R v Petropoulos and Taddeo No. DCCRM-97-195
[2000] SADC 124
•28 September 2000
R v GEORGE PETROPOULOS AND FIORALDO TADDEO
[2000] SADC 124
Judge Vanstone
Criminal (reasons for voir dire rulings)
Prior to the trial of this matter commencing before a jury, counsel for each accused made a number of applications, mainly seeking the exclusion of evidence. The pre-trial argument commenced on the 4th September, 2000 and I ruled on most of those matters on the 11th September, 2000. I now publish reasons in relation to certain of those rulings.
Conversations between each accused man and police upon arrest
Both counsel sought exclusion of all conversations between the arresting officer and his client upon their arrest in respect of these charges. Each argument was similar in that reliance was placed upon section 74D of the Summary Offences Act and the common law. The argument was very much enmeshed with the argument of each seeking exclusion of evidence of claimed voice recognition by police comparing the voice of each accused during those conversations with voices heard on innumerable occasions on intercepted telephone calls which form the major part of the prosecution case. In the event, I found it convenient to deal first with the argument for exclusion of the conversations standing alone.
The accused Petropoulos was arrested by Detective Sheldon on the 16th June, 1996 at the Adelaide Airport. In a conversation which was not electronically recorded Sheldon told the accused he was under arrest for dealing in drugs, asked him whether he was carrying any guns or knives, told him he would search him for that purpose and, finding that he was carrying numerous one hundred dollar notes, asked him how much money he had to which the accused was said to have replied: “A couple of grand”.
There was then a further conversation with the accused Petropoulos, this time recorded by a hand-held tape recorder. This conversation took place in a police vehicle en route to police headquarters. When Petropoulos was again told that he had been arrested for drug offences and was asked whether he understood that he said: “I’ve got nothing to say”. The bulk of the balance of the conversation was in relation to advising the arrested person of his rights. However, Sheldon went on to ask him about the $2,000 found on him.
There was a third conversation at Police Headquarters, this time recorded on video tape. By this time a solicitor, whom Petropoulos had asked to have present, was in attendance. This conversation commenced by Sheldon recapitulating recent events and asking for the arrested person’s name, age, date of birth, occupation and home address. Then Sheldon put to him that his home address was not as given but was a Norwood address which figures prominently in the papers. At that point, Sheldon asked questions in relation to the money and other items found on the accused, then summarised the conversation in relation to a solicitor and then asked the accused again whether he wished to answer any questions and the accused declined. However, the conversation continued, referring to documents found on the accused and further confirmation of the wish not to answer questions. Counsel for the prosecution, Mr Crowe, intimated during argument that he did not propose to lead any of this conversation beyond the provision by the accused of what he said was his home address, but the balance of the conversation is still relevant for several reasons. One of those is that it demonstrates that, notwithstanding the accused’s clear intimation, given more than once, that he was not prepared to answer questions, Sheldon was determined to proceed. Another is that at no time during the conversation was the initial unrecorded conversation relating to the arrest itself put to Petropoulos as is required by the Summary Offences Act. This non-compliance with that Act renders that initial conversation inadmissible unless the court is satisfied that the interests of justice require the admission of the evidence: section 74E(1)(b).
One aspect of the argument of defence counsel for exclusion of the audio taped and video taped conversations was that what Sheldon was doing was using his obligation to advise the accused of his rights to, in effect, drum up conversation between himself and Petropoulos in the hope that Petropoulos’ words captured on tape could be later compared with what police contend is his voice on the tapes of intercepted telephone calls. Sheldon denied such a purpose. As it turns out it is not necessary for me to make a decision about that, although I acknowledge that the argument, on its face, has some force. Rather, I base my decision to exclude the audio taped conversation and the video taped conversation on the premise that those conversations should not have occurred in the face of Petropoulos’ clear indications that he did not wish to answer questions. In those circumstances he should have been, in my view, advised of his rights, asked if he wished to exercise them, asked his name and address, and lodged in the cells. Accordingly, I determined to exclude the two recorded conversations in the exercise of my discretion.
