R v Stewart and Kirkham (Ruling No 2)
[2009] VSC 201
•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 |
---
JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12, 22 May 2009 | |
DATE OF RULING: | 22 May 2009 | |
DATE OF REASONS: | 25 May 2009 | |
CASE MAY BE CITED AS: | R v Stewart & Kirkham (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 201 | |
---
CRIMINAL LAW – Evidence – Admissibility of phone intercepts – Excluded as prejudicial effect outweighs probative value.
---
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:
Prior to empanelling the jury, I heard submissions concerning the admissibility of phone call interceptions, and extracts of phone call interceptions, by the police in the course of their investigations.
Transcripts of the phone call interceptions begin in the depositions at page 625 and continue through to page 978. The prosecution does not intend to play all of the calls but has indicated its intention to play some of the calls in full and a number of the calls in part. Counsel on behalf of both accused have submitted that all the calls should be excluded on the ground that, whether considered as a whole or individually, the prejudicial effect outweighs the probative value such that their admission into evidence would be unfair.
Counsel for Ms Kirkham addressed two of the extracts specifically (the extract at page 652 and the extract at page 767) but otherwise approached the matter on a general level arguing that there are no admissions made by his client in the calls; that there are no relevant admissions made by the co-accused, Mr Stewart; and that the calls are prejudicial in that they contain much material indicating a propensity to violence on the part of Mr Stewart which affects Ms Kirkham by virtue of her association with him. He indicated that if the calls were admitted Ms Kirkham would apply for a separate trial.
Counsel for the Crown and counsel for Mr Stewart addressed submissions to the relevant calls (or extracts) individually. I will begin by reviewing the calls individually, in chronological order.
Extract of call on 7 September 2005 – Deps 909-910
The Crown proposes to lead an extract from a phone call on 7 September 2005 between Mr Stewart and a social worker identified as Sean. Much of the subject matter of the extract concerns what Mr Stewart had told a person working at Aboriginal Legal Aid who is referred to as Jill. In the call Mr Stewart refers to the police inquiries and to the fact that the police wished to speak to him. He says that he just wants to go in there and “give me statement about what happened”. He then gives a very brief overview of what he would say, which is to the effect that he had found the deceased, had told someone to “ring whoever”, and had then stayed around to give the police his details. He makes observations to the effect that he would not be doing that again, and that were he to find a woman’s purse in a bar in future if he handed it in, the police would be treating him as if he had robbed her of it.
Counsel for the Crown submitted that the account given in this phone call was inconsistent with the account of other witnesses, and that it contained the admission that he had been there when the deceased was found. Counsel for Mr Stewart submitted that insofar as there were any admissions they were of little significance, as there was no doubt that the accused was present in the Gatwick Hotel at the relevant time. He submitted that there was prejudice to the accused in this conversation because it revealed, what he described as, a “strange view of the world” in the reference made to what would happen if he found a purse, and because of the express reference made to the desire to go and make a statement. He referred to the fact that on 14 September 2005 Mr Stewart attended at the offices of the Homicide Squad and made a no comment record of interview which the Crown did not propose to lead in evidence.
In this extract the accused implicitly denies involvement in wrongdoing associated with the deceased. To the extent it can be said that any admissions are made in this conversation, they are very limited. There is prejudice to Mr Stewart in the conversation in the portion which his counsel described as revealing a “strange view of the world”, as it seems to me that this view of the world is that of a person who is used to having adverse contact with the police. There may also be prejudice in the circumstance that he expresses a desire to go in and make a statement. I am concerned the jury may wonder whether he did so, and if so, what he said. Mr Stewart made a record of interview on 14 September 2005 in which he substantially said “no comment”. One of the few comments he did make in that interview was that he had come in to make a statement.
In all the circumstances I consider that this extract should not be played as it seems to me that its potential prejudicial effect outweighs its probative value.
Extract of call on 7 September 2005 – Deps 913-914
This is a further extract from the same conversation with Sean. In this extract, Mr Stewart expresses animosity and the desire to do violence towards a person identified as “Greg” who has been “runnin around” saying that Mr Stewart was a murderer. Mr Stewart says that this is completely untrue.
Counsel for the Crown said that he wished to lead this extract as a matter of balance. Counsel for Mr Stewart submitted that there was no relevant admission in the extract, quite the contrary, and that the prejudice was considerable in that it reveals a propensity on Mr Stewart’s part for violence. I agree. This extract should not be led.
Call on 8 September 2005 – Deps 938-943
The Crown proposes to play the entirety of this call on 8 September 2005 between Mr Stewart and a person identified as Leo at first, and Mr Stewart’s father, identified as Ken, a little later in the conversation.
Counsel for the Crown submitted that the conversation was relevant because it contained an admission by Mr Stewart that his father had been in the Gatwick Hotel earlier on the relevant day. The issue of who was present when is significant. The Crown says this is a small part of the evidence on that issue.
Counsel on behalf of Mr Stewart submitted that the conversation simply had no relevant content and was not probative. He did not submit it contained anything prejudicial.
So far as I can see the probative content is limited, but as counsel for Mr Stewart does not contend there is any prejudice, I will permit this call to be led.
