The Queen (1990) 171 CLR 207
R v Galbraith [1981] 1 WLR 1039
R v McLean & Funk Ex Parte Attorney-General [1991] 1 Qd R 231
R v Sutton [1986] 2 QD R 72COUNSEL: Mr D Walsh for the accuseds
Mr C Heaton for the CrownSOLICITORS: A W Bale & Son for the accuseds
Queensland Department of Public Prosecutions for the Crown
CHESTERMAN J: The accused are charged with carrying on the business of unlawfully trafficking in the dangerous drugs heroin, methylamphetamine and cannabis sativa between 20 August 1998 and 23 September 1998. The case against them depends principally upon the evidence of two witnesses, Tupou Noga and Jennifer Leone. The accused have applied, pursuant to s 592A of the Criminal Code, for a ruling that their evidence should not be admitted.
At all relevant times Noga and Todd Marshall were prisoners confined in the Borallon Correctional Centre. Brett Griffith was also a prisoner at the Centre but was released on parole during the period in which he is accused of trafficking in drugs. Fay Marshall was a friend of Todd Marshall’s. The shared surname is, apparently, coincidental. Jennifer Leone is the de facto wife of Noga.
Noga and Leone have both supplied statements to the prosecuting authorities:
“… on the condition that anything stated therein cannot be used against [them] in a court of law. [The] statement[s] outlines the evidence that [they] would be prepared to give to a court if granted indemnity from prosecution for those offences that [they] disclose during the course of [the] statement.”
On 24 December 1998 the Attorney-General signed two undertakings respectively addressed to Leone and Noga promising that no statements or disclosures made by them in the course of giving evidence against Todd Marshall and Fay Marshall for the alleged offence of trafficking in dangerous drugs between 20 August and 23 September 1998 would be used against them in any civil or criminal proceedings, other than in respect of giving false evidence.
No indemnity has been given to either witness in respect of the charge against Brett Griffith.
Noga says in his statement:
“Between April and September 1998 I was actively involved in the couriering of dangerous drugs into the Borallon Correctional Centre. These drugs included heroin, speed and cannabis. It was my usual practice to collect the drugs from my de facto, Jennifer Leone, during our weekend visit sessions. I would convey these drugs into the Borallon Correctional Centre where they would be delivered to their respective owners. Over time I was used by a number of inmates to smuggle their drugs into the Borallon Correctional Centre. I was used by these inmates because I was receiving regular visits from my de facto on both days of the weekend and I was not suspected of any illegal activity by the prison authorities.”
The statement goes on to recount that in about August 1998 he became involved with Todd Marshall in the activity of supplying drugs to the jail. Prior to that time Marshall obtained drugs by means which did not involve Noga. Apparently arrangements were made for drugs to be thrown into the jail compound over the fence, no doubt at pre-arranged times and places. The consignments were collected by a prisoner whose work gave him access to the designated “drop zone”. The prisoner was deprived of his work privileges and was unable to continue to collect the drugs. Marshall sought an alternative means of obtaining drugs. He approached Noga and asked him to arrange with Leone to bring a package into the jail the following weekend. The packet was said to be in Fay Marshall’s possession. She would deliver it to Leone prior to her visit if she and Noga agreed to the procedure. They did agree and there commenced a regular pattern of deliveries of drugs to the jail by the same means. Noga and Leone had two children, one of whom was an infant. The child was brought to the jail when Leone visited Noga. The drugs were placed in the bassinet and retrieved by Noga when he bent to kiss the baby.
In mid September 1998 Griffith was released on parole. Marshall, according to the statement, told Noga that after Griffith’s release Leone would not have to bring drugs into the jail. Instead Griffith would “start throwing packages over the fence”. Marshall asked Noga to have Leone open TAB accounts in false names into which money obtained from supplying drugs could be paid without attracting suspicion. Noga claimed that Marshall said:
“Once Griffo has been released, he is going to go around and collect drugs from a number of different places, package them together and throw it over the fence with a mobile telephone. The mobile telephone is to be collected … along with some speed. Hammer [heroin] is also going to be collected from an old mate.”
The plan involved the drugs being sent to Leone’s house where Griffith would collect them.
On 15 September 1998 Noga says that Marshall told him to write Leone’s telephone number on a piece of paper and give it to Griffith so he could ring her to make arrangements for collecting the drugs. On 17 September Noga and Marshall together observed a package thrown over the fence near the rear perimeter of the jail. It was quickly picked up by a prisoner. The following night Marshall unwrapped a large package in Noga’s presence. It contained a mobile telephone, two pieces of paper with handwriting and smaller parcels containing powder. One of the notes consisted of a number of short cryptic messages. The other piece of paper contained the number of the mobile telephone and its access code. Marshall gave it to Noga and told him to hide it in a void behind the volume control knob of his stereo radio. Noga did so. I interpolate that police later found the paper where Noga described.