As to the initial conversation, two matters are worthy of note. First, Sheldon said in evidence that the reason the initial conversation was not recorded by a hand-held tape machine was that to do so would have been operationally unsound. He did not wish to be encumbered physically by such a machine. I accept that evidence. The other matter is that section 74D of the Summary Offences Act had only been in operation for about three months at the time of this arrest and Sheldon said that his understanding of it was imperfect. For that reason he did not read a written record of the initial conversation to Petropoulos during the video taped conversation. I accept that that was indeed the reason for that oversight.
The fact remains that the initial conversation included a question to Petropoulos asking him how much money was on his person. Sheldon said that this conversation and others like it which followed was directed to protecting himself against any later allegation that he had removed some of the seized cash rather than a matter of gathering evidence in relation to the charge. That might be so but it does not justify the asking of the question at a time when, whilst Petropoulos was arrested, he had not been cautioned. (See section 79A(3) Summary Offences Act.) In view of that and bearing in mind the operation of section 74E I excluded all the conversation apart from the words advising Petropoulos that he was under arrest in relation to dealing in drugs.
The arrest of Taddeo occurred on the 17th June, 1996 at a house at Rostrevor. It was effected by Sergeant Garritty. Although the conversation between Garritty and the accused Taddeo was obviously different from that between Sheldon and Petropoulos, the pattern of it is remarkably similar. The initial conversation was not electronically recorded, Garritty asserting that it would not have been sound police practice to do so. Taddeo was not immediately cautioned upon arrest. He was asked to provide the key to his car and asked about a jacket in which was located those keys, some cash, a telephone and a pistol, all prior to caution. After a caution he was further asked about the money in his jacket and the pistol.
There was then a second conversation, in the police vehicle, this time recorded on a tape recorder. Almost immediately Taddeo indicated that he had nothing to say. Garritty continued to advise him of his rights and as each one was given, asked whether he understood that right. Then he gave him a chance to make a request in relation to those rights and Taddeo said he would like to contact a lawyer. He was then asked who he would like to contact. Then, quite wrongly in my view, he was asked about the time of entry into the premises and about the finding of the jacket within the house and about the money and pistol produced from the jacket.
At Police Headquarters a further conversation took place, recorded on video tape. Almost immediately he reiterated that he did not wish to answer questions without speaking to his lawyer and notwithstanding that, Garritty continued to question him about recent events. Again there was no attempt to read to him a written record of the conversation immediately upon arrest. For the same reasons applicable to the conversations between Sheldon and Petropoulos I determined to exclude all the conversations, bar the actual words effecting the arrest, from evidence finding them to be inadmissible by operation of section 74E(1) as well as being tainted by impropriety.
Voice identification
In their statements both Sheldon and Garritty said that they had listened to several hundred telephone conversations containing the voices of persons to whom they came to refer as “George” and “Aldo”. They said that they became familiar over a period of time with those voices and could distinguish them from other voices intercepted. They came to refer to those voices by those names for a number of reasons, including that sometimes those persons were referred to in the calls by those names, or gave those names during the intercepted conversations, and clearly through their investigation they formed the view that those particular speakers were indeed the two accused men. In a statement each gave after the time of his arrest of each accused both officers asserted that immediately upon speaking to the person he arrested he recognised that person’s voice as being that of “George” or “Aldo” with which they were familiar from the tapes. Indeed Garritty, apart from arresting Taddeo, was also present at Petropoulos’ arrest and made the same assertion in relation to that accused person.
The admission of this evidence of identification or voice comparison was objected to by both counsel. The grounds were that this was expert opinion but Sheldon and Garritty were not experts; alternatively, that this was unsound evidence of identification to be likened with the situation in The Queen v Hallam and Karger (1985) 42 SASR 126 and The Queen v Hayles (1990) 54 SASR 549 and further that the process involved an opinion formed long before the officers heard the accused’s voices in person and the process by which they came to the view that the voices were indeed those of the accused was not susceptible of analysis or explanation to the jury. (See for example Ormiston J in The Queen v Harris and Others No. 3 [1990] VR 310.)
I did not find any of those arguments to be particularly persuasive. I excluded the purported voice identification on another basis. That is this. Whilst the two detectives claimed that their identification was instantaneous upon hearing the accused’s voices in person, the conversations which followed must have had the effect of fortifying their opinions. After all, the two initial conversations consisted, for the accused’s parts, of monosyllabic replies to police questions. Much of the balance of those conversations should not, as I have found, have taken place. Moreover, the jury will not be able to hear those conversations, or more precisely the tapes of them, because I have excluded them from evidence. In those circumstances, I consider it would be unfair to admit the voice identification evidence of Sheldon and Garritty into evidence.
