R v O'Connor
[2005] VSC 324
•11 August 2005
| IN THE SUPREME COURT OF VICTORIA | Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1402 of 2005
| THE QUEEN | Plaintiff |
| v | |
| TASMAN O’CONNOR | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 August 2005 | |
DATE OF RULING: | 11 August 2005 | |
CASE MAY BE CITED AS: | R v O’Connor (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 324 | |
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CRIMINAL LAW – Evidence – Admissibility of admissions made by accused – s.464H Crimes Act – “Suspicion” – Judicial discretion.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Office of Public Prosecutions |
| For the Accused | Mr M. O’Connell | Slades & Parsons |
HIS HONOUR:
The accused man, Tasman O’Connor, is charged with the murder of Graham Leonard Band at Footscray on 1 February 2004. Mr O’Connell, who appears for the accused, has objected to the admissibility of the evidence of three police officers who attended at the deceased’s premises at Flat 6, 127 Gordan Street, Footscray, on the day of the death of the deceased and who spoke to the deceased at those premises.
Mr O’Connell has submitted that I should not admit evidence as to certain conversations which occurred between those police officers and the accused on two grounds. First, he submitted that the evidence is not admissible pursuant to s.464H(1) of the Crimes Act. Secondly, he submitted that that evidence should be excluded in the exercise of the judicial discretion. The evidence in the depositions reveals that the deceased man lived alone at his flat for some time before his death. He had met the accused man during the previous year. Apparently they became quite friendly and indeed the accused man referred to the deceased as his uncle. From time to time, the accused man stayed at the deceased’s flat.
The Crown case is that the deceased was killed when the accused man and one Darren Blackburn attacked and murdered him in the flat shortly before the arrival of the police. In the course of that attack, which led to his death, the deceased had been beaten and stabbed in the chest. He died from a stab wound to his left chest wall.
The Crown alleges that Blackburn and the accused were acting in concert; or, alternatively, that one of them aided and abetted the other in the murder of the deceased. Blackburn has pleaded guilty to the charge of murder and has been remanded for sentence. I understand that he will not be called to give evidence in this case.
The police and the ambulance were summonsed to the deceased’s premises by the accused at approximately 1.00pm on 1 February 2004. On their arrival the accused man was present either in or near the unit. The police observed that he was affected by alcohol; he also had a cut to the right-hand side of his shirt with a corresponding dried bloodstain. There was also blood on his jeans. The first police officer to arrive was Constable Merola who attended at 1.24pm. Senior constable Whitwell arrived at approximately 1.27pm and Detective Senior Constable White arrived at 1.41pm. Each of them spoke to the accused and it is their evidence to which Mr O’Connell has taken objection. For the purposes of determining that objection, each of those three police officers gave evidence and was cross-examined on a voir dire.
The accused man told the police that earlier that day he had gone to the Albert Hotel from the deceased’s premises. He told the police that when he returned to the deceased’s unit, he found the deceased man dead. In response to questions which were put to him, the accused stated that the deceased had given him the only set of keys to the unit. He said that when he returned to the unit the front security door, but not the wooden door, to the unit was locked. There is evidence that the doors to the unit can only be locked by someone departing the premises by means of a key. Accordingly, the evidence that the door was locked when the accused returned to it is important evidence for the Crown against the accused man.
The accused man was arrested at the premises and conveyed to Footscray police station at approximately 5.45pm. A formal tape-recorded record of interview was conducted on him. In that record of interview he told the police that when he returned to the unit from the Albert Hotel the front door was wide open. Importantly, the previous answers given by him to the police at the unit in relation to that topic and which contradicted what he stated in the record of interview were not put to the accused in the record of interview. I shall first consider the objection taken by Mr O’Connell to the admissibility of the admissions made by the accused man concerning the door whilst he was at the unit pursuant to s.464H of the Crimes Act. That provision renders inadmissible confessions and admissions made by persons who are either suspected or ought to be suspected of having committed an offence, if those confessions or admissions are not tape-recorded, save and except in certain prescribed circumstances.
For the purposes of determining the objections which have been made before me, it is only necessary for me to refer to s.464H(1)(a), (b) and (e), which provide as follows:
“(1)Subject to sub-s.(2), evidence of a confession or admission made to an investigating official by a person who -
(a)was suspected; or
(b)ought reasonably to have been suspected -
of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless –
(e)if the confession or admission was made during questioning at a place where facility were not available to conduct an interview, the questioning or anything said by the person was tape-recorded, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was tape-recorded.”
