R v Jegodtka

[1993] QCA 328

IN THE COURT OF APPEAL [1993] QCA 328

SUPREME COURT OF QUEENSLAND

C.A. No. 187 of 1993

Brisbane
[R. v. Jegodtka]

BETWEEN:

T H E Q U E E N

v.

TRACEY LEIGH JEGODTKA

(Appellant)

The President
Mr Justice Pincus

Mr Justice Ambrose

Judgment delivered 09/09/93

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL LAW - Evidence - Attempt to procure undercover police officer to murder ex-husband's wife - Whether evidence of undercover police officer admissible.
Counsel:	Mr. S. Herbert Q.C. for the appellant Mr. P. Rutledge for the respondent
Solicitors:	Messrs. Eastwick and White for the appellant Director of Prosecutions for the respondent

Hearing Date: 20/08/93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 187 of 1993

Before The President

Mr Justice Pincus

Mr Justice Ambrose

[R. v. Jegodtka]

BETWEEN:

T H E Q U E E N

v.

TRACEY LEIGH JEGODTKA

(Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 09/09/93
The appellant has appealed against her conviction on 7 May 1993 on an indictment which charged that, between 6 October 1991 and 1 November 1991 at Brisbane she with intent unlawfully to kill one Michelle Louise de la Fosse attempted to procure one Leonard John Reidlinger to murder the said Michelle de la Fosse.

There are two grounds of appeal; namely:
"1. The learned Trial Judge erred in law in failing to

exclude from evidence the evidence obtained against the Appellant by reason of police undercover investigations.

2.    The learned Trial Judge erred in law in holding at the end of the Crown case that there was a case in law to go to the jury on the charge."

Both issues were argued at the trial and determined adversely to the appellant.
In January 1987, the complainant and one George de la Fosse met and later commenced to live together. Subsequently, in about October 1988 they were married.

Mr de la Fosse and the appellant have previously had a relationship in about February/March 1986, which resulted in the birth of a daughter to the appellant on 10 December 1986. After the relationship between them terminated, Mr de la Fosse and the appellant continued to have some contact which, at least from some time in 1987, was substantially at the appellant's instigation.

By mid-1988, although Mr de la Fosse was paying maintenance in relation to the child, he was endeavouring to terminate any contact with the appellant, and there were a series of solicitor's letters sent on his instructions to the appellant to that effect.

Nonetheless, Mr de la Fosse received some correspondence and telephone calls from the appellant during 1989, 1990 and 1991. On one occasion in June 1990, the appellant telephoned the complainant and, when Mr de la Fosse later telephoned the appellant, it became apparent that she knew certain personal details about the complainant such as the type of clothes she wore.
In April 1991, Mr de la Fosse employed a private investigator to find out accurately what assets the appellant had and, about the middle of that year, after she had learned of the investigation, the appellant telephoned Mr de la Fosse, extremely angry.
The telephone contact between the appellant and Mr de la Fosse continued until 28 October 1991 when the appellant telephoned him claiming that their child had an eye complaint and some discussion about maintenance ensued.
Meanwhile, the appellant had commenced the activities which led to her charge and conviction.

On 7 October 1991, the appellant telephoned one Blake a private detective whom she knew, and left a message for him to telephone her. He did so and, in the course of a telephone conversation, the appellant told Blake that "she wanted a bugging job done", "that she wanted to identify who the problem was and have the problem permanently eradicated". Blake agreed to speak to the appellant again but, without her knowledge, he spoke to an acquaintance, Detective Sergeant Reidlinger. Later the same day, Blake received a further message from the appellant asking him to telephone.

Thereafter, there were a series of contacts in October 1991 between the appellant and Blake, Blake and Reidlinger and the appellant and Reidlinger.

On 8 October, the appellant told Blake that the complainant
was preventing her husband from seeing the appellant's daughter.
On 18 October, Blake told the appellant that he had "got on
to a mate". The appellant asked Blake "what his fees looked
like", and said "its been about 10 years since I have had

anything to do with this ...". There was reference to a

proposed meeting between the appellant and Blake's "mate".
In a further conversation later that day, the appellant asked Blake what particulars his "mate" needed and could he take care of it without her having to meet him. Blake told the appellant that his "mate" wouldn't do that, that he would want to see her. The appellant suggested a meeting on the following Monday at about 9.00 a.m..
In a further conversation on 22nd October, the appellant told Blake that she wanted him to cancel the appointment because she didn't have the money. She said:

"I have got to put it on hold for the moment as much as I don't want to ... but he is going to charge me about $5,000 to $10,000 and I just don't have the money ... ."