Extract of call on 9 September 2005 – Dep 944
This is an extract of a conversation between Mr Stewart and his girlfriend, identified as Sasha. In the conversation Sasha expresses the opinion that the police consider that he “did it,” and Sasha says that the police have an eye witness. Having listened to the conversation, it seems to me that the accused’s reaction to this information is rejection of both propositions.
Counsel for the Crown submitted that the conversation did amount to a denial by Mr Stewart that he was involved in any wrongdoing associated with the death and submitted that the conversation should be led as a matter of balance.
Counsel for Mr Stewart rejected that approach. He submitted that the substance of the accused’s reaction to what he was told was to reject it, but that there was considerable prejudice because the police opinion would be referred to, and because a suggestion that there existed an eye witness would be put before the jury.
There is no eye witness who is to be called by the Crown. The jury might speculate as to who was the eye witness referred to and why no such eye witness was giving evidence before them. The objection is well founded. This extract should not be led.
Extract of call on 15 September 2005 – Deps 970-973
This is an extract of a conversation between Mr Stewart and a social worker referred to as Helen. Mr Stewart discusses the relevant circumstances, suggesting he just happened to be there at the time. There are references in the extract to the accused’s prior criminal history. In one passage his prior history is referred to by himself in the course of saying, in substance, how stupid he would be to wait around and give his name and address if he had been involved in any wrongdoing associated with the death. At another point reference is made to prior assault charges that the accused had faced.
Counsel for the Crown submitted that this conversation was relevant because it “put in context” admissions allegedly made to other persons who will be giving evidence in the case. Counsel for the Crown agreed that no version of the incident was given in the conversation and that there was a strong implicit denial that he had been involved in any relevant wrongdoing.
Counsel for Mr Stewart submitted that the extract reveals a propensity for violence and a prior criminal history. He submitted that editing out the references to prior criminal matters would alter the sense of what remained. He submitted that the point being made was that Mr Stewart would not have waited around given his prior history, and that if reference to the prior history were taken out it would change the sense of what he was saying.
It seems to me that there is little which is probative in the conversation and much that is prejudicial. I do not think it can satisfactorily be edited without changing the sense of what is said, and accordingly I conclude that it should not be led.
Extract of call on 10 October 2005 – Deps 646-653
This is an extract of a conversation between Mr Stewart and a female associate of his identified as “Wee Wee”. In this extract Mr Stewart gives a brief account of having found the deceased and of otherwise not having been involved in any wrongdoing associated with the deceased. In the extract Mr Stewart uses very aggressive and threatening language about a person referred to as “Razor Dog” who had apparently been saying to others that Mr Stewart had been relevantly involved. In the conversation Mr Stewart expresses intentions of the most violent kind towards this person.
Counsel for the Crown submitted that a version of relevant events is given at pages 646-647 and again at pages 652-653. Counsel for the Crown indicated that references to recent drug use at pages at 647-649 could be edited out.
This conversation contains one of the specific passages of concern to counsel for Ms Kirkham. At one point Mr Stewart indicates, referring to Ms Kirkham, that she was the one who “did the damage on him”. Mr Stewart expresses disapproval of what Ms Kirkham had done. He makes these statements in terms which suggest that his view is that robbing people in other ways, as he has done, is not reprehensible in the same way as what Ms Kirkham had done here. Counsel for Ms Kirkham submitted that the passage dealing with his client could not be admissible against her but was very prejudicial.
Counsel for Mr Stewart submitted that there was very little that was probative in the extract and considerable amounts that were highly prejudicial in revealing a strong propensity to violence and a criminal past involving robbery.
It seems to me that the prejudicial effect of the material in the extract, even after the proposed edits, outweighs the probative value and the extract should not be admitted.
Call on 13 October 2005 – Deps 668-670
This is a conversation between Mr Stewart and a person identified as P Anderson.
Counsel for the Crown submitted that this conversation is relevant because it reveals that Mr Stewart knew people were talking to police about the relevant incident. He submitted that the conversation provided background to the subsequent admissions allegedly made to others.
Counsel for Mr Stewart submitted that the conversation contained nothing probative at all. He submitted that by this time Mr Stewart had been cautioned and interviewed by police and that he knew he was a suspect. He submitted it was hardly surprising that he was interested in the fact that the police were interviewing people.
I cannot see anything probative in the conversation. In the call Mr Anderson says that at the time of speaking he is in the parole office. My conclusion is that this call should not be led.
Extract from first call on 20 November 2005 – Deps 764-768
This is an extract from the first of two long conversations on 20 November 2005 between Mr Stewart and his girlfriend, Sasha. In this extract the accused refers to the fact that he has done a robbery and an armed robbery, that he will be doing a long time in prison, and that in those circumstances in relation to the homicide inquiry he “might as well nod to it”. He also refers to his co-accused, Ms Kirkham, and to the fact that he had “already slapped her up”.
Counsel for the Crown submitted that it was not clear what the reference to the robbery and armed robbery was, but that the reference to “nodding” was an admission to this murder and that that admission could not be led without referring to the other matters as otherwise the admission would not be properly understood. As to the reference to having “slapped up” Ms Kirkham, counsel for the Crown submitted that this indicated Mr Stewart’s fear of the inquiry and also revealed the nature of the relationship between the two of them.