As I have stated, the admissions made by the accused man at the unit that the door was locked when he returned from the hotel were not put to him in the later tape‑recorded record of interview and thus were not confirmed by him. Accordingly, the issue which I need to determine is whether the police officers to whom I have already referred when they questioned the accused man suspected or ought reasonably to have suspected that the accused man was involved in the homicide of the deceased.
The purpose of s.464H is clear. It is to protect persons suspected of offences and who are later charged by ensuring that admissions alleged against them are genuine and voluntary and have not been unfairly obtained. See Heatherington v R.[1] The provision does not protect accused persons from the admission into evidence of all that they have told the police and which is not tape-recorded. First, it only applies to a confession or an admission by an accused man. Compare Hazim v R.[2] Secondly, it only applies to confessions and admissions which were made at a stage when the state of mind of the investigating official was such that he suspected the accused of having committed an offence, or ought reasonably to have suspected the accused of committing that offence. Thus s.464H focuses on the state of mind of the investigating official to whom the admission is made and on the facts which were then in his or her possession. See Heaney v R.[3] The critical and difficult question in this case is just what constitutes suspicion for the purposes of s.464H. That question was considered by the Court of Criminal Appeal in Heaney. There the court quoted with approval the distinction articulated by Vincent J in Walsh v Loughnan.[4] There Vincent J observed:
““Although the creation of a suspicion requires a lesser factual basis than the creation of a belief, it must nonetheless be built upon some factual foundation.”
[1](1994) 179 CLR 370 at 374 per Mason, CJ and Dean and McHugh JJ.
[2](1993) 69 A Crim R 371 at 379-80 per Coldrey .J
[3][1992] 2 VR 531 at 547.
[4][1991] 2 VR 351 at 357.
The court in Heaney having thus approved that dictum of Vincent J went on to say as follows:
“The section is not concerned with the state of mind founded upon speculation or mere idle wondering (Kitto, J. in Queensland Bacon Pty Ltd v Reece (1966) 115 CLR 266 at 303) but is concerned with a state of mind arrived upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created.”
Thus ultimately the question in this application requires an assessment by me of the state of mind of the police officers to whom the admissions in question were made. It involves me drawing a notional line at the point at which mere inquiries by the police ceased and a suspicion began or ought reasonably to have begun, as defined by the court in Heaney.
The identification of that dividing line is difficult and particularly elusive. No doubt when a police officer attends at the scene of a crime at which a member or members of the public are present or have been present, various possibilities must spring to mind. The difficult question which I need to decide in this case is when the presentation of such a possibility either ripened or ought reasonably to have ripened into a suspicion by the police that the accused man was implicated in the homicide of the deceased.
I turn first to the question of the admission made by the accused man to Constable Merola. As I have stated, Mr Merola attended at the premises at 1.18pm in the company of Constable Ivanovski. When he arrived he observed the accused man standing outside the unit. The accused was wearing blue jeans which had bloodstains on the front of them. His blue T-shirt had a cut on the right side of the chest also with a bloodstain. Mr Merola observed that the accused smelt of intoxicating liquor and was drinking a stubby of beer when Constable Merola arrived at the flat. Constable Ivanovski then spoke to another resident while Constable Merola spoke to the accused. In his statement of evidence Mr Merola states that the accused told him that the deceased had given him a key to the flat and he had attended the flat and found the deceased dead prior to calling 000. The accused further stated to Merola that the front security door was locked, but the wooden door was closed but not locked.
Pausing there, Mr O’Connell accepted that the discussion to which I have just referred did not come within the purview of s.464H(1) of the Crimes Act. Plainly that concession made by Mr O’Connell is correct. At that stage Mr Merola was doing no more than making inquiries of a person who had summoned the police. It could not be said at that time that Mr Merola suspected or ought reasonably to have suspected the accused man within the meaning of s.464H(1) of the Crimes Act. Mr O’Connell does object to the admissibility of the evidence to which I have just referred on the grounds of the discretion and I shall return to that objection shortly.
Mr Merola then proceeded to ask further questions of the accused man relating to the cut on his T-shirt.
Mr O’Connell had objected to the admissibility of that evidence, however that objection has now been resolved because, by a solution sensibly worked out by the parties, the Crown does not need to lead evidence as to the manner in which the T‑shirt was cut and the blood appeared on it.