Noga’s narrative continues that Marshall and another prisoner packaged the drugs that accompanied the telephone into small quantities to be sold to other prisoners.
Marshall showed Noga (and must have given him) papers on which were written the nicknames of prisoners in Borallan and the names and telephone numbers of persons outside the prison who could be contacted with respect to the supply of and payment for drugs to those prisoners. The note also contained amounts which Marshall explained would be paid into Leone’s TAB accounts. The notes were found by police in Leone’s possession. It is not clear that the handwriting is Marshall’s.
Noga claims that Marshall said to him on 20 September that Griffith was “going to get a couple of guns” which he wanted to hide at Leone’s address. Noga was reluctant to agree to the arrangement. The next day Marshall explained his and Griffith’s plans in more detail. He said:
“We are going to get a screw, hold him hostage, and at the same time blow a couple away so that they know we mean business. Once we get to the front gate, each will have a hostage, and if they don’t open the doors, we are going to blow one away in front of them. Griffo is going to be outside in a car with a gun, ready for the get away.”
Concerned about being involved in extreme violence and murder Noga approached prison authorities. He was interviewed by police on 22 September 1998. A detailed statement was taken on 25 November.
Leone’s statement corroborates Noga’s account of smuggling drugs into the jail. She describes an occasion when a parcel was left in the letterbox of her house. She believed it contained drugs and took it to Noga in jail. She received a phone call from a woman who identified herself as Fay Marshall who admitted leaving the parcel in the letterbox. A pattern of contact developed between the two women. Fay Marshall would visit Leone and give her packets to be taken into the jail. She also was contacted by Griffith. She received the list of names from Noga and telephoned the people identified. On one occasion when Fay Marshall and Griffith both came to her house Leone gave Griffith two gold rings which Noga had given her. Leone also gave Griffith a packet of powder she believed to be a drug. The packet had been delivered by courier. On a second occasion a packet was delivered by courier and later given by Leone to Marshall who said she gave it to Griffith who intended to throw it over the jail fence.
On 17 September 1998 Leone’s house was searched by police officers exercising powers under the Drugs Misuse Act 1986. The search appears to have been unconnected to the activities of present relevance. The police found only a pipe used for smoking marijuana.
Both Noga and Leone have a criminal history. Leone has been convicted of receiving and obtaining property by false pretences. She was also convicted of possessing the pipe seized by police on 17 September 1998. Noga has a large number of convictions for dishonesty, and some for violence.
Leone had in her possession a note of the number of a bank account which is admitted to have being Griffith’s.
The basis for the submission that Noga and Leone should not be permitted to give evidence against the accused is that each of them is an indemnified witness who, for that reason, has a powerful inducement to provide testimony incriminating the accused and each has been shown to be an untrustworthy and unreliable witness. Mr Walsh, who appears for the accused, concedes that the court would not rule their evidence inadmissible because they have received indemnities. The additional fact which is said to make the ruling appropriate is the demonstrated unreliability of the evidence.
The relevant principles were established by R v McLean & Funk ex parte Attorney-General [1991] 1 Qd R 231. The judge at a criminal trial has a discretion to exclude legally admissible evidence if to admit it would be unfair to the accused and so cause a miscarriage of justice. The discretion extends to excluding the evidence of a competent witness who can give evidence of the commission of an offence. Before such evidence is excluded the circumstances must be exceptional. The grant of an indemnity from prosecution which provides an incentive to incriminate an accused is not itself sufficient to justify excluding the witness’ testimony.
The court in McLean was divided. The minority (Carter J) denied the existence of a discretion to exclude relevant evidence if the ground for exclusion was that the evidence appeared unreliable. His Honour thought the assessment of the reliability of evidence was a matter for the jury. The majority (Kelly SPJ and Derrington J) were not prepared to limit the variety of circumstances in which the discretion to exclude evidence might be exercised. Their Honours, however, emphasised that cases would be rare indeed where a witness possessed of relevant testimony would not be allowed to give it.
