R v Salcedo; R v Stretton (No 2)
[2018] ACTSC 104
•23 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Salcedo; R v Stretton (No 2) |
Citation: | [2018] ACTSC 104 |
Hearing Dates: | 16 April 2018 – 20 April 2018 |
DecisionDate: | 23 April 2018 |
ReasonsDate: | 26 April 2018 |
Before: | Loukas-Karlsson J |
Decision: | 1. That the unrecorded admission made to Senior Constable David be excluded from the evidence. 2. That the .410 calibre sawn-off shot gun be excluded from the evidence. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Confessions and Admissions – Admissibility - Crimes Act 1914 (Cth), s 23V - Failure to record questioning when practicable to do so – Contrary to the interests of justice to admit such evidence – Whether admission made whilst accused was ‘being questioned’ CRIMINAL LAW – EVIDENCE - Judicial Discretion to admit or exclude Evidence – Relevance – Evidence Act 2011 (ACT), s 137 - Possession of firearm said to have been used in crime – Whether evidence of possession of items admissible – Unfair prejudice of admitting firearms |
Legislation Cited: | Crimes Act 1914 (Cth) s 23V Crimes (Forensic Procedures) Act 2000 (ACT) Evidence Act 2011 (ACT) ss 55, 137, 192A |
Cases Cited: | Driscoll v The Queen (1977) 137 CLR 517 IMM v The Queen [2016] HCA 14; 257 CLR 300 |
Parties: | The Queen (Crown) Reece Salcedo (Accused) Nathan Stretton (Accused) |
Representation: | Counsel Mr A Williamson (Crown) Mr J Stewart (Accused - Salcedo) Mr R Davies (Accused - Stretton) |
| Solicitors ACT Director of Public Prosecutions (Crown) Gabbedy Lee Milson (Accused - Salcedo) Legal Aid ACT (Accused - Stretton) | |
File Numbers: | SCC 138 of 2017; SCC 228 of 2017 |
LOUKAS-KARLSSON J
Introduction
The parties sought a ruling, pursuant to s 192A of the Evidence Act 2011 (ACT) (Evidence Act), as to the admissibility of an admission said to be made by the accused Reece Salcedo (the accused).
The accused sought an order that the following pieces of evidence be excluded:
(a)Evidence of an unrecorded admission made by the accused on 20 February 2017; and
(b)Evidence of a .410 calibre sawn-off shot gun found at the accused’s place of residence during a police search on 20 February 2017.
The Admissibility of the Unrecorded Admission
The accused submitted that the evidence of the admission should be excluded as it was not recorded in accordance with s 23V of the Crimes Act 1914 (Cth) (Crimes Act).
The Facts
The accused was arrested on 20 February 2017.
The accused was conveyed by Senior Constable David to City Police Station for questioning. The accused participated in a record of interview. The duration of the interview was approximately three hours, with a number of breaks. The interview was digitally recorded.
On 16 April 2018, Senior Constable David gave evidence on a voir dire about the interview. He gave the following evidence in examination in chief:
MR WILLIAMSON: Yes, okay. Now did the accused Salcedo make any admissions to you, after you had concluded the record of interview?
SENIOR CONSTABLE DAVID: He made a comment, your Honour.
MR WILLIAMSON: Now what was the comment?
SENIOR CONSTABLE DAVID: The comment, to my recollection was that he said, “Definitely not the gun used in the shooting. Salt rounds were used.”
HER HONOUR: So say that again?
SENIOR CONSTABLE DAVID: “Definitely not the gun used in the shooting. Salt rounds were used.” I can elaborate if you like?
MR WILLIAMSON: Yes, please?
SENIOR CONSTABLE DAVID: Yes. My understanding of that was throughout the course of the interview, there was a concurrent search warrant being conducted and during that time a loaded shotgun was loaded [sic] on the bed of the defendant, in his home. So we spent some time, during the interview, towards the end part, talking about that. And then the interview concluded and I believe that he was referring to that firearm.
MR WILLIAMSON: Now when you say the interview had concluded, can you elaborate on that. What do you mean by “the interview had concluded”?
