R v Stoten

[2010] QSC 137

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stoten [2010] QSC 137

PARTIES:

R
v
DANIEL ARAN STOTEN
(