R v Michalopoulos
[2019] ACTSC 304
•22 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Michalopoulos |
Citation: | [2019] ACTSC 304 |
Hearing Date: | 22 August 2019 |
DecisionDate: | 22 August 2019 |
ReasonsDate: | 30 October 2019 |
Before: | Burns J |
Decision: | See [21] |
Catchwords: | EVIDENCE – PRE-TRIAL APPLICATION – Admissibility of certain evidence – admissibility of an audio recording, the record of a police interview with the accused, the record of police evidence in chief with the complainant and various forensic procedures – whether the audio recording was obtained improperly by police – consideration of s 138 of the Evidence Act 2011 (ACT) |
Legislation Cited: | Crimes (Surveillance Devices) Act 2010 (ACT) s 13(2) Crimes Act 1914 (Cth) s 23V Family Violence Act 2016 s 43(2) |
Cases Cited: | Ridgeway v The Queen (1995) 184 CLR 19 Robinson v Woolworths [2005] NSWCCA 426; 64 NSWLR 612 |
Parties: | Chris Michalopoulos (Applicant/Accused) The Queen (Respondent/Crown) |
Representation: | Counsel K Musgrove (Applicant/Accused) S Saikal-Skea (Respondent/Crown) |
| Solicitors McKenna Taylor (Applicant/Accused) ACT Director of Public Prosecutions (Respondent/Crown) | |
File Numbers: | SCC 106 of 2019; SCC 107 of 2019; SCC 108 of 2019 |
BURNS J
The accused is currently awaiting trial in this Court on the following charges:
(a)Count 1, being a charge that between 1 August 2018 and 13 January 2019 the accused, being an adult, maintained a sexual relationship with a young person, namely ML.
(b)Count 2, in the alternative to Count 1, being a charge that on 12 January 2019 the accused engaged in sexual intercourse with ML, being a person under the age of 16 years.
(c)Count 3, being a charge that between 20 September 2018 and 5 November 2018 the accused being a person subject to a family violence order made under the Family Violence Act 2016 and having been personally served with a copy of the family violence order, engaged in conduct that contravenes the family violence order.
(d)Count 4, being a charge that between 5 December 2018 and 8 December 2018 the accused being a person subject to a family violence order made under the Family Violence Act 2016 and having been personally served with a copy of the family violence order, engaged in conduct that contravened the family violence order.
(e)Count 5, being a charge that between 20 December 2018 and 23 December 2018 the accused being a person subject to a family violence order made under the Family Violence Act 2016 and having been personally served with a copy of the family violence order engaged in conduct that contravened the family violence order.
(f)Count 6, being a charge that between 23 December 2018 and 29 December 2018 the accused being a person subject to a family violence order made under the Family Violence Act 2016 and having been personally served with a copy of the family violence order, engaged in conduct that contravened the family violence order.
(g)Count 7, being a charge that between 23 December 2018 and 26 December 2018 the accused, being a person subject to a personal protection order made under the Personal Violence Act 2016 and having been personally served with a copy of the personal protection order, engaged in conduct that contravened the personal protection order.
(h)Count 8, being a charge that between 11 December 2018 and 12 January 2019 the accused being a person subject to a family violence order made under the Family Violence Act 2016 and having been personally served with a copy of the family violence order, engaged in conduct that contravened the family violence order.
By an application in proceeding dated 12 August 2019 the accused seeks the following orders:
(a)that the evidence obtained from, and in the consequence of, the audio recording from Room 30 at the Forrest Hotel and Apartments, 30 National Circuit, Forrest in the ACT on 12 January 2019, not be admitted into evidence at the accused’s trial, namely:
(i)the audio recording from Room 30 made on 12 January 2019;
(ii)the record of a police interview with the accused on 12 January 2019;
(iii)the record of the police evidence in chief interview with ML on 12 January 2019; and
(iv)various forensic procedures.
(b)that the evidence of an alleged admission made by the accused to police on 12 January 2019 following the conclusion of a record of interview at approximately 9:49 pm not be admitted into evidence at the accused’s trial; and
(c)that a note made by a police officer in his diary of the alleged admission made by the accused to police on 12 January 2019 following the conclusion of a record of interview at approximately 9:49 pm not be admitted into evidence at the accused’s trial.