I therefore turn to the evidence of Senior Constable Whitwell. At the time of the offence Mr Whitwell was a senior constable of the Footscray Criminal Investigation Unit. As I stated, he attended at the premises at 1.27pm. Mr Merola was already inside the flat. Mr Whitwell observed the damage to the flat and the state of the deceased. He spoke to the accused man and asked him his name and address and date of birth. At that stage he observed that the accused man’s breath smelt strongly of intoxicating liquor and he was unsteady on his feet. There then followed the ensuing exchange to which exception is taken. I will therefore set it out as it appears in the statement of Mr Whitwell.
“I said: ‘What time did you get here?’
He said: ‘What time did you get the call?’
I said: ‘Where have you just come from?’
He said: ‘The Albert Hotel.’
I said: ‘What time did you leave?’
He said: ‘I don’t know.’
I said: ‘Was the door locked?’
He said: ‘Yes.’”
Mr O’Connell takes objection to that evidence under s.464H(1).
The accused man then produced a set of keys from his trouser pocket. Mr Whitwell asked him: “Which ones?” and to that Mr O’Connor responded: “That (security door) was locked and the wooden door was locked but unlocked.”
Mr O’Connell also takes exception to the admissibility of that interchange pursuant to s.464(1).
After that conversation Mr Whitwell then proceeded to inspect the hands of Mr O’Connor and he observed that they were relatively clean. At that stage the accused man requested to visit the toilet. Mr Whitwell accompanied the accused man to flat 2 and escorted him to the bathroom. He then escorted the accused man from the bathroom.
Mr Whitwell in cross-examination agreed that he escorted the accused man to ensure that he did not wash his hands and he stated if the accused man had attempted to do so he would have forbidden him. See transcript p.60, line 13.
Following that Detective Senior Constable White arrived and effectively took over the discussions with the accused.
The question in relation to the evidence of Mr Whitwell to which I have just referred is whether Mr Whitwell’s state of mind when he asked the questions to which the objection has been taken was such that he suspected or ought reasonably to have suspected that the accused man was involved in the unlawful killing of the deceased. In considering that state of mind it is useful first to consider the facts which confronted Mr Whitwell at the time at which he was questioning the accused. Clearly on his arrival Mr Whitwell saw what was the scene of a violent killing of the deceased. At that time the accused man had a cut to his shirt, he had blood on his shirt and blood on his jeans. In his evidence before me Mr Whitwell could not recall when he noted the state of the accused man’s clothes; however, I do note that Mr Whitwell took particular care in recording accurately the answers which were given to him and the questions which he asked of the accused when speaking to the accused. Mr Whitwell’s conduct in the unit that night demonstrates to me that he is a competent and conscientious policeman. In those circumstances it is most improbable that he would not have observed the cut to the shirt, the blood on the shirt and the blood on the accused man’s trousers but I consider it appropriate that I infer that he did make those observations. In addition, Mr Whitwell observed that the accused man was intoxicated. As an experienced police officer he was no doubt well aware of the common association of alcohol and violence. Collectively those facts would, I consider, at least justify a police officer harbouring some suspicion that the homicide which had occurred at the premises might quite possibly have involved the accused man.
In assessing the effect of those facts as they presented themselves to Mr Whitwell on Mr Whitwell’s state of mind, it is useful to take into account the actions conducted by Mr Whitwell at the premises. They are I consider the most reliable indication of and guide to the state of Mr Whitwell’s mind. When Mr Whitwell asked the questions which I have set out and which are at p.444 of the depositions, he deliberately noted the questions and answers on a piece of paper verbatim. In cross‑examination at transcript 65 he agreed that he would not ordinarily write a conversation of that kind verbatim but, rather, he would normally simply write out a paraphrase or an overview. I consider that the adoption by Mr Whitwell of that sensible practice in this case is at least an important indicator of his state of mind when he was speaking to the accused man.
Immediately after speaking to the accused man Mr Whitwell then inspected the accused man’s hands. That action tends to indicate that Mr Whitwell harboured a suspicion that the accused man had a potential involvement in the death of the deceased. It was not suggested in his evidence that he was spurred to inspect the accused man’s hands because of anything that the accused man had just said to him. In other words, that it was not suggested by Mr Whitwell that his suspicions had been either aroused or heightened by the answers that he had just received. Thus it is appropriate for me to act on the basis that the frame of mind which caused him to inspect the accused man’s hands is a useful guide to his frame of mind when he asked the questions and received the answers which are in issue.