During the argument Mr Crowe raised the topic of similar evidence given, on the papers, by Detective Patterson. Like the other detectives, Patterson had listened repeatedly to the intercepted telephone conversations and claimed familiarity with the commonly occurring voices. When he arrested Kyriacou he said he immediately recognised his voice as the voice referred to as “Sam” on the tapes. Neither defence counsel had specifically objected to that identification but I allowed them to enlarge their objections to cover it. In relation to Patterson’s arrest of Kyriacou I found that there was no breach of section 74D. True it is that his initial conversation upon arrest was not tape recorded and he did not give evidence on the voir dire and so did not give a reason for that. But it seems obvious to me that if - as I have accepted - it would have been operationally unsound to encumber the arresting officer of Petropoulos or Taddeo with a hand-held recorder, then so it would have been in respect of Kyriacou. Importantly, the initial conversation between Patterson and Kyriacou did not range beyond the effecting of the arrest itself. The next conversation was tape recorded and amounted only to the giving of rights. The further conversation on video consisted only of obtaining Kyriacou’s particulars, confirming the arrest, confirming that rights had been given and confirming a wish not to answer questions. I acknowledge that the very brief initial conversation was not read over to Kyriacou, but in the face of his stated intention not to answer questions that would not have been, at least arguably, appropriate in any event. Consequently, I considered that there was no breach of section 74D. If I am wrong about that and there was a technical breach of that section, I would have been satisfied that the interests of justice required the admission of the evidence. I found there was no reason why Patterson’s evidence of voice comparison or recognition should be excluded in the exercise of my discretion.
The exclusion of the evidence of Garritty and Sheldon purporting to match the live voices of Taddeo and Petropoulos with two of the voices frequently occurring on the telephone intercept tapes left untouched their assertions that they had recognised those taped voices from call to call. It was not clear to me during argument that either defence counsel took objection to this evidence. Certainly their arguments were directed to the claimed recognition of the accused’s voices upon arrest. In any event, I considered that this evidence was plainly admissible. Police had listened to a great many telephone calls, certainly hundreds, said to contain one or other or both of the voices of the two accused men. It is hardly surprising that over a period they would become familiar with the various voices on the telephone intercept tapes. Such voice recognition is a common feature of everyday life. No doubt the jury will themselves build up a recognition of the voices of the various participants in conversations, and to that extent will be able to assess the strength of Garritty’s and Sheldon’s evidence. But the jury will not have the opportunity to listen to as many tapes as did the detectives. Indeed, during the pre-trial argument, the number of tapes to be tendered was reduced from 197 to about 60. Even before the pre-trial argument Garritty had selected from calls totalling about 1,500 only 300 tapes for presentation to the court. I do not consider that any of the arguments put to me cast doubt on the admissibility of this evidence. Nor is there any reason to exercise my discretion to exclude it.
Items seized from the person of Petropoulos and premises associated with him and items seized from Taddeo and premises connected with him
When Petropoulos was arrested at the Adelaide airport amounts of cash were located both on his person and in luggage which he and Papadelos had brought with them from Sydney. That cash amounted to more than $63,000. At premises where it was alleged he lived at Norwood, over $33,000 in cash was located as was a pistol. In respect of Taddeo, his arrest occurred at a house of a woman ostensibly unconnected with these events. A jacket was located in the house and in it was found Taddeo’s mobile telephone, about $7,400 in cash and a .25 calibre semi-automatic pistol and rounds. At Taddeo’s home at Rosslyn Park was found cash amounts totalling over $20,000. Counsel for both accused took objection to the admissibility of this evidence, essentially on the basis that there was no nexus between the alleged offences and the money located or the two firearms. In the alternative, they argued that if the evidence was admissible it should be excluded in the exercise of my discretion. I was referred to authority including The Queen v Blackwell (1996) 186 LSJS 336, a decision of the Court of Criminal Appeal and to the decision of Justice Cox in The Queen v McGhee (1993) 61 SASR 206. The prosecutor justified the admission of this evidence on the basis that the finding of these items was consistent with the allegations made against the two accused men: that they were in the business of buying and selling cannabis, that such business was not only profitable, but that it required the availability of large sums of cash with which to purchase cannabis supplies. Further he said that the pistols were the type of paraphernalia associated with this business. I found the evidence to be admissible and I declined to exclude it. On the prosecution case the accused men were involved in dealing with both vendors of cannabis and purchasers, here and in Sydney. Were they not in possession of large sums of cash money the defence could properly point to its absence as a factor telling against the prosecution allegations. I consider the possession of the firearms - one each found in possession of the accused men - to also have an apparent nexus or at least a possible nexus to the prosecution allegations. In my opinion that is enough to justify admissibility. It did not seem to me that the evidence of firearms and the prejudicial effect associated with it outweighed its probative effect. After all, in relation to Petropoulos, the prosecution alleged that he was returning from the successful completion of a drug sale in Sydney, and it could be said that the nexus was particularly strong there. In relation to Taddeo, he too was, as I have said, carrying the weapon on his person along with a large sum of cash. Whilst his purpose in being at Rostrevor was not proved on the papers, again I did not consider that the prejudicial effect associated with this evidence outweighed its probative value.