Carter J said (at p 258260):
“… it is clear from the reported cases … that the Court is reluctant to acknowledge the discretion in a trial judge to exclude evidence on the ground of its potential unreliability. This is apparent from Davies and Cody v. The King (No 2) [1937] VLR 226. Apart from the evidence of identification which was dealt with both by the Full Court of Victoria and by the High Court … those courts dealt also with the admission by the trial judge of the evidence of a witness who was an associate of the two appellants and who was a man of bad character. The Full Court was asked to say … that his character and the circumstances in which he first made the disclosures … were such that, either his evidence should not have been admitted … or the judge should have directed the jury to disregard it … The Full Court … said …
‘… the evidence of witnesses of this kind cannot properly be withheld from the jury and the only matter for discussion is whether the charge of the … trial judge was such as to bring before the mind of the jury with sufficient clearness the reasons for disregarding it’.
By the time the matter had come before the … High Court the … witness had made a statutory declaration in which he asserted that the evidence … was untrue and a few days later made a further declaration … that his evidence at that trial was … true and his recent declaration false … He was variously described as being of ‘bad character’, of ‘low character’ … by the time the matter came to the … High Court he was a totally unreliable witness. However, as Mann CJ said he ‘is a type of witness with which juries not infrequently have to deal’. He went on:
‘By our law the jury and the jury alone are charged with the responsibility of deciding whether any credence is to be given to such a witness after they have seen and heard him in the witness box and have heard all that can be said of him by counsel and listened to the warning of the presiding judge’.
… it was for the jury and the jury alone to pass judgment upon the credibility of the witness … Precisely the same point is made by Priestly JA … in R v Oliver … where his Honour … said:
‘It was said that this made his evidence so unreliable that the jury should not have been allowed to consider it. That is, when the submission was put in a more refined form, that the reception of evidence from such an unreliable source meant that the trial was bound to miscarry. I do not think that that is right and it is clear that any unreliability of evidence from witnesses … is a matter usually dealt with by appropriate directions to the jury, not by excluding the evidence from their consideration.’”
That expression of reasoning led Carter J to deny the existence of a judicial discretion to exclude evidence “based wholly or primarily upon an assessment by the trial judge of the credibility of the witness whose evidence it is sought to exclude” because it involved “the unwarranted assumption by the trial judge of one of the most integral of the juries functions.” That view did not commend itself to the majority but the force of the reasoning must, I think, produce the result that evidence will not be rejected on the ground of its apparently unreliability unless its acceptance by the jury would, in the circumstances, be perverse.
Another formulation of the test, more helpful because more precise, may be found in R v Sutton [1986] 2 Qd R 72. The case was concerned with the test to be applied when ruling whether there is a case to answer at the end of the Crown’s evidence. The test ought to be the same whether one is considering if evidence is fit to got to the jury or whether evidence that has been heard is fit to be acted upon. The test adopted was that evidence should be rejected only where it is so incredible as to amount to no evidence. The court also approved the judgment of Lord Lane CJ in R v Galbraith [1981] 1 WLR 1039 at 1042:
“The difficulty arises where there is some evidence but it is of a tenuous character … because of inherent weakness or vagueness or because it is inconsistent with other evidence … Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, … the judge should allow the matter to be tried by the jury.”
This approach to the question which arose in Sutton was approved by the High Court in Doney v The Queen (1990) 171 CLR 207 at 214. The court approved the passage quoted from Galbraith and went on to say:
“… The purpose and the genius of the jury system is that it allows for ordinary experience of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful … It follows that, if there is evidence [even if tenuous or inherently weak or vague] which can be taken into account by the jury … and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.”
The pre-emptive rejection of testimony which on its face proves or tends to prove the commission of a crime will require more than a demonstration of reasons why the evidence might not be accepted, or of inconsistencies or discrepancies in the evidence. These are features to be considered by a jury when deciding whether the evidence should be accepted. They are not features that lead inexorably to its being disbelieved.
The matters by reason of which the evidence of Noga and Leone is said to be unreliable do not answer the description of “being so incredible as to amount to no evidence” or of being incapable of acceptance by a rational jury. Substantial criticisms are made of the evidence and there are strong, legitimate grounds on which a jury might decide not to accept it. But the subject matter of the criticisms is not so unusual, or exceptional, that a judge should conclude that a jury would be unable to assess the reliability of the evidence for itself.
It is convenient to deal with the witnesses separately and to consider Leone first.
Although Mr Walsh identified six aspects of her evidence which are said to make it unacceptable in the end only one was pressed. It was said that she had admitted to giving perjured evidence with respect to a material particular. It follows, it is submitted, all of her evidence is so tainted as to make it unfit to be put before the jury.
The point is this. Leone’s statement is silent as to the means by which she supplied Noga with drugs during her visits. She freely admits taking the drugs to him but gives no indication of how it was done. Noga described the use of the bassinet in his statement. When cross-examined during the committal proceedings against Marshall and Fay Marshall, Leone said:
“How were you bringing these drugs into jail? – I was putting in my bra and just gave it to him.
