R v Rich (Ruling No 15)
[2009] VSC 34
•9 February 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1535 of 2007
| THE QUEEN |
| v |
| HUGO ALISTAIR RICH |
---
JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29 & 30 October 2008 | |
DATE OF JUDGMENT: | 9 February 2009 | |
CASE MAY BE CITED AS: | R v Rich (Ruling No. 15) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 34 | |
---
CRIMINAL LAW – Record of interview – Crimes Act 1958 (Vic) s 464 – Discretion to exclude evidence – Fairness – Public policy – Whether an obligation of disclosure by police – Admissibility – Evidence of possession of items to commit the crime charged – The principle in Thompson & Wran.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Tinney SC with Mr S. Milesi | Office of Public Prosecutions |
| For the Accused | Mr J. Desmond with Mr R. Edney | Doogue & O’Brien |
HIS HONOUR:
The accused, Hugo Alistair Rich, is charged with murder, armed robbery and other offences occurring on and subsequent to 8 March 2005. In a number of rulings which I have now published in this matter, I have outlined the detail of the facts on which the forthcoming trial of the accused is to be based.[1] Between 25 August 2005 and 30 October 2008, I heard and determined a number of matters arising in pre-trial argument and conducted Basha enquiries which have taken a substantial period of time.
[1]See, eg, R v Rich (Ruling No. 1) [2008] VSC 119R at [2]-[3]; R v Rich (Ruling No. 2) [2008] VSC 141 at [4]-[6].
Part of the evidence intended to be called in the Crown case is a record of interview conducted with the accused on 12 May 2005 by Detective Senior Constable Paul Bertoncello. The particular parts of the record of interview which the Crown seeks to rely on are not yet clear and depend to some extent on other rulings that I have delivered. However, subject to any further submissions about that, I will deal with the issues as they have arisen as a matter of principle and then hear further submissions if that is necessary.
At the time of the arrest of the accused and subsequent record of interview on 12 May 2005, Detective Senior Constable Bertoncello was attached to the Melbourne Criminal Investigation Unit. On 26 April 2005, he commenced an investigation into the accused as the result of certain allegations made by an officer of a company called Capital Finance – a company in New South Wales.
On 11 May 2005, a warrant had been executed by police on a storage facility known as Fort Knox Self Storage at 484 Spencer Street, Melbourne. The warrant was for storage box 486 which was leased by the accused. In the early hours of 12 May 2005, a warrant was also executed on the home of the accused. The accused attempted to leave the area but was intercepted by Detective Senior Constable Bertoncello and was told he was under arrest in relation to fraud matters.
Later that morning a further warrant was executed at an office address at Suite 418, 530 Little Collins Street, Melbourne – the business premises of the accused. The record of interview to which I have already referred was conducted later that morning at Detective Senior Constable Bertoncello’s office.
The Crown proposes to lead evidence concerning the contents of the Fort Knox storage locker and the subsequent record of interview to which I have referred in which the accused is asked about some items, principally firearms, which had been located in that locker. Both the record of interview and the other evidence about the contents of the storage locker are objected to on behalf of the accused. Although these matters were argued separately, it is convenient to deal with them in one ruling given that the contents of the locker were the subject of questioning later in the record of interview.
I should note that counts 6 to 9 on the presentment filed against the accused allege that on 11 May 2005, the accused, being a prohibited person, was in possession of four different semi-automatic firearms. Three of those were handguns located in a the storage locker described above. It should be noted, however, that only counts 1 and 2 of the presentment alleging murder and armed robbery on 8 March 2005 will be before the jury on this trial. The remaining counts will await the completion of that trial.
The Record of Interview
There are several aspects to the objection to the record of interview and as I understand it the use of any aspect of the interview is objected to. The accused was not sought to be called to give evidence on the voir dire in relation to the record of interview and no question of voluntariness was raised during the debate about admissibility.
There are three issues to be dealt with. First, whether there was a breach of s 464A(2)(a) of the Crimes Act 1958. Second, bearing on the exercise of the discretion to exclude the evidence either as a matter of fairness or public policy, whether the accused should have been better informed as to the true relationship between Detective Senior Constable Bertoncello and the Homicide Squad and its investigation into the events at North Blackburn on 8 March 2005. Third, whether any of the questions and answers in the record of interview are relevant to the issues in the trial of the accused on the charges of murder and armed robbery.