Counsel for Mr Stewart submitted that what was said was not an admission at all, and that properly understood the accused was just “throwing his hands in the air” and saying because he had done the other robbery and armed robbery he might as well “nod” to this as well because he was going to jail for a long time anyway. Counsel for Mr Stewart emphasised how prejudicial it was that the accused was admitting to having carried out another robbery and an armed robbery in a case where reliance was to be placed on s 3A of the Crimes Act 1958.
This extract is clearly very prejudicial. It refers to another robbery and another armed robbery. Insofar as it contains an admission, the admission is not capable of being properly understood without reference to those other crimes.
Whilst the Crown does not seek to rely on the whole of the two conversations with Sasha on 20 November 2005, the audio recording of both conversations in full was amongst the material tendered on the voir dire and I have listened to both conversations. The conversations are very long and I do not purport to summarise them comprehensively. The burden of what is said, in my view, amounts to this. Mr Stewart is telling Sasha that he perceives everything to be hopeless, that he has committed other offences (including robbery and armed robbery) which mean he is certain to go to jail for a considerable period of time, that those investigating the Gatwick Hotel death are harassing his loved ones, and that he has a desire to bring it all to an end by pleading guilty to everything. Mr Stewart’s statements elicit sympathy from Sasha and she attempts to talk him out of pleading guilty to murder because he is not guilty and because he will serve much longer in prison if he pleads guilty to murder than if he is sentenced only on the other matters.
The Crown does not seek to lead the entirety of the two conversations in evidence. The Crown only seeks to lead extracts. This extract is one of them. This extract does reveal that Mr Stewart was considering pleading guilty to this murder because he was going to serve a considerable time in jail for other offences in any event, but neither this extract nor the others proposed to be led reveal his stated concern to end what he considers to be the harassment of his loved ones.
It seems to me that the prejudicial effect of this extract from the first of the two conversation with Sasha that day outweighs its probative value. It is by no means clear that Mr Stewart is saying that he is responsible for the death at the Gatwick. It is clear that he is saying he is responsible for an armed robbery and a robbery, apparently on the one day. It is also clear that the admission, if it is one, cannot be led without the references to the robbery and the armed robbery. My ruling is that this extract should not be led.
Second extract from first call on 20 November 2005 – Deps 780-781
This extract is also from the first phone call with Sasha. Its contents are relevantly the same as the extract at pages 763 to 768 to which I have previously referred. Mr Stewart says that he may as well “throw his hands in the air” in relation to everything. Sasha says a murder sentence will be much heavier than armed robbery. Mr Stewart’s response is that it does not matter and that he may as well spend the rest of his life in jail which is where he belongs. Consistently with my earlier ruling, this should not be led.
Extract from second call on 20 November 2005 – Deps 817-818
This is a short extract from the second of the two long conversations between Mr Stewart and his girlfriend Sasha on 20 November 2005. It is relevantly the same as the other extracts. Mr Stewart is saying he is in so much trouble that he may as well put his “hand up” for the matter being inquired into by the informant, Mr Buick. In addition to reference to the robbery and the armed robbery referred to in the other extracts, in this extract reference is made to a community based order that Mr Stewart is, or has been, on. It should not be led.
Calls between the two accused on 24-25 November 2005 – Deps 846-851
The Crown proposes to play three calls between the two accused straddling midnight on 24 November-25 November 2005. Ms Kirkham had had a second record of interview conducted on 24 November 2005 which had concluded at 18 past 4 pm.
It was submitted on behalf of the Crown that the conversations were relevant because they revealed a desire on Mr Stewart’s part to find out what Ms Kirkham had said to the police that day. Counsel for Mr Stewart contended there was nothing relevant in the calls. No admissions were made and no inferences of relevance could be drawn from them. He did not contend the calls contained any prejudicial material of the kind present in other calls to which I have referred.
Having listened to these three calls I conclude that they are relevant. They reveal the nature of the relationship between the two accused and, on one view, they contain an admission. The transcripts do not accurately reflect the content of the recordings, in my view. In my view, Ms Kirkham agrees with Mr Stewart on the need for them to get together and talk “coz we’re fucked”. On one view, the calls suggest they did meet between the second and third calls that night.
These calls are relevant. It is not suggested they contain prejudicial material which would justify their exclusion. I overrule the objections to these calls.
Submissions on behalf of Ms Kirkham
On behalf of Ms Kirkham it was submitted that the calls as a whole contained little probative material and much prejudicial material. It was submitted that the calls as a whole reveal Mr Stewart to be a person with a violent propensity and a violent criminal history. The submission was that this is prejudicial to Ms Kirkham given her association with him. In general, I have accepted this submission and have, in the rulings I have made on the specific calls, determined not to permit the calls containing prejudicial material of the character referred to by counsel on behalf of Ms Kirham to be led. There were two passages which were of particular concern to counsel for Ms Kirkham. They were the passages appearing in the depositions at page 652 and at page 767. I have ruled that neither of those passages should be led.
0
0
0