Is that the only way? – Yes
Never put it in … the baby’s bassinette? – No
Never ever put it in your mouth and exchange it by kissing? - … I would take it out of my bra and put it in my mouth.
You say you never put it in the baby’s bassinette? – Not that I recall.
Well, you’d recall something like that … wouldn’t you – putting drugs in with your baby? – I’d take it out of my bra and put it in the bassinette …
Oh, so you did do it that way? – Yeh, that’s when … I got in the prison.
But you do recall putting it in the bassinette? – Yes I do.
So that was a lie you told me before that you didn’t recall it …? – It just.
It was a lie, wasn’t it? – No it wasn’t cause.
Well why did you tell me you didn’t put it in the bassinette? – Cause you told me how I got it inside the prison.
… You lied to me only moments ago about the bassinette because you were ashamed about putting drugs in with your baby, isn’t that the case? – Yes.
… Do you know what the oath means? – Yes I do.
Do you know what lying on oath means? – Yes I do.
Do you know what perjury is? – Yes.”
I cannot see this passage as proving incontrovertibly that allowing the witness to give evidence in accordance with her statement would create a real risk of an unfair trial for the accused. It is true that Leone admitted lying on an occasion when she understood she was obliged to tell the truth, and that the lie concerned a material particular of her evidence. The lie was not persisted in, was frankly conceded and a plausible motive for it was revealed. It is a circumstance the jury would have to consider when evaluating her evidence but it does not necessarily make all her testimony unbelievable.
There were ten specific criticisms of Noga’s evidence which, considered collectively, are said to make his evidence unacceptable.
The first, was that discrepant versions were given of his reason for approaching prison authorities. I have recounted what his statement says. He was concerned that his involvement with Marshall would implicate him and perhaps Leone in the abduction and probable murder of prison officers. That particular reason does not appear in the record of interview between Noga and Detective Stevens on 22 September 1998. When asked in evidence-in-chief at the committal proceeding about what Marshall had said in relation to his escape plan Noga could recall no detail. Later, in cross-examination, when asked about the conversation he gave a full account. The argument is that, if true, the evidence of what Marshall said could not have been forgotten by Noga. The conversation so alarmed him that he was moved to confess his trafficking activity.
The second, is that in the record of interview Noga admitted that he trafficked drugs into jail to make money. At the committal he denied making money out of the activity. He said that the drugs were supplied gratuitously. Leone paid for them from her own resources, which were, however, no more than social security payments.
The third, is a claimed discrepancy between a detail of which appears in par 39 of Noga’s statement and what he said in the record of interview. I cannot detect any discrepancy and this point was not pressed by Mr Walsh.
The fourth, concerns another discrepancy. Noga told Detective Stevens that he “never put anything into [his] arm”. The import is that he did not inject drugs. The statement reveals two or three occasions on which he was injected with heroin and amphetamine by Marshall in the jail. In the committal he admitted using heroin, amphetamines and cannabis, and to being a regular drug user while an inmate at Borallon.
The fifth point concerns the construction to be put upon Noga’s possession of the mobile phone. The submission is that possessing such a means of communication in jail confers power and denotes standing in the prison community. Because:
1. the phone was given to Noga who kept it;
2. the written record of who wanted drugs and who, outside jail would pay for them, was given to Noga;
3. Leone operated the accounts through which the money passed and was concealed;
it is argued that Noga, not Marshall, was in control of the trafficking enterprise.
This point is different from the others. It does not involve a discernible flaw in Noga’s evidence but is an argument about the import of that evidence.
Even if the accuseds’ argument was accepted it does not show that Noga’s evidence is unreliable. The submission appears to be that if Noga was trafficking in drugs Marshall and Griffith could not have been. The logic is flawed. The Crown case is that Noga and the accused were all engaged in drug trafficking.
The sixth point is that in his record of interview Noga said he relayed messages on the telephone for Marshall not knowing that they were “drug related”. This is said to be inconsistent with par 5 of his statement in which he admitted active involvement in importing drugs into Borallon between April and September 1998.
The seventh point is that in evidence in the committal Noga denied that Marshall told him to use “code words”, presumably in his conversations with Leone, when making arrangements for the delivery of drugs to the jail. In his record of interview he said that he was passing messages “to help Todd with his drugs business and that Marshall instructed him to tell Fay Marshall that Terry would come to visit or whatever”. “Terry” was code for drugs.
The eighth point is another inconsistency. In a second record of interview Noga said that the note, which has been recovered, on which appears the names and contact telephone numbers contained both his writing and Marshall’s. In evidence at the committal Noga said:
“There was another list that he wrote down and he had the names of the people to contact on the left hand side”.
