R v Shepherd
[2022] ACTSC 16
•3 February 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Shepherd |
Citation: | [2022] ACTSC 16 |
Hearing Date: | 3 February 2022 |
DecisionDate: | 3 February 2022 |
Before: | Mossop J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Advance ruling application under s 192A of the Evidence Act 2011 (ACT) – admissibility of photo board evidence – evidence sought to be excluded under ss 135 or 137 of the Evidence Act – witness identifies accused by describing accused’s relationship to another person but not by name – three weeks later identifies the accused on a photo board and supplies his name – no evidence as to how the name was discovered – no evidence of name being discovered using social media – not appropriate to make advance ruling where witness likely to give relevant evidence at trial CRIMINAL LAW – EVIDENCE – Advance ruling application – admissibility of admissions in telephone calls – defendant knew calls were recorded and spoke voluntarily – no unfairness to the defendant under s 90 of the Evidence Act – consideration of unfair prejudice – calls had high probative value – probative value of the evidence was not outweighed by the danger of unfair prejudice – telephone conversation evidence admissible |
Legislation Cited: | Corrections Management Act 2007 (ACT), s 103 Court Procedures Act 2004 (ACT), s 76(3) Evidence Act 2011 (ACT), pt 3.9, ss 90, 135, 137, 192A |
Parties: | The Queen (Crown) Jesse Shepherd (Accused) |
Representation: | Counsel S Saikal-Skea (Crown) C Brain (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Accused) | |
File Number: | SCC 220 of 2021 |
MOSSOP J:
Introduction
The accused, Jesse Shepherd, is facing a single count of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (CC2021/7081). His trial is due to commence on 28 March 2022. He has applied for advance rulings pursuant to s 192A of the Evidence Act 2011 (ACT) in relation two categories of evidence. The first category is evidence of a conversation which took place on 23 July 2021 between police and one of the victims of the robbery, in which the victim identified the accused from a photo board prepared by police and identified the accused by name. The second category involves three telephone calls between the accused and his mother, which took place while the accused was detained at the Alexander Maconochie Centre (AMC), and the associated evidence of an officer in charge of the prison. The Crown says certain admissions were made in these calls. Two of the calls took place on 16 July 2021 and one of them took place on 20 July 2021. By the time of the hearing of the application, the Crown had indicated that it did not wish to rely upon the 20 July 2021 conversation and, as a consequence, the scope of the dispute had narrowed.
The Crown case
The Crown case is that on 1 July 2021 at about 10:10pm, the accused and an unknown male robbed the occupants of a white Kia Rio vehicle outside an apartment complex on The Valley Avenue, Gungahlin. There were four occupants of the vehicle. They included BN who was seated in the front passenger seat and BL, who was the driver of the vehicle.
SI, who was 13 years old at the time of the offending, lived in the apartment complex with his mother, DG. He was known to BN and contacted BN in order to purchase “2 ounces” of a drug on the evening of the robbery. When the occupants of the vehicle arrived at the apartment complex, they were approached by two males who threatened them with knives and told them to get out of the vehicle. The vehicle was driven away by an unknown male and the accused is alleged to have been in the passenger seat. It is also alleged that the accused robbed BN of his mobile phone. The principal issue at trial is likely to be the identification of the accused as one of the two males who committed the robbery.
The accused had formerly been in a relationship with DG and was staying at her apartment at the time of the alleged offending. Another man, GD, was also staying on‑and-off at the apartment. Items from the stolen Kia Rio were found in a bag in DG’s bedroom along with identification information belonging to GD.
The accused participated in a recorded interview with police on the date of his arrest, 8 July 2021, and denied any involvement in the robbery.
No DNA evidence was found linking the accused to the vehicle or the items removed from it. DNA evidence was found linking DG and GD to the vehicle or items in the vehicle. While there were fingerprints on the vehicle or items in the vehicle belonging to GD and DG, there were no fingerprints of the accused found on or in the vehicle.
