R v Rudd
[2009] VSCA 213
•25 September 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 765 of 2007
No 797 of 2007
| THE QUEEN |
| v |
| ALLAN RUDD |
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| JUDGES | MAXWELL P and REDLICH JA and VICKERY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 27 January 2009 |
| DATE OF JUDGMENT | 25 September 2009 |
| MEDIUM NEUTRAL CITATION | [2009] VSCA 213 |
| JUDGMENT APPEALED FROM | R v Allan Rudd (Unreported, County Court of Victoria, Judge Nixon, 23 October 2007 and R v Allan Rudd (Unreported, County Court of Victoria, Judge Nixon 19 September 2007 |
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CRIMINAL LAW – evidence - mixed statement exception to hearsay rule – telephone conversations between applicant and his wife containing implied admissions or revealing knowledge of crime – admissibility – direction as to admissions against interest –
CRIMINAL LAW – post offence conduct – conversations of applicant and wife designed to conceal guilt – adequacy of direction – R v Ciantar (2006) 16 VR 26, R v Berry & Wenitong (2007) 17 VR 153 applied
CRIMINAL LAW – exculpatory passages from other telephone calls wrongly excluded – misdirection as to use of inculpatory passages – no substantial miscarriage of justice – proviso to s 586 applied.
SENTENCE – possession of unregistered firearm – integral part of commission of a crime – relevance of prior convictions
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| Appearances: | Counsel | Solicitors |
| For the Crown | Mr G J C Silbert SC with Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr C B Boyce | Leanne Warren & Associates |
MAXWELL P:
I have had the considerable advantage of reading in draft the reasons for judgment of Redlich JA. I agree, for the reasons which his Honour gives, that error of law has been established, the proviso should be applied and both applications should be refused.
REDLICH JA:
Following a seven day trial before a judge and jury, the applicant was convicted on one count of reckless conduct endangering life and was sentenced to five years and six months’ imprisonment with a minimum term of four years before he was eligible for parole. The Crown case was that the applicant discharged a shotgun through the front bedroom window of a house at 78 Victoria Road Northcote whilst one of its occupants was present in the bedroom.
Following a further four day trial, the applicant was convicted on a further count, that of being a prohibited person in possession of an unregistered firearm, it being the shotgun which he had used to commit the offence the subject of the first trial. He was sentenced to three years’ imprisonment. It was ordered that six months of that sentence be served cumulatively upon the sentence fixed following the first trial, making a total effective sentence of six years. A new non-parole period of four years and six months was fixed.[1] The applicant now appeals against the convictions on each trial and the sentences imposed.
[1]Sentencing Act 1991 (Vic) s 14(1).
In both trials the prosecution was permitted to lead evidence of numerous phone calls made by the applicant from the Melbourne Remand Centre to his wife over the period of one month immediately following his arrest. The extracts from these conversations introduced into evidence were from different phone calls which occurred over 19 days of this period.
The conviction appeals
The prosecution relied upon at least three different types of statements made by the applicant during these conversations, although they were all treated as express admissions during the trial. The first type - of which there were only two possible instances - were express admissions, being either a confession of guilt or an acknowledgement of having committed the act charged.[2] The second were implied admissions comprising falsestatements designed to be exculpatory from which a guilty knowledge may be inferred. The third were statements which provided some evidence tending to prove guilt - for example by revealing some unique knowledge of an aspect of the crime. Where a statement is shown to fall within one of those categories, subject to discretionary considerations which do not presently arise, it is admissible as part of the Crown case.
[2]See for example Ibrahim v R [1914] AC 599; Burns v R (1975) 132 CLR 258.
Defence counsel objected to the admission of each statement on the basis that it was irrelevant and had no probative value. The judge overruled the objection and admitted the evidence. Alternatively it was submitted at trial that if the statements were admitted into evidence, the applicant wished to rely upon other passages from the same and other phone calls with his wife which were said to contain exculpatory passages. The trial judge ruled that such evidence was inadmissible.
The appeal raises the following questions common to both trials. The first is whether the trial judge was correct to admit the Crown extracts. It he was, two further issues arise: first, whether appropriate directions were given in relation to the use of those extracts by the jury; and second, whether he erred in excluding the passages upon which the defence sought to rely.
For reasons which follow, I have concluded that –
(i)most of the Crown extracts were properly admitted, either as implied admissions or as disclosing the applicant’s knowledge of the crime;
(ii)as a matter of fairness, most of the exculpatory passages relied on by the defence should have been admitted, as they enabled the admissions relied on by the Crown to be seen by the jury in their proper context or because they explained or qualified the admissions;
(iii)the exculpatory passages were thus admissible under the ‘mixed statement’ exception to the hearsay rule;
(iv)the judge erred in law in refusing to admit the exculpatory passages, and in failing to give an appropriate direction as to the use which the jury could make of the inculpatory passages;
(v)this is an appropriate case for the application of the proviso to s 568(1) of the Crimes Act1958 (Vic).
It is necessary to briefly refer to the manner in which these issues were dealt with at trial. The Crown consistently described the passages which were admitted as constituting admissions by the applicant of his involvement in the crime charged. His Honour ruled that the telephone intercepts were probative and relevant, but did not provide reasons for doing so. Initially, the prosecution accepted that the defence was entitled to rely on other passages of these conversations, as it saw fit. The trial judge did not demur from this proposed course. At the time the prosecution made this concession, the precise passages on which the defence wished to rely had not been identified nor does it appear that any consideration was given to whether the prosecution had any obligation to tender these defence excerpts as part of the prosecution case.
It eventually became apparent that the defence had not prepared a CD recording or transcripts of the portions of these conversations upon which it wished to rely. On the third day of the trial, the jury was told by the trial judge that the defence wished to rely upon exculpatory matters contained within these conversations, but that such material would not be available for the jury’s perusal for some hours. Two days later, the trial judge was provided with a document prepared by the defence which contained the defence excerpts. His Honour then indicated his concern as to their selective nature and suggested that the entirety of each conversation would need to be tendered, otherwise the excerpts would be meaningless. The jury was then informed that the defence had not yet completed its identification of the exculpatory matters, and that the transcript of the relevant excerpts would not be available until after the weekend.
In the jury’s absence the trial judge expressed grave doubts as to the admissibility of the defence excerpts because, he said, they were self-serving statements made after the applicant had been charged. His Honour did not regard the excerpts as exculpatory as, in his Honour’s view, they did not assist in the elucidation of matters in dispute.[3] His Honour contemplated that, if they were admitted, he would be obliged to instruct the jury that they had no evidential value. He contrasted this with the direction that he would have to give in relation to the express admissions, namely ‘that the jury would have to be satisfied beyond reasonable doubt that the applicant did say the things attributed to him, that they did constitute an admission by the applicant as to the alleged crime and that the admission was true’.
[3]The trial judge relied upon the judgment of Humphries J in R v Roberts [1942] 1 All ER 187 for these propositions.
These observations, from which there was no dissent by the prosecution, were largely reflected in reasons subsequently given by the trial judge for refusing to permit the defence to rely upon these passages of the conversations. In those reasons his Honour described the Crown excerpts as ‘admissions against interest’ and the defence excerpts as ‘self-serving statements’ which ‘favoured the accused’s interests’, made after he had been charged. His Honour emphasised that all of the self-serving statements were made over the telephone from the prison after the applicant was charged, the applicant being aware that the calls may be recorded. His Honour said that the applicant thus had the opportunity to manufacture evidence to support his cause. His Honour contrasted the defence excerpts with admissible exculpatory statements made by an offender in a record of interview when questioned by investigating police before charges were laid. The trial judge referred to a number of cases,[4] and concluded that whilst in some circumstances exculpatory statements may be admissible – such as one made shortly after an incident or one made in the course of a record of interview which contains a mixture of inculpatory and exculpatory statements – exculpatory statements made after the offender has been charged are not.
[4] R v Roberts [1942] 1 All ER 187, 191; R v Callaghan (1993) 70 A Crim R 350; Allied (Interstate) Queensland (Pty Ltd) v Barnes (1968) 118 CLR 581, 585 (Barwick CJ); Mule v R ( 2007) 221 ALR 85; R v Fry [2006] SADC 36.
On appeal, senior counsel for the Crown conceded that there were a number of errors in the ruling. First, he conceded that where a defence excerpt came from a conversation which also included an admission relied upon by the Crown, the excerpt was admissible. Second, the fact that such a conversation occurred after the applicant was charged did not provide a basis in principle for the exclusion of those portions relied upon by the defence.
It will be necessary to consider the basis upon which the Crown extracts were admissible and whether the defence excerpts from other conversations which the Crown did not seek to tender were also admissible.
Returning then to the events at trial, his Honour then foreshadowed that he would tell the jury that he had made a ruling excluding evidence which the defence had sought to lead but would otherwise say no more. His Honour instructed the jury accordingly. As a consequence, the jury must have been left with the impression that there were no exculpatory statements in any of the many conversations between the applicant and his wife which could bear upon any of the inculpatory statements upon which the prosecution relied. No specific complaint was made at trial or on appeal as to this particular instruction.
After the prosecution led evidence in chief from the applicant’s wife of the Crown extracts of the phone calls between her and the applicant, the trial judge gave the jury the specific direction of law in relation to express admissions which he had previously adumbrated. His Honour then told the jury that the Crown invited them to accept that the relevant conversations contained admissions by the applicant about his involvement in the crime. He told the jury that such evidence is permitted because it is thought unlikely that an innocent person would make untruthful admissions against his own interest.
