R v Stewart and Kirkham (Ruling No 1)
[2009] VSC 200
•22 May 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1400 of 2008
| THE QUEEN |
| V |
| 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 Gatwick Hotel. Her association with Mr Stewart was substantially, if not exclusively, founded upon the provision by her of illegal drugs to Mr Stewart, or assistance given by her to him to obtain drugs. At that time she was in a relationship with a person who was a drug dealer. This was a violent relationship and police assisted her in that respect.
On 28 April 2006 Ms Tate advised Mr Buick that she had written a letter to Mr Stewart but had received no reply. On 3 May 2006 Mr Buick discussed the position with Ms Tate. She told him again that she had sent a letter to Mr Stewart (who is usually referred to as “JB”) but that she had received no reply. Mr Stewart was in custody at that time. Ms Tate told Mr Buick that his girlfriend was seeing him “inside”. Ms Tate told Mr Buick at this meeting that she was prepared to wear a listening device.
At around the same time, in May 2006, Mr Buick became aware of a person, one David Gillett, who maintained that Mr Stewart had admitted to him that he had assaulted and robbed the deceased at the Gatwick Hotel. Mr Gillett had a criminal record and at that time had further matters pending against him. Mr Buick apprehended that the value of any evidence Mr Gillett might subsequently give would be potentially compromised by these circumstances.
On 5 June 2006 Mr Buick spoke to Ms Tate and advised her that Mr Stewart had been released from jail. Ms Tate said she had not seen or heard from him. That same day Mr Buick spoke to the manager of an alcohol and drug facility at Shepparton, referred to before me as the “Percy Green Centre”. The manager told him that John Stewart was residing there. Mr Buick’s belief was that Mr Stewart was residing there as a condition of bail which had been granted to him. Thereafter, as a result of inquiries made by Mr Buick, Mr Buick formed the belief that Mr Stewart was continuing to use drugs notwithstanding his residence at the Percy Green Centre. Mr Buick attempted to speak to Mr Stewart but was told, either by the manager of the Centre or by Mr Stewart himself, that any questions should be directed to Mr Stewart’s legal advisors.
On 10 August 2006 Mr Buick “tasked” Ms Tate to make contact with Mr Stewart’s girlfriend, Sasha Kershaw, with a view to generating contact from Mr Stewart. Police drove Ms Tate to Ms Kershaw’s address but Ms Kershaw was not at home. Ms Tate left a message for Ms Kershaw. Ms Kershaw later rang Ms Tate. Police had instructed Ms Tate to tell Ms Kershaw that she needed to speak to Mr Stewart about problems Ms Tate was having with her violent partner and that Ms Tate should pretend that she thought Mr Stewart was in prison. Police were informed by Ms Tate that Mr Stewart contacted her and stated that he wanted to catch up with her. Ms Tate had told him that she might travel to Shepparton to visit him.
After discussing the matter with senior police and colleagues, Mr Buick decided to undertake an operation whereby Ms Tate would visit Mr Stewart in Shepparton and an attempt would be made to discuss the event at the Gatwick Private Hotel with him in circumstances where the conversation between the two of them was monitored and recorded. Under this proposal, the “in” or the “context” for the contact between Ms Tate and Mr Stewart would be the provision of drugs to Mr Stewart by Ms Tate, or Ms Tate’s assistance in Mr Stewart obtaining drugs. Mr Buick in his evidence said that this was necessary because this was the whole basis of the relationship between the two of them.
Mr Stewart obtained an authority under s 51 of the Drugs Poisons and Controlled Substances Act 1981 addressed to Ms Tate.[2]
[2]The authority was in what appears to have been a standard form: see R v Te [1998] 3 VR 566. A copy of the authority was tendered on the voir dire. The terms of the authority were not adapted to the circumstances here, but were in the standard form appropriate for drug operations.
Ms Tate was briefed by police on the proposed visit to Shepparton on 22 August and 25 August.
The first visit: 26 August 2006
According to records maintained by Mr Buick at the time, Ms Tate was collected at 8.00 am on 26 August 2006 in a hired vehicle. There was a listening device in the vehicle. At 11.00 am, in Shepparton, the hired vehicle was handed over to Ms Tate together with the sum of $200 which was described in Mr Buick’s notes as “approved drug buy money”. Ms Tate drove to the Percy Green Centre and collected Mr Stewart. The two of them then drove to Preston where illegal drugs were purchased using the $200. The drugs were used by Mr Stewart in Richmond. Later in the afternoon police staged what was described as a “mock intercept” and took Ms Tate away. Mr Stewart walked away from the area. Ms Tate was then debriefed.
