R v Sidaros (No 2)
[2019] ACTSC 348
•20 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sidaros (No 2) |
Citation: | [2019] ACTSC 348 |
Hearing Date(s): | 19 and 20 November 2019 |
DecisionDate: | 20 November 2019 |
Before: | Murrell CJ |
Decision: | Application dismissed. Evidence admissible under ss 138 and 90 of the Evidence Act. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Whether representations made by the accused should be excluded under ss 138 and/or 90 – Exclusion of improperly obtained evidence – Representations made to police following caution – When representations made after police provided accused with statement of facts and informed accused that they will not question him |
Legislation Cited: | Crimes Act 1900 (ACT) ss 12, 19, 27(3)(d), 28B, 117, 318(2) Crimes Act 1914 (Cth) s 23V Evidence Act 2011 (ACT) ss 90, 138 |
Cases Cited: | R v Sidaros [2019] ACTSC 177 Sidaros v The Queen [2020] ACTCA 11 |
Parties: | Axel Sidaros (Applicant) The Queen (Respondent) |
Representation: | Counsel I McLachlan with S Pararajasingham (Applicant) T Hickey (Respondent) |
| Solicitors Kamy Saeedi Law (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCC 312 of 2018 SCC 313 of 2018 |
Murrell CJ
The Indictment
The applicant is to be tried for the following offences that occurred on 28 June 2018:
(a)With unknown persons, attempt to murder Peter Zdravkovic (the complainant), contrary to s 12 of the Crimes Act 1900 (ACT) (Crimes Act) (by virtue of ss 44 and 45A of the Criminal Code 2002 (ACT) (Criminal Code));
(b)With unknown persons, intentionally inflict grievous bodily harm on the complainant, contrary to s 19 of the Crimes Act (by virtue of s 45A of the Criminal Code);
(c)With unknown persons, attempt to damage property at 20 Carter Crescent, Calwell with intent to endanger the life of another (arson), contrary to s 117 of the Crimes Act (by virtue of ss 44 and 45A Criminal Code);
(d)In the company of unknown persons and while armed, enter or remain in the building at 20 Carter Crescent with intent to damage the property by arson (aggravated burglary), contrary to s 312 of the Criminal Code (by virtue of s 45A of the Criminal Code);
(e)With unknown persons, intentionally or recklessly damage a Mercedes vehicle, a BMW vehicle and a Holden vehicle by fire, contrary to s 404 of the Criminal Code (by virtue of s 45A of the Criminal Code);
(f)With unknown persons, intentionally discharge loaded firearms so as to cause another person to reasonably apprehend for their safety, contrary to s 27(3)(d) of the Crimes Act (by virtue of s 45A of the Criminal Code);
(g)Dishonestly ride in a motor vehicle that had been dishonestly taken, contrary to s 318(2) of the Criminal Code; and
(h)With unknown persons, recklessly discharge a firearm at a building, 38 Carter Crescent, Calwell, contrary to s 28B of the Crimes Act (by virtue of s 45A of the Criminal Code).
The Application
By an application made on 14 November 2019, returnable on 18 November 2019 (the day on which the trial was scheduled to commence), the accused applied for an order that the evidence of representations made by the accused to Detective Senior Constable Norman on 1 September 2018 be excluded pursuant to ss 90 and/or 138 of the Evidence Act 2011 (ACT) (Evidence Act). The accused abandoned an argument that the evidence was inadmissible because of non-compliance with s 23V(1) of the Crimes Act 1914 (Cth).
The police executed a search warrant at the accused's premises on 26 July 2018. The accused showed his firearms to the police. The firearms were in a safe. The accused had a firearms licence. In effect, the accused told the police that the firearms were his and that nobody else had used the firearms apart from a mate who had fired one of his firearms at a firearms range.
The accused was arrested in Melbourne on 1 September 2018 and transported back to the ACT by Detective Norman and Constable Waring. The police officers say that, in the course of the journey, they cautioned the accused and told him that they did not intend to question him in relation to the offences during the journey.
Subsequently, while on the flight, Detective Norman provided the accused with a statement of facts that had been prepared in relation to obtaining the arrest warrant. That document referred to an Adler shotgun. Referring to the search on 26 July 2018, the document said:
Within a gun safe police also located and seized three firearms for which the defendant held an active ACT firearms licence. One of those firearms was a five-round Adler A-110 lever-action 12 gauge shotgun, serial number 17AU-03677.
The statement continued:
Police observed during the search that the defendant was short and of slim build, consistent with the appearance of Male 2 in the CCTV footage from 20 Carter Crescent, Calwell ACT, and that the seized work boots, gloves, and Adler shotgun were consistent with the appearance of the items worn and carried by Male 2 in that footage.
Forensic firearms comparison of the defendant's Adler shotgun and cartridge cases recovered from 20 Carter Crescent, Calwell ACT confirmed that they were fired from that weapon.
Forensic examination of other items seized at the incident scene and the search warrant of the defendant's home are ongoing.
The police say that, after this document was provided to the accused during the course of the flight and the accused began to read it, he made a spontaneous statement to the effect of “I have left my guns around the house inappropriately in the past. My dad will confirm that”.
The police evidence is that they repeated the caution, informing the accused that they would not be asking him any questions about the offence at that stage as he had not had access to a lawyer, and they were unable to record the conversation during the flight. Nevertheless, according to the police, the accused continued to read the statement and then made a further spontaneous utterance to the effect of “Someone stole my gun that night. That's all I'm going to say”.