SENIOR CONSTABLE DAVID: As in we stopped the – we went through our final questions. I asked him if there’s anything further he wished to add. He said, “No.” And then we formally conclude the interview by turning off all the CDs and all the DVDs and the recording equipment and that was the end of it.
MR WILLIAMSON: Okay. Now what were you doing when the accused made the admission?
SENIOR CONSTABLE DAVID: I was sitting down across the – the table from him. It takes some time for the recording to finalise; so for the disc to be burnt. And so we were sitting down there, waiting for that to happen and he made that comment right after we concluded.
MR WILLIAMSON: Had you said anything to him, or asked him any questions before he made that comment? Immediately before he made that comment to you?
SENIOR CONSTABLE DAVID: No.
MR WILLIAMSON: Okay. So the last question, in the interview would’ve been to the effect, is there anything else you want to say?
SENIOR CONSTABLE DAVID: Yes. And then
MR WILLIAMSON: This is while the tapes are rolling?
SENIOR CONSTABLE DAVID: Yes, correct.
MR WILLIAMSON: And he said?
SENIOR CONSTABLE DAVID: Sorry.
MR WILLIAMSON: He said, “No.” Is that right?
SENIOR CONSTABLE DAVID: He said, “No.”
MR WILLIAMSON: Okay?
SENIOR CONSTABLE DAVID: And I said, “This record of – interview is now concluded.”
MR WILLIAMSON: Had you asked him any further questions after you said, “Is there anything further you want to ask?” And before he said – made the comment to you about the salt round?
SENIOR CONSTABLE DAVID: No, your Honour.
MR WILLIAMSON: So to be clear, was that comment about the salt round a response to a question that you asked?
SENIOR CONSTABLE DAVID: No.
Senior Constable Joshua David gave evidence that at the end of the interview, the accused made a “spontaneous utterance”. The impugned admission was the “spontaneous utterance” as follows:
“definitely not the gun used in the shooting, salt rounds were used”.
In cross examination by counsel for the accused, the following evidence was given by Senior Constable David:
MR STEWART: Detective David, that wasn’t the end of your involvement with Reece Salcedo that night, was it?
SENIOR CONSTABLE DAVID: No. I still – would you like me to elaborate?
MR STEWART: Yes?
SENIOR CONSTABLE DAVID: Sure. At the conclusion of that we had – we did a record of conversation regarding an identification parade. So offering him that. And we also did a forensics procedure.
MR STEWART: Both of those were recorded as well, weren’t they, using the - - -?
SENIOR CONSTABLE DAVID: Correct.
MR STEWART: - - - equipment? Did you make a choice not to put the words, “Definitely not the gun used in the shooting, salt rounds were used.” Did you make a choice not to put those words back to Mr Salcedo, once you had him back on tape?
SENIOR CONSTABLE DAVID: That – those were two different issues. So the – the identification parade was done through a digital recorder and that was in reference to that. And the forensic procedure had to do with that whole procedure. So I did not raise it any further because I felt that the interview had concluded regarding the allegation that he was a suspect involved in the shooting and at the end of the interview that was it for me.
MR STEWART: So why didn’t you put him back on tape, in terms of record of interview, and put those words to him?
SENIOR CONSTABLE DAVID: Yeah. Well, when I asked – so he said that comment and I asked him, “What do you mean?” And then he didn’t go any further than that. And for me, that’s enough, considering that the interview had already concluded. We’d gone through his caution and rights. I didn’t feel that it was appropriate to start him asking any further questions on that.
MR STEWART But that was an admission that showed he had esoteric knowledge about salt shot being used, wasn’t it?
SENIOR CONSTABLE DAVID: I didn’t know what salt actually referred to in that situation, as in the crime scene, we never knew that it was an salt round that was used and at that time, I didn’t even know that as well.
MR STEWART : But those words indicated that my client had knowledge about the shooting, didn’t they?
SENIOR CONSTABLE DAVID: It could have, yes.
