R v L Cassar; R v E Sleiman (Judgment No 27)

[1999] NSWSC 650

CITATION:	R v L Cassar; R v E Sleiman (Judgment No 27) [1999] NSWSC 650
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70036/98; 70216/98
HEARING DATE(S):	30/04/99
JUDGMENT DATE:	9 July 1999
PARTIES :	Regina v Leanne Cassar; Regina v Emad Sleiman
JUDGMENT OF:	Sperling J

COUNSEL :	For Crown: M L Barr For Accused Leanne Cassar: D N Stewart For Accused Emad Sleiman: K G Horler AM QC
SOLICITORS:	For Crown: F Gray (DPP NSW) For Accused Leanne Cassar: John Bettens & Co For Accused Emad Sleiman: Ross Hill & Associates
CATCHWORDS:	EVIDENCE - confessional evidence - the unfairness discretion - infringement of right to silence - limitations on police inquisitorial functions - Judges' Rules - when the "accusatory stage" of police investigations is reached.
ACTS CITED:	Evidence Act 1995, ss 90 & 138(1)
CASES CITED:	Bunning v Cross (1978) 141 CLR 54; Duke (1989) 180 CLR 508; Lee (1950) 82 CLR 133; O'Neill (1995) 81 A Crim R 458; Swaffield and Pavic (1997-8) 151 ALR 98; Van Der Meer (1988) 35 A Crim R 232.
DECISION:	Evidence admitted in part.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

SPERLING J
Friday 9 July 1999

70036/98 Regina v Leanne Cassar
70216/98 Regina v Emad Sleiman

JUDGMENT NO. 27
HIS HONOUR:

1    This judgment provides my reasons for allowing the tender by the Crown of covertly recorded conversations between the accused Mr Sleiman and Miss Cassar at their flat at 8/42 Newman Street, Merrylands, and between them and other persons on the telephone from the flat.

2    The tape recordings of the conversations became Exhibit AO and a transcript of the conversations became Exhibit AP. The conversations all occurred in December 1997.

Voice identification

3    In my judgment No 11, delivered on 14 April 1999, I gave my reasons for a ruling made on 9 April 1999 that evidence to identify the voices of the accused in these conversations was admissible. Miss Cassar had conceded that the voice purporting to be hers was hers. Mr Sleiman had not made a similar concession in relation to his voice or that of Miss Cassar. Later in the trial, Miss Cassar gave evidence, including evidence about these conversations. Her evidence put the identity of the two accused as the persons recorded on the tapes beyond any question of doubt.

Rulings

4    Subsequently, I gave rulings on objections relating to the content of the conversations. Later still, there were reconsiderations, concessions and further rulings. It is unnecessary to trace the course of this process. I will present here my reasons for allowing those parts of the recorded conversations which were ultimately admitted into evidence over the objection of the accused.

Grounds of objection

5    The grounds of objection advanced on behalf of Miss Cassar were that admissions made by her were obtained in a way which was unfair and an infringement of her right to silence; secondly, relevance; and, thirdly, unfair prejudice (ss 135-137).

6    The grounds of objection advanced on behalf of Mr Sleiman were poor quality of the recordings; relevance; and unfair prejudice (ss 135-137).

Admissions unfairly obtained and infringement of right of silence.

7    Evidence tendered on the voir dire established that relevant parts of the conversations were responsive to information concerning the status of the police investigation supplied by Miss Cassar’s mother and sister, who were themselves responding to information provided to them by the police. Detective Sergeant Henderson said, in his evidence on the voir dire, that his motivation in supplying information to Miss Cassar’s family was that he believed Miss Cassar was at risk of violence from Mr Sleiman, and he was concerned to provide her with the opportunity of police protection, using her family as intermediaries. Be that as it may, I was satisfied that it was at least a concurrent motivation for the police providing information to Miss Cassar’s family that this was likely to actuate conversation between the accused at the flat and between them and others on the telephone which might contain admissions by them.

8    As to the stage reached in the police investigation as at December 1997, Detective Sergeant McNab, who was in charge of the investigation, said, in his evidence on the voir dire, that he believed there was sufficient evidence to lay charges, but that he was awaiting advice from police legal officers in that regard when Mr Stacey made his further statement on 20 December 1997, saying, in effect, that he saw Mr Sleiman stab the deceased. At the time of the recorded conversations in question, all of which pre-dated 20 December 1997, the police had not yet decided to charge the accused. That was clear to my mind. Certainly, it was not affirmatively established that the police had decided to charge the accused prior to the relevant conversations or any of them.