The “he” referred to is Marshall.
The ninth point concerns a discrepancy in the evidence about the number of occasions on which Leone delivered drugs to Noga in jail. In a very lengthy cross-examination at committal this appeared:
“But you … brought them in so you say? – Yeh.
How often? – Nearly every week.”
After some minutes of questioning on other topics the questioning continued:
You don’t know what happened on the outside, do you? – No.
How many times prior to you meeting Marshall did Jenny bring drugs in for you to distribute in jail? – Three times I think or something.
Are you sure of that? Only three? – I don’t know. I
It was lots of times wasn’t it? – Yeh. There was heaps of times.
…
How many times before you met Marshall did Jenny bring drugs into jail for you to distribute? – Oh yeh heaps.
Three has got nothing to do with it has it? – No.
No. How often? Every week? – Yeh. Nearly every week”.
A tenth point was added during submissions. It was that Noga changed his story during the committal proceedings against Griffith. When asked in chief whether he used drugs while in prison in Borallon he replied affirmatively. He was asked how he got the drugs and he replied:
“I used to get them through visits and through friends and from the inmates – other inmates …”.
In cross-examination it was established that he only had two visitors, Leone and his sister. It was then put to him:
“… when you gave your evidence-in-chief and you were asked about who brought drugs in you said friends. ‘through friends’ were your exact words. Who were the friends who in addition brought drugs in? - … I didn’t mean it like that I just meant that I was bringing drugs for friends.
I think you were asked a very clear question about who gave you drugs and you said it was brought in through friends? – No, I said it was brought in for friends.”
The last example involves a misreading of the evidence. An examination of the evidence which is said to be demonstrably inconsistent, and as unequivocally indicative of dishonesty, shows that premise not to be made out. Noga did not say that persons other than Leone brought him drugs in jail. In the passage relied upon to found the inconsistency he was not asked about that. He was asked how did he get drugs and he indicated two sources: visits, and friends and inmates in the jail. In fact the questioning immediately proceeded to focus upon the first of those sources. When asked about it he said “my girlfriend Jennifer Leone came in and brang some drugs for me packaged up”. The cross-examination which so confidently asserted that Noga had changed his evidence was based upon an erroneous recollection of what had been said.
Four of the points relied upon (numbers 3, 6, 8 and 10) are without substance. The passages relied on do not clearly show a departure from evidence previously given. In some cases the questioning was not sufficiently precise to give rise to the conclusion that inconsistent answers had been given. Some of the points do reveal inconsistencies or discrepancies in the accounts given by Noga of his involvement in drug trafficking but only two touch Marshall’s involvement (numbers 4 and 7) and neither is central to Noga’s testimony. His claim that he was supplying drugs to prisoners because they were friends and without recompense utilising Leone’s meagre resources is not likely to be taken seriously by any tribunal of fact. Some of the points depend for their acceptance upon a particular view of the relative roles of Noga and Marshall in the supply of drugs to the jail. That assessment cannot be made without hearing all of the evidence to be adduced at trial. The criticism relevant to the remaining points varies in its seriousness but one point at least (number 1) concerns critical parts of his story. The point does not truly show a discrepancy, but a curious forgetfulness.
None of the points, either taken separately or as an aggregation, is so egregious that the court is compelled to conclude that what Noga has said could not be true. There are reasons for disbelieving him, in whole or in part. He has a record of dishonesty and on some occasion has given conflicting testimony. But the substance of his evidence is not intrinsically incredible. It is not incapable of belief. It is not to be withheld because it may be rejected.
More fundamentally the authorities show, in my opinion, that applications of this kind based upon these sorts of objections to evidence should not ordinarily be entertained.
It should also be remembered that there is some corroboration for Noga’s evidence against the accused. There is the fact, already observed, that the note, described by Noga, was found where he said it would be, concealed in Marshall’s radio. Additionally Leone had in her possession a record of Griffith’s bank account details indicating some contact between them involving some anticipated financial transaction. As well there is the list of prisoners’ names and contact telephone numbers said to be in Marshall’s handwriting and given to Leone. It is obviously inappropriate to conclude that evidence could not be accepted by a jury where there appears to be corroboration for essential parts of it.
Counsel for the accused made one more point. He submitted that the circumstances in which Noga approached the authorities to give his statement show that he had a need to ingratiate himself with that authority by implicating others in a criminal enterprise. I am not satisfied the premise is made out on the available material but, even if it were, the authority of McLean is against rejecting his evidence on that ground.
I refuse the motion for a ruling that the evidence contained in the statements of Noga and Leone should not be adduced in the trial against the accused.
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