MR STEWART: Yes. Well, he was trying to influence you or say something about the type of rounds that were used in a shooting?
SENIOR CONSTABLE DAVID: Off-tape, yes.
MR STEWART: And so why didn’t you immediately put the machine back on and put those words back to him?
SENIOR CONSTABLE DAVID: Well, the interview was concluded and I didn’t want to feel like I was badgering him and considering it had gone for three hours, I didn’t feel like it was appropriate.
…
MR STEWART: Did you think that section 23V did not apply to those words that you say my client said?
SENIOR CONSTABLE DAVID : In my mind, I felt he made a spontaneous utterance which I recorded to the best of my ability which was through my diary, and I felt that I couldn't ask him anything further because the interview had ended.
MR STEWART: You were actually still in the recording room, weren't you?
SENIOR CONSTABLE DAVID: Correct.
MR STEWART: So you could have switched the recording back on, said, "My name is Detective Senior Constable Joshua John David. There's just one matter that I want to put to Mr Salcedo on tape. Did you just say these words to me, 'Definitely not the gun used in the shooting, salt rounds were used'?" You could have done that, couldn't you?
SENIOR CONSTABLE DAVID: I could have, your Honour, yes.
MR STEWART: That would have been the best way to record those words that you say my client said, wouldn't it?
SENIOR CONSTABLE DAVID: Correct.
MR STEWART: But you chose not to do that?
SENIOR CONSTABLE DAVID: I went with the best resource I had at the time which was my diary and I captured it to that.
Legislation
Section 23V of the Crimes Act provides as follows:
23V Tape recording of confessions and admissions
(1)If a person who is being questioned as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:
(a)if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission—the questioning of the person and anything said by the person during that questioning was tape recorded; or
(b)in any other case:
(i) when questioning the person, or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person during questioning, of the things said by or to the person during questioning; and
(ii) as soon as practicable after the record was made, it was read to the person in the language used by him or her during questioning and a copy of the record was made available to the person; and
(iii) the person was given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading; and
(iv) a tape recording was made of the reading referred to in subparagraph (ii) and of everything said by or to the person as a result of compliance with subparagraph (iii), and the requirements of subsection (2) were observed in respect of that recording; and
(v) before the reading referred to in subparagraph (ii), an explanation, in accordance with the form in the Schedule, was given to the person of the procedure that would be followed for the purposes of compliance with that subparagraph and subparagraphs (iii) and (iv).
…
(5) A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.
(6)A court may admit evidence to which this section applies even if a provision of subsection (2) has not been complied with if, having regard to the reasons for the non-compliance and any other relevant matters, the court is satisfied that it was not practicable to comply with that provision.
(6A)To avoid doubt, subsection (6) does not limit subsection (5).
(7)If a judge permits evidence to be given before a jury under subsection (5) or (6), the judge must inform the jury of the non-compliance with the requirements of this section, or of the absence of sufficient evidence of compliance with those requirements, and give the jury such warning about the evidence as he or she thinks appropriate in the circumstances.
Accused’s Submissions
In written submissions, the accused submitted that the words used in the impugned admission are consistent with an answer to the final two questions of substance put to the accused during the interview. The words were spoken very shortly after the termination of the interview. As a result, the words should be considered answers to questioning, meaning that the admission is inadmissible because it was not recorded in accordance with s 23V.
The accused further submitted that the impugned admission was made whilst there was a police investigation taking place. The accused was in custody and had just completed the first of three interviews with police. Within minutes the accused is interviewed for a second and third time, which indicates that questioning was ongoing.
The accused referred to the High Court’s decision in Kelly v The Queen [2004] HCA 12; 218 CLR 216 (Kelly), and sought to distinguish its applicability to the facts in this case. The accused submitted that Kelly is distinguished in the following ways:
i. The admission was made very close (within minutes) after the formal end of the interview compared to 30-40 minutes after in Kelly;
ii. The admission was made whilst still in the interview room, whereas in Kelly, the accused had made telephone calls, been charged and fingerprinted and taken well away from the interview room;
iii. Whilst the first interview was complete, two more interviews occurred shortly thereafter between the Applicant and DSC David – thus, questioning was not complete. There is no suggestion of a further interview occurring after the alleged admissions being made in Kelly; and
iv. The alleged admission was an answer to the two final questions of substance put to the Applicant – in Kelly, the words spoken were spontaneous and not an answer to any particular question.