9    The leading case is the decision of the High Court in Swaffield and Pavic (1997-98) 151 ALR 98. In Swaffield’s case, the accused was charged with crimes including arson. No evidence was offered at his committal hearing and he was discharged. Subsequently, an undercover police officer, in the course of investigating other matters, engaged Swaffield in conversation concerning the arson matter and obtained admissions from him in that regard. At his trial, objection was taken to evidence of the admissions. The trial judge declined to exclude the evidence. Swaffield was convicted. The Court of Appeal (Queensland) upheld an appeal and quashed the conviction. The High Court dismissed an appeal from that decision.

10    In Pavic’s case, the accused was given the customary warning at the commencement of an interview with the police. He declined to answer questions put to him and was allowed to leave. Subsequently, another person, Clancy, agreed to being fitted with a microphone to record a conversation with Pavic. Pavic made a number of inculpatory statements. The trial judge declined to disallow the evidence. Pavic was convicted. The Court of Appeal (Victoria) dismissed an appeal. The High Court upheld that result.

11    The decision in Swaffield was unanimous. Kirby J dissented in Pavic.

12    The judgment by Brennan CJ and the joint judgment by Toohey, Gaudron and Gummow JJ are along very similar lines. It was said that there are four grounds on which confessional evidence may be excluded in the exercise of the court’s discretion. First, such evidence may be excluded on the ground that the confession was not voluntary. Such evidence is excluded because of its unreliability or dubious reliability.

13    Secondly, there is the unfairness discretion. The following passage is from the judgment of Brennan CJ in Duke (1989) 180 CLR 508, 513.

“If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason , that evidence should be excluded. Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification - to name but some improprieties - may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent.” (Emphasis added.)

The nature of the unfairness which justifies the exclusion of a confession that is voluntary and apparently reliable should be identified: per Brennan CJ in Swaffield at 107.

14    Thirdly, there is the public policy or Bunning v Cross discretion. There is an overlap with the unfairness discretion. Brennan CJ said in Swaffield at 108:

“Thus the chief object of the public policy discretion is the constraining of law enforcement authorities so as to prevent their engaging in illegal or improper conduct, although the securing of fairness to an accused is a relevant factor in the exercise of the discretion.”

15    Fourthly, there is the unduly prejudicial ground. This involves the weighing of unfair prejudice against probative value.

16 Reference was made in the joint judgment of Toohey, Gaudron and Gummow JJ to ss 90 and 138(1) of the Evidence Act 1995 (NSW). In their opinion, the statutory provisions were to be construed as co-extensive with the common law. Accordingly, what is said in Swaffield and Pavic applies in this state notwithstanding that the appeals in that case were from Queensland and Victoria where there is no comparable legislation.

17    There was a difference of emphasis in the way in which the results were expressed in Swaffield and Pavic. In relation to Swaffield’s case, Brennan CJ noted that the police officer, relevantly a person in authority, deliberately misrepresented himself not to be a police officer in order to secure answers to questions which Swaffield had earlier told the police he would not answer. There was a public interest in ensuring that the police did not adopt tactics that were designed simply to avoid the limitations on the inquisitorial functions. In Swaffield’s case such a limitation arose from rule 2 of the Judges’ Rules (Where a police officer has decided to charge a person, he should first caution such person before asking questions.). Brennan CJ thought that the decision in Swaffield’s case could have gone either way and that the High Court should not interfere in a question touching the standard and methods of police investigation unless the decision was erroneous in principle or otherwise manifestly wrong.

18    On the other hand, Toohey, Gaudron and Gummow JJ thought that the admissions were elicited by the undercover police officer in clear breach of Swaffield’s right to chose whether or not to speak. They said the Court of Appeal was right in its conclusion. That was a more emphatic statement but with the same result.

19    In relation to Pavic’s case, Brennan CJ said (at 114):

“[35] In Pavic’s case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy’s consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman’s code of fair play Bunning vCross (1978) 141 CLR 54 at 75; 19 ALR 651 per Stephen and Aickin JJ. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity ‘to invent plausible falsehoods’ R v Lee (1950) 82 CLR 133 at 152.
[36] The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions. The Court of Appeal in Victoria was therefore right to dismiss Pavic’s application for leave to appeal.”