Crimes Act 1958 s 464(2)(a)
Counsel for the accused submitted that Detective Senior Constable Bertoncello was in breach of s 464A(2)(a) of the Crimes Act 1958 which provides, in relevant part:
(2)If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)—
(a)inform the person of the circumstances of that offence; and
(b)question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.
In the course of the evidence of Detective Senior Constable Bertoncello his attention was drawn to s 464A(2)(a) of the Crimes Act 1958 and a number of questions were asked of him in relation to whether or not there had been compliance with that provision. He agreed that in question 4 of the record of interview there was no reference to his intention to interview the accused in relation to the firearms which had been located in the Fort Knox storage locker. He said that his intention was to interview him about the “separate firearms matters” after the completion of the fraud matters.[2] Counsel for the accused put to him that in fact he was asked about the firearms matters during the fraud interview without being told that he would be questioned about the firearms matters.
[2]Transcript at 3405-6.
In fact what occurred was as follows. First, at the commencement of the interview in relation to the fraud matters Detective Senior Constable Bertoncello did inform the accused that he would be asked questions about those allegations and they were particularised. Some time later and after a break, Detective Senior Constable Bertoncello commenced to ask questions of the accused concerning items which were found at his office and at the Fort Knox storage locker. The relevant questions are as follows:
Q:Okay. Do you understand, continuing an interview, that the caution and rights we’ve already given you still apply?
A:Yeah, I do, yeah.
Q:Okay. I just had some questions about one of the items we found at your – your office … ?
A:Mm.
Q:Which was a file in relation to Fort Knox Storage?
A:Mm.
Q:What can you tell me about that file?
A:Well, nothing. It’s a storage facility.[3]
[3]Questions 491-4.
Later during that portion of the interview, Detective Senior Constable Bertoncello asked the following questions:[4]
Q:Alright. As a result of information that’s come to hand, some of the questions I’m going to ask you now are in relation to possessing firearms … And being a person possessing firearms?
A:I’ve got nothing to say about that, nothing.
[4]At question 507ff.
Given I have come to a view adverse to the Crown on the admission of the evidence which establishes that three of those firearms were located in the Fort Knox storage locker, on one view it is unnecessary to resolve this issue. However, it may be that my view about that evidence will fall to be reconsidered in light of the manner in which the trial is conducted and were that to happen this issue will have needed to have been dealt with. I proceed on that basis.
The circumstances in which s 464A(2)(a) of the Crimes Act 1958 might be breached was discussed in the well-known case of R v Lancaster.[5] In that case Tadgell and Batt JJA discussed circumstances which might amount to a failure to comply with s 464A(2)(a). Tadgell JA said:
First, a person arrested may be charged without being questioned, or released on bail; secondly, he may be questioned, but if that second option is followed, the information to which the subs. (2)(a) refers must be provided. In other words para. (b) of subs. (2) has to be followed and para. (a) must be followed as a prerequisite to the exercise of the right to question which is conferred by subs. (2)(b). Putting it another way, although the terms of subs. (2) in s. 464A are not the clearest, para. (a) should be read as a kind of proviso to para. (b). The information, I consider, must be provided at the latest before the questioning goes too far when the information would become, if not useless, then less useful to the person being questioned than it would be if it were provided at the outset.[6]
[5][1998] 4 VR 550.
[6]Ibid at 555.
His Honour added the following:
It seems to me that the content of the requirement of s. 464A(2)(a) that a person in custody under suspicion of having committed an offence be informed of “the circumstances of that offence” is variable. The “circumstances of that offence” are, I think, the circumstances which are believed to give rise to the suspicion of the offence of which the person in custody is suspected and about which the person is to be questioned in order to determine the person’s involvement. The question whether the requirement is satisfied will depend on what the circumstances are. The answer to the question might also be conditioned by the purposes lying behind the requirement. One purpose, fairly plainly, is to provide information to the person being questioned, as a matter of common fairness, of the general circumstances which give rise to the questioning. The legislature obviously considered it a fair thing that the person being questioned be apprised in a general way, and in a summary fashion, of the circumstances that are believed to have given rise to the suspected offence.[7]
[7]Ibid at 555-6.