The accused referred to the decision of Refshauge J in R v JF [2009] ACTSC 104 (R v JF), where a 14 year old boy was asked questions by a police officer prior to a formal interview. In that case, the admissions in the earlier questioning were excluded due to non-compliance with s 23V(1). The accused submitted that the decision speaks to the need for strict compliance with the rule to record and/or properly adopt admissions if they are not recorded at the time.
In oral submissions, the accused submitted that it would be a “blow to justice if the AFP were essentially given the green light to not record this type of material”.
The accused further submitted that there were no special circumstance on the day of the interview that allow for non-compliance with s 23V(1) of the Crimes Act. Rather, the police had the accused in the interview room, with the ability to re-commence the interview and adopt the words spoken, or have them adopted in either of the following interviews conducted within minutes.
Prosecution’s Submissions
In written submissions, the prosecution submitted that the circumstances were analogous to those in the High Court decision of Kelly as in that case the admission was made after formal questioning. The prosecution therefore submitted that there was no questioning when the admission was made, and therefore the requirements of s 23V(1) of the Crimes Act do not arise in this case.
The prosecution submitted that the admission was a spontaneous utterance made by the accused, and that it was volunteered without prompting or in response to any question that Senior Constable David or his partner asked.
The prosecution submitted that the High Court in Kelly adopted a narrow approach to the interpretation of the relevant provision, based on the plain and ordinary meaning of the language used in the statute. The prosecution further submitted that the High Court held that a broader approach to interpretation could not be preferred for two reasons:
a. It would involve “inserting ideas” which have no foothold in the language of the Act. It would effectively require the Court to ‘read in’ words which simply are not there; and
b. It would give no weight to the requirement in the text of the Act that the admission be made in the course of ‘questioning’. It would effectively make the requirement that the admission be made during questioning superfluous and redundant.
In the event that the Court found that police did not comply with s 23V(1) of the Crimes Act, the prosecution submitted that the admission should nonetheless be allowed pursuant to s 23V(5), which gives the Court a wide ranging discretion to admit the evidence if it considers that it would be not contrary to the interests of justice to do so.
The prosecution submitted that the discretion in 23V(5) of the Crimes Act is cast in broad terms, and allows the Court to consider, inter alia, “any other relevant matter”, including the matters enumerated in s 138 of the Evidence Act. The prosecution submitted that it would not be contrary to the interests of justice to admit evidence in light of the following considerations:
·The evidence is extremely probative to the Crown case and strongly supports the inference that the accused Salcedo was intimately involved in the shooting;
·The evidence is not disputed. It was never put to Senior Constable David that the admission was never made;
·The offences which the accused is being prosecuted for are extremely serious. There is a compelling public interest in apprehending and punishing those involved in violent home invasions where people are shot; and
·The contravention was not motivated by any malice on the part of Senior Constable David.
In oral submissions, the prosecution submitted that the interviews that took place after the impugned admission was made were not “questioning”. The prosecution submitted that although questions were asked in the next interviews, those interviews were for the purpose of an identification parade and a forensic procedure. The prosecution submitted that any questions asked during those interviews were part of the “script” that must be followed under the Crimes (Forensic Procedures) Act2000 (ACT), and that they do not provide an opportunity for the police to ask more questions at large.
The prosecution submitted therefore that under the narrow interpretation of s 23V(1) consistent with Kelly, the accused was not being questioned at the time, and therefore there was no need to comply with the provision.
Consideration
The relevant question is whether the accused was “being questioned” when he made the alleged admission.
The evidence was that the accused and the Senior Constable had not moved from the room or the table in which the accused had been questioned for three hours prior. The Senior Constable had turned off the recording equipment and had to this point “formally concluded” that interview.