Photo board evidence
BN took part in an evidence-in-chief interview with police shortly after the robbery on the morning of 2 July 2021. He said that one of his assailants was named Leon Burns or “Burnsy”. He described him as having dark skin. He described the other male as a “light‑skinned guy” and was not sure of his name. He went on to say that the person had no accent, was about 5 ft 10 in, had a dark beard and a goatee and was a bit bulky. BN said that he had met this person before, a few months earlier, and believed him to be aged 27 to 33 years old. He said he knew because that person was “dating [SI’s] mum”. He said that they had met at a tram stop and had not seen him between that meeting and the night of the alleged offence. BN said he had “no clue” what his name was and that “everyone else was saying Jason but I’m quite sure that’s not it”.
In BN’s conversation with police, he described how he had come upon the name Leon Burns. The evidence appears to be that he had heard the name from one of his friends and then looked him up on Facebook in order to see whether he recognised Mr Burns as the person.
On 23 July 2021, BN took part in a photo board identification process with police. He was shown an array of 12 images from which he identified the photograph of the accused as his assailant. On that occasion, he also identified the name of that person as being “Jesse Shepherd”.
No challenge is made to the admissibility of the photo board evidence under pt 3.9 of the Evidence Act. The accused submits that the court should exercise its discretion pursuant to either ss 135 or 137 of the Evidence Act to exclude the evidence on the basis that its probative value is substantially outweighed (or simply outweighed for the purposes of s 137) by a danger of unfair prejudice to the defendant.
The objection of the accused is that at some time between the interview on 2 July 2021 and the interview on 23 July 2021, BN became aware of the identity of the accused at least insofar as he was aware of his name on 23 July when he had not been aware of his name on 2 July. The accused’s submission, as set out in his written submissions, was:
It is not known how this came about, but an inference is available based on the witness’s account of how he came to learn the identity of ‘Leon BURNS’ that social media enquiries may have been involved.
…
The potential difficulties with identification evidence in general are well known. In the circumstances of this case (outlined above), there is a real likelihood that by the time of the photo board process the witness’s recollection of what he saw on the evening of the alleged robbery had been tainted in some unknown way in-so-far as he had come to learn the identity of the Accused. It follows from this probability, and the inference as to possible social media searches, that a ’displacement effect’ may have occurred, whereby the witness selected the Accused for reasons other than him resembling the person he saw during the robbery.
(Footnotes omitted.)
The accused submitted that the probative value, even taken at its highest, remains very low and that the danger of unfair prejudice is that the jury will give the evidence undue weight in light of the potential influence of the displacement effect.
The Crown, on the other hand, referred to the fact that BN had met a male said to be the accused at a named tram stop. The male told him that he was from Yass and “dating [SI’s] mum”. Immediately after the robbery, BL (the driver of the Kia Rio) rang 000 to report the robbery and on that call BN is heard to be telling BL that one of the assailants “was dating our friend’s mum”. Further, in the interview on 2 July 2021, BN told police that one of the males was “dating [SI’s] mum” and he had met him previously at the particular tram stop.
In those circumstances, the Crown submitted that the evidence disclosed that BN was at all times aware of the identity of the accused and accurately identified his photo on the photo board. Because of that, it was inconsequential that he added the accused’s name. The Crown submitted that the probative part of the photo board evidence is that the witness correctly selected the accused’s photo. The Crown submitted that there is no evidence that BN used social media to learn the name of the person he identified. In those circumstances, there was no unfair prejudice.
The difficulty with the application was that there was no evidence from BN as to what had occurred between 2 and 23 July 2021 in relation to the identification of the robber. There was no evidence of any social media searches or any conversations with any other persons about the issue and there was no evidence as to how BN was able to be specific about the name of the person “dating [SI’s] mum”. I am not satisfied that I can, for the purposes of an advance ruling, draw an inference on the balance of probabilities that social media enquiries were made, or that BN obtained other knowledge which might affect the reliability of the identification in the period between 2 and 23 July 2021. The matters put forward are only sufficient to invite speculation as to what occurred during that period and as to how the name of the accused was identified. As a consequence, the factual basis for the exclusion of the evidence has not been established.