Batt JA said in relation to the obligation to comply with s 464A(2):
… I am of the opinion that on the true construction of s. 464A(2) as a whole an obligation is cast on an investigating official desiring to question a person in custody for an offence of the commission of which he or she is suspected, to inform that person of the circumstances of the offence.[8]
And then further:
The expression “the circumstances of that offence”, in my view, means the central factual feature or features, expressed in general and abbreviated terms, of the offence for which the person is in custody. What is required is sufficient information to enable the person both to understand what he is to be asked about or the investigations he is to participate in, and also to make an informed decision concerning the rights which the subdivision confers on him or preserves for him, such as the right of silence and the right to communicate with a friend, relative or lawyer.[9]
[8]Ibid at 556-7 (emphasis in original).
[9]Ibid at 557.
There is no question that in relation to the fraud offences which were being investigated by Detective Senior Constable Bertoncello, question 4 of the record of interview adequately complied with the section. However, in my opinion the next stage of proceedings which involved questions 491 and 492 do represent adequate compliance with the section. The accused was reminded of the caution and rights which had already been administered to him. He was entitled to believe that the interview was continuing on the topic on which it had been commenced. Detective Senior Constable Bertoncello then asked, at question 492:
Okay. I just had some questions about one of the items we found at your – your office?
The accused would be entitled to consider that those questions were limited to the topic of the fraud which was being investigated. Subsequently, however, at question 507 the following was asked:
Alright. As a result of information that’s come to hand, some of the questions I’m going to ask you now are in relation to possessing firearms and being a person possessing firearms.
In my opinion those questions do represent appropriate compliance with s 464A(2)(a). The questions identify the central features of the offence and would have enabled the accused to make an informed decision concerning the rights which the subdivision conferred on him as outlined by Batt JA in Lancaster.
That conclusion leaves two further matters for consideration in relation to the interview – the exercise of the discretion and relevance.
Discretion
As I have already outlined, Detective Senior Constable Bertoncello gave evidence on the voir dire and was extensively cross‑examined. During that cross‑examination Detective Senior Constable Bertoncello agreed that his investigation was a fraud investigation commenced at the instigation of the company Capital Finance. He also agreed that as part of his investigation he had cause to have contact with a member of the Homicide Squad whom he identified as Sergeant David Cochrane. He also had contact with other members of that squad. He was asked about when he had conversations with those various members of the Homicide Squad. Detective Senior Constable Bertoncello said he was always investigating the fraud matter and that at some point he was also investigating links to a homicide investigation but at no time did his investigation become part of the homicide investigation. At one stage during his evidence the witness gave the following evidence:
How do you both [i.e. Homicide Squad and Criminal Investigation Unit] connect the information you are giving to each other? - - - He is conducting a homicide investigation. He is asking me for information from a fraud related investigation that may assist him. Of course I’m going to provide that to him, and conversely he has information which can assist me in my fraud investigation. It is not necessary in my opinion for either one of us to know the exact details of what we are investigating. I have no interest in the homicide investigation, apart from curiosity.[10]
Later, the following:
You are part of this homicide investigation, aren’t you? - - - I don’t think I am at all at that stage, I think I’m, I’m a – yeah, I don’t think I’m a part of the investigation.[11]
[10]Transcript at 3368.
[11]Transcript at 3378.
Later it was put to the witness that when the warrants were executed in relation to the accused on 11 May 2005 the investigation he was conducting had merged with the homicide investigation. Detective Senior Constable Bertoncello refuted that suggestion. The matter was raised with him again[12] and Detective Senior Constable Bertoncello continued to assert the separateness of his investigation from that of the Homicide Squad. Detective Senior Constable Bertoncello said that he did not believe that prior to the interview being conducted with the accused he spoke with any members of the Homicide Squad,[13] although it appeared he spoke with Detective Cochrane from that squad briefly prior to the interview and he added that it was known that he was proposing to interview the accused.[14]
[12]Transcript at 3397.
[13]Transcript at 3399.
[14]Transcript at 3399-400.