Shortly after, within minutes, further interviews were conducted with the same accused in the same room regarding an identification parade and a forensic procedure. The first interview concluded at 11:07am, the second interview commenced at 11:12am and concluded at 11:17am, and the third interview commenced at 11:32am and concluded at 12:18pm.
In Kelly, the appellant made an admission following the formal conclusion of questioning. The circumstances of the admission in Kelly are at [14] of the majority (Gleeson CJ, Hayne and Heydon JJ) judgment:
The appellant then made some telephone calls. He was charged, fingerprinted and photographed. It was then proposed that he be taken to the Launceston General Hospital for the purpose of obtaining samples of blood and hair. Just before the appellant and accompanying officers got into the car, the appellant made the impugned statement. He said, according to Detective Sergeant Lopes and Detective Pretyman:
"Sorry about the interview – no hard feelings, I was just playing the game. I suppose I shouldn't have said that, I suppose you will make notes of that as well."
The police officers did not respond to this statement. They made no note of it. They also did not attempt to return the appellant to the interview room with a view to making a video-recording of the appellant repeating what he had said so as to attract s 8(2)(b) of the Act. Detective Sergeant Lopes thought the appellant's statement was made thirty to forty minutes after the video-recording had ceased and the appellant had left the video interview room; Detective Pretyman thought it took place nearly an hour after those events.
The majority in Kelly made the following remarks at [45] regarding the construction of “in the course of official questioning”:
A person may make admissions during a period in which police officers are conducting official questioning without those admissions being responsive to any particular question. This can arise in two ways. First, an answer proffered may simply be quite unresponsive or unrelated to the particular question. Secondly, deliberately or fortuitously, the persons asking the questions may fall silent, and the person who is with them may, whether because of a desire to fill the silence or for some other reason, confess. The legislation does not in terms require that the statement be made "in response to a question put" as s 86 of the Evidence Act 2001 (Tas) does, for example. That language is significant, because it appears in s 86 of the Evidence Act 1995 (Cth) and s 86 of the Evidence Act 1995 (NSW) as well. The language may be contrasted with the use of the expression "in the course of official questioning" in s 85(1)(a) of the three Acts. "Official questioning" is defined in each of the three Acts as meaning "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". That is in substance the same as the definition appearing in s 8(1) of the Act. The contrast between the language of s 86 of the three Acts and the language of s 8 of the Act suggests that a confession which is entirely non-responsive to any question, or is uttered during a pause in the flow of the questions without being stimulated by any particular question, is one which falls within s 8 of the Act . The words "in the course of" do not require that there be any causal connection between the admission and the official questioning.
At [52] - [53] their Honours further outlined the meaning of “in the course of official questioning”:
The expression “in the course of official questioning” in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s 8(2)(a) of the Act relatively narrow in the sense that it does not provide that video-recording is a condition for admissibility of all confessions made by persons who are suspected or ought reasonably to have been suspected of having committed a crime: video-recording is only a condition for admissibility of those made “in the course of official questioning”. It renders s 8(2)(a) of the Act relatively broad in the sense that it does provide that video-recording is a condition for admissibility of confessions made “in the course of official questioning”, without any limitation turning on whether the maker of the confession is in custody or under arrest. The requirement that confessions be video-recorded extends to confessions made anywhere so long as they are made “in the course of official questioning” - whether in police stations, in police cars, at the scene of a crime, or during informal encounters. The difficulty of video-recording confessions in particular circumstances is met by ss 8(2)(b)-(d) and (3)(a)-(d) of the Act. But whether the expression “in the course of official questioning” is viewed as making s 8(2)(a) narrow or broad, it stipulates a relatively clear criterion, suitable for application by police officers, whose usual procedures are formal and methodical.