In those circumstances, I do not consider that it is appropriate (within the meaning of s 192A of the Evidence Act) to make an advance ruling. That is because the relevant witness will give evidence at the trial. That evidence may affect the assessment of the probative value of the identification or naming of the accused and hence affect the balance between the probative value and the danger of unfair prejudice to the defendant. There would be little point in making a positive ruling about the admissibility of the evidence in circumstances where, despite the prima facie position established in s 76(3) of the Court Procedures Act 2004 (ACT), additional and centrally relevant evidence is likely to be given at the trial. The dismissal of the application will properly reflect the rejection of the accused’s argument that the asserted inference can be drawn and allow the matter to be determined at trial.
Admissions in telephone calls
As indicated earlier, the accused's second application related to portions of the two calls made on 16 July 2021. These calls were recorded, a fact which was made clear at the commencement of the calls and which, having regard to the content of the calls, was a fact understood by the accused. Calls made by inmates at the AMC can be monitored pursuant to s 103 of the Corrections Management Act 2007 (ACT). No issue is taken by the accused with the legality of the recordings. The Crown identified the portions of the calls which it intends to play at the hearing by reference to highlighted portions of the transcripts of those conversations which became Exhibit 1 and Exhibit 2. The basis upon which those passages were said to be inadmissible varied, but were said to be the application of s 90 or alternatively ss 135 or 137 of the Evidence Act.
I am not satisfied that there is a basis for exclusion of the material under s 90 of the Evidence Act. Section 90(b) requires that “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence”. The relevant circumstances of the calls on 16 July 2021 were that the conversations were with the accused’s mother, they were voluntary and the accused was aware that they were being recorded. Nothing else was pointed to which would indicate that the circumstances in which the statements were made would make it unfair to the accused to use the evidence.
That leaves the operation of ss 135 and 137 of the Evidence Act. The issue there is whether the “probative value is substantially outweighed by the danger that the evidence might… be unfairly prejudicial to” the accused, or alternatively that the “probative value is outweighed by the danger of unfair prejudice to the defendant”. The submissions made in relation to the contents of Exhibit 1 and Exhibit 2 varied. A significant aspect of the submissions was that the tone of and language used in the conversations was such as to give rise to a risk that the jury would conclude that the accused was a person of bad character because of the tone in which he addressed allegations of serious criminal behaviour and apparent involvement in drug use. In order to assess that submission, I listened to the audio of the portions of the telephone calls that were proposed to be admitted. The tone of the calls is somewhat unusual in that the accused talks in a jocular manner with his mother about what appears to be serious criminal activity. He also uses language which in some places reflects a familiarity with the criminal justice process and the justice system. A related aspect of the submission was that it is likely to be apparent to the jury from the content of the conversation and from the automated message at the commencement of the conversation (assuming that is to be played) that the accused was in custody at the time of the conversation.
Both of these matters are matters which have the potential to be misused by a jury. The risk of there being any unfair prejudice of significance to the accused is not great because it is unlikely that the tone of voice or familiarity with some aspects of the criminal law would be treated as matters of significance by members of the jury. Further, the fact that the accused was in custody in the period shortly after his arrest on 8 July 2021 is unlikely to be a matter of significance for the jury given that it would not be surprising that a person facing an allegation of aggravated robbery would have been arrested and detained for a period. Additionally, if requested, the trial judge could give a direction to the jury about the issue to the effect that they should focus on what was said during the call and not draw any inference adverse to the accused from the fact that he was in custody at this time shortly after being arrested.
Obviously, the significance of any potential unfair prejudice must be assessed in light of the probative value of the material. Speaking at a general level, the probative value of the admissions is high. The accused makes admissions in these conversations which very closely match the Crown case against him. Those include:
[Exhibit 1, p 1] Mother: Fuck me dead. What did you do?
Accused: Aggravated robbery.
Mother: Where at?
Accused: Yeah, I robbed this cunt for his car and an ounce of weed, his phone and a hundred and twenty bucks.