The application sets out the following grounds for the orders sought:
(a)the evidence obtained from, or in the consequence of, the audio recording from Room 30 on 12 January 2019 was obtained improperly or in contravention of an Australian law and the desirability of admitting the evidence does not outweigh the undesirability of admitting it, pursuant to section 138 of the Evidence Act 2011 (ACT).
(b)the diary entry made by the police officer is inadmissible pursuant to section 86 of the Evidence Act 2011 (ACT).
(c)the admission allegedly made by the accused to police on 12 January 2019 is inadmissible pursuant to section 23V of the Crimes Act 1914 (Cth).
(d)the admission and diary should be excluded pursuant to section 90 of the Evidence Act 2011 (ACT).
The Crown accepted that evidence of the alleged admission made to police by the accused after the conclusion of a record of interview on 12 January 2019, and the diary note made by the police officer of that alleged admission, are not admissible pursuant to s 23V of the Crimes Act 1914 (Cth), and s 86 of the Evidence Act 2011 (ACT) (the Evidence Act). Accordingly, the only matter remaining in dispute is whether the evidence referred to in paragraph (a) at [2] above should be excluded from the accused’s trial.
The following summary of the relevant facts is largely drawn from the accused’s written submissions. On 14 September 2018 an application was granted for an interim family violence order in relation to ML. The application was made on behalf of ML by Child Youth Protection Services. At that time ML was 15 years old. The interim order prohibited the accused from, inter-alia, being within 100 metres of ML. The interim order was served on the accused on 11 October 2018.
It is a criminal offence, punishable by a maximum penalty of 5 years’ imprisonment, for a person against whom a family violence order (including an interim order) is made to contravene that order: s 43(2) Family Violence Act 2016 (ACT).
On 24 November 2018, a warrant was obtained by police under s 13(2) of the Crimes (Surveillance Devices) Act 2010 (ACT) (the listening device warrant). Police suspected that the accused was in a sexual relationship with ML and that he was providing her with illicit drugs in exchange for sex. Pursuant to this warrant a listening device was installed on 12 January 2019 in Room 30 of the Forrest Hotel and Apartments, 30 National Circuit, Forrest in the ACT. On 12 January 2019, four police officers were situated in a position at the Forrest Hotel and Apartments so that they had a clear vision of Room 30. The accused was observed by police approaching Room 30 at 4:10 pm on 12 January 2019. At 4:15 pm on that date police saw a young person, who they recognised as ML, enter Room 30.
At 5:50 pm, one of the police officers formed the view, based on information gathered from the listening device, that ML and the accused were engaging in sexual intercourse, and as such, gained entry to Room 30. While forcing entry to the room, police observed the accused to be attempting to barricade the door with his body while he was also attempting to pull up his pants and underwear. The accused was arrested. A later search of the room located items consistent with sexual activity having occurred, and other items consistent with illicit drug use.
At the City Police Station, ML participated in an evidence in chief interview with police. She denied that any sexual activity had taken place that evening and did not want to talk about it. She said that she loved the accused, and that she had sex with him on a regular basis.
At about 8:04 pm that day the accused participated in a record of interview with police. He denied engaging in sexual intercourse with the complainant that evening. He said that he and the complainant were in a consensual relationship, that he was aware of the complainant’s age, and that they had met at the hotel to have some privacy. The accused also underwent a forensic procedure.
The submission made by the accused is that police were aware of the fact that he was in breach of the family violence order from the time that ML entered Room 30 at about 4:15 pm on 12 January 2019. He submitted that what occurred thereafter occurred as a consequence of impropriety on the part of the police because “[t]he minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement at this point in time is that the officers would, at that stage, intervene and enforce the [family violence order] which was put in place to protect this very young person”. In other words, the accused submitted that it was improper on the part of the police not to have intervened at about 4:15 pm on 12 January 2019 to enforce the family violence order. He further submitted that if police had so intervened, the impugned material would not have been obtained by the police.