In this matter "the course of official questioning" ended when Detective Sergeant Lopes ceased to ask questions and said at 9.17pm: "[W]e'll conclude the interview". Other activities of the appellant not related to official questioning and other police procedures not involving questioning then took place. No further question was asked which triggered the impugned statement. To treat the impugned statement as having been made in the course of official questioning would be to ignore the statutory language. The impugned statement in this case is in the same position as the statement made by the accused in R v Julin where, after questioning had ceased, the accused had been arrested and cautioned, and driven half a kilometre to the scene of the crime during which time no conversation took place between him and the police officer: "[t]he official questioning of the accused concluded prior to the car trip when he was arrested and cautioned …".
The facts in this case can be distinguished from the facts in Kelly. In Kelly, formal recorded questioning had finished between 30 minutes and one hour prior to the admission. The appellant in Kelly had left the interview room, had made some telephone calls and was not to return for further questioning that day. The impugned statement was made just before the appellant got into a police car, prior to travelling to Launceston General Hospital for the purpose of obtaining samples of blood and hair. The police officers did not respond to the statement, and made no note of it. The officers did not return the appellant to the interview room.
In the case of the accused, the statement was made immediately after the end of an interview, and immediately before two more interviews: one for the purpose of seeking consent for an identification parade, and one for a forensic procedure.
I conclude therefore that s 23V(1) of the Crimes Act is applicable. The questioning was not over. The admission was not recorded. The accused was still in the interview room and the words could have been adopted in either of the two subsequent interviews conducted immediately thereafter.
The impugned admission is excluded unless s 23V(5) of the Crimes Act is applicable.
Section 23V(5) of the Crimes Act allows the Court to admit evidence where s 23V(1) has not been complied with where:
…if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.
In R v JF, Refshauge J stated at [66]:
As Higgins CJ said in R v Barklimore (2007) 167 A Crim R 377 (at 391-2), it is not enough under s 23V(5) for the admission of the confession not to be contrary to the interests of justice, there must be special circumstances making it so.
Refshauge J concluded at [75] that:
While inadvertent, the failure to record was blatant and no real attempt was made to rectify that. In my view, the admissions are inadmissible and the desirability of admitting them is not outweighed by the undesirability of admitting evidence that has been obtained in this way.
In the case of the accused, there was a similar inadvertence to record the admission. Senior Detective David was in the best possible place to record the admission, being in the interview room at the time, and having concluded a recorded interview immediately prior to the admission. There was also no attempt to comply s 23V of the Crimes Act after the admission had been made. Refshauge J’s decision in R v JF makes clear that special circumstances must go beyond the mere probative value of an impugned admission.
There are no relevant special circumstances. The admission is excluded.
The Admissibility of the .410 Sawn-Off Shot Gun
The Facts
On 20 February 2018, police conducted a search of the accused’s residence. In the course of this search, a loaded sawn-off shotgun was found under the pillow of the accused’s bed.
The firearm seized was subjected to analysis by firearm expert Mr David Wayne Bennet. Mr Bennet signed a statement dated 24 March 2017 that attaches his expert report. Mr Bennett concluded that the firearm was a Boito brand .410 calibre sawn off shotgun with a break action (‘the .410 calibre firearm’).
Forensic evidence from the crime scene shows that wadding from a 12 gauge shotgun was located at the crime scene. Mr Bennett’s report concludes that the wadding could not have been from the .410 calibre firearm.
The accused was asked about the .410 calibre firearm during his police interview with Senior Constable David.
The accused has submitted that the evidence should be excluded on the grounds of relevance, and on the ground that the unfair prejudice of admitting the evidence outweighs its probative value.
Evidence Act
The relevant sections of the Evidence Act provide as follows:
55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b) the admissibility of other evidence; or
(c)a failure to present evidence.
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
Accused’s Submissions
The accused submitted that the .410 calibre firearm should be excluded because it was found 10 days after the incident, and because there was no evidence that a .410 calibre firearm was used at the crime scene. The accused further submitted that there is no evidence of two firearms being used at the crime scene.
The accused additionally submitted that if admitted, the evidence can only give rise to the following inference: “because the wad has been described as a 12 gauge wad and not a .410 wad, that one offender was carrying sawn off 12 gauge shotgun at the time of the offending”.