20    On the other hand, Toohey, Gaudron and Gummow JJ said that, in all the circumstances, there was no sufficient reason to interfere with the trial judge’s refusal to exclude the evidence of the conversation in Pavic’s case. That was a less emphatic statement but with the same result.

21    The present case is a fortiori Pavic for the following reasons. The “accusatory stage” had not been reached in the present case. The police had not made up their mind to charge the accused. (I should mention that Mason CJ was of the opinion in Van Der Meer (1988) 35 A Crim R 232 that a caution was required if the police believed they had sufficient evidence to charge the accused, as distinct from having made up their mind to do so (at 239-240). However, that was not a view shared by the other members of the court. It is a view shared by Kirby J in Swaffield and Pavic at [142], but, again, there is no support to be found for that approach in the judgments of other members of the court.) Neither of the accused had refused to answer questions by the police in relation to the death of Mr Burton. So far as Miss Cassar is concerned, the only relevant conversation was the one to which I have referred, with Detective Sergeant Henderson, in which Miss Cassar did not decline to answer questions. On the contrary, she expressed a willingness to speak to the police about what she could or could not say. She telephoned the police to do so. It was just that, as she would have it, that she knew nothing about the matter. That, according to her, was all she could say to the police and she said it. Detective Sergeant Henderson told her there was no point in coming in for an interview in those circumstances, nor was there. That was not an election by Miss Cassar to decline to answer questions by the police about the Burton stabbing.

22    The asserted unfairness identified by counsel for Miss Cassar was that Miss Cassar had been led into making inculpatory statements to her mother and her sister by the police, who had provided information to her family with a view to procuring such admissions.

23    Factually, I accepted that as being correct. However, the police action involved no impropriety. No trickery or misrepresentation was demonstrated. Even if it had been, that would not necessarily have carried the day. It did not in relation to Pavic’s case, in Swaffield and Pavic, [35] above

24    The leniency which is to be extended to the police in the application of the unfairness principle is demonstrated by that case. It is also demonstrated by O’Neill (1995) 81 A Crim R 458, where Dowsett J said, concerning a civilian (one Lally) who was used as a police agent in such a way (at 553):

“It cannot be said that because Lally was acting covertly on behalf of the police, there was inequality in the relationship between her and the appellant which might suggest to the appellant that she was under an obligation to speak. No question of involuntariness or unfairness arose from the fact that the appellant was not warned. The police are not obliged to be absolutely frank in investigating crime. Indeed, the law providing for the use of listening devices is statutory authority to the contrary. Although we might all prefer that friendship not be exploited for ulterior purposes, the public interest in detecting and punishing crime outweighs social nicety.”

25    The unfairness ground was not made out in the present case.

26    I will now give my reasons for refusing to disallow the evidence of the recorded conversations, tape by tape, having regard to other objections which were raised .

Tape No. 1, 4 December 1997, 12.43, Listening Device

As against Mr Sleiman

27    This conversation contained the statement by Mr Sleiman “The night, the night I stabbed that bastard to death” and the statement “I stabbed him”.

28    It was submitted by counsel for Mr Sleiman that the accused was clearly under the influence of drugs, that the passage was indistinct, and that it should be excluded in the exercise of my discretion. Whether Mr Sleiman was under the influence of drugs and to an extent which made the passage unreliable was a jury question.

29    As to clarity, the recordings of the telephone conversations were very clear. The recordings of conversations in the flat, such as this one, were affected by background traffic noise. Passages such as this one required repeated listening to identify some of the words with confidence. To my ear, that was achievable in this instance. The jury also had the benefit of the evidence of Acting Detective Sergeant McNab, who said that he played over these tapes repeatedly and wrote up the transcripts. He said that he satisfied himself that the transcripts were accurate. Where he could not make out the words, he wrote “ind” for indecipherable. Acting Detective Sergeant McNab was not challenged as to the accuracy of any part of the transcripts which he wrote up.

30    I make the same observations as to clarity in relation to each of the conversations.

31    The relevance of this conversation is apparent. I will not mention this point in relation to each conversation where relevance is obvious.