Next, and more importantly, Mr Whitwell then accompanied the accused man to the bathroom and back from the bathroom in the circumstances I have already described.
In cross-examination (p.60) he agreed he would not normally accompany a witness to the toilet. He also stated that in his view at that stage the accused man might possibly have committed or had been involved in the homicide of the deceased and therefore Mr Whitwell felt it necessary to preserve the evidence on the accused man. In this context I note that nothing untoward was observed by Mr Whitwell when he inspected the accused’s hands; in other words, he did not observe anything after the interview with the accused but before the visit to the toilet which might have altered his state of mind which he had when he was interviewing the accused. Thus, again, my assessment of his frame of mind when he took the accused to the bathroom is relevant in assessing the state of mind of Mr Whitwell when he interviewed the accused in the passages to which I have referred at p.444 of the depositions.
Taking all those matters together and putting them together collectively, it does seem to me that the only proper conclusion is that at the time that Senior Constable Whitwell questioned the accused man (as set out on p.444 of the depositions), he did either suspect or ought to have suspected that the accused had been involved in the homicide of the deceased. Accordingly, I rule that the questions to which I have referred and the answers received by Mr Whitwell and which are set out at p.444 of the depositions are not admissible pursuant to s.464H(1) of the Crimes Act.
I interpolate, of course, that s.464H (1) does not render inadmissible the fact that the accused man produced to Mr Whitwell the set of keys from his trouser pocket.
I next turn to the evidence of Mr White. He was, as I stated, the third police officer to attend the premises and speak to the accused man. Mr White was then a detective senior constable of police stationed at Footscray Criminal Investigation Unit. When he attended, Mr White also observed the cut to the accused man’s T-shirt and the dried blood adjacent to it. He observed what looked like dried blood on the jeans worn by the accused man. He noted that there was no sign of forced entry on the premises. He observed the condition of the body of the deceased and he observed that there was blood on the bed, the carpet and the wall of the unit. He contacted the Homicide Squad and requested members of that squad to attend. He then spoke to the accused man and, in doing so, he observed that the accused man was unsteady on his feet and that he melt of intoxicating liquor. Mr White had formed the view that the accused man appeared to be drunk. He asked the accused man whether any person was there when he got there and the accused man said that he got there and found the place “all fucked up”. Mr White then said that he was investigating the death of the man and asked the accused man if he was his nephew and the accused man said: “Yeah, Taz.”
That set of questions and answers are not objected to by Mr O’Connell. There then followed some questions and answers as to how the accused man had blood on his clothes and the cut to his shirt. I do not need to decide the admissibility of that interchange between the accused man and Mr White because the parties have been able to resolve the matters relating to it without the need for that evidence to be called.
Following that interchange, Mr White told the accused man that he needed to seize his clothes and, in response, the accused man went into the flat and into the bathroom and changed into another set of clothing. Mr White took possession of the accused man’s clothes. While the accused man was undressing, Mr White noticed that the accused man had a small cut on his right chest area correlating to where the cut in the T-shirt was. There appeared to be dried blood in the cut.
After the accused man had changed his clothing, there then ensued a conversation to which Mr O’Connell has taken objection. I shall therefore set out that conversation as it appears in the statement of Mr White. It is as follows. He (the accused) said: “Darren Blackburn and his missus were in the flat last night arguing and carrying on and I left.”
The accused man then showed Mr White a set of keys and then the conversation continued as follows.
“I (White) said: ‘How did you get them?’
He said: ‘When I left, my uncle gave me the keys.’
I said: ‘Does he always do that?’
He said: ‘If he knows I’m coming back.’
I said: ‘Do you live here?’
He said: ‘No. Sometimes I stay with me uncle.’
I said: ‘How did the body get on the floor?’
He said: ‘I opened up the flat and saw me uncle on the bed. I don’t know how he got there.’
I said: ‘Maybe the ambos moved him?’
He said: ‘Maybe.’
I said: ‘Was the flat locked when you got here?’
He said: ‘Yep. I unlocked it.’”
I interpolate that that interchange occurred at pp.461-462 of the depositions.
After that last answer was received by Mr White, he then administered the caution to the accused man and told him of his rights. The accused man was then conveyed to Footscray police station.
In respect of Mr White’s evidence, the question of course is whether he either suspected or ought to have suspected that the accused was involved in the homicide of the deceased when he spoke to the accused man about his keys in the passage I have just set out. The answer to that question is not as clear-cut as it is with the evidence of Constable Whitwell. However, I consider that on all the evidence before me, the correct conclusion is that Detective Senior Constable White’s state of mind at that time was such that he did suspect, or ought to have suspected, that the accused man was involved in the homicide of the deceased.