In oral argument, the accused submitted that the evidence of witnesses Mr Scott Gielissen and Ms Angela Rukavina excluded the possibility that the .410 calibre firearm was used in commission of the offence, unless the prosecution were to suggest there were three firearms present. The accused submitted that Mr Gielissen had identified a single barrel shotgun as the firearm which discharged into the wall. As there is forensic evidence that the one hole in the wall in the house was discharged from a 12 gauge shotgun, the accused submitted therefore that the singe barrel shotgun identified by Mr Gielissen was the 12 gauge shotgun.
The accused further submitted that Ms Rukavina identified a different firearm to Mr Gielissen, as Ms Rukavina described a double barrelled sawn-off shot gun. The accused submitted that because the .410 calibre firearm retrieved from the accused’s home was a single barrel sawn off shotgun, it does not match the description provided by the witnesses. The accused submitted that there was no room in the prosecution’s case for a third firearm.
The accused submitted that the .410 calibre firearm had “tenuous” probative value. The accused submitted that probative value of the .410 calibre firearm to the prosecution’s circumstantial case had been reduced by evidence given by the witness Ms Natalie Lautier. Because Ms Lautier had identified that the ute at the crime scene was not the ute in which gunshot residue was found, the accused submitted that admitting the gun into evidence would give rise to a miscarriage of justice because it is contrary to the prosecution’s own evidence.
The accused submitted that the prejudicial effect of admitting the .410 calibre firearm outweighs its probative value. The accused submitted that it was prejudicial because it would tend to show a propensity of the accused to be involved with firearms or a criminal disposition (Thompson and Wran v The Queen (1968) 117 CLR 313), a conclusion which would be “almost irresistible to any fair-minded juror”. The accused further noted that no coincidence or tendency notice had been filed by the prosecution.
Prosecution’s Submissions
The prosecution submitted that the .410 calibre firearm would be relevant to the fact in issue of whether two guns were used in commission of the offence. The prosecution further submitted that if the jury concluded that two guns were used, whether the .410 calibre firearm was the second gun used in the commission of the offence would also be a fact in issue. For these reasons, the prosecution submitted that the .410 calibre firearm had sufficient probative value to satisfy the low threshold required to meet relevance consistent with decision of the High Court in IMM v The Queen [2016] HCA 14; 257 CLR 300 (IMM) at [39].
The prosecution submitted that the .410 calibre firearm would be of significant probative value consistent with the decision in IMM, which at [44] states that “the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest”.
The prosecution submitted that there was evidence that more than one shotgun had been used at the crime scene. Forensic analysis concluded that one firearm was a 12 gauge shot gun that was not retrieved, and that it was not possible to say what calibre the other shot gun was, other than that it was a sawn-off shot gun. For this reason, the prosecution submitted that the .410 calibre sawn-off shot gun retrieved from the accused’s place of residence “cannot be forensically excluded as the weapon that fired the shots injuring Scott Gielissen and Portia Thompson”.
The prosecution submitted that the .410 calibre sawn-off shot gun was the gun used in the commission of the offence. The prosecution conceded that this inference is not the only inference that can be drawn from the .410 calibre firearm when considered by itself, but that it would be open to the jury to come to the conclusion that it was the firearm used in commission of the offence. The prosecution submitted that there was doubt over the evidence of the witnesses describing the firearms, particularly Ms Rukavina’s evidence as to how quickly the offence happened.
The prosecution submitted that consistent with the Victorian Court of Appeal decision in Murrell v The Queen [2014] VSCA 334 and Thompson and Wran v The Queen (1968) 117 CLR 313, evidence which would suggest that the .410 calibre firearm could have been used by one of the offenders and is found in circumstances connected to the offender will be admissible.
The prosecution submitted that even if the .410 calibre firearm wasn’t used in the commission of the offence, it had significant probative value to the prosecution’s circumstantial case. The prosecution referred to Driscoll v The Queen (1977) 137 CLR 517 (Driscoll), and submitted that analogous admissions to those in Driscoll had been made by the accused when questioned about the discovery of the .410 calibre firearm in his place of residence. The prosecution submitted that these admissions showed knowledge of the offending, and on this basis the .410 calibre firearm is admissible evidence.