32    There was no unfair prejudice to trigger ss 135-137. I will not mention this point in relation to each conversation where no basis for the argument is apparent.

As against Miss Cassar

33    This conversation was not admitted against her.

Tape No. 2. 8 December 1997. 1336. Listening Device.

34    This tape was included at the request of counsel for Miss Cassar. Counsel for Mr Sleiman did not object.

As against Mr Sleiman

35    This conversation included a statement by Miss Cassar that she had learned there was going to be a Coroner’s Inquest on the following Friday. She said she was going to ring the police about the case and that she intended to do so on the mobile phone. Mr Sleiman’s response was that she could not do that because the mobile phone was dead and that she should not ring on the home phone.

36    That last statement by Mr Sleiman was capable of being construed by a jury as an admission by Mr Sleiman that he had something to hide in relation to the Burton stabbing, on the basis that the only plausible explanation for Mr Sleiman saying not to ring on the home phone was that he thought the home phone was, or might be bugged and that he did not want anything said by Miss Cassar about the Burton matter to be recorded by the police.

As against Miss Cassar

37    This conversation was not relied upon by the Crown as evidence against Miss Cassar.

Tape No. 3. 12 December 1997. 1534. Telephone Intercept.

38    This was a telephone conversation between Miss Cassar and her sister Kelly Cassar. As such, it was not evidence against Mr Sleiman.

As against Miss Cassar

39    This conversation was not relied on by the Crown as containing any specific admission by Miss Cassar, express or implied. It was relevant to show the relationship between Miss Cassar and her sister, to provide the context of later conversations and as “benchmark” evidence concerning Miss Cassar’s attitude in relation to the Mitsubishi Colt, to be contrasted with her attitude later when informed that the car had been found.

Tape No. 4. 13 December 1997. 0243. Listening Device

As against Mr Sleiman and Miss Cassar

40    Statements are made in this conversation both by Mr Sleiman and Miss Cassar to the effect that they will be convicted when charged and be sent to prison. It was open to the jury to infer an implied admission of guilt from these statements.

41    Counsel for Miss Cassar submitted that there were elements of both jest and bravado in Miss Cassar’s statements about being convicted and imprisoned. It was a question for the jury as to whether these statements were a reliable reflection of her true state of mind.

Tape No. 5. 17 December 1997. 1346. Telephone Intercept.

As against Mr Sleiman

42    This is a telephone conversation between Miss Cassar and her mother, Sandra Cassar, and then with her sister, Kelly Cassar. As such, the conversation was not admissible against Mr Sleiman.

As against Miss Cassar

43    In this conversation, Miss Cassar was informed that the police had found the car and had obtained sufficient statements from people for court. Miss Cassar was also told that the police were having a meeting and that charges would then be laid.

44    Miss Cassar expressed concern as to whether the police had obtained forensic evidence from the car such as prints. She was told that what the police found was “virtually enough to clinch the deal”. It was open to the jury to find that Miss Cassar’s response was one of despondency and to see it as significant that her response was not one of denial of involvement. Her response included statements that the police had to prove it, which the jury was entitled to treat as an admission.

45    Counsel for Miss Cassar argued that Miss Cassar’s response was consistent with being reconciled to what appeared to be the police case as distinct from truly being guilty of any offence. That was a matter for evaluation by the jury.

Tape No. 6. 17 December 1997. 1406. Listening Device.

46    This conversation between Mr Sleiman and Miss Cassar occurred immediately after the telephone conversation between Miss Cassar and her mother and sister (Tape No. 5). It was relied on by the Crown as evidence against both of the accused.

As against Mr Sleiman

47    In this conversation, Miss Cassar told Mr Sleiman that the police had found the car with fingerprints all over it and had eighteen people in witness protection who would say that Mr Sleiman had done it and that she knew about it. She went on to say “You fucked it. You fucked our lives, you know that. You’re looking at a minimum of fifteen.” Mr Sleiman’s response was that he was going for a walk.

48    The jury was entitled to treat Mr Sleiman’s silence in the face of these assertions as an admission that he was responsible for Mr Burton’s death and guilty of his murder.

49    It was submitted on behalf of Mr Sleiman that what fell from Miss Cassar was a rambling tirade which did not warrant a response. That was a matter for the jury.

As against Miss Cassar

50    This was one of the conversations in which Miss Cassar revealed belief that she would be convicted and would be going to prison with (arguably the implication of a belief in her own guilt.)