The passages from the conversations between the applicant and his wife were relied upon by the prosecution as a form of post-offence conduct which was described throughout the trial as constituting admissions. Hence the jury had been invited to conclude that the statements made by the applicant contained some form of acknowledgement of his guilt. To the extent that they did, almost all of the alleged admissions were implied.[5] Although this was not articulated as clearly as it might have been at trial, the prosecution was seeking to demonstrate that the conversations between the applicant and his wife contained untrue exculpatory statements, intended to conceal his guilt, and which evidenced a ‘realization of guilt and fear of the truth’.[6] Senior counsel for the Crown rightly conceded on appeal that, subject to one exception, the extracts did not contain any express admissions. He maintained that all of the Crown extracts were admissible, however, to establish the broad purpose identified by the prosecutor at trial. In a few instances, he submitted, a statement was also admissible because it disclosed a knowledge of the circumstances of the crime which revealed the applicant’s involvement in the crime.
[5]Edwards v The Queen (1993) 178 CLR 193, 208-9 (Deane, Dawson and Gaudron JJ).
[6]Ibid 208, 210-11; DPP v Farr (2001) 118 A Crim R 399 (Smart AJ).
Senior counsel also properly conceded that the prosecution had failed to discharge its obligation to identify in precise terms how the post-offence conduct was relied upon. In R v Ciantar[7] this court referred to the course which should be followed at trial where the prosecution relies upon post-offence conduct:
Preferably, therefore, before the commencement of evidence, and in any event before the commencement of final addresses, the Crown should be required to identify to the judge, in the absence of the jury, particulars of the following:
a)any evidence of post-offence conduct on which the Crown seeks to rely as evidence of consciousness of guilt;
b)to what issue the evidence of post-offence conduct as evidence of consciousness of guilt relates; and
c)for the purposes of each such issue, the evidence in the case of any acts, facts and circumstances (in addition to the post-offence conduct itself) which is said to show that the post-offence conduct demonstrates consciousness of guilt as to that issue.[8]
[7](2006) 16 VR 26, [79].
[8]Ibid [82].
It was also acknowledged by the Crown on appeal that the necessary direction had not been given to the jury concerning post-offence conduct and implied admissions and that it had been a misdirection to give the jury only a direction in relation to express admissions.
To understand the significance of the passages of conversation upon which the Crown and defence sought to rely, it is necessary to refer to the prosecution case in some detail.
Circumstances of the offences
The offences charged occurred on 24 July 2006 and the events took place in relation to the property belonging to Herbert and Dorothea Lewis. The context was a dispute between the applicant and the Fairfield and Northcote branches of the RSL.
Herbert Lewis had known the applicant for approximately 20 years. Approximately 4 years prior to the offences, the applicant and two other members were expelled from the Fairfield RSL for 3 months, for being abusive to a crowd controller and knocking over some pot plants. Mr Lewis was then the secretary of the Fairfield RSL and was a member of the panel that imposed the expulsion. Mr Lewis had discussed the applicant’s life suspension with him several times. During these discussions the applicant’s demeanour was unpleasant. Following this temporary expulsion, at which time Mrs Lewis was (and continued to be until the date of the offence) treasurer of the Northcote RSL, Mr Lewis received a letter from the Northcote RSL advising that the applicant had been suspended for life.
As at 24 July 2006 Mr and Mrs Lewis resided at 78 Victoria Road, Northcote. There was a laneway which ran between Victoria Street and Vauxhall Road Northcote. There was another laneway that ran behind the Lewis’ premises. It was a dead end lane. This same laneway ran behind all the even numbered houses on Victoria Street, extending from properties numbered 78 to 92. The applicant resided at 84 Victoria Street with his wife and two daughters. The house was separated from the Lewis’ property by three houses.
Three weeks before the offences charged, a star picket was thrown from the lane into the Lewis’ property, breaking the window of the back bedroom and landing on the bed. RSL lighters and cans had previously been thrown onto the property. A few weeks prior to the offences charged Mr and Mrs Lewis installed a camera along the east-west side of their property, on the fencing. The camera faces into the property.
At 10.30 pm on 24 July 2006 Mrs Lewis was at home in bed. She heard a loud bang and the breaking of glass. A shotgun had been discharged through the bedroom window, which was obscured by a partially drawn blind. There was glass on the floor at the foot of the bed a couple of metres from the window and on the windowsill. There was damage to the window frame, the windowsill and the veranda railing, and there were two holes in the blind. A couple of pellets entered the wardrobe, causing damage to the shirt and coat hanging in the wardrobe. Other pellets lodged in the timber outside the bedroom window and in the windowsill. Mr Lewis who had been in the family room phoned the police.
Mr Lewis then went outside to the front of the premises. About 15 minutes after the shot was fired, the applicant approached Mr Lewis at the front gate. Mrs Lewis went outside and stood with her husband. The applicant said that he had obtained a VX number, which is required to become an affiliate member of the RSL. Mr Lewis told the applicant not to give it to him but to take it to the RSL. He said that it was up to the committee whether he could rejoin the RSL but that he was welcome to put in an application. Mr Lewis said there was no argument during the conversation. The applicant was wearing long trousers and a jacket. The applicant then walked south and turned left into Clarke Street. The police arrived shortly after.
At approximately 12.15 am, the applicant was observed by police walking up the laneway beside the Lewis’ home. He was holding a can and a plastic bag and wearing blue jeans and a navy and white jacket. He was searched and an unused shotgun cartridge was found in his pants pocket. The applicant told police that he had been at the pub and was walking home because the pub was closed. He said that he had found the shotgun cartridge on the ground. The applicant was arrested a very short time after the commission of the offence and his clothing was seized. He was interviewed and charged on 25 July 2006.
At 6.06 am a search warrant was executed at the applicant’s home. An empty shotgun carry bag and a suitcase with firearms and hunting magazines were seized. A member of the police dog squad attended with his dog at the scene at approximately 12.27 am. A search of the area was conducted to locate the firearm. The two laneways were searched but the firearm was not located.
At approximately 2.12 pm police found a rug approximately half a metre in length in the laneway sitting next to the roller door of 11 Vauxhall Road, directly behind the applicant’s premises at 84 Victoria Street. A single barrel sawn-off shotgun was found under the rug. There was a spent cartridge in the shotgun.
An examination of the firing chamber of the 12 gauge Sterling brand shotgun revealed a 12 gauge Winchester brand SG 00 Buckshot fired cartridge case inside the shotgun. A ballistic expert found a match between this cartridge and the wad and pellets found at or in the vicinity of the Lewis’ residence. Testing revealed that the shot was fired from a distance of at least 10 metres from the bedroom window. The shotgun cartridge found in the possession of the applicant was a 12 gauge FN brand. It was of a size suitable for use in the seized shotgun.
When a shotgun is discharged, the primer expels gunshot residue which can be transferred on to the clothing and hands of the person firing the weapon. Generally for the type of shotgun found, virtually all the residue issues from the muzzle, meaning that this type of shotgun can yield very little residue on the hands of the shooter as there is quite a long barrel. Because this weapon had been sawn off, however, there would be a greater transfer of this residue.
Samples were taken from the applicant’s hands, clothing, plastic bag and can, to test for gunshot residues. Testing revealed one particle which was identified as being a gunshot residue particle, produced through the discharge of a firearm originating from the primer chemicals in the original ammunition. This was detected on the lower right sleeve of the jacket that the applicant was wearing.
On 6 October 2006 police obtained the recordings of telephone calls made by the applicant to his wife, Kathy Rudd, from the Melbourne Remand Centre.
At the first trial, the applicant gave the following evidence. He was expelled from the Fairfield RSL. He thought that he would eventually get back in. He had asked Mr Lewis a few times. At about 6.30 pm on 24 July 2006 he went to the Grandview Hotel where he had ‘a few pots’. He returned home before 8.30 pm. At about 9.40 pm he walked back to the hotel but it was closed. He was wearing jeans and a jacket and carrying 4 cans of Jack Daniels in a plastic bag. As he was returning home, he found a shotgun cartridge at the start of the laneway near the corner of Vauxhall Road. He walked to the end of the lane where he was stopped by police. He could offer no explanation for how the shotgun residue got onto his sleeve. He denied that he fired a shotgun into the Lewis’ window. He said he did not place the shotgun under the rug.
He said he spoke to Mr Lewis when he left home to go to the hotel. He mentioned bringing down his VX number because he was going to join the RSL again. He then walked to the hotel and back again down the laneway. He testified that there were innocent explanations for all of the recorded telephone conversations. He was cross-examined about a number of the Crown extracts.
The Crown evidence in the second trial was broadly the same as the evidence of the first trial but the applicant called no evidence.
Admission of the Crown extracts
As mentioned earlier, the prosecution relied upon the conversations between the applicant and his wife as disclosing a design to conceal his guilt by the making of various false exculpatory statements. Evidence of attempts to procure or provide false evidence is one form of circumstantial evidence[9] from which a consciousness of guilt may be inferred. In R v Watt[10] Phillimore J said:
that the conduct in the litigation of a party to it, if it is such as to lead to the reasonable inference that he disbelieves in his own case, may be proved and used as evidence against him. The principle is well stated by Sir Alfred Wills ... in his edition of his father's work upon circumstantial evidence:
‘Amongst the most forcible of presumptive indications may be mentioned all attempts to pollute or disturb the current of truth and justice or to prevent a fair and impartial trial, by endeavours to intimidate, suborn, bribe, or otherwise tamper with the prosecutor, or the witnesses, or the officers or ministers of justice, the concealment, suppression, destruction, or alteration of any article of real evidence; any of which acts clearly brought home to the prisoner, or his agents, are of a more prejudicial effect, as denoting on his part a consciousness of guilt, and a desire to evade the pressure of facts tending to establish it’.