Counsel made a number of submissions in support of me exercising my discretion to exclude any of the evidentiary material contained in this record of interview. First, based on the judgment of the High Court in R v Swaffield,[15] where the High Court of Australia did not recognise that the discretion to exclude evidence as a matter of fairness was any broader than considering the right of an accused to a fair trial. As Brennan CJ said:
The purpose is, of course, to safeguard a person from the unfairness of using his confession in evidence against him at his trial. The relevant unfairness is not so much in “the use made by the police of their position in relation to the accused”, as Dixon J said in McDermott, but in the admission into evidence against an accused of a confession obtained by improper or illegal means.[16]
Toohey, Gaudron and Gummow JJ said:
Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted.[17]
[15](1998) 192 CLR 159.
[16]Ibid at 173.
[17]Ibid at 189.
Dealing with the overlap between the fairness and public policy discretion, Brennan CJ said:[18]
We regarded the admission of confessions in the latter situation[19] as falling for consideration under the fairness discretion. That approach would leave the public policy discretion with little work to do. In exercising the fairness discretion, the quality and degree of any unlawful or improper conduct by law enforcement officers would be evaluated. That approach is consistent with the judgment of Dixon J in McDermott. But now that the development of the public policy discretion allows for the balancing of the public interest in refusing to sanction unlawful or improper conduct and the public interest in placing all relevant and admissible evidence before a court, there is much to be said for remitting consideration of the conduct of law enforcement officers to the public policy discretion in all cases except where that conduct makes the reliability of the confession dubious. The fairness discretion would then focus on cases where the conduct which induces the making of a voluntary confession throws doubt on its reliability and thereby establishes the unfairness of using the confession against the confessionalist on his trial. Taking this approach, the public policy discretion would focus on the kind and degree of illegal or improper conduct that produced the confession or produced the confession in a particular form. If the focus is on the conduct of the law enforcement officers, the issue can be sharply delineated: is the confession, albeit voluntary and apparently reliable, to be admitted in the public interest or is it to be excluded in the public interest because of the conduct by which it was obtained? In answering this question, the weight to be given to the competing factors would depend on the nature of the charge and the circumstances of the case.
[18]Ibid at 181.
[19]A confession which is both voluntary and apparently reliable but which would not have been made or would not have been made in the particular form but for the illegal or improper conduct of law enforcement officers.
Having referred to Swaffield, counsel for the accused then submitted:
... and really the submission there, Your Honour, is that had Mr Rich been properly informed as to the background circumstances of the involvement of the Homicide Squad and the Armed Offenders Squad and had been put on notice as to that fact, he may well have exercised his right to silence, which he previously had.[20]
[20]Transcript at 3429.
I am unable to understand any basis on which the accused was entitled to be informed on the detail of the relationship between Detective Senior Constable Bertoncello and the Homicide Squad and/or the Armed Offenders Squad. Detective Senior Constable Bertoncello is not accused of breaching any rule or conducting any deliberate deception. In my opinion his conduct was neither unlawful nor improper. It is not suggested that the conduct of Detective Senior Constable Bertoncello throws doubt on the reliability of what the accused actually said to him in the answers to his questions. Is this evidence to be admitted in the public interest or rejected in the public interest? Upon being satisfied that the material is relevant, I can see no basis to pursue the second of those options. Even the two additional considerations proposed by Kirby J in Swaffield for the consideration of the public policy discretion do not appear to me to be enlivened by Detective Senior Constable Bertoncello’s conduct:
[W]hether the conduct, if proved in court, would involve the court itself in giving, or appearing to give, effect to illegality or impropriety in a way that would be incompatible with the functions of a court, or such, or which might damage the repute and integrity of the judicial process; and
[W]hether the conduct would be contrary to, or inconsistent with, a right of the individual which should be regarded as fundamental.[21]
[21]R v Swaffield (1998) 192 CLR 159 at 213.