Tape No. 7. 17 December 1997. 1436. Telephone Intercept.

As against Mr Sleiman

51    This was a telephone conversation between Miss Cassar and Detective Sergeant Henderson. As such, it was not evidence against Mr Sleiman.

As against Miss Cassar

52    The conversation provided a context for subsequent conversations, in that it contained statements to Miss Cassar by Detective Sergeant Henderson that the police had information that she knew about the homicide and knew what had happened.
53    Also, the conversation contained a statement by Miss Cassar, “I didn’t even know about it until the next morning.” In view of the evidence of Miss Cassar passing Mr Burton on the stairs as she left the hotel, at a time when Mr Burton was returning to the hotel injured, it was open to the jury to find that she must have known at that time that Mr Burton had, at least, been injured, if not mortally so . In these circumstances, the Crown was entitled to rely on that part of the conversation as a lie implying consciousness of guilt. In the event, the Crown did not, in final address, rely on this passage as a lie by Miss Cassar implying consciousness of guilt. That, however, does not detract from the admissibility of the evidence at the time when it was tendered.

Tape No. 8. 17 December 1997. 1607. Telephone Intercept.

As against Mr Sleiman

54    This was a telephone conversation between Miss Cassar and a friend, Brad. As such, the conversation was not admissible against Mr Sleiman.

As against Miss Cassar

55    This is one of the conversations in which Miss Cassar acknowledged that she would be convicted and imprisoned, and which the jury could construe as an implied admission of guilt.

Tape No. 9. 17 December 1997. 1652. Listening Device.

56    This tape recording falls into two sections. First, there is a conversation, mostly in Arabic, between Mr Sleiman and Mr Rizk concerning the Mitsubishi Colt. The recording picks up only Mr Sleiman’s end of the conversation. However, it was envisaged, as occurred, that Mr Rizk would translate what Mr Sleiman said and would give, in English, his own end of the conversation. Secondly, there was a conversation between Mr Sleiman and Miss Cassar following Mr Sleiman’s conversation with Mr Rizk.

As against Mr Sleiman

57    In the English version of the conversation with Mr Rizk, as recorded in a voir dire exhibit, Mr Sleiman was recorded as asking Mr Rizk what he had told the police, as taxing Mr Rizk with having told the police that he had given the car to Mr Sleiman, and as asking Mr Rizk to tell the police that the car was stolen. (Relevantly, the evidence came out at the trial as the voir dire exhibit suggested it would.) It was open to the jury to construe this conversation as an admission by Mr Sleiman that the car in use on the night of the Burton stabbing was Mr Sleiman’s Mitsubishi Colt and that Mr Sleiman had something to hide in relation to the Burton stabbing connected with his use of that car on the night. The jury were entitled to treat the attempt by Mr Sleiman to have Mr Rizk falsify information to the police about the car as evidence of a consciousness of guilt on Mr Sleiman’s part.

58    In the conversation between Mr Sleiman and Miss Cassar which followed the conversation with Mr Rizk, Mr Sleiman said “I’ll go and take the rap all right Leanne” and “I’ll take the rap for you Leanne”. The jury was entitled to construe this as an admission by Mr Sleiman that he was responsible for having exposed Miss Cassar to the charge which she faced and, by implication, for Mr Burton’s death.

As against Miss Cassar

59    The conversation with Mr Sleiman is another of the conversations in which Miss Cassar spoke in terms of acceptance that she would be convicted and imprisoned, providing a basis for an inference by the jury that she was conscious of her own guilt.

60    In relation to the conversation with Mr Rizk, Miss Cassar is recorded as being actively involved in that conversation. She is recorded as urging Mr Sleiman to telephone Mr Rizk, telling Mr Sleiman to ask when the police came to interview Mr Rizk, wanting to know the outcome of Mr Sleiman’s conversation with Mr Rizk, and wanting to know if the police had requested Mr Rizk to make a statement. She is then recorded as becoming upset that Mr Sleiman did not appear to understand what she regarded as the significance of the police having found the car or, at least, about Mr Sleiman refusing to acknowledge that significance. It was open to the jury to infer from this that the Mitsubishi Colt was the vehicle used on the night to Miss Cassar’s knowledge.

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Last Modified: 09/03/1999