In a subsequent statement to police Ms Tate said the following:
“In about August 2006 I visited JB at the detox centre he was staying at in Shepparton.
JB told me that a female I know as Jenny Kirkham robbed Simon of some money on the night he was killed. JB said that he was there when Jenny robbed the male. This is all that JB said about this.”
The recordings made by police on 26 August 2006 are of a very poor quality. It is impossible to discern anything other than an occasional word. It seems that the road noise and the noise of the car overpowered the voices, but there may be other technical reasons for the poor quality as well. Such recording as there was, was only conducted inside the car and Ms Tate and Mr Stewart were from time to time not in the car on that day.
When she gave evidence at the committal Ms Tate swore that her statement was true and correct, but otherwise indicated she could not recall the conversation on 26 August 2006. She was not questioned in detail about it.
The Crown seek to rely upon the conversation on 26 August 2006 as constituting an admission by Mr Stewart that he was present when Jenny Kirkham robbed Simon Gurfinkel.
The second visit: 5/6 September 2006
Police judged the visit on 26 August 2006 to have been unsatisfactory and determined to try again. A further visit was arranged for 5 September 2006. This time it was arranged for Ms Tate to stay overnight in a motel room in which there would be a listening device.
On 5 September 2006 Mr Buick collected Ms Tate, again in a vehicle provided by police. He again gave her $200 to purchase drugs. This time she purchased drugs before they left Melbourne. Mr Buick waited nearby while she did so. She told him that she spent $150 purchasing:
6 x 100 mgs morphine capsules
10 x 1 mg Xanex tablets
10 x 500 g Xanex tablets
Mr Buick and Ms Tate proceeded to Shepparton. Mr Stewart was not permitted to leave the Centre on 5 September 2006 and an arrangement was made for him to visit the motel room the next day. The next day Mr Stewart and another person visited Ms Tate at the motel room. This time the listening device produced recordings of good quality.
The conversation in the motel room deals with other issues for a considerable period of time. Ms Tate pretends that she is communicating with a drug contact via mobile phone. She was in fact communicating with Mr Buick. Before there was any discussion of the incident at the Gatwick, Ms Tate left the hotel room, pretending to meet a drug dealer, and then returned with the drugs she had previously purchased in Melbourne. In the recording the sounds of preparation of drugs for intravenous injection can be heard as can the sounds of Mr Stewart and the person who was with him using those drugs.
Subsequently Mr Buick recorded the return to him by Ms Tate of:
4 x Valium capsules
10 x 500 g ‘Zernex’ tablets.
In the circumstances it is not possible to know what drugs Mr Stewart took in the motel room. The drugs taken to Shepparton were purchased on the street. The description of the drugs in Mr Buick’s notes is not consistent. It is unknown which of the drugs were used by Mr Stewart and which by the other person.
In his evidence on the voir dire Mr Buick said he told Ms Tate to endeavour to engage Mr Stewart in conversation about the Gatwick incident before the drugs were used. That is not what occurred.
After the drugs had been used, Ms Tate brought up the police investigation in relation to the Gatwick incident. It is not easy to understand the conversation. No transcript of it has been prepared by the Crown or the police, but doing the best I can the relevant part of the conversation seems to me to be as follows:
“Tate: Do you think the Homicide Squad’s still lookin’ for ya? [indistinct]
Stewart: They’re not looking for me. They know [who/where] I am.
Tate: They know [who/where] you are [laughs].
Stewart: Of course, everyone knows who I am, but um, it’s still an ongoing investigation you know what I mean, so, yeah, you know what I mean, they tried to ring up two months ago and say they wanted to speak to me .
Tate: Yeah.
Stewart: I said mate, I’ve got nothing to say to you. I spoke to you that long ago, other than that I’ve got nothin’ to say to you, see ya later. If you want to speak to me speak to me mouthpiece, and then they tried to ring up the lad I introduced you to yesterday with the glasses, the manager.
Tate: Yeah.
Stewart: He said listen John’s up here, ‘cause he calls me JB, he goes um other than that, if you want to speak to him, speak to his solicitor and work it out from there, so, yeah, but other than that fucken
Tate: Who was that copper? I can’t remember his name.
Stewart: Boris Buick.
Tate: Did you call him? The dog maggot .
Stewart: Yeah, dog maggot.
Tate: Hey?
Stewart: Yeah, the dog maggot. He, um…
Tate: Is he the investigating officer or something?
Stewart: Yeah.
Tate: Oh yeah.
Stewart: Homicide, but um, what do you call it, what was I going to say? I forget, yeah he fucken rang up and spun me out, oh that’s right he reckons ‘cause he’s got new information or something. I said mate, there’s been fucken information bullshit, everything, you know what I mean so, you’re the copper, do the investigation and work it out.