In addition, counsel’s proposition is inconsistent with the reality. Part of that reality is what occurred between 8 March 2005 and the conduct of this interview. On 12 March 2005 at about 6:00 pm, the accused was spoken to by Victoria Police about these offences. They were seeking from the accused details as to his whereabouts on 8 March 2005. On 15 March 2005, the police rang the accused and arranged to meet with him at his office in the city where, when questions were asked, he declined to answer. On that date or shortly after a facsimile was sent to the police by the solicitor Terrence Grundy with a letter outlining what, effectively, the solicitor John Andrusko could say about the whereabouts of the accused on 8 March 2005. On 23 March 2005, Mr Andrusko made his police statement in which he claimed he could recall the events of 8 March 2005 quite well and his statement provided the accused with an alibi for 8 March 2005.[22]
[22]For the detail of the issue concerning Mr Andrusko, see R v Rich (Ruling No. 9) [2008] VSC 453R.
Obviously the investigation into the armed robbery and murder at North Blackburn on 8 March 2005 was continuing and the accused was aware that he was at least the subject of interest. He understood his rights and exercised them when he saw fit to do so.
The other part of the reality I refer to is demonstrated by the answers given in the record of interview by the accused when, for example, the accused is asked whether he agreed that he obtained the Fort Knox storage locker in March 2005, he responded, “Yeah, yeah. What are you really asking me? Ask the question, mate.”[23] Asked who else had keys to the locker he said, “I’m not prepared to tell you that”.[24] He was then informed that he was to be asked questions about the possession of firearms and he said “I’ve got nothing to say about that, nothing”.[25] Later whilst being asked questions about the contents of the storage locker, the accused said, “You know, you’re now going somewhere else. You’ve arrested me on the basis of this, you know, and you’re now using this for the purpose of others, you know”.[26] He was then asked to comment on the items which were listed and he declined to do so. Later, in response to questions about the firearms, the accused said:
But, I mean, you’ve arrested me for fraud. You’ve arrested me for fraud and I’ve got no problems with that and I’ve been forthright and I’ve been candid. Now, for example, as a result of those matters and, you say, information received, you’ve now gone – using the – this particular arrest, you know, for the basis of making other allegations. I came here on the full understanding that – and I’ve been forthright with respect to those. So I think now is the time to be cautious.[27]
[23]Question 499.
[24]Question 501.
[25]Question 508.
[26]Question 527.
[27]Question 565.
Later he accuses the police of putting some matters and that if they do so, “… that’s the end of it, mate”.[28] He indicated that if they wanted to go back to the fraud he would talk to them. Later in the course of an answer concerning the contents of the locker, the accused said, “… and the reality of it is that you’re now putting some other matters to me and, as far as I’m concerned, I’ve got nothing to say about them”.[29]
[28]Question 568.
[29]Question 576.
Finally, at the conclusion of the interview, the questioning is resumed on the issue of possession of the firearms because the accused, having declined to answer questions, changes his mind and initiates a resumption at which he gives an explanation for his possession of those items.
In my opinion there is no basis on which to exercise my discretion to exclude this evidence on the basis of fairness or public policy and, subject to the issue of relevance, I would not do so for those reasons.
Relevance
The interview concerns various allegations of obtaining property by deception and attempts to commit that offence. It begins by requesting confirmation from the accused as to the events surrounding the execution of warrants where he was present. He was then asked questions about the offences that Detective Senior Constable Bertoncello was investigating. At question 490, when the interview resumes after a break, the accused was asked questions about some items found at the Fort Knox storage locker. He agreed that the locker was in his name or in his company’s name. The accused was then shown photographs taken of the contents of the locker in the course of which he appeared to accept that some of the contents, including an Adidas bag, were his.[30] Asked again about the Adidas bag shown in the relevant photograph, the accused said:
I said to you there was three keys. I’ve got one. I am not prepared to say anything more. The security video will tell you who’s been there and who hasn’t been there.[31]
[30]See from question 514ff.
[31]Question 561.
The fact that he had a set of keys to the locker is repeated in question 569.
Those matters appear to me to be relevant but it is not possible to resolve the issue finally for, as Mr Tinney SC submitted:
I’ve said at the outset I’m not on a frolic to prove fraud against Mr Rich. There are issues in the interview dealing with his financial position that may be relevant, but they won’t be relevant if Your Honour deals with betterment in a certain way. So you won’t be assisted by me arguing that at the moment.[32]
[32]Transcript at 3454.
Having published my ruling on the evidence of Mr Byrden,[33] I will hear the parties further on the question of relevance before the trial commences.