I have reached that conclusion based on the following matters. First, again it is important to focus on the facts which presented itself to Mr White when he attended the scene to investigate the incident that had occurred there. Clearly, Mr White was confronted with a homicide and indeed he understandably called in the Homicide Squad.
He spoke to the only person who had been there, Mr O’Connor, who had a cut to his shirt with dried blood near it. Mr O’Connor had blood on his jeans. When Mr O’Connor undressed, Mr White observed a small cut on Mr O’Connor in the same area of his skin which correlated to the cut on the shirt. Mr O’Connor appeared to be drunk.
In addition to those matters, Mr White considered Mr O’Connor to have been acting strangely and indeed so much so that he reported that observation to the officer of the Homicide Squad to whom he spoke on the telephone. In cross-examination at transcript p.28 Mr White stated that it did occur to him as one possible explanation for that conduct that O’Connor was acting in that manner because he was involved in the homicide.
Thus, as with Mr Whitwell, it does seem to me that Mr White was presented with a number of facts which would have justified him as an experienced police officer entertaining a suspicion that the accused man had been implicated in the homicide of the deceased.
I then turn to Mr White’s actions which I have stated are the best guide I consider to determining the state of mind of the police officer involved. It is, I think, important that Mr White, when he spoke to the accused man, attempted to record in his notes a verbatim account of his conversations with the accused man. He agreed in cross-examination that he did that because it was important in the circumstances of the case and he also agreed that when he attended an incident and spoke to witnesses, he did not always take down what they told him verbatim.
In that context, I consider that the request made by Mr White to the accused man to seize his clothes is also reflective of Mr White’s frame of mind. He agreed, at transcript 33, (as one would expect) that he did not ordinarily ask a witness to provide their clothing. He also agreed, at transcript 30, that he appreciated at that time that forensic analysis of the accused man’s clothing could inculpate him as well as it might exculpate him. In addition to those matters, Mr White did at some stage speak to Mr Whitwell after Mr White arrived. Mr White could not recall what Mr Whitwell told him; however, it is highly probable, I consider, that Mr Whitwell would have conveyed to Mr White at least the substance of his observations concerning the accused and which, as I have stated, was sufficient for him to cause him to record his own conversation with the accused man verbatim, to inspect the accused man’s hands and to escort him to and from the toilet. It was as Mr Whitwell was bringing the accused man back from the toilet that it seems Mr White arrived. In those circumstances, it is appropriate to infer that Mr Whitwell would have, at the very least, have conveyed in some form to Mr White that the accused man may well be a person of interest to the police investigating and ascertaining who was responsible for the homicide of the deceased.
As I have stated, the assessment of Mr White’s frame of mind is not, to me at least, as clear-cut as the assessment of Mr Whitwell’s; however, on balance, and bearing in mind all the matters to which I have just referred, I am satisfied that he did at the time that he asked the questions of the accused man and received the answers to which objection has been taken, suspect that the accused man was involved in the unlawful killing of the deceased or, at the very least, he ought reasonably to have entertained that suspicion. For those reasons, I rule that the evidence of Mr White to which I have referred at pp.461 to 462 of the transcript is inadmissible pursuant to s.464H(1) of the Crimes Act.
I finally turn to the question of the discretion which is the second basis for exclusion argued by Mr O’Connell. In light of the conclusions I have reached concerning the admissibility of the evidence of Mr Whitwell and Mr White under s.464H, it is only necessary for me to consider the discretionary matters relating to the evidence of Mr Merola, that evidence being the discussion by Mr Merola relating to the key to the flat and the finding of the front security door locked when the accused man returned from the hotel.
Mr O’Connell submitted that I should exercise the discretion in favour of his client on two bases: first, he submitted that the admission of the evidence would be unfair to his client; secondly, he submitted that the probative value of the evidence is, in any event, slight and substantially outweighed by its prejudicial potential.
Mr O’Connell argued the first basis, that is, that it was unfair on the grounds that at the time that Mr Merola spoke to the accused man, the accused man was affected by alcohol. Mr Merola did not recall the conversation verbatim and the conversation was not later confirmed or put to the accused man in his record of interview and thus the accused man was not given the opportunity to comment on it.