Tate: Did you bash him?
Stewart: Huh?
Tate: Did you bash him?
Stewart: Ah,
Tate: Hey?
Stewart: I’m not interested, no that’s fucked.
Tate: You’re not gonna answer that?
Stewart: What?
Tate: I said did you bash him …[indistinct]
Stewart: I told ya mate, it gets me wild when cunts say that - when people say that to me, I feel like turning on ‘em.
Tate: Don’t turn on me, no, you turn on me and I’ll, and I’ll...
Stewart: ‘cause I’ve told that many people, it gets frustrating after awhile, you know what I mean. If I fucken done it mate, I done it, you know what I mean. Mate, how ya goin’ man. Fucken, it just gets you wild, you know what I mean after hearin it, it’s been how long now since it’s happened?
Tate: I don’t know, I mean when did it happen?
Stewart: Fuck, last year, November?
Tate: November?
Stewart: Yeah, last year. Yeah, round then.
Tate: I never even, no the first I heard about it was, someone in the park told me.
Stewart: Yeah.
Tate: I never even read it – was it in the paper?
Stewart: Um, yeah yeah.
Tate: [indistinct] … paper?
Stewart: Ah no, the local rag, in the local rag.
Tate: Yeah, in the local rag?
Stewart: Yeah.
Tate: [indistinct] … Western Australian paper.
Stewart: Well I was gonna go…you wanna come out, see me out?
Tate: Yeah I’ll come out.”
It seems that Ms Tate may have attempted to visit Mr Stewart again in Shepparton on 10 September 2006 without police authority. Mr Buick’s evidence was that he gave Ms Tate a stern warning in relation to that.
Submissions made
Counsel on behalf of Mr Stewart submitted that evidence of the conversations with Ms Tate on both 26 August 2006 and 6 September 2006 should be excluded. Counsel reviewed the circumstances particularly emphasising Mr Stewart’s status as a suspect from September 2005, the informant’s knowledge that Mr Stewart had chosen not to speak to police about the incident, the circumstances in which Ms Tate established contact with Mr Stewart, the role played by drugs on both relevant occasions, the limited nature of the admission allegedly made on 26 August 2006, and the ambiguous and equivocal nature of the admission allegedly made on 6 September 2006. Reference was made to the High Court decision in Swaffield,[3] the Court of Appeal decision in R v Carter,[4] the Court of Appeal decision in R v Juric,[5] the Court of Appeal decision in R v Tofilau (No 2)[6] and the High Court decision in the same case,[7] and the High Court decision in EM v The Queen.[8]
[3](1998) 102 CLR 159.
[4](2000) 1 VR 175 (“Carter”).
[5][2002] VSCA 77 (“Juric”).
[6](2006) 13 VR 28.
[7](2007) 231 CLR 396.
[8](2007) 232 CLR 67.
Whilst not conceding the issue of voluntariness, counsel for Mr Stewart’s submissions were primarily directed towards discretionary matters. It was submitted that drug use rendered such admissions as there were unreliable and that otherwise the admissions should be excluded in the exercise of discretion on the grounds of both unfairness and public policy.
Counsel for Ms Kirkham was given the opportunity to make submissions, as Ms Kirkham’s interests might be said to be affected by the 26 August 2006 conversation, but did not do so other than to indicate general support for the position of counsel for Mr Stewart.
On behalf of the Crown it was submitted that there was no issue as to voluntariness. Counsel conceded that there was an issue as to reliability in relation to the admissions made on 6 September, but submitted that it is apparent from the recording that Mr Stewart was not so drug affected as to warrant exclusion of the conversation. In relation to unfairness, it was submitted that there was nothing illegal in what was done as a s 51 authority had been obtained. It was submitted that some subterfuge or trickery was not sufficient on its own to warrant exclusion of admissions, as the decisions in Tofilau demonstrate. Counsel for the Crown emphasised the importance of the investigation into this very serious offence. Whilst he conceded that drug use was part of the operation which led to the alleged admissions, and that Mr Stewart was in a drug rehabilitation facility at the time, he relied upon Mr Buick’s evidence as to the police belief that he was still in fact using drugs and upon his extensive history of drug use.
Relevant legal principles
In the High Court decision in Swaffield the majority explained that traditionally there are four bases for the exclusion of admissions made by an accused person. The first is where the prosecution fails to prove that the admission was made voluntarily. Voluntariness in this sense concerns whether the admission was made as a result of matters such as duress or intimidation or after an inducement by a person in authority. In this respect the majority cite Dixon J in McDermott v The King.[9] The other three traditional grounds involve the exercise of judicial discretion. The second basis for exclusion is the judicial discretion to exclude the statement where it would be unfair to the accused to admit the statement. The third basis provides for exclusion where considerations of public policy make it unacceptable to admit the statement into evidence. The fourth basis for exclusion of an admission is where the prejudicial effect of the statement outweighs its probative value.
