R v Langi
[2021] ACTSC 39
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Langi |
Citation: | [2021] ACTSC 39 |
Hearing Dates: | 5 February 2021; 17 March 2021 |
DecisionDate: | 22 March 2021 |
Before: | Elkaim J |
Decision: | See [33] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-Trial Application – Application to exclude evidence – expert witness – sound recordings – admissions made with authority – probative value – prejudice to accused |
Legislation Cited: | Evidence Act 2011 (ACT) ss 87(1)(c), 137, Dictionary |
Parties: | The Queen ( Crown) Aofangatukau Fatafehi Finau Langi ( Accused) |
Representation: | Counsel A Williamson ( Crown) J Pappas ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) McKenna Taylor ( Accused) | |
File Number: | SCC 142 of 2020 |
ELKAIM J:
The applicant (accused), together with a co-accused (Mr Millington), is due to stand trial before a judge and jury in the week commencing 5 April 2021.
The applicant is charged with aggravated burglary, arson with intent to endanger human life, causing damage by fire and unlawfully discharging a firearm at another person.
The charges all arise from an incident on 21 November 2019 when it is alleged that the two accused went to a residence in Kambah where a gun was discharged and the house set on fire.
The applicant, at the relevant time was a member, allegedly the sergeant-at-arms, of a club known as the Comancheros. Other than possibly being a group of motorcycle enthusiasts, the Comancheros is also an Outlaw Motorcycle Gang (an OMCG). Another such gang is the Nomads. The alleged home invasion on 21 November 2019 is said to be a manifestation of a dispute between the above two OMCGs.
By an Application in Proceeding filed on 11 January 2021 the applicant sought to exclude from his forthcoming trial two ‘pieces’ of evidence. The first is a statement by a Mr Anthony Macken dated 9 September 2020. The second is made up of recorded conversations which occurred in a motor vehicle before the alleged home invasion.
Mr Macken is put forward by the Crown as an expert on OMCGs. His opinion is provided in a statement dated 9 September 2020. His background and qualifications can be seen in Annexure One to the statement.
The parties were able to resolve the issue surrounding the statement by an agreement encapsulated in an Agreement as to Facts (Exhibit C).
When the matter came back before me the remaining issues concerned the recordings, but they had been narrowed to a limited number of the recordings.
In this regard I note that the applicant, through his learned counsel, pointed out that certain material said to be included in the recordings was not actually included in the specific recordings identified by the Crown. The Crown has accepted the observation and informed the Court that in addition to the six recordings referred to in its submissions, it will also rely upon recording No. 203418.
The Crown provided written submissions in which it said that the recordings were relevant because they were an intrinsic part of evidence of motive for the offending and they constituted admissions as to proposed conduct, consistent, if only in a general sense, with the actual events that occurred during the alleged criminal conduct.
The applicant said the recordings should be excluded because:
(a)They said nothing of any motive for the offending. Part of this point was that neither the recordings, nor any other evidence in the brief served by the Crown, established that the applicant was the sergeant-at-arms of the Comancheros at the time of the alleged offending;
(b)They contained no admissions;
(c)They were highly prejudicial, in particular because they would require the applicant to give evidence, by way of explanation of certain entries, of other criminal conduct he had been engaged in or was contemplating.
(d)The recordings were of such poor quality that it would be dangerous to rely upon them. A secondary argument to this point was that a transcript of the recordings should not be provided to the jury. In particular it should not be tendered as an exhibit, nor even used as an aide memoire during the playing of the recordings.
I will deal with each of the points made in the previous paragraph in turn. Starting with motive, the Crown case is not that the recordings alone suggest any motive. This is derived from other evidence in the case including the Agreement as to Facts which states:
1.The Comanchero OMCG is a structed (sic) and hierarchical group, bound by internal club rules.
2.When a person joins the Comanchero OMCG, there is an expectation that they will remain a member for life.
3.Failure to abide by the gang’s culture, rules and expectations can result in monetary and physical penalties.
4.When a member leaves the club in ‘bad standing’ they must return their colours and any other club property. This is generally accompanied by serious violence, extortion, or theft.
5.Where a member of one OMCG ‘patches over’ to another OMCG and is in ‘bad standing’ with the first OMCG, a situation of conflict will likely exist between those two OMCG’s.
6.It is the responsibility of the sergeant-at-arms of an OMCG including the Comanchero OMCG, to enforce the club rules, using violence if necessary.
7.The Comanchero and Nomad OMCG are territorial.
The discussions relating to the complainant that can be found in the recordings, against the background of the agreed facts, take on a characterisation of justification for an intended attack upon the complainant.
In addition the Crown said that the complainant would give evidence that the applicant was the sergeant-at-arms at the relevant time. Further there is a photograph of him wearing the appropriate insignia of the sergeant-at-arms, taken about a month after the alleged offences.
I therefore disagree with the submissions about motive.
In relation to the recordings as admissions, there is no doubt that some of the comments are equivocal in their meaning and that Mr Millington is more often than not the sponsor of ideas and the most descriptive of the intended actions against the complainant. However in my view there are certain comments in which the applicant appears to endorse Mr Millington’s suggestions and provide practical advice. For example there is this exchange:
Male One: Fucking something I want break his, I want to fuck him up so he has to live with it man, I want to fuck him up so bad , so if we’re going to let him live this time, we’ve got to let him live with fucken something like a reminder man. That’s why I reckon, cause say say like (indistinct) fuck his hand up or something cunt so he has to look at it, something that’s like fucked up man, so he can’t ever hold a piece man. Fuck it up cunt, cut his fucking fingers off man, cut do his two fingers off. He’s not goin to pull a gun like this cunt.