[9]R v Nguyen (2001) 118 A Crim R 479, [18] (Winneke P); R v Franklin (2001) 3 VR 9, [118].
[10](1905) 20 Cox CC 852, 853.
Most of the passages of conversations between the applicant and his wife were not hearsay. They were tendered to establish, not the truth of the statements, but the fact that they were made and that they were false.[11] If any part of these passages were hearsay, they fell within an exception to the hearsay rule.[12] The exception allows evidence of a party’s out-of-court statement to be introduced for the purpose of establishing the falsity of the statement and the inference to be drawn from its falsity.[13] In the present case, the Crown extracts were led to demonstrate concoction between the applicant and his wife, with that evidencing a consciousness of guilt. That use is consistent with that which is described in Marwaz Khan v R where, in the context of concocted alibi evidence between co-offenders, Lord Hodson said:
What is found against the appellants is that the statements were concocted for the purpose of escaping from the consequences of their crime and if false are admissible to show guilt. As has been said: ‘the recourse to falsehood leads fairly to an inference of guilt’.[14]
[11]Subramaniam v Public Prosecutor [1956] 1 WLR 965, 970; Walton v The Queen (1989) 166 CLR 283, 288 (Mason CJ); Pollitt v The Queen (1992) 174 CLR 558, 577 (Brennan J).
[12]Mawaz Khan v The Queen [1967] 1 AC 454.
[13]Ibid.
[14]Ibid 643.
The Crown extracts were in the main relevant and admissible as implied admissions. The basis of admissibility of each extract is briefly considered later in these reasons.
Where (as here) post-offence conduct is relied upon to support implied admissions, the necessary directions are quite different from those required where an accused has expressly admitted his guilt. The jury is required to undertake a different process of reasoning to determine the proper inferences to be drawn from statements relied upon as an attempt to conceal an accused’s guilt. I dealt with the consequences of the different ways in which the prosecution might seek to use post-offence conduct in R v Berry & Wenitong,[15] where I said:
[15](2007) 17 VR 153.
[101] The probative force of post-offence conduct will depend upon both its nature and the use which is sought to be made of it.If the prosecution contends that the accused engaged in such conduct – whether a lie or other post-offence conduct – because the truth would implicate him in the offence and the trial judge is satisfied that such an inference is properly open, an Edwards’ direction is required.
[102] In cases which involve a lie told by the accused, the issue will generally be confined to the question of whether the Crown relies upon it to demonstrate a consciousness of guilt or as only going to the accused’s credibility. Post-offence conduct is potentially of a different character as the Crown may rely upon it, not only to support a consciousness of guilt, but as proof of an element of the offence. It may do so by linking the accused to the commission of the offence or by permitting an inference to be drawn as to the accused’s state of mind.
[103] Where the post-offence conduct is not relied upon as an implicit admission of guilt but is relied upon for some lesser use of the evidence, the absence of a warning may not be of significance. But the use which a jury may make of the evidence is not to be conclusively determined by reference to the Crown’s asserted purpose. Where the Crown disclaims reliance upon the evidence for such a purpose it remains necessary for the trial judge to determine whether, notwithstanding that disclaimer, there is a real danger that the jury may apply such a process of reasoning in relation to such conduct. The cases of Chang and Nguyen are examples of where the trial judge ought to have so concluded. In such cases an Edwards’ direction is required. In R v Camilleri the Crown’s reliance upon the accuseds’ concealment of their involvement in the crime for a purpose other than to demonstrate a realisation of guilt, did not require an Edwards’ direction.
[104] Thus the purpose for which the evidence is relied upon, will be central to though not conclusive, as to whether an Edwards’ direction is required.[16]
[16]Ibid 184, citations omitted.
Moreover the prosecution also relied upon some statements as revealing unique knowledge by the applicant of a circumstance of the crime. This also called for a different direction from that which was given.[17] So did the prosecution’s reliance, in one instance, on what are sometimes described as ‘adoptive admissions’, where the applicant could be seen to agree with incriminating things said by his wife.[18] I shall return to the significance of the failure to properly characterise the Crown extracts and give appropriate directions.
[17]R v Kuster [2008] VSCA 261; Matusevich v R (1977) 137 CLR 633.
[18]R v Debs & Roberts [2005] VSCA 66, [311] (Vincent JA).
Admission of the Defence excerpts
As the Crown extracts were admissible, I turn to an examination of the principles which govern the admission of exculpatory statements. The applicant relied upon two propositions. First, that the Crown is obligated to place all relevant material before the jury, whether it hinders or helps the Crown case.[19] Second, that as to out-of-court statements led by the Crown, the Crown is not permitted to select a fragment and say that it bears out the Crown case, but not lead those parts that go against its case.[20]
[19]Whitehorn v The Queen (1983) 152 CLR 657, 674; Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, 292; Richardson v The Queen (1974) 131 CLR 116; R v Apostilides (1984) 154 CLR 563.
[20]Jack v Smail (1905) 2 CLR 684, 695; Mule v The Queen (2005) 79 ALJR 1573, 1574-1575 & 1579; Mahmood v Western Australia (2008) 232 CLR 397, cf R v Callaghan [1994] 2 Qd R 300.
Admission of a mixed statement containing inculpatory and exculpatory parts
Ordinarily, a statement which is purely exculpatory or self-serving is not evidence of the truth of its contents and is not admissible.[21] The clear exception is usually expressed as follows. A self-serving statement will be admissible where it forms part of a mixed statement made before the accused is charged,[22] which contains both inculpatory and exculpatory passages.[23] Hence, where one party puts in evidence a statement made by the other, the whole of the statement, including self-serving parts, becomes evidence of the truth of what was stated.[24] The genesis of the exception is the essential notion of ‘fair play’.[25] The exception is identified in Cross as being that ‘when an admission is read, everything ought to be read which is fairly connected with that admission’.[26] Thus a statement of the accused placed in evidence by the Crown becomes evidence for the accused as well as against him.[27] The accused is not confined to passages of his statement that qualify or explain the admissions upon which the Crown relies.[28]
[21]R v Roberts [1942] 1 All ER 187.
[22]But the exception is not to be confined to statements or other post-offence conduct which is made or occurs before the offender is charged.
[23]Cross on Evidence (Australian Edition) J.D Heydon [33455] (‘Cross’).
[24]Ibid [82]-[89].
[25]Jack v Smail (1905) 2 CLR 684, 695 (Griffiths CJ); Griffiths v The Queen (1994) 76 A Crim R 164, 169.
[26]Australian edition [33455].
[27] R v Berry & Wenitong [2007] 17 VR 153, [79].
[28]Ibid [82].
It is for the jury to decide what weight they will attach to the exculpatory parts of the accused’s statement and to consider the possibility that what was said may be true.[29] They may give different weight to different parts of the statement. In Berry & Wenitong I said:
[29]See for example R v Fry [2006] SADC 36, [18].
87 In the joint judgment in Mule a particular direction given in relation to the exculpatory portion of an accused’s statement was considered. The High Court observed that any direction which conveys to the jury as a matter of law that they are bound to give less weight to some parts of what was said to police than to others would constitute a misdirection. The Court stated that there would be no error of law if a trial judge directed the jury that they were entitled to give less weight to the appellant’s exculpatory assertions than they were to his inculpatory admissions so long as it was made clear that it was for the jury to decide what weight should be given to particular statements.
88 The joint judgment in Mule also drew a distinction between directions of law and the trial judge’s right to make observations on the facts or comment upon such a matter. The Court said:
An observation by the trial judge that the appellant’s out of court assertions, although disclosed in evidence by the prosecution’s tender of the video tape, were not sworn testimony, that, unlike the admissions, they were not against the appellant’s interests and that the jury could give them less weight than the admissions, was proper. ... As an observation on the facts, in the circumstances of this case, it was not inappropriate to point out that while the admissions of possession were accepted by both sides at the trial to be true, the assertions about purpose were in dispute, that they were not supported by any sworn testimony and that they were self-serving. It would also not have been inappropriate to point out that the jury might think them to be of less weight than the admissions.
89 The joint judgment in Mule cited a passage with approval from the judgment of Thomas J in Cox in which it had been said that it was ‘undesirable that juries be given general a priori directions as to what sorts of evidence are likely to be true, or as to the weight which should be accorded to different parts of the one statement’. The Court also stated that it was undesirable to direct juries by providing an explanation of the traditional reasons why admissions against interest are commonly regarded as reliable evidence.[30]
[30][2007] 17 VR 153, [87]-[89] (citations omitted).
The passages from Mule to which I referred in Berry & Wenitong show that the trial judge here adopted a flawed approach to the impugned exculpatory statements. With respect, it was not correct to assume that any exculpatory parts of the applicant’s statements could carry no evidential weight, or that the jury would have to be so directed, or that it would be desirable to suggest to the jury why any admission against interest, by contrast to self-serving statements, was more likely to be reliable.
Must the exculpatory statement be made at the same time as the inculpatory statement to fall within the mixed statement exception?
As I have said, the Crown conceded that allegedly exculpatory passages of conversation which occurred in a conversation relied upon by the prosecution should have been admitted, in accordance with the mixed statement exception to the hearsay rule, and that the exception operates where the mixed statement is made after the offender is charged. These concessions were soundly based and accord with the principle which underlies the exception. But senior counsel for the Crown maintained that the mixed statement exception did not permit the defence to introduce passages from a conversation unless the Crown relied upon some portion of that conversation. To determine whether such a distinction is justified, it is necessary to consider the underlying reasons for the exception and the way in which the Crown sought to rely on this material.