…
[Exhibit 1, p 2] Mother: Oh, my god. So did you take his car?
Accused: Yeah, I took his car.
Mother: Oh, my god.
Accused: Yeah I had a coey and that. And then fucking, yeah he fucking held a blade to his throat and that.
Mother: Oh did ya?
Accused: Yeah, I just said – I put it politely, I said, “Show us the weed, boys, and that”, you know. Fucking – “No, no, no”. And then, yeah, I said, “Fucking – now get the fuck out of the car.”
[Exhibit 1, p 3] Accused: And, um, they got my fingerprints in the car, but the only thing they will get is on the passenger side, so it should be only joy-riding.
…
Accused: - - - he might – he might pick me at a fucking – at a photographic line-up.
Mother: Yeah, yeah.
Accused: That’s the only thing - - -
Mother: Yeah.
Accused: - - - I’m fucking worried about, but, um - - -
…
[Exhibit 1, p 7] Accused: (Laughing) No, I fucking held a blade to some cunt’s throat and told him to get the fuck out of the car.
Mother: Oh, god.
Accused: And took the car. Went and got on.
…
Mother: Did you take the car back to the poor lad?
Accused: No. The police found it the – a couple days after - - -
Mother: Oh, god.
Accused: - - - because I lent it to someone and the cunts fucking left it downstairs where I robbed them.
[Exhibit 2, p 3] Accused: … No, a fucking (indistinct) and the cunt snitched on me too, hey.
Mother: Who?
Accused: The cunt snitched on me. The one I robbed.
Mother: Why?
Accused: He snitched on me for robbing him.
These extracts demonstrate that the probative value of the material is high. There may be some basis for submissions to a jury as to how to characterise these exchanges but on their face, they represent damning admissions on the part of the accused. That the accused submitted that the statements, or some of them, may be untrue boasts of criminal activity, will be a matter for the jury to determine. However, the jury will do so in the context of the terms of the calls as a whole. The possibility that the statements might have been made for reasons other than that they were the truth gives rise to a jury question but not to any significant risk of unfair prejudice.
Because the submissions put on behalf of the accused addressed the different parts of the conversations sought to be admitted, it is necessary to address the different parts of the conversations individually.
Exhibit 1, p 1
The accused accepts that these statements are both relevant and involve admissions. The general submissions made about tone, criminality, drug use and incarceration were made in relation to these passages. In light of the probative value of the admissions, I do not accept that the possible risk of unfair prejudice meets the thresholds in ss 135 or 137 of the Evidence Act.
Exhibit 1, p 2, first half of the page
This is a continuation of the conversation from Exhibit 1, p 1. It records some attempts by the accused to get a message to DG. It is relevant insofar as it is evidence of a relationship between the accused and DG. The Crown submitted that having regard to the admissible material in the conversation before and after, it would be undesirable to redact this material because to do so would unnecessarily break the flow of the recorded conversation and deny the other passages their proper context. It also may lead a jury to speculate as to why the redactions were necessary. Counsel for the accused submitted that the material was not relevant and that the existence of a relationship between DG and the accused would not be in issue at the trial.
In the absence of any admissions made by the accused in relation to the relationship between himself and DG, that remains a fact in issue in the proceedings. The evidence is relevant to that issue. I do not consider that the content of the audio gives rise to any significant risk of unfair prejudice arising from its tone. I do not consider that the references to attempting to contact DG give rise to any significant risk of unfair prejudice. I consider that it is desirable that the critical portions of the conversation be given in their context so that the jury may properly assess all aspects of the evidence and hence reach a reliable conclusion as to the weight to be given to the evidence. In my view the thresholds for making orders under ss 135 or 137 of the Evidence Act are not met in relation to this evidence.