[9](1948) 76 CLR 501.
The High Court decision in Swaffield set out a new approach, since summarised by the Court of Appeal on two occasions in the following terms:
“Toohey, Gaudron and Gummow JJ in a joint judgment, and Kirby J separately, held that the admissibility of confessional material turns first on the question of voluntariness, next on exclusion based on considerations of reliability, and finally on an overall discretion taking account of all circumstances (including the means by which any admission was elicited and whether unfair forensic disadvantage may be occasioned by admission of the evidence) to determine whether the evidence was admitted or a conviction obtained at an unacceptable price having regard to contemporary community standards.”[10]
[10]Carter at [42] and Juric at [47].
Issues which need to be considered in the exercise of discretion include whether the person to whom the admission was made was an agent of the State, whether the admission was “elicited”, whether the circumstances are such that the accused’s right to silence was relevantly impugned, and whether there was illegality or impropriety.
Application: 6 September 2006 admissions
There is no issue as to voluntariness in the sense in which that term is used in McDermott v The King.
There are matters raised concerning reliability. Contrary to the instructions given to Ms Tate by Mr Buick, she did not raise the Gatwick Hotel incident until after the drugs had been used. It is not known with certainty what drugs in what quantities were used by Mr Stewart. It is very likely he was drug affected at the time the admissions were made. The admissions themselves are ambiguous and open to interpretation. The terms in which they were made could well have been affected by the drug use. In my view the admissions on 6 September 2006 should be excluded on this basis alone.
There is a further reason why, in my view, the admissions on 6 September 2006 must be excluded. I have, in a separate ruling, excluded a number of telephone interceptions in which Mr Stewart complained in threatening and violent terms about people who he asserted had falsely suggested he was involved in wrongdoing at the Gatwick Hotel on the relevant occasion. Those recorded conversations would put the comments made on 6 September 2006 which culminate in him saying “If I fucken done it mate, I done it” into a context which, it seems to me, might be seen as significantly reducing their impact as an admission. If the conversation of 6 September 2006 is admitted, Mr Stewart is put in an unfair dilemma. Either the comment he made on 6 September 2006 goes before the jury without that context, or he puts the comment into that context and thereby reveals material suggesting he has a very violent propensity. In my view, the relevant part of what was said on 6 September 2006 is ambiguous. In the circumstances, my conclusion is that it is unfair to admit it.
Finally, I have also concluded that this is a case where the admissions obtained were obtained at an unacceptable price having regard to contemporary community standards.
Ms Tate was an agent of the police. The relationship between Ms Tate and Mr Stewart was revived upon the instructions of the police for the sole purpose of attempting to obtain admissions from Mr Stewart. These admissions were sought to be obtained in circumstances where Mr Stewart had exercised his right not to answer police questions. Then there is the role that illegal drug use played in the operation. Whilst it may be true, as counsel for the Crown submitted, that there was no illegality on the part of Ms Tate or the police, on any view the operation as planned and executed necessarily involved illegal possession and use of drugs by the accused, Mr Stewart. So, an agent for the State has attempted to obtain admissions from an accused person, who has indicated that he does not wish to speak to police, by luring the accused person into contact through the promise of illegal drugs, and in circumstances where the alleged admission is obtained after that promise has been fulfilled. This is a case where the admission was obtained at too high a price.
Application: 26 August 2006 admissions
Again, in my view there is no relevant issue as to voluntariness.
So far as one can tell from the material, it does not seem that the concerns as to reliability which I set out in relation to the conversation on 6 September 2006 are the same in relation to this conversation. Had I not been persuaded that this admission should also be excluded in any event, it would have been necessary to ensure that that was so, on a voir dire before Ms Tate gave her evidence.
I have concluded, however, that this admission should also be excluded because of the role that illegal drugs necessarily played in the operation. It is also significant that the admission allegedly made on 26 August 2006 was a very limited one. What was relevantly said concerned Ms Kirkham more than Mr Stewart, and, insofar as it was an admission by Mr Stewart, it was an admission to nothing more than being present at the relevant time. Counsel for Mr Stewart made it clear repeatedly that there will be no issue in the trial as to Mr Stewart’s presence at the Gatwick Hotel at the relevant time. It seems to me that this very limited admission came at an unacceptable price having regard to contemporary community standards.
Conclusion
My conclusion is that evidence of the admissions allegedly made by Mr Stewart on 26 August 2006 and on 6 September 2006 should not be led.
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