The implied admissions and other indicia of guilt contained within the Crown extract in large part rested upon the hypothesis that the applicant and his wife knew they were being recorded and made untruthful exculpatory statements which reveal a shared (and unspoken) understanding between them that the applicant had committed the offence. It was the Crown case that their purpose of falsely asserting the applicant’s innocence continued throughout all of these conversations. Such probative value as the exculpatory material had, was relied upon by the defence to contradict that assumption. The defence wished to mount the argument in which they would ask rhetorically, why would the applicant deny to his wife the commission of the offence, if they both knew that he did it? In this way, it was said by the applicant, that evidence of the alleged shared understanding of the applicant’s guilt could be rebutted by placing the full narrative of the conversations between the applicant and his wife before the jury. It would be unfair, it was submitted, for the prosecution to rely upon statements which suggested that the applicant and his wife knew that he was guilty, but deny the admissibility of statements made in the same series of conversations which suggested he was innocent.
The Crown submitted that Willis v R,[31] Middleton v R[32] and Flowers v R[33] supported the proposition that the ‘mixed statement’ rule only applied to exculpatory statements made ‘at the same time’ or ‘on the same occasion’ as the inculpatory admissions.
[31](2001) 25 WAR 217.
[32](1998) 19 WAR 179, 189–190 (Ipp J).
[33](2005) 189 FLR 423.
Willis v R[34] involved an applicant who had been convicted of murder. Relevantly, two police interviews were recorded on separate days. The first involved mixed statements and was wholly admitted into evidence. The second interview contained exculpatory statements and was excluded as it fell outside the mixed statement exception to the hearsay rule. The majority held that the separate exculpatory statement was inadmissible, as the second interview did not help to explain the first interview. The possibility that in certain circumstances a subsequent statement might be admissible for this purpose was left open, however.
[34](2001) 25 WAR 217.
The minority judgment of Wallwork J relied upon the importance of giving the jury the full picture or narrative of the evidence. His Honour emphasised that the hearsay rule is not to be applied inflexibly where injustice would result. He referred to a passage from the judgment of Mason CJ in Walton v The Queen[35] where his Honour said:
[35](1989) 166 CLR 283.
The hearsay rule should not be applied inflexibly. ... Equally, where in the view of the trial Judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the
Judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay.[36]
and a passage from the judgment of Deane J where his Honour said:
The hearsay rule should not, however, be inflexibly applied but should be qualified where the circumstances are such that its inflexible application would confound justice or common sense or produce the consequence that the law was unattuned to the circumstances of the society which it exists to serve.[37]
[36]Ibid 293.
[37]Ibid 308.
The mixed statement exception to the hearsay rule was also considered in Middleton v R.[38] There, the trial judge refused a defence request to lead evidence of a mixed statement made by the accused at the scene of the offence. This was partly based on the erroneous view of the prosecution that that statement was inadmissible as an untaped confession. Approximately six hours after the first admissions, a video taped interview was held with the applicant. This was admitted. It was held on appeal that the comments made at the scene were admissible as a result of the admission of the later taped interview. The members of the majority gave quite different reasons for admitting that evidence, however Ipp J held that the first statement was admissible, not under the ‘mixed statement’ exception, but as evidence which was admissible to show the state of mind of the applicant during the second interview. On the other hand, Heenan J held that the first statement was part of a ‘connected series of statements which should have been available for the consideration by the jury as forming one narrative’ and ‘because of its close association with the event in time, place and circumstances the appellant’s admission was of considerable weight ... one would have expected the Crown to lead evidence of it.’[39] It is unclear whether his Honour treated the case as including an expansion of the mixed statement exception or a new exception to the hearsay rule. In dissent, Pidgeon J held that the new evidence was in no way part of the second statement, and therefore fell outside the mixed statement exception.
[38](1998) 19 WAR 179.
[39]Ibid 202.
Flowers v R[40] involved an appeal against conviction on a number of offences including rape. During a conversation with investigators the appellant denied knowing the complainant. The appellant was intoxicated at this time. Later, a police interview was recorded after the applicant had become sober. At this time the applicant acknowledged the identity of the complainant and made certain exculpatory statements. The Crown refused to lead evidence of this exculpatory interview. The first interview was led as evidence of a false denial demonstrative of a guilty conscience. The trial judge did not permit the defence to introduce the second interview into evidence or to undertake cross-examination of the investigating detective to establish that exculpatory statements had been made.
[40](2005) 189 FLR 423.
On appeal, the appellant submitted that the taped interview was part of a connected series of statements which should have been available for consideration by the jury. As the first statement (the initial false denial) was allowed to stand alone, it did not give the whole picture. A majority of the Court held that evidence of the later exculpatory interview should have been led. Martin CJ found that the evidence was admissible as a result of the way in which the Crown used the evidence of the first interview.[41] As the Crown relied upon the first interview as containing a false denial indicating consciousness of guilt, the trial judge ought have to have ruled that the appellant was entitled to cross-examine the investigating detective as to what was said in the later interview. The jury should have had the opportunity of contrasting the appellant’s sober comments with his initial statement, before drawing any conclusion as to consciousness of guilt by reason of the initial false denial. Ultimately, however, his Honour found that there could be no miscarriage of justice due to the minimal importance of the first interview to determining the issues at trial. Also dismissing the appeal, Riley J held that the evidence was inadmissible as it did not fall within the mixed statement exception to the rule against hearsay.[42] In dissent, Southwood J held that the evidence should have been led to allow the ‘full picture’ of the interviews to emerge.[43]
[41]Ibid [9].
[42]Ibid [41].
[43]Ibid [73].
Before turning to consider the approach adopted by the trial judge, it is necessary to consider the High Court decision in Mahmoud v Western Australia.[44]There part of a video re-enactment was shown to the jury. The prosecution sought to use that part of the video as the basis for submissions that were arguably inconsistent with the rest of the video. It was not in issue that the entire re-enactment would have been admissible once the prosecution sought to lead part of it. In the joint judgment of Gleeson CJ, Gummow, Kirby and Keifel JJ, their Honours confirmed that, once the arguably inculpatory piece of the video re-enactment was introduced, it was incumbent upon the prosecution to admit the balance of the video enactment which might have had an exculpatory effect, as the jury might then have taken a different view of that piece of the re-enactment.[45] Hayne J (who agreed with the other members of the court) emphasised the duty of the prosecution to lead all of the out-of-court assertions, including those parts which were exculpatory, not just that portion which was inculpatory. Once the prosecution had resolved to tender the record of interview which preceded the re-enactment, Hayne J said the prosecution were obliged to have tendered the whole of the re-enactment as a necessary part of the narrative which would complete the account of the events upon which the prosecution was based.[46]
[44](2008) 232 CLR 397.
[45]Ibid [14].
[46]Ibid [39].
The decision in Mahmoud reflects a general principle of fairness that animates a number of cases involving the mixed statement rule.For example in R v Rymer,[47] Grove J (with whom Barr and Latham JJ agreed) concluded after careful consideration of authority, that the Crown should have led evidence of a number of exculpatory statements made by the accused when confronted with the allegations some years after the date of the alleged offence. This was so even though the statement contained no inculpatory parts at all. The obligation to introduce the exculpatory evidence was said to comply with the rule of fair play essential to the proper administration of justice.
[47]R v Rymer (2005) 156 A Crim R 84, [32]-[35] (Grove J); R v Pearce (1979) 69 Cr App R 365.
Similarly in R v Su, Katsuno, Asami and Honda,[48] Winneke P, Hayne JA and Southwell AJA speaking of exculpatory utterances made within a record of interview said that:
such material is traditionally led by the Crown, whether incriminating or not, both as a matter of fairness and to show the ‘first opportunity’ response by the accused to the allegations made against him by his accuser.
[48][1997] 1 VR 1, 64.
In the present case, as the Crown conceded, the trial judge was in error in assuming that the mixed statement exception to the hearsay rule could not apply to statements made after an offender had been charged, and also in assuming that a distinction must be drawn between a record of interview between the offender and investigating police and a conversation between the offender and a third party. The exception is not so circumscribed. If the Crown relies upon admissions made after the accused has been charged, the mixed statement exception will apply to any exculpatory statements made at the same time. In addition, the mixed statement exception is broad enough to admit exculpatory statements not made at the same time as the inculpatory statement relied upon by the Crown, provided that the exculpatory statement is made in circumstances which connect it to the purpose upon which the admissibility of the inculpatory statement rests.
In the present case, it was the case advanced by the prosecution that rendered admissible the self-serving statements.[49] What occurred here is an instance of the general rule that the nature of the admissions, and the manner in which the prosecution seeks to prove them, may engage the exception to the hearsay rule, so as to permit the introduction of exculpatory statements which place the admissions in their proper context or qualify or explain them.
[49][33455] 33, 134.
This conclusion – that the exculpatory passages of conversations which occurred on different occasions from those relied upon by the prosecution are admissible – is consistent with the general principle of fairness that animates the mixed statement exception. It is, furthermore, in accordance with the duty of the prosecutor to lead all relevant evidence so as to give the jury a complete and fair understanding of the events upon which the prosecution relies.
In the present case, the admissibility of the exculpatory statements, made in separate conversations from those relied upon by the Crown, depended upon whether the circumstances, which rendered the statements inculpatory still existed when the exculpatory statements were made. If so, the exculpatory utterances, ought fairly to have been admitted. The criteria of ‘reliability’ discussed in Walton would be met.