The Crown wishes to rely upon these statements, particularly the second statement, as a lie evidencing consciousness of guilt. The Crown says that the statements made by the accused to police on 26 July 2018 show that the later statements were a lie.
After these events, an application was made to the Court to exclude the report of a police officer who, in his report, had expressed an opinion that when the accused's Adler shotgun was compared to the cartridge shells recovered from the scene of the crime, it could be seen that the cartridge shells had been fired from the accused's shotgun. The application to exclude that evidence was heard by Mossop J, who decided that the evidence should not be excluded: R v Sidaros [2019] ACTSC 177.
The matter went on appeal to the Court of Appeal. The Court of Appeal allowed the appeal but is yet to publish its reasons: Sidaros v The Queen [2020] ACTCA 11. The parties understand that the Court of Appeal decided that the contentious evidence showed that the cartridge shells found at the scene of the crime were consistent with, or similar to, cartridge shells that may have been fired from the accused's Adler shotgun but fell short of establishing that the shells found at the scene had actually been fired from a particular shotgun.
Exclusion under s 138
In those circumstances, the accused seeks to exclude evidence of the statement made during the journey pursuant to s 138 of the Evidence Act, which provides:
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—
(a) did, or omitted to do, an act in the course of the questioning even though the person knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though the person knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it must take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
(Notes omitted)
The accused contends that the contentious representation was made by the accused in consequence of an impropriety, being that:
(a)The police had provided the accused with a statement of facts when there had been no need to so and, inferentially, had done so for the purpose of prompting comment, although they themselves had recognised that it was inappropriate to question the accused during the journey.
(b)The statement shown to the accused had contained a false assertion, i.e. that it was the accused's gun that had been used in the offences of 28 June 2018 and that false assertion had demanded an explanation. Had the statement of facts been correct, it would have said that the cartridge shells found at the scene of the crime were consistent with or similar to shells that may have been fired from the accused's shotgun.
In written submissions, the accused made the following additional submissions:
(a)The provision of the statement of facts was a deliberate attempt to undermine the caution administered to the accused only moments earlier.
(b)The accused had not been the subject of a prior arrest and was therefore inexperienced in relation to the exercise of any right to silence.
The accused submitted that had an accurate statement been made—i.e. had the statement been that the cartridge shells found at the scene of the crime were consistent with, or similar to, cartridge shells that may have been fired from the accused's shotgun—then there was every prospect that the accused would have responded differently because a correct statement would not have demanded an explanation of the relationship between the gun and the cartridge shells.
Under s 138, the first question is whether the evidence of the representation was obtained improperly or in contravention of an Australian law or in consequence thereof.
I am not satisfied that the evidence was obtained improperly or in contravention of an Australian law or in consequence thereof.
First, the police were merely providing the accused with a statement of facts. The provision of information to an accused person is rarely the topic of adverse comment. Usually, it is the reverse. It was not inappropriate for the police to provide the accused with material that had supported his arrest in circumstances where they were effecting his arrest.
Second, at the time that the statement was provided to the accused, the arresting police did not know that it was false. It accorded with the evidence that was available to the police at that time; the ballistics expert had expressed an opinion that there was a direct relationship between the accused's shotgun and the cartridge shells found at the scene.
The fact that the statement reflected the evidence at that point in time is not a complete answer to an assertion of impropriety, but it is a matter that is very important in relation to the exercise of the balancing test under s 138.
Had the statement provided to the accused been correct, it would have said that the cartridge shells found at the scene were consistent with or similar to shells that may have been fired from the accused's shotgun. It is debatable whether, in the mind of the accused, that statement would have been substantially different from the statement provided.
For these reasons I am not satisfied that the evidence of representation was obtained in consequence of an impropriety.
However, if I am wrong, then the question is whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
In considering this question, the Court must take into account the matters in s 138(3). I have had regard to all those matters. In this case, the most significant of those matters are the gravity of the impropriety or contravention (if it existed at all, it was trivial) and whether any impropriety was deliberate or reckless.
The accused submitted that the Court should infer that the police were deliberately attempting to undermine the caution that they had just given to the accused. There is no evidence whatsoever to support that proposition. It is entirely speculative, and it is not a conclusion that I would readily reach. Rather, I would infer that the statement was provided to the accused because the police considered that he had a right to know the basis for his arrest.
Consequently, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which the evidence was obtained.
The evidence will be admitted.
Exclusion under s 90
Alternatively, the accused sought to have the evidence excluded under s 90 of the Evidence Act.
Section 90 provides:
90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is presented by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
As I have indicated in relation to s 138, I do not consider that, having regard to the circumstances in which the admission was made, it would be unfair to the accused to use the evidence. The evidence was obtained in circumstances where, according to the police statement (and the police have not been cross-examined on this point), the accused had been cautioned twice before making the asserted admission.
The accused’s statement was made in the context that he had been provided information concerning the evidence as the police believed it to be at the time. There is no evidence to support the proposition that the police were in any way deliberately attempting to undermine the caution that they had just given or disrespect the accused's right to silence.
Consequently, I decline to exercise my discretion under s 90 to refuse to admit the evidence.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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Amendments
| 15 September 2020 | Amend citation “Sidaros v The Queen [2019] ACTCA 32” to “Sidaros v The Queen [2020] ACTCA 11” | Cases cited, [11] |
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