The prosecution submitted that although the .410 calibre firearm would be prejudicial to the accused, it would not be unfairly prejudicial. The prosecution submitted that any unfair prejudice related to bad character that may arise from the evidence can be addressed by a direction to the jury. The prosecution submitted therefore that it is not enough to warrant exclusion. In any event, the prosecution submitted that any unfair prejudice would be outweighed by the significant probative value of the evidence, particularly when considered with all the other circumstantial strands of the prosecution’s case.
Consideration
It is necessary to consider whether the .410 calibre sawn-off shot gun is relevant evidence pursuant to s 55 of the Evidence Act prior to considering whether it should be excluded under s 137 of the Evidence Act.
Relevant Evidence
The prosecution submitted that the sawn-off shotgun is relevant to a fact in issue, being that the .410 calibre firearm could have been the one used to fire the shots that hit witnesses Mr Scott Gielissen and Ms Portia Thompson.
The prosecution further submitted that consistent with Driscoll, the evidence of the presence of the .410 calibre firearm is relevant to the circumstantial elements of the case, even if it is assumed that the firearm was not used in the shooting.
I accept that the .410 calibre firearm is relevant pursuant to s 55.
Mandatory Exclusion Under s 137
Probative value is defined in the dictionary of the Evidence Act as follows:
Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue
The majority in IMM at [47] expressed the meaning of probative in the context of s 137:
In comparison, the requisite probative value of the evidence is not spelled out in s 137. It requires the "probative value" of the evidence to be weighed against the danger of unfair prejudice to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue…
The majority elaborated further on this approach at [50]:
…that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by J D Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence.
Keeping this in mind, I consider the following as relevant to the probative value of the .410 calibre firearm at its highest:
(a)There is no forensic evidence at the scene that points to a .410 calibre firearm being used;
(b)Forensic analysis concluded that the wad found at the crime scene came from a 12 gauge firearm and not from a .410 calibre firearm;
(c)Evidence from Mr Gielissen indicates that a single-barrel sawn off shotgun was used to shoot the 12 gauge wad into the wall; and
(d)Regarding the circumstantial case, the admissions which arose in questioning when the accused was asked about the gun are not sufficient in their capacity to show prior knowledge of the offence.
Taking into account these matters, I find that the probative value of the finding of the gun cannot be described as high.
McHugh J in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 observed at [91] that unfair prejudice refers to:
…prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.
McHugh J at [92] quoted with approval the Interim Report of the Australian Law Reform Commission, which stated that:
By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.
There is in this case a real risk that the evidence will be misused in a way that is logically unconnected with the issues in the case.
In the absence of evidence directly linking the shot gun to the crime scene, the discovery of the .410 calibre firearm is unfairly prejudicial in that it has the potential to indicate a tendency to be involved with guns. It is likely that the jury may consider that it was more likely to have been the accused at the crime scene because he possessed a sawn-off shot gun.
In relation to the .410 calibre firearm, I find that the probative value is outweighed by the danger of unfair prejudice. A jury direction would not overcome that unfair prejudice.
On that basis, the .410 calibre firearm is excluded from the evidence.
Orders
I make the following orders
1. That the unrecorded admission made to Senior Constable David be excluded from the evidence.
2. That the .410 calibre firearm be excluded from the evidence.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 26 April 2018 |
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Amendments
| 30 April 2018 | Insert Thompson and Wran v The Queen (1968) 117 CLR 313 under the heading “Cases Cited” | Paragraphs: Front Cover |
| 30 April 2018 | Insert “(Thompson and Wran v The Queen (1968) 117 CLR 313)” after the words “…to be involved with firearms or a criminal disposition” and before “, a conclusion which….". | Paragraphs: [49] |
| 30 April 2018 | Insert “and Thompson and Wran v The Queen (1968) 117 CLR 313” after the words “…decision in Murrell v The Queen [2014] VSCA 334” and before the words “, evidence which would suggest…” | Paragraphs: [54] |
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