As set out above, it was the prosecution case that the recorded conversations contained implied admissions, as there was a continuity of purpose throughout, namely, a continuing intent by the participants to conceal the applicant’s guilt and falsely assert his innocence. In my view, the conversations were sufficiently similar in character and purpose, so that the conversations relied on by the defence should have been treated as falling within the ‘mixed statement’ exception. The hypothesis of the Crown as to the purpose of these conversations, and the inferences to be drawn from them, required the full picture to be placed before the jury. The exculpatory statements might have qualified or explained the inculpatory passages. In theory they might have affected the jury’s view as to the inference to be drawn from the conversations relied on by the Crown.
It follows that the trial judge was in error in excluding the passages upon which the defence wished to rely.[50] Once the prosecution had resolved to introduce some parts of these conversations, then – subject to the defence showing the relevant connection of the passages on which it relied to those passages upon which the Crown relied – the prosecution was obliged to tender such portions of the conversations as the defence requested be tendered. As a matter of fairness, the prosecution should have adduced such evidence as part of its own case.[51] This was the position initially proposed by the learned prosecutor. If these passages had been admitted, they would have been admissible for all purposes.[52] It would have been for the jury to determine what weight they received.
[50]Berry & Wenitong v R (2007) 17 VR 153.
[51]See for example The State of Western Australia v Yerkovich [2004] WASC 62.
[52] R v Berry and Wenitong [2007] 17 VR 153.
Review of the Crown extracts and the Defence excerpts
It remains to review each individual passage relied upon by the Crown or the defence. Some of the Crown extracts were said to contain an express admission against interest; others were said to contain statements which revealed a knowledge of the crime which tended to show the applicant’s involvement. It is necessary to determine whether and on what basis each Crown extract was admissible and then to determine on which basis of admissibility the defence excerpt was relevant and its potential significance. The Crown and defence extracts are contained in an annexure to these reasons. Here I have summarised the import of each extract.
27 July 06 at 3.01 pm
Crown Extract 1 contains no express admission. It may indicate a knowledge by the applicant and his wife of the gun used in the offence. The Crown on appeal described this as an implied admission. It was admissible on this basis. Extract 2 contains no express admission but an assent by the applicant to his wife’s question ‘did someone give you up?’. The Crown did not maintain on appeal that extract 2 was admissible. Extract 3 contains no express admission but, like excerpt 1, contains discussion about the police finding the weapon. Extract 4 contains what the applicant conceded on appeal was an implied admission, as the applicant agreed he would do ‘a big whack out of this’. Defence excerpt 1, which immediately preceded Crown extract 2, was admissible as part of the conversation on which the Crown relied and as arguably qualifying or explaining the meaning to be given to the passages relied upon by the Crown. Senior counsel for the Crown properly conceded this should have been admitted into evidence.
27 July 2006 at 4.00 pm
In Crown Extract 5 the applicant at some length instructs his wife as to the content of the statement she should make to police and inquires as to whether she has already said something which may incriminate him. It was admissible as post-offence conduct containing an implied admission.
30 July 2006 at 9.54 am
Crown Extract 6 concerns the coverage of a surveillance camera the victim had installed about three weeks before the offence. In Extract 7 the applicant inquires as to whether his wife had washed certain clothing.[53] In Extract 8 the applicant states that he may do the same thing to other neighbours and agrees with his wife that it would get worse every time he did it. The Crown submitted that each of these extracts contained an implied admission. They were admissible on that basis.
[53]See also Crown Extract 12.
30 July 2006 at 1.52 pm
The defence relied upon two extracts from this conversation which occurred after the conversation earlier that day relied upon by the Crown. Defence Excerpts 2 and 3 involve a denial by the applicant that he committed the crime, a claim that the police will find no forensic evidence on his clothes and that he intends to seek bail. It was admissible as occurring within the context of the ongoing telephone conversations which the Crown contended disclosed a general purpose, namely to conceal the applicant’s guilt. The Crown also relied upon subsequent statements made by the applicant to his wife in later conversations. In these circumstances the conversation should have been viewed as part of a continuum so that the exculpatory statements contained within them were admissible. These excerpts arguably qualified or explained other parts of the earlier and later conversations upon which the Crown relied.
1 August 2006 at 1.52 pm
Crown Extract 9 contained an arguable disclosure of knowledge as to when the crime was committed. The cogency of this piece of evidence depended upon proof that the applicant had not learned from some other source when the crime was committed.[54] Defence Excerpt 4 from the same conversation in part deals with the same issue. The Crown conceded on appeal that it should have been admitted.
[54]R v Kuster [2008] VSCA 261.
4 August 2006 – 1. 52 pm
Defence Excerpt 5 is from a separate conversation in which the applicant asserts the police have no incriminating evidence. This excerpt was admissible as part of the continuum of conversations upon which the Crown relied to establish the broad purpose for which it contended.[55]
[55]See comments on Defence Excerpts 2 and 3.
6 August 2006
In Defence Excerpt 6 the applicant denies that he has any motive to hurt the victim. It was admissible for the same reasons as excerpt 4.
6 August 2006 at 6.08 pm
Crown Extract 10 concerns an inquiry by the applicant as to the whereabouts of the rug in which the gun was wrapped. The Crown did not on appeal contend this extract was admissible on any basis.
12 August 2006 at 3.40 pm
In Crown Extract 11 the applicant offered the explanation that he picked up the cartridge in the lane so that his cat could play with it. This was an arguable implied admission to be inferred from a lie. The applicant later gave a different explanation for picking up the cartridge.[56] In Defence Excerpt 7 the applicant suggests that his barrister will say at a trial that he would not have been stupid enough to keep the cartridge in his pocket if he had committed the crime. The Crown conceded this excerpt to be admissible as bearing upon the Crown extract concerning the cartridge.
[56]See Defence Extract 9.
14 August 2006 at 9.10 am
In Crown Extract 12 the applicant says that the police investigator must have ‘jerried’ that the applicant changed his clothes which they then missed in the raid. This was capable of being an implied admission.[57] Defence Extract 8 which immediately follows the Crown extract is relevant to that issue. The Crown concedes that it should have been admitted.
[57]See also Crown Extract 7.
21 August 2006
In Defence Excerpt 9, the applicant offers the explanation that he picked up the cartridge because his children play in the lane. The extract is admissible and qualifies Crown extract 11. The applicant proffered this explanation in cross-examination. It is also admissible in answer to the general purpose of the conversations claimed by the Crown.
27 August 2006
Defence Excerpt 10 involves an account by the applicant’s wife of a conversation with the police investigator in which he was said to express the belief that the applicant was guilty. It was conceded by the applicant on appeal that this excerpt was irrelevant to any issue. Defence Excerpt 11 contains denials by the applicant’s wife that the applicant is guilty and is admissible in answer to the general purpose asserted by the Crown.
Defence Excerpt 12 contains a denial by the applicant of his guilt. Given the general purpose of the conversations alleged by the Crown, defence excerpts 11 and 12 were admissible.
Failure to give a consciousness of guilt direction
As a consequence of the concessions made by the Crown on the appeal, the applicant was granted leave to add a further ground that raised the failure of the trial judge to give a ‘consciousness of guilt direction’ in respect of the alleged implied admissions. No explanation was offered on appeal as to why no Edwards-type direction was sought by the defence. It may well be that trial counsel concluded that such a direction would be disadvantageous to the applicant, as it would give undue prominence to aspects of the applicant’s conduct.[58] Be that as it may, the failure by the trial judge to correctly characterise the admissions and to give necessary directions and the refusal to admit any of the defence excerpts, were errors of law which enliven s 568(1) of the Crimes Act 1958. The grounds that raise each of these complaints is made out.
[58]R v Chang (2003) 7 VR 236.
Application of the proviso
The Crown relies upon the proviso to s 568(1) of the Crimes Act 1958 and submits that, notwithstanding such errors of law, there was no substantial miscarriage of justice.
Sometimes it is possible for an appellate court to be satisfied that it can apply the proviso even though it has not seen or heard the witnesses.[59] The nature of the case made against an appellant may be such that the appellate court will be well placed to make its own evaluation of the evidence and a determination as to the guilt of the appellant. This may be so – as here – where the prosecution relies principally upon circumstantial evidence. The error of law may not by its nature be one which deprives the court of the capacity to assess the strength of the case against the accused and conclude that there has been no substantial miscarriage.
[59]See Weiss (2005) 224 CLR 300, [41].
In the present case, the Crown submitted that there were no ‘natural limitations’ which required this Court to conclude that it could not reach the necessary degree of satisfaction. It was said that the cogency of the circumstantial evidence remained unaltered by any evidence given by the applicant. Counsel for the applicant properly acknowledged that the fact that applicant gave evidence did not preclude the application of the proviso. He nonetheless submitted, as had been contended in R v Ciantar, that the proviso cannot be properly applied where a jury were not given necessary directions concerning the process of inferring a consciousness of guilt.[60] But as this court said in Ciantar:
The nature of the case made against an appellant may be such that the appellate court will be well placed to make its own evaluation of the evidence and a determination as to the guilt of the appellant. This is often likely to be so where the Crown relies principally upon circumstantial evidence. Furthermore, the appellate court may also be in as good a position as the jury to assess the post-offence conduct in conjunction with the rest of the circumstantial evidence, to determine whether it gives rise to the inference that the post-offence conduct exhibited consciousness of guilt by the offender and whether, in the circumstances, he or she is guilty of the offence in question. Thus, subject to the qualifications stated in Weiss, and the necessity to bear in mind the matters of principle that were articulated by Kirby J in Darkan to which reference has been made, we consider that, ordinarily, the mere fact that the misdirection relates to consciousness of guilt evidence does not mean that the resulting miscarriage of justice must be treated as a ‘substantial miscarriage of justice’ such as to preclude the application of the proviso.[61]
[60]R v Ciantar (2006) 16 VR 26, [107].