Blake told her that he didn't think that the price would be as high as that and the appellant asked him to find out how much it was going to cost and said: "If it is going to cost me about $5,00 or $10,000 I just haven't go it." Later in the conversation she said:

"At the most I've got $2,000 left and that is all that I've got ... if it is going to be more than that I just can't ... there is no point in meeting with him I'm only wasting his time".

The appellant also asked Blake what the "credibility" of his
"mate" was and whether he did his job well.

In a further telephone conversation on the following day, 23 October 1991, Blake told the appellant that he had spoken to his "mate" and that the cost would be $2,000 "up front" and $2,000 "after". The appellant said that she had only $2,000 and Blake said "Just why don't you have a talk to him about it anyway, that's the easiest way", and the appellant agreed to that suggestion and to a meeting at 9.30 on the following morning.

At about 8.00 a.m. on 24 October, Blake telephoned the appellant and arranged a meeting between her and his "mate" for 9.30 a.m. in King George Square. That day, the appellant was introduced by Blake to Reidlinger at King George Square and Blake then left. The appellant told Reidlinger "basically I want my husband back", that she was being ruined financially by his wife and that "she has to go ... I want my husband back". While many of the earlier conversations between the appellant and Blake had been tape recorded, her meeting with Reidlinger was recorded on both video and audio. The appellant told Reidlinger that she was prepared to pay $2,000, "that's all I have". Reidlinger asked the appellant where the complainant worked and whether she was ever home on her own. The appellant said: "That I can find out for you, that's no problem". Reidlinger said he was prepared to do it for $2,000, with payment of half "up front" and the appellant said "that's fine".

Reidlinger asked the appellant "How do you want it done ?". and the appellant said "I don't care, because I just want my husband back". Reidlinger asked for a photograph of her complainant and the appellant said that she could get one. Reidlinger said that he could make it look like a break and enter gone wrong and the appellant said that she could arrange to meet the husband on the pretext of talking about avoiding court proceedings and "tie him up for ... a few hours". Reidlinger told the appellant that he would be ready "to go" when he got the money and photograph and instructed her to get in touch with Blake when she was ready.
Later that day, in a telephone conversation with Blake, the appellant told Blake "I got some wonderful news so that's good", and that she needed to get some photographs and to know the wife's movements. Blake said "I'm good at that sort of thing".

The appellant then discussed getting Mr de la Fosse out of the house for a couple of hours and she and Blake arranged to meet on the following Monday.

On 28 October 1991, Blake telephoned the appellant and told her that he could not make the meeting that day and the appellant asked him to arrange a meeting at 11.30 a.m. on the following day.

In a telephone conversation on the following day, 29 October, Blake and the appellant made arrangements to meet in the Toowong Botanical Gardens carpark and they did so at 11.30 a.m.. The appellant gave Blake particulars to identify the complainant and when asked "Why do you want her killed", she said "Cause I want my husband back". Blake said that he would "catch up" with the appellant on the following Thursday.
On 30 October 1991, Blake told the appellant that he had
all the information needed and passed it directly to Reidlinger.
The appellant said that she had tried to speak to Mr de la
Fosse that day, but could not see him on the weekend. Blake told
her that a meeting with Reidlinger was to be at 10.00 a.m. the

following day. The appellant said that she would be getting the

$1,000 out of the bank when it opened that morning.
On 31 October 1991, Blake telephoned the appellant and told her that the meeting was at 10.30 a.m. at Orleigh Park at West End. Later that morning, Reidlinger met the appellant at Orleigh Park and was given an envelope containing $1,000. The appellant also gave Reidlinger further particulars concerning the complainant and her husband. Reidlinger asked her to tell him "exactly what you want me to do" and the appellant said "Okay, basically what I want you to do, is I want her dead, I want her permanently removed. I don't want her to come back and cause any trouble at any stage ... ."
The appellant was subsequently arrested and in due course convicted at her trial.

The second of the grounds set out above did not appear in the notice of appeal but was contained in the appellant's written submissions and was based upon the premise that "... given that Mr Reidlinger gave in evidence that he would under no circumstances have been procured to murder anyone ... the offence could not be made out." As counsel for the appellant frankly accepted, this proposition is totally contrary to both authority and common sense.

The first ground of appeal has little, or no greater merit. As counsel for the appellant recognized, there is not the slightest basis in the evidence for a conclusion that the appellant was a person who would not have committed the offence but for the instigation or encouragement of Blake or Reidlinger. No other basis for the exclusion of evidence was advanced.

Accordingly, both grounds fail and the appeal is dismissed.