Do something like that, that’s what I want to do. Fuck him up, cut his fingers off or something.
Male Two: Indistinct.
Male One: Yeah just fuck.
Male Two: While he’s out put his fingers out and whack.
Male One: Just two fingers cunt, straight here he’s not going to be able to ever fucking hold a piece man. What What’s good he gunna a be to them.
Male Two: (Indistinct) take the fingers.
Male One: Hey?
Male Two: We’ll take the fingers (indistinct) so he can’t just sew em back on.
I note it is agreed that Male One is Mr Millington and Male Two is the applicant.
Further there is the effect of s 87(1)(c) of the Evidence Act 2011 (ACT). As to whether or not there is a common purpose, noting that the threshold is low, the passage from the recordings just quoted, is a prime example of the existence, at least to a degree that is “reasonably open” that the two accused were acting with a common purpose.
Further I have little difficulty in concluding that some of the comments made by the applicant, but in particular when Mr Millington’s comments are attributed to him, that the statements of intent as to what is to happen to the complainant amount to admissions as defined in the dictionary to the Evidence Act.
In relation to prejudice I first note that the Crown has undertaken that it will exclude from the recordings the sentence in recording No. 194239 which reads:
Nah nah nah like get him like we did the other ones.
Other than this sentence, the other words said to raise this concern are included in the first passage quoted above, in particular:
…I want to fuck him up so bad, so if we’re going to let him live this time, we’ve got to let him live with fucken something like a reminder man.
I do not think it is clear that the words “this time” necessarily mean there has been a previous incident. They could equally refer to a possibility that the complainant would need to be dealt with again in the future. In any event, however, I understand that the Crown alleges that a previous assault on the complainant was carried out by or on behalf of the Comancheros.
The next part of the applicant’s submissions was described as “perverse” by the Crown. This is because it involves the applicant effectively basing his innocence on separating crimes he has committed from those he has not. I do not think the submission is perverse. It is not uncommon for an accused person to say, yes I have committed crimes in the past but I did not commit the crime I am now accused of.
The difficulty I have with the applicant’s position is that I do not see any of the statements, other than statements in recordings Nos. 210317 and 211817, as necessarily suggesting future criminal conduct.
Firstly, in recording No. 210317:
Male One: … We need to hit Will bro
Male Two: Huh?
Male One: We need to hit Will
Male Two: Why the fuck (indistinct).
Male One: What?
Male Two: We need a car, nothing.
Male One: Yeah, no one as soon as we get a car we’ll shoot ‘em both.
Male Two: You fuckin’ talk too much.
Male One: Yeah, I know but I’m trying to make it happen. We would have had the car, but he just didn’t have the fucking the keys. I’ll get it tomorrow. At least I’m trying. I reckon once we do get everything in order we’ll fuckin’ get through heaps.
Male Two: You right?
Male One: Yeah.
Secondly, in recording No. 211817:
Male Two: Do Will.
Male One: If we get the car, reckon we could do two? In one night?
Male Two: Yes. Of course we can.
Male One: And then, If we (Indistinct)
Male Two: Get Will for the money.
Male One: And then Miller and then burn the cunt. That’s it. But we need a plan get you choose the blokes to fuckin, all that shit, I’ll sort the car out and all that crap
Male Two: What?
Male One: Get the blokes het (indistinct) five or something, four.
In my view the suggestions of unrelated criminal conduct would be highly prejudicial to the applicant and should be excluded under s 137 of the Evidence Act. It is part of my view that the prejudicial nature of the evidence could be to unfairly compel the applicant to enter the witness box and admit to serious criminal conduct unrelated to the charges he is facing.
In relation to recording No. 211817, I think the whole recording should be excluded because it really has no value, probative or otherwise, without the impugned part.
The final submission to be dealt with concerns the quality of the recordings. The nature of the submission caused me to listen to some of the recordings in chambers, although by no means all of them. They are often difficult to hear, and as identified in the transcript, parts of them cannot be understood. However notwithstanding the use of unseemly commentary the balance can be followed and understood.
I think this conclusion is aided by the fact that the Crown has significantly reduced the number of recordings it intends to rely upon, thereby lessening the imposition on the jury of concentrating on many hours of surveillance material.
Thus I do not think the recordings are of such poor quality that they cannot be relied upon.
As to the transcript being provided to the jury during the playing of the recordings, I think any perceived prejudice can be cured by directions from the judge. While it does not happen in every case, it is certainly the usual practice for a jury to be permitted to have a transcript, but only as an aide memoire.
I make the following orders:
(i)Subject to Order (ii), the following recordings are not excluded from the Crown case: 20191106_215432; 20191107_194239; 20191107_195338; 20191107_204305; 20191107_210317; and 20191106_203418.
(ii)The passage from recording No. 20191107_210317 set out in paragraph 25 of these reasons is excluded.
(iii)The whole of recording No 2019-211817 is excluded.
(iv)The Court notes that the application in respect of the statement of Mr Macken was resolved by agreement between the parties.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 22 March 2021 |
0
0
0