[61](2006) 16 VR 26, [112].
In Berry & Wenitong v R[62] I expressed a similar view:
In any event to succeed on appeal against conviction on the basis that the trial judge failed to give an Edwards direction, the appellant must show that it is ‘a reasonable possibility’ that the failure to give the direction ‘may have affected the verdict’. Having regard to the strength of the circumstantial evidence and the fanciful nature of the hypothesis which counsel now contends should have been explored with the jury, there was not, in my view, a reasonable possibility that an Edwards direction would have made any difference.[63]
[62](2007) 17 VR 153.
[63]Ibid [105].
In this case, the errors of law do not impede this Court’s ability to assess the entirety of the circumstantial evidence relied upon by the prosecution. Its accuracy and reliability remains unaffected by the errors in the trial. The evidence was compelling and its salient features point ineluctably to the applicant’s guilt.
The evidence that the applicant had a motive to commit the offence remained unaffected by his testimony. The incident three weeks before the offence, involving items from the RSL,[64] was not in issue. The proximity of the applicant’s residence to the victims, and his opportunity to commit the offence, were established by the evidence. The applicant’s account of when he returned from the hotel, having found it closed, the time of his conversation with Mr Lewis on the street, and the time when he was seen in the laneway by a police officer after he claimed to find the cartridge in the laneway, were internally inconsistent and could not be reconciled with the objective facts. The cartridge found in the applicant’s pocket when searched a short time after the offence was compatible with the firearm used in the offence. The applicant gave different and inconsistent explanations of how he came to find the cartridge in the lane.
[64]See para [26] above.
His presence outside the victims’ premises a short time after the offence, and his focus at that time upon his re-instatement as an RSL member, were not in dispute. The empty shotgun bag and other firearms found in the applicant’s house, viewed in conjunction with the finding of the shotgun used in the offence in a rug in the laneway behind the applicant’s premises, were not in issue. The gunshot residue found on the applicant’s clothing, which was linked to the discharged ammunition used in the offence, remained unexplained. Based upon that evidence and after taking into account the applicant’s evidence, I am satisfied that the applicant’s guilt was proved beyond reasonable doubt.[65]
[65]Weiss v R (2005) 224 CLR 300, [44]; Gassy v The Queen (2008) 236 CLR 293, [18] (Gummow, Hayne JJ).
I have reached that conclusion entirely without regard to the passages of conversations between the applicant and his wife relied upon by the Crown. Most of those passages which I have considered were admissible point to the applicant’s guilt. They either reveal a knowledge of aspects of the offence, or contain an express or implied admission of guilt. The defence excerpts which should have been led in evidence do nothing to diminish the cogency of the Crown case. If anything, they tend to fortify the Crown hypothesis as to the applicant’s purpose during these conversations.
I am therefore satisfied that there has been no substantial miscarriage of justice. Leave to appeal against conviction should be refused.
The appeal against sentence
I turn to the applicant’s appeal against all of the sentences imposed. At the outset, the applicant abandoned a submission raised in his outline of submissions that the sentences imposed on the counts of reckless conduct endangering life, and being a prohibited person in possession of an unregistered firearm, involved an element of double punishment. Under cover of the remaining ground – that the sentences imposed and the total effective sentence were all manifestly excessive – the applicant primarily relied upon the contention that a sentence of three years on the count of possession of an unregistered firearm was outside the range of sentences open to the sentencing judge.
It was submitted that the severity of the sentence indicated that the learned sentencing judge had erred by taking into account the circumstances in which the firearm was used. That argument must be rejected. The circumstances in which the applicant had possession of the firearm was a highly relevant consideration. Material to the seriousness of the offence is proof that the firearm was used in the commission of a crime or was retained for a criminal purpose. The cases considered since the maximum term of imprisonment for this offence was increased to fifteen years imprisonment in 2003[66] are discussed in R v Graham.[67] They show that the circumstance that the firearm was an integral part of other offending, or had a part to play in ongoing criminal activity is relevant to the sentence passed.[68] Indeed, the appeal in Graham was in part allowed because the applicant was not in possession of the firearm for a criminal purpose.[69] The significance of the purpose for which the firearm was possessed was again emphasised in R v Rosenow.[70]
[66]S.5(1A) Firearms Act 1996.
[67](2007) 178 A Crim R 467.
[68]Ibid [10].
[69]Ibid [15].
[70][2007] VSCA 265, [20]-[22] (Ashley JA).
The circumstances of the offence, and those personal to the applicant, attracted a range of sentences reserved for the most serious examples of this crime. The offence is one designed to deter persons with particular prior convictions from taking possession of an illegal firearm. Amongst his many prior convictions, the applicant had convictions for shooting with intent to avoid lawful apprehension; wounding with intent to cause grievous bodily harm; rape; assault with a weapon; assault occasioning actual bodily harm; making threats to kill; reckless conduct endangering life; possessing a firearm whilst prohibited; carrying a firearm whilst prohibited; possessing a regulated weapon; possessing a prescribed weapon without exemption; and offences of possessing ammunition without a licence.
As the sentencing judge observed, the applicant was not to be punished for crimes previously committed but his appalling record impacted upon the sentencing process in a number of ways. It supported the conclusion of the learned sentencing judge that there was no basis for real optimism that the applicant would be rehabilitated. His record, showing a continuing attitude of disobedience to the law,
meant that specific deterrence and protection of the community were significant sentencing considerations in this case. There was little that could be said by way of mitigation.
Counsel for the applicant, quite responsibly in my view, did not advance any specific argument that the sentence on the count of reckless conduct endangering life was not open. There is considerable force in the Crown’s submission that the applicant was, in all of the circumstances, treated with leniency. The objective gravity of both offences, considered in conjunction with the applicant’s antecedents, called for substantial sentences. It was entirely appropriate to order that a portion of the sentence on the firearm count be made cumulative upon the sentence for reckless conduct endangering life.
Leave to appeal against the sentences should be refused.
VICKERY AJA
I have the advantage of reading in draft the reasons for judgment of Redlich JA. I agree for the reasons expressed by his Honour that the applications for leave to appeal against conviction and sentence should be refused.
- - -
ANNEXURE
Conversation at 15.01 on 27 July 06.
Crown Extract 1:
APPLICANT That’s because they never found the thing.
CATHY RUDD: No, it’s got nothin’ to do with that. The thing’s been found.
APPLICANT: Yeah, I know. They found it an hour before I fronted court. He said – that’s what he said on court yesterday. He goes, ‘We’ve located the thing and we located it about an hour ago.’
CATHY RUDD: Well, I don’t reckon that’s true.
APPLICANT: Well, that’s what he said in court and he said it under oath.
CATHY RUDD: Well, they’ve been lookin’ for somethin’ else then.
APPLICANT: They’ve been lookin’ for somethin’ else?
CATHY RUDD: Yep, because they’ve been here. They’ve been around … Road to the back of the thing.
APPLICANT Yeah.
CATHY RUDD Right up to 4 o’clock Tuesday night and there’s been, and I’m tellin’ you, a full on search everywhere.
Defence Excerpt 1:
APPLICANT: Well, if anyone says anything or just looks at you or anything just say, ‘Hey, listen, my husband’s been accused of somethin’ that he hasn’t done.’
Crown Extract 2:
CATHY RUDD: Did someone give you up?
APPLICANT: Yeah
CATHY RUDD: Yeah, that’s what I thought.
APPLICANT: Hughie.
CATHY RUDD: Nah, nah, nah.
Crown Extract 3:
APPLICANT: And I fronted court yesterday. No, because they still hadn’t found anything.
CATHY RUDD: No, they - - -
APPLICANT: They did – they – they didn’t find it until - - -
CATHY RUDD: They found it on Tuesday.
APPLICANT: No, he – well, he said in court they found it – yesterday when I went to court he said, ‘We – the – the thing’s just been located an hour ago.’
CATHY RUDD: Well, what – I’m gonna ask you a question. Did you have a car?
APPLICANT: No.
CATHY RUDD: Are you sure?
APPLICANT: Positive.
CATHY RUDD: Alright. Because there’s … I – look, I’m not gonna be able to discuss this over the phone, but there’s a fair bit I’ve got to tell you.
APPLICANT: Yeah, okay then.
Crown Extract 4:
CATHY RUDD: Well, the other thing is you know you’re gonna be doin’ a big – a big whack out of this.
APPLICANT: I think so too.
CATHY RUDD: Yeah, you’re gone.
APPLICANT: I don’t know about gone yet because I asked him – I said, ‘Any witnesses or anything’, and he goes, ‘No’.
CATHY RUDD: Well, are you laughing now, Allan? Do you think it’s a fuckin’ joke?
APPLICANT: No, I don’t.
CATHY RUDD: Yeah. You did on fuckin’ Tuesday.
APPLICANT: Well, I’ve got five seconds left, alright. Listen, I’ll ring you tomorrow mornin’.
Conversation at 16.00 on 27 July 06
Crown Extract 5:
APPLICANT: You contact her and just tell her that you want her to make an appointment with the coppers because you want to make a statement to say that I was home that night.
CATHY RUDD: I’ve already made a statement.