The relevant parts of s 138 of the Evidence Act are set out below:
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
…
(3) Without limiting the matters that the court may take into account under subsection (1), it must take into account—
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The accused has eschewed any submission that the evidence was obtained in contravention of an Australian law. His submission is that the police acted improperly in not intervening at about 4:15 pm on 12 January 2019 when there was evidence that the accused was in breach of the family violence order. The Evidence Act provides no general definition of what constitutes impropriety for the purposes of s 138. The accused drew my attention to the decision of the New South Wales Court of Criminal Appeal in Robinson v Woolworths [2005] NSWCCA 426; 64 NSWLR 612, and in particular to the judgment of Basten JA (with whom Barr J agreed) who, after considering the High Court decision in Ridgeway v The Queen (1995) 184 CLR 19, said regarding the meaning of impropriety in s 138:
23. It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards. Thirdly, the concepts of “harassment” and “manipulation” suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases the joint judgment in Ridgeway (at 39) referred to offences being procured or induced.
The third consideration referred to in the above extract is not relevant in the present case. It would be relevant in cases where entrapment is alleged, but that is not alleged in the present case.
What constitutes impropriety on behalf of police will depend heavily upon the factual circumstances which exist at the time. There can be no doubt that the legislative purpose underpinning the Family Violence Act 2016 (ACT) is a desire to protect individuals at risk. There can also be no doubt that ML was a vulnerable, and at risk, because of her age and her apparent attachment to the accused. There was, however, further background material that needs to be considered. In November 2018 ML absconded from her residence and she was later found hiding in a kitchen cupboard at the accused’s residence. Drug paraphernalia and sexual aids were found in the residence. ML was unwilling to make a statement to police. Police were concerned that ML would continue to attempt to contact the accused despite the interim family violence order. In December 2018 surveillance devices, lawfully installed within the accused’s residence, captured conversations between the accused and ML suggesting that they were meeting at locations other than the accused’s residence and continuing to breach the family violence order (a final order was made by the Magistrates Court on 7 December 2018). Enquiries undertaken by police ascertained that the accused had booked rooms in a number of hotels in the ACT in December 2018 and January 2019. CCTV footage from one of the hotels showed the accused in the company of ML.
As the concept of “impropriety” involves the identification and application of community standards, minds may differ about whether particular actions by police are improper. For this reason, in order for conduct to be improper for the purposes of s 138, the conduct must be clearly inconsistent with community values. In my opinion, the accused has not demonstrated that the actions of police in not taking steps to enforce the family violence order at 4:15 pm on 12 January 2019 were improper for the purposes of s 138. Police were entitled to form the view that neither the accused nor ML had any regard for the existence of the order, and that they would continue to breach the order. Police were also entitled to consider that it was more important to obtain evidence of the nature of the relationship between the accused and ML, so that, if appropriate, ML could be protected by charges being laid against the accused.
I am also not satisfied that the impugned evidence was “obtained” by reason of the alleged impropriety, or “in consequence of” the alleged impropriety. In order to establish that the evidence was obtained improperly or in consequence of an impropriety, the accused must establish a chain of causation between the alleged impropriety and the evidence coming into the possession of the police. In the present case, there is no such chain of causation. The relevant steps in the chain of causation in the present matter were:
(a)the police obtained the listening device warrant;
(b)the police installed a listening device in Room 30;
(c)the accused attended the hotel and entered Room 30;
(d)ML attended the hotel and entered Room 30; and
(e)the listening device recorded and transmitted sounds from Room 30.
What the accused really complains of is that police did not break that chain of causation by arresting him for another offence. The police were under no legal obligation to arrest the accused, or to take any other action to enforce the order. There may have been a logical connection between the failure of the police to take steps to enforce the order and the impugned evidence coming into existence, in the sense that if police had taken steps to enforce the order no further contact may have occurred between the accused and ML on that day. The submission made by the accused, however, confuses connection with causation.
I am not satisfied that s 138 of the Evidence Act has any application in the present case.
In the event that I am wrong in that conclusion, I make it clear that if it was established that the police had acted improperly, I would nevertheless have exercised my discretion to permit the evidence to be led by the Crown at the accused’s trial. This is not a case where the accused was encouraged or manipulated into committing an offence. The gravity of any impropriety on the part of the police was not great. In the circumstances, it would have been difficult, if not impossible, for police to have obtained the evidence through other means. The recording, the forensic procedures and records of interview challenged in this application are highly probative of Counts 1 and 2.
Conclusion
The Crown will be prohibited from leading the material referred to in paragraphs 2 and 3 of the application dated 12 August 2019 at the trial of the accused ([2](b) and [2](c) above). Otherwise the application is dismissed.
These reasons are not to be published other than to the parties until the accused’s trial is completed.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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