[33]R v Rich (Ruling No. 10) [2009] VSC 10R.
The Contents of the Fort Knox Storage Locker
A quite separate submission was developed in relation to the Fort Knox storage locker. The prosecutor had informed me that it was the Crown’s intention to refer to a number of items which were located in the locker including the firearms which Mr Tinney accepted could not come within the principle in Thompson & Wran v R.[34]
[34](1968) 117 CLR 313.
In essence the Crown wishes to lead the following evidence. First, evidence that establishes a connection between the accused and the storage locker and the fact that arrangements were made for the locker to be leased by him on 9 March 2005, the day after the armed robbery and murder in North Blackburn. The accused made arrangements to lease the locker for 12 months and paid $479.00 in cash for the arrangement. Between 9 March 2005 and the date of his arrest, the Crown alleges that the accused accessed the locker. Police surveillance apparently reveals the accused being at the locker on 10 May 2005 at 12:16 pm with Leonard Ryan. Photographs were taken which record that visit. In his police statement, Mr Ryan described going to the storage facility with the accused and whilst they were there, he asked Mr Ryan to assist him with placing two bags in the locker. There is closed circuit television in the facility and that has been obtained which records visits to the locker at 10:26 am on 11 May 2005 and after 7:43 pm on 12 May 2005. I see no reason why that evidence cannot be led.
In relation to the particular items, the principle in Thompson & Wran is stated by the High Court in the following terms:
We do not think that evidence of the possession of tools for the commission of crime is admissible only when it appears that tools of that nature were used in carrying out the alleged crime; it is sufficient if such tools might have been so used: R. v. Sims, where Goddard C.J. said:
Thus, in the case of burglary, evidence is admissible that housebreaking implements such as might have been used in the crime were found in the possession of the accused.
Furthermore, evidence of the possession of tools of crime may sometimes be admissible to negative mistaken identity. Reg. v. Reading was a case where the evidence that the accused men were in possession of certain articles might have been regarded as admissible on the footing that those articles might have been used in perpetrating the crimes charged, but in the Court of Criminal Appeal the admission of the evidence was justified, at least in part, on the ground that the evidence negatived mistaken identity on the part of one of the Crown witnesses. In all cases, however, where such evidence is admitted, it is to identify an accused person with the crime charged against him, and evidence that the possession of tools of crime other than those which were or might have been used to commit the crime charged, or tools of such a nature, is, in the absence of some special connexion, inadmissible because it does no more than prove criminal disposition …[35]
[35]Ibid at 316.
And, on the following page:
It is to be observed however, that, in a case such as this, when there is found in the possession of prisoners some implements which might have been used to commit the crimes charged and other implements which could not be put to that unlawful use, it is not always an easy matter to apply the principle which acknowledges the admissibility of evidence of the possession of tools of a burglar to identify the accused with the crimes charged. The principle of completeness might sometimes dictate that evidence should be admitted going beyond proving the possession of tools which might have been used to commit the crime in question.[36]
[36]Ibid at 317 (emphasis added).
There are several items in the storage locker which the evidence demonstrates were not used in the course of the armed robbery and murder on 8 March 2005. Prominent among those are three firearms and ammunition. These are the firearms that are the subject of counts 6, 8 and 9. The Crown is clear that none of those weapons seized had fired the shot that caused the death of Mr Kastenberger on 8 March 2005. However, as Mr Tinney puts it, there is the “notion of completeness”[37] and the Crown’s desire to link the firearms to the accused in order to link the other items to him. That is proposed to be done by the use of admissions made by the accused in the record of interview with Detective Senior Constable Bertoncello on 12 May 2005 where he describes purchasing the three firearms “to make money out of them”.[38]
[37]Transcript at 3204.
[38]Questions 637ff.
In my opinion, as I provisionally expressed during the course of argument,[39] when a man is charged with murder by having shot someone during an armed robbery, his subsequent possession of firearms and ammunition, although not the firearms used in the offence, is the kind of evidence which would create a significant prejudice and which might not be able to be remedied by judicial direction to the jury. As is noted by McHugh J (dissenting) in Festa v R:
In Thompson and Wran, Barwick CJ and Menzies J said that the principle of completeness might sometimes require “that evidence should be admitted going beyond proving the possession of tools which might have been used to commit the crime in question”. But their Honours immediately went on to say:
While recognising this, however, we are satisfied that in this case, where a collection of tools was found, the detailed evidence of the use to which some of the tools, which, it is clear, were not used in the crime might be used by a thief to commit other crimes, was no more than evidence of a particular criminal propensity, i.e., the propensity to steal from safes, and of the means to indulge that propensity.[40]
[39]Transcript at 3244-5.