APPLICANT: Oh no. Well, what – what did you say? I was home that night?
CATHY RUDD: I said that you were ho-, they asked me, ‘When was he here last? When did he leave?’ Blah, blah, blah.
APPLICANT: Yeah.
CATHY RUDD: Right?
APPLICANT: Yeah.
CATHY RUDD: And I just said that on Monday you left here at 4 o’clock. Right?
APPLICANT: Yeah.
CATHY RUDD: And I said, ‘I went out for … because my daughter’s goin’ to Vietnam and we had to go and get … …’
APPLICANT: Yeah.
CATHY RUDD: You rang me. Right?
APPLICANT: Yeah.
CATHY RUDD: I came back, let you in, I went, I came back, you were still here and then you left.
APPLICANT: Well, that’s okay. That’s good. Well, that – that’s new circumstances for bail because you – because all I’ve done when I’ve left, I’ve just left, gone around the pub, the pub was shut and I’ve walked back home.
CATHY RUDD: Well … …
APPLICANT: What happened?
CATHY RUDD: I don’t know what – I don’t know what – I’ve got to get my statement off ‘em.
APPLICANT: Yeah … …
CATHY RUDD: What?
APPLICANT: … … they’ve probably just … … this fuckin’ phone. They’ve probably just said you’ve said anything.
CATHY RUDD: No … … sign on a bit of paper. I’ve read it and I’ve signed it.
APPLICANT: You have – you didn’t sign it?
CATHY RUDD: Yes. I had to.
APPLICANT: … … down on a bit of paper.
CATHY RUDD: What?
APPLICANT: They writ it down on a bit of paper?
CATHY RUDD: They wrote it on a big sheet of paper.
APPLICANT: Yeah. And you signed it?
CATHY RUDD: Yes.
APPLICANT: Did you – did you read it?
CATHY RUDD: Yes, of course I fuckin’ read it.
APPLICANT: And what did it say? Just - - -
CATHY RUDD: For fuck’s sake, I don’t remember now.
APPLICANT: Just what you just sort of virtually told me?
CATHY RUDD: Yes.
APPLICANT: Well, that’s okay because I was home, I was home, I was home and then when you come home you – you just said, ‘Look, I don’t want you drinkin’ in front of the girls’, and I said, ‘Okay, well, I’m goin’ down the pub’. So I went around the pub, the pub was shut and I come back home. That was it. I was only gone 15 minutes.
CATHY RUDD: Yeah, I know, but the thing is that they’ve been quizzin’ me after that. I can’t tell you on the phone.
APPLICANT: Hey?
CATHY RUDD: I can’t tell you on the phone.
APPLICANT: Oh shit, it’s somethin’ – it’s somethin’ that’s gonna send me down, is it?
Conversation at 9.54 on 30 July 06
Crown Extract 6:
APPLICANT: What happened, babe?
CATHY RUDD: … got a camera.
APPLICANT: Has he?
CATHY RUDD: Yeah. It looks down the lane, right.
APPLICANT: No, don’t go - - -
CATHY RUDD: … …
APPLICANT: What do you mean it looks down the lane? What – what’s it on, the pole in the street?
CATHY RUDD: No, no, no, it’s on his fuckin’ house.
APPLICANT: Yeah.
CATHY RUDD: Facing down the lane.
APPLICANT: Well see, he’s goin’ to – they’re goin’ to say that in court. They’re goin’ to say ‘Look, this man was that terrified now’, - - -
CATHY RUDD: Yeah, that’s right.
APPLICANT: ‘That he’s had to put surveillance up and blah, blah, blah.’
CATHY RUDD: … … on Friday but … … what I’m goin’ to do, fuckin’ … …
APPLICANT: Yeah.
CATHY RUDD: It can’t see you. It can’t see … at all.
APPLICANT: It couldn’t see you?
CATHY RUDD: The – the camera can’t see you.
APPLICANT: What, when you’re walkin’ up against the fence?
CATHY RUDD: Against the fence, yeah.
APPLICANT: Okay.
CATHY RUDD: But if you go - - -
APPLICANT: So – but if you’re walkin’ in the middle of the lane, it can?
CATHY RUDD: … … fuckin’ oath. … …
APPLICANT: No.
CATHY RUDD: … …
APPLICANT: No, he’s had that put on this week.
CATHY RUDD: Yeah.
APPLICANT: Is – this thing picks up the window?
CATHY RUDD: No.
Crown Extract 7:
CATHY RUDD: And I’m goin’ to say to him, ‘What’s happened with his clothes?’ and I bet you - - -
APPLICANT: He – he’ll say they’re at forensic getting’ tested.
CATHY RUDD: Alright. And I’m goin’ to say, ‘Well, when they’re finished, what happens to ‘em when they’re finished?’
APPLICANT: They’ll be used as evidence at the trial.
CATHY RUDD: Oh.
APPLICANT: And then after the trial, then I get ‘em back.
CATHY RUDD: Then you know what I was goin’ to say?
APPLICANT: What?
CATHY RUDD: I was goin’ to say to him, ‘I want ‘em back because I went to wash ‘em so I can take ‘em with me’.
APPLICANT: And you done the other washin’ when you got home last night, didn’t you?
CATHY RUDD: Yeah.
APPLICANT: Well, that’s okay. Beautiful. Beautiful, because that was on my mind a bit too.
CATHY RUDD: I done that straight away.
Crown Extract 8:
CATHY RUDD: I’m embarrassed to walk out the door.
APPLICANT: Don’t be, babe. Don’t be. And if anyone says anything to you, just say, ‘Listen, don’t look at me as if I’m fuckin’ a criminal, you fuckin’ bastard’. I said – ‘Because he’s comin’ out on bail soon. He’ll be out on bail fuckin’ soon.
CATHY RUDD; But - - -
APPLICANT: ‘So look at me –‘ let ‘em look at me like I’m a fuckin’ piece of shit and they might – and the same thing might happen to them.
CATHY RUDD: Yeah, but Allan, it’s just causin’ more trouble. We can’t afford to at the moment.
APPLICANT: Yeah.
CATHY RUDD: Because it’s goin’ fuckin’ worse and worse every – every time we do it.
APPLICANT: Yeah.
CATHY RUDD: It’s just goin’ to cause more trouble.
Conversation at 13.52 on 30 July 06
Defence Excerpt 2:
APPLICANT: Yeah. See and what another thing I’m thinkin’, now by the time I go to court in October, right, if forensics finish with my clothes and there’s no fuckin’ residue on ‘em, which there shouldn’t be because I’ve done nothing wrong - - -
CATHY RUDD: Right.
APPLICANT: Well, that’s – that’s my new grounds for bail. That’s my new grounds for bail. Just say, ‘Well, they’ve had my clothes, they’ve found nothing there, what case have they got.’
CATHY RUDD: But they can’t hold your clothes if there’s nothing there. They should be able to give them back.
APPLICANT: Well, if there’s nothing on ‘em, they’ll probably release ‘em, yeah. But there won’t be anything on ‘em because I never done nothing.
Defence Excerpt 3:
APPLICANT: They’ve got the results from the tests that they’ve done or whatever. Even – because if they haven’t got the results, I’m go – that’s why I’m goin’ to go for bail. Say, ‘Well, how long’s it goin’ to take, I’m rottin’ in fuckin’ jail for somethin’ I never done.’ You know.
Conversation 1.52pm on 1 Aug 06
Crown Extract 9:
APPLICANT: Hi.
CATHY RUDD: Hello. What’s happening?
APPLICANT: Yeah … …
CATHY RUDD: Do you really wanna know?
APPLICANT: Yeah, what happened?
CATHY RUDD: You’re in the fuckin’ Northcote Leader.
APPLICANT: Is it?
CATHY RUDD: Full fuckin’ name and everything.
APPLICANT: Oh no.
CATHY RUDD: Can you imagine the girls goin’ to school?
APPLICANT: Oh no.
CATHY RUDD: Can they fuckin’ publish this shit?
APPLICANT: Yeah, I think so.
CATHY RUDD: Well, I rang the fuckin’ solicitor up. I’ve left a message to give me a call back.
APPLICANT: Yeah.
CATHY RUDD: I wanna know what’s goin’ on.
APPLICANT: Yeah, well, that’s right because I haven’t been convicted, so I don’t know whether they can do that or not.
CATHY RUDD: Well it’s got here, ‘A Northcote man was remanded in custody after shots were fired at a house in Victoria Road on July the 24th. Allan Richard Rudd, 52, has appeared – appears in Melbourne Magistrate’s Court on October 24th charged with endangering life, unlicensed possession of ammunition and possessing a firearm. Darebin Police said an elderly couple in their Northcote home were lucky to avoid injury when the shots were fired at 10.45 pm. Police said Mr Rudd was arrested in a Northcote street early on Tuesday morning and a firearm was sighted.’
APPLICANT: At 10.45 it happened? That’s wrong.
CATHY RUDD: That’s wrong.
APPLICANT: That’s wrong. Listen, have you got a biro there?
Defence Excerpt 4:
APPLICANT: Yeah, that’s right. They’ve got the – the – the – well, what – what they’ve said to you about the time that it happened, right, that – they’ve got that wrong and – and – well, the only thing they’ve really got me on – the only thing they’ve got – they can sort of prove is that I had one shotgun cartridge in my pocket. That’s the only thing I can – I plead guilty to.
CATHY RUDD: Well, hey, it wasn’t … They’re sayin’ … you’ve done it.
Conversation on 4 Aug 06
Defence Excerpt 5:
CATHY RUDD: Well, that’s right. But listen, I’m thinkin’ of somethin’ else.