Exhibit 1, p 2, second half of the page
The accused accepts that this evidence is relevant and involves admissions. It includes the reference to the co-offender having held a blade to a victim’s throat and the accused having told the occupants of the car to “get the fuck out of the car”. The latter statement was accompanied by laughter. As I have indicated, the probative value of this material is very high. The tone of voice, laughter and colloquial reference to a co-offender as a “coey” are matters which might suggest to a jury a casual approach to serious crime and some familiarity with criminal concepts. However, those peripheral aspects of the conversation do not give rise to a danger of unfair prejudice which outweighs the probative value of the evidence, or a danger of unfair prejudice which substantially outweighs the probative value of the evidence.
Exhibit 1, p 3
This portion of the conversation refers to:
(a)the accused taking the matter to trial.
(b)that the car keys were found in the house and other people had access to them;
(c)that the police had his fingerprints in the car but that they would only get them on the passenger side so he was only exposed in relation to a charge of joyriding for which he would get a few months;
(d)he was worried about one of the victims of the robbery picking him out in a photographic line-up.
Counsel for the accused submitted that this material was not relevant because it should be simply characterised as a discussion of the police evidence in the case. In my view, that submission is unrealistic having regard to the context in which the statements were made, particular the earlier admissions of involvement in the robbery. The statement that there would be fingerprints on the passenger side of the vehicle, when none were found by the police, is adverse to the accused’s position in the trial because it is consistent with the Crown case that he was present in the vehicle. The fear of being picked out at a photographic line-up involves an admission because it may be accepted by the jury as reflecting a knowledge of his own guilt. In the context in which it appears, it would be open to the jury to conclude that it went beyond merely a discussion of the possibility that the accused may be falsely identified through a photographic line-up process.
Exhibit 1, p 7:
The submission in relation to this passage was that the portion proposed to be admitted had to be read in context of what occurred from near the bottom of p 6 of the transcript in order to make sense. However, the accused submitted that the inclusion of that context would necessarily include material which was prejudicial, namely the proposition that his mother expected the accused to have committed serious crime. I do not accept the submission that there is unfair prejudice of any significance arising from the playing of the identified portion and not the audio immediately prior to it. The earlier portion provides some context for the statement but its absence does not make the portion to be played unfairly prejudicial. While it does provide some context, that context is not of great significance in assessing the passage to be played. On the other hand, the passage to be played contains admissions of very significant probative value.
Exhibit 2, p 3:
This passage includes the threat by the accused to rob the victim of the robbery again and to burn his car. It also at the end includes the accused saying “No, I’m just joking, fuck you. I never did shit. I’m innocent. … I’m innocent until proven guilty in a court of law.” The statements here are clearly relevant admissions, of significant probative value, of having committed the robbery. I do not accept the submission that the tone or content of the material gives rise to significant unfair prejudice. It is certainly not prejudice or a risk of prejudice that would outweigh the probative value of the evidence.
Admitting the transcript only
Finally, counsel for the accused submitted that if the evidence was to be admitted, it should only be admitted in the form of the transcript and not the audio of the telephone conversations. That submission was based upon the submissions made in relation to the tone of the conversations. As I have pointed out earlier in these reasons, I have not accepted that the tone of the conversations is a matter which might give rise to unfair prejudice of any significance. It certainly does not outweigh the very significant probative value of the evidence. There is no basis for preventing the Crown from leading the best evidence of the conversations, namely the audio recording. It will be a matter for the jury to assess the significance, if any, of the tone used by the accused during these conversations.
I am not satisfied that there is any basis for exclusion of the telephone conversation evidence under ss 90, 135 or 137 of the Evidence Act. The order of the court will be that the evidence of telephone calls from the AMC in the portions of Exhibit 1 and Exhibit 2 which are highlighted in yellow are admissible at the trial of the accused.
Orders
The orders of the Court are as I have indicated in my reasons, namely:
(1) The application in proceeding dated 16 December 2021 seeking the exclusion of a record of conversation containing a positive photo board identification of the accused is dismissed.
(2) In relation to the application in proceeding dated 16 December 2021 seeking the exclusion of evidence of recorded telephone calls, the Court rules that the evidence of telephone calls from the Alexander Maconochie Centre in the portions of Exhibit 1 and Exhibit 2 which are highlighted in yellow are admissible at the trial of the accused.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 2 March 2022 |
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