R v Stewart and Kirkham (Ruling No 1) - [2009] VSC 200

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1400 of 2008

THE QUEEN

STEWART AND KIRKHAM

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	8, 11, 12, 13, 14, 18, 19, 20, 22 May 2009
DATE OF RULING:	22 May 2009
DATE OF REASONS:	26 May 2009
CASE MAY BE CITED AS:	R v Stewart & Kirkham (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2009] VSC 200

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CRIMINAL LAW – Evidence – Admissibility of covertly recorded conversations – Excluded on discretionary grounds.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Papas	Office of Public Prosecutions
For the Accused Stewart	Mr P Chadwick	Ronald V Tait
For the Accused Kirkham	Mr W Stuart	Balmer & Associates Pty

HIS HONOUR:

On Saturday 13 August 2005 Simon Gurfinkel was found dead in the Gatwick Private Hotel in Fitzroy Street, St Kilda. A subsequent autopsy and other inquiries led police to believe he had been robbed and assaulted and that he died as a result of injuries sustained in that assault. On 8 September 2005 Jenny Kirkham, the second defendant, was interviewed by police. On 14 September 2005 John James Stewart, the first defendant, was interviewed by police. Jenny Kirkham was interviewed again on 24 November 2005. She had made a police statement on 26 August 2005. In her records of interview Ms Kirkham answered questions and denied any wrongdoing. In his record of interview Mr Stewart answered “no comment” to all questions of significance.

Pursuant to certain warrants obtained by police, Mr Stewart’s phone conversations were intercepted and monitored. Police identified a number of people in those intercepts from whom they sought to make further inquiries. One of those people was Susan Tate.

In 2006 and 2007 Susan Tate had conversations with Mr Stewart and with Ms Kirkham in which it is alleged by the prosecution that admissions were made. The admissions made by Mr Stewart were allegedly made on 26 August 2006 and on 6 September 2006. Counsel for Mr Stewart objects to evidence of these admissions being led.

I conducted a voir dire involving the examination of the informant, Mr Buick, and submissions as to the admissibility of the admissions allegedly made by Mr Stewart prior to empanelment of the jury. In substance the submission on behalf of Mr Stewart was that evidence of the alleged admissions should not be permitted pursuant to the principles articulated in R v Swaffield and Pavic v The Queen.[1] In the course of the hearing there were a number of subpoenas issued, and a number of claims of public interest immunity were made which it was necessary for me to hear and determine in camera.
[1](1998) 192 CLR 159 (“Swaffield”).

The relevant sequence of events

Mr Buick first made contact with Ms Tate on 20 January 2006. On 26 January 2006 she indicated to him that she was prepared to assist police by visiting Mr Stewart to discuss the incident at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSC 200
Decision Date: 22 May 2009

CaseChat Overview and Summary

The case before the court involved two defendants, Stewart and Kirkham, who were facing criminal charges. The dispute centred around the admissibility of covertly recorded conversations between the defendants and a third party, which were intended to be used as evidence in their trial. The matter was heard in the Supreme Court of Victoria. The defendants argued that the recordings were obtained in breach of their privacy rights and should be excluded from the trial under the discretionary powers of the court.

The legal issues before the court were whether the covert recordings were obtained lawfully and, if so, whether they should be admitted as evidence. The court had to consider the balance between the right to privacy and the need for the prosecution to present evidence to prove the case against the defendants. The court also had to consider the potential prejudice to the defendants if the recordings were admitted and whether the probative value of the recordings outweighed any prejudicial effect.

The court held that while the recordings were lawfully obtained, they should be excluded under the discretionary powers of the court. The court found that the covert nature of the recordings and the circumstances in which they were obtained were likely to cause significant prejudice to the defendants. The court considered that the prejudice to the defendants' right to a fair trial outweighed the probative value of the recordings. The court also noted that the prosecution had other evidence available to prove their case and that the exclusion of the recordings would not significantly impact the outcome of the trial.

The court ordered that the covertly recorded conversations be excluded from the evidence in the trial against Stewart and Kirkham. The trial proceeded without the use of the recordings, and the defendants were ultimately convicted on the basis of other evidence presented by the prosecution.

Orders