[40](2001) 208 CLR 593 at 622 (emphasis in original).
The majority in Festa concluded that the evidence in that case was relevant not only to prove the criminal propensity of the accused and his accomplice but, as Kirby J put it, amounted to “the ‘tools of trade’ of bank robbers apt for carrying out what were alleged to be a series of robberies linked by a particular and unusual modus operandi”.[41] They held that the evidence was properly admitted. In this case, the Crown has not put such an argument to justify the admission of the evidence about the firearms.
[41]Ibid at 649.
As the prosecutor submitted, the accused is undoubtedly linked to the Fort Knox storage locker[42] as I have already summarised in paragraph 39 above. In my opinion, however, the evidence about the firearms should not be admitted and I would exercise my discretion to exclude it on the basis that, given that it is beyond doubt that the firearms were not used in the offences described in counts 1 and 2 of the presentment, the prejudicial effect would substantially outweigh and probative value that such evidence might have. This view is expressed as my present view. It may be that the manner in which the case is run and the means by which the evidence is attacked requires me to reconsider this ruling but at this stage I would not admit any evidence before the jury about the firearms located in the Fort Knox storage locker.
[42]Transcript at 3199.
Amongst the other contents of the Fort Knox storage locker which the Crown wishes to lead pursuant to that principle are the following:
1. A receipt for the purchase of a black balaclava;
2. Latex gloves;
3. Green handled blade;
4. Screw driver;
5. Blu tack;
6. Red balaclava with two holes.
Counsel for the accused accepts that the evidence is clear that the locker was in the name of the accused but contends that it is not a locker to which his client had exclusive possession.[43] That may be, but that is a fact for consideration by the jury. There is an evidentiary basis to link the accused with these items.
[43]Transcript at 3217.
It is put on behalf of the accused that the receipt is for a silk or silk-like balaclava and not one witness describes either of the offenders wearing a balaclava that appeared to be silk. It is also put that the description of the balaclava does not correspond with the descriptions given by the witnesses. The prosecutor appeared to me to submit that there was other evidence which might demonstrate the contrary, particularly from the witness Leonard Ryan and the fact that the receipt is dated 31 January 2005.[44]
[44]Transcript at 3237.
Each of the items 1-5 above are items which, in my view, fall within the principle of Thompson & Wran and, for that matter, Festa. In relation to the red balaclava, in his record of interview the accused appears to admit that he purchased the item saying that he bought it as a gift for his partner Sandra Blackney.[45] The Crown accepts that this was an item of clothing not described by any witness to the armed robbery on 8 March 2005 but wishes to rely on the evidence (referring not only to his admission in the record of interview but also to DNA evidence), that links the red balaclava to the accused in order to connect him to the latex gloves which the evidence suggests were found in the same backpack within the storage locker. In the exercise of my discretion I would not permit that evidence to be led. However, I note that, as with the evidence concerning the firearms, the conduct of the trial might require that conclusion to be reconsidered and if the appropriate circumstances arose I would do so.
[45]Question 677.
Summary of Conclusions
Subject to further submissions as required, my conclusions about these matters are as follows:
· In my opinion, in the conduct of the record of interview with the accused on 12 May 2005, Detective Senior Constable Bertoncello did not breach Crimes Act 1958 s 464(2)(a);
· There is no basis on which to exercise my discretion to exclude the record of interview on the basis of fairness or public policy and, subject to the issue of relevance, I would not do so for those reasons;
· Subject to the conduct of the trial requiring reconsideration of this issue, in the exercise of my discretion, I would not admit the evidence of the locating of three firearms and ammunition or the red balaclava in the Fort Knox storage locker;
· As to the other items sought to be led, items 1-5, those items do fall within the Thompson & Wran principles and I would admit them.
5
0