Garritty’s evidence of terms commonly used in the drug industry
During the pre-trial argument the prosecutor abandoned his plan to lead evidence from Sergeant Garritty as to “codes” unique to this case said to have been used by the two accused men and other persons in the conversations intercepted by police. Instead, Mr Crowe indicated that he pressed the admission of certain words which Sergeant Garrity had become accustomed to hearing as slang terms or symbolic terms during his time in the Drug Task Force. He gave evidence of these words on the voir dire at page 128. They included “elbow” meaning pound, “inside” meaning cannabis grown indoors, “paperwork” meaning money, “picture” meaning sample, and “retreads” meaning cannabis heads. Most of these words were indeed used in one or more of the intercepted conversations to be presented. I ruled that this evidence was admissible and that there was no reason to exclude it. This evidence could be given by Sergeant Garrity by reason of his familiarity with the language used in the drug world which had been built up over a number of years. Whilst the jury could fairly readily conclude that slang terms or symbols were indeed used by a number of the voices heard on the tapes, they would not necessarily be able to deduce the meaning of some of those terms in the absence of Garritty’s evidence. In my view this evidence was admissible in much the same way as Garritty’s evidence of common packaging and pricing habits in the drug world is commonly admitted and indeed was in this case.
Mr Retalic’s request for particulars and for the prosecution evidence to be confined to them
Early in the pre-trial argument Mr Retalic, counsel for Petropoulos, sought particulars from the prosecution. A document said to be particulars had been provided after a ruling by Judge Wilson when this matter was listed for trial in 1997. Mr Retalic complained that the document was not so much particulars as a run down of the prosecution case. In response Mr Crowe provided a document referring to various telephone conversations and movements of the accused men and Kyriacou leading up to Kyriacou’s arrest on the 1st April, 1996. In relation to count 2 the document referred to two dates when it was alleged that arrangements were made for a particular consignment of cannabis to be taken to Sydney and the arrest of Petropoulos and another man Papadelos at the Adelaide Airport. Mr Retalic was content with those particulars but reiterated that he contended that the prosecution should be confined to those particulars. After I intimated that I had some sympathy with that contention, Mr Crowe refined the prosecution case to restrict the evidence almost exclusively to that relating to the purchase of a vacuum sealing machine which the prosecution claimed had been used in relation to count 1, evidence relating to a van allegedly used to transport cannabis to Sydney, telephone calls between two prosecution witnesses and Petropoulos in which those witnesses claim to recognise his voice, telephone calls directly bearing on those topics I mentioned or on counts 1 and 2, and various other minor specific items of evidence bearing in a direct way on the prosecution case. As I have mentioned in this process Mr Crowe reduced the number of telephone intercept calls which he planned to tender from 197 to about 60. At the conclusion of this process Mr Retalic indicated that he was content that his complaints had been addressed. It was unnecessary then for me to rule on the matter of particulars or upon the admissibility of events not specifically relating to either of the counts.
A day after the delivery of my rulings and before a jury was empanelled, Mr Petropoulos pleaded guilty to both counts. The trial of Taddeo then proceeded.
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