In response, Mr Kayser, who appears for the Crown, submitted that that there was nothing unfair about the questioning by Mr Merola of the accused man. He pointed out that it appears that the accused man answered responsibly to Mr Merola and indeed to other police officers who attended that night. He submitted it was not unfair to the accused man that the admission made by him to Mr Merola was not put to him in his record of interview.
In this context, the concept of unfairness relates to the right of an accused man to a fair trial.
In R v Swaffield,[5] the majority of the High Court quoted with approval the dictum of Wilson, Dawson and Toohey JJ in van der Meer v R[6] of where Their Honours stated:
“The question is not whether the police have acted unfairly. The question is whether it would be unfair to the accused to use his statement against him. Unfairness in this sense is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.”
[5](1998) 192 CLR 159 at 189.
[6](1998) 62 ALJR 656 at 666.
Messrs Merola, White and Whitwell each noted that the accused man was, in one way or another, affected by alcohol. However, each police officer was able to elicit coherent answers to the questions which they put to him and which answers were responsive to the questions. In addition, the accused man responded to questions made of him by the police; for example, he responded to the request by Mr White to give him his clothes. Mr Whitwell observed that the accused man was capable of walking to and from the bathroom in unit 2 without requiring assistance to do so.
Acting Sergeant Gatty also attended at the premises at 1.35pm and his statement was tendered in evidence.
In that statement Mr Gatty stated that he could not understand all of the conversation between himself and the accused man. At the committal Mr Gatty was cross-examined and he did say that he was able to understand parts of what the accused man stated, but that for some sections of the conversation he had with the accused man the accused waffled. It is clear overall that the accused man was affected by alcohol when the accused man spoke to him.
However, the questions which they asked of him were simple; they did not require or involve complex or difficult thought processes or complex answers to be made by him.
They involved simple matters such as his actions and movements that day.
On the evidence available to me, I am satisfied that his capacity to respond to those questions and to make proper answer to them was not so adversely affected as to make it unfair in the sense described in the authorities to admit his answers to Mr Merola in evidence. The jury will of course form their own judgment as to the weight and reliability of what Mr Merola says the accused man said to him in all the circumstances. It would, I consider, have been preferable if the admission which the accused man made to Mr Merola had been put to him in his record of interview so that he might have been able to respond to it. However, I do not consider that that omission is sufficient to render it unfair to have the admission made to Mr Merola admitted in evidence. Indeed, on the other hand, I have no doubt that Mr O’Connell will be able to make some use of the fact that that admission was not put in the record of interview.
The other basis contended for by Mr O’Connell was that the evidence was of just slight probative value and it was outweighed by its prejudicial potential. Again, Mr O’Connell relied on the fact that the accused man was affected by alcohol and therefore the reliability of whatever he said to Mr Merola would be thus affected; in addition, Mr Merola did not take a verbatim record of what the accused man said to him.
I consider that the appropriate response to that objection is that made by Mr Kayser in his submissions to me. It is for the jury to assess the probative value of what the accused man is said to have said to Mr Merola.
That assessment is a simple assessment of the type commonly made by juries. Essentially, the assessment of whether that evidence has a small or large probative value is a question for the jury. However, if its probative value is slight, then it will only have a commensurately slight effect on the jury’s deliberations. There is nothing prejudicial about the evidence. For example, it does not refer to any opprobrious conduct by, or characteristic of, the accused man. Accordingly, there is no basis to reject the evidence of Mr Merola as to what the accused man said to him in the exercise of my discretion and I do not reject that evidence.
In conclusion, I rule that the following evidence is inadmissible under s.464H(1) of the Crimes Act. Firstly, the evidence of Mr Whitwell at p.444 relating to the questions and answers asked of him and given to him by the accused; in other words, commencing with the words “I said, ‘What time did you get here?’” and continuing to the words:
“He said: ‘Yes.’
And then commencing again with the words: “I said: ‘Which ones?’and the answer:
“He said: ‘That security door was locked and the wooden door was closed but unlocked.’”
Secondly, the evidence of Mr White at pp.461-462 of the depositions commencing with:
“He said: ‘Darren Blackburn and his missus were in the flat last night arguing and carrying on and I left” - encompassing that statement by the accused man, and then commencing:
I said: ‘How can you get them?’” and concluding on p.462 with the interchange:
I said: ‘Was the flat locked when you got here?’
He said: ‘Yep, I unlocked it.’”
In conclusion, I also reject the application by the accused man to exclude the evidence of Mr Merola at p.435, para.3 of the depositions.
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