APPLICANT: What?
CATHY RUDD: If – let’s just say - - -
APPLICANT: Yeah.
CATHY RUDD: Like, that there’s nothin’ on your clothes.
APPLICANT: Yeah.
CATHY RUDD: Okay.
APPLICANT: Yeah.
CATHY RUDD: Well, are – are you still goin’ to take it to trial?
APPLICANT: My fuckin’ oath I am. Oh yeah. If they say – well, the – the – the Magistrate won’t commit it for trial. He’s goin’ to say - - -
CATHY RUDD: Well, that’s right.
APPLICANT: He’s goin’ to say, ‘Well, what evidence have you fuckin’ got?’ and they’re goin’ to say, ‘Well, there’s no DNA, there’s no fuckin’ gun shot residue on his clothes. There’s no fuckin’ fingerprints,’ and the Magistrate’s just goin’ to say, ‘I’m not goin’ to commit him for trial because there’s no fuckin’ evidence that he done it.’
Conversation on 6 Aug 06
Defence Excerpt 6:
APPLICANT: ‘Well, look, I don’t know whether Allan done it and I don’t think he would have done it and I’m,’ blah, blah, blah. You know, he’s a big chance of sayin’ that, ‘Look, I – I don’t think he – he’d do this,‘ and – well, he can’t say that I’ve argued with him because I fuckin’ haven’t argued with him.
CATHY RUDD: Well, apparently, goin’ by what they said to me, ‘Has Allan had arguments with him?’
APPLICANT: Yeah.
CATHY RUDD: Now, he must have said that.
APPLICANT: Well, if he’s said that, he’s a fuckin’ liar. I’ve never had a fuckin’ argument with him.
CATHY RUDD: Well, somebody has said it because – unless they’re just askin’ me.
APPLICANT: Unless they were tryin’ to get you to fuckin’ say, ‘Yeah,’ or somethin’ like that. I don’t know.
CATHY RUDD: Well, they might be tryin’ to find a motive.
APPLICANT: Yeah.
Conversation 6.08 on 6 Aug 06
Crown Extract 10:
CATHY RUDD: I got fuckin’ - - -
APPLICANT: Cats?
CATHY RUDD: I got fuckin’ jack of it. I went and got the torch and I’ve jumped up and I’ve gone, ‘What the fuck is goin’ on?’ I couldn’t see anybody.
APPLICANT: Yeah.
CATHY RUDD: … …
APPLICANT: It might have been cats bluin’ in the lane again. Hey, listen, is that rug still there?
CATHY RUDD: The what?
APPLICANT: That mat.
CATHY RUDD: Yeah.
APPLICANT: Is it?
CATHY RUDD: I’m not touchin’ it. I was gonna get rid of it and I thought fuckin’ no because then my prints are on it.
APPLICANT: Well, not only that. If they happen to empty our fuckin’ rubbish bin and find it in there, they’ll just say, ‘Now, why would fuckin’ they pick that up out of everyone else in the lane? Why would it only be them?
CATHY RUDD: Yeah. No, I’m not touchin’ it. I’ve left it the way they left it.
Conversation 3.40pm on 12 Aug 06
Crown Extract 11:
CATHY RUDD: Yeah, but that’s not right because you found it in the lane. That doesn’t mean it’s yours.
APPLICANT: Well, that’s right. Well, all I was goin’ to do is bring it home because he – this guy asked me, he goes – I was tellin’ this guy about it and he goes, ‘Yeah for sure.’ I said, ‘I’m fuckin’ fair dinkum. I found it in the fuckin’ lane.’ He goes, ‘Yeah, yeah, yeah, yeah.’ I said, ‘Look’, I said, ‘the only reason I fuckin’ picked it up was because we’ve got a small cat at home.’ I said, ‘And I – because when I seen it, I thought, ‘fuckin’ have a look at that’, and I – what I was goin’ to do was open it up and empty some of the fuckin’ – the shot out of it and seal it up again and let the cat play with it. He goes, ‘Are you fair dinkum?’ I said, ‘yeah, I’m tellin’ you I’m fair dinkum because I didn’t know anything had fuckin’ happened.’
CATHY RUDD: Yeah.
APPLICANT: I fuckin’ – if I knew somethin’ had happened, I would’ve thought, ‘I’m not goin’ near fuckin’ that, do you know what I mean.
CATHY RUDD: Yeah. But you could’ve even – even said – you could even say you found it, right, it was getting late, you were going to take it to the jack shop in the morning.
APPLICANT: Well, I’m just goin’ to fuckin’ tell ‘em.
CATHY RUDD: So what.
APPLICANT: I’m just goin’ to tell ‘em about the – the kitten we’ve got at home. I’ll say, ‘I’ve got a small kitten at home,’ fuckin’, ‘I was just goin’ to do this and let the fuckin’ kitten play with it, because when it makes the noise, they’ll – they’ll play with it.’
Conversation 9.10am on 14 Aug 06
Defence Excerpt 7:
APPLICANT: Well, that’s right. But look, even if it does go to trial, a jury’s got to look at that, you know. My barrister will be sayin’, ‘well look, if he done that, surely he’s not goin’ to be stupid fuckin’ enough to keep the – the thing in his pocket,’ you know. ‘He didn’t know anything had happened,’ you know.
Crown Extract 12:
THE APPLICANT: See, why he’s come back the next day and said, ‘Do you mind if we have a look at Allan’s clothes and all that’, is because he’s gerried – he’s gerried, ‘There’s no fuckin’ gunshot residue on his fuckin’ clothes or anything. He’s probably changed ‘em and we missed it in the fuckin’ raid.’
CATHY RUDD: No, because they asked me.
APPLICANT: Yeah.
CATHY RUDD: They asked me that afternoon. They said, ‘What was Allan wearing?’ And I told ‘em.
Defence Excerpt 8:
CATHY RUDD: I said, ‘He was wearing his ….. and black jumper, his black jeans, his runners and his jacket.’ They said, ‘What colour was his jacket?’ I told ‘em and they’ve thought, ‘Nuh, he was wearin’ the same clothes that we found him in.’
Conversation on 21 Aug 06
Defence Excerpt 9:
APPLICANT: He goes, ‘Where did that come from?’ I said, ‘I found it in the fuckin’ lane,’ you know. Well, Stephanie and Alicia play in the lane, other kids playin’ the fuckin’ lane. I’m not goin’ to just leave it there for them to pick up.
CATHY RUDD: Well, that’s right.
APPLICANT: You know, fuck me dead.
CATHY RUDD: That’s exactly right.
APPLICANT : So – yeah. And I was takin’ it fuckin’ home. I was goin’ to hand it in the enxt fuckin’ day.
CATHY RUDD: Yeah, I think we better watch what we say on the phone.
APPLICANT: Yeah.
CATHY RUDD: Because the only thing I’m thinkin’, if they …….. on a bloody tape - - -
APPLICANT: Well, we haven’t said nothin’ wrong.
CATHY RUDD: No, but we’re talkin’ about it constantly, if – if you know what I mean.
Conversation on 27 Aug 06
Defence Excerpt 10:
CATHY RUDD: And then he turned around and goes, ‘Well, are you aware exactly what Allan done?’ I said, ‘Hey, hang on a minute.’
APPLICANT: Did – did he say what? What did he say?
CATHY RUDD: He goes, ‘Are you actually aware of what Allan’s done?’
APPLICANT: Yeah.
CATHY RUDD: And I said, ‘Hang on a minute.’ I said, ‘You’ve got him convicted and sentenced and everything already.’
APPLICANT: Yeah.
CATHY RUDD: And he goes, ‘Well, I believe he’s done it.’ I said, ‘Righto, what you believe is what you believe.’ I said, ‘No’ – I said, ‘Listen here.’ I said – and then he goes, ‘You’re insinuating that I told the Northcote Leader.’ I said, ‘Hey, hang on a minute.’ I said, ‘I’m not insinuating that.’ I said, ‘I asked you –‘ - - -
APPLICANT: Yeah.
Defence Excerpt 11:
CATHY RUDD: And then he turned around and he goes, ‘Are you aware that – that Allan missed Dorothy by a couple of inches?’
APPLICANT: Allan what?
CATHY RUDD: ‘Allan missed Dorothy by –‘ I said, ‘No, I’m not. You know why? Because’ - - -
APPLICANT: Because Allan didn’t fuckin’ do it.
CATHY RUDD: I said, ‘Because you barged in my house and threw this warrant.’ I said, ‘And that’s all I got told.’
APPLICANT: Yeah.
CATHY RUDD: I said - - -
APPLICANT: I would have said, ‘Because Allan didn’t fuckin’ do it.’
Defence Excerpt 12:
CATHY RUDD: I’ve got this gut feeling he’s gonna come back ……
APPLICANT: Look, they’ve got nothin’ on me. They’ve got nothin’ on me, you know, and that’s why he said, ‘Well, I think he done it.’ You know, the - - -
CATHY RUDD: And you know what - - -
APPLICANT: They’ve got nothin’ on me, you know, and now they’re just graspin’ at straws thinkin’ right, ‘I hope we can trace one of his numbers that he rang that night and bang, maybe that’s where he, you know, picked the gun up or the cunts might come’ – you know, ‘We might be able to fuckin’ bribe them if they’re out on bail on a shit blue.’ Just say, ‘Well, listen, if you fuckin’ come to the party and say you give him this, we’ll drop the other charge,’ or somethin’ like that.
CATHY RUDD: Yeah, that’s - - -
APPLICANT: He’s gra-, he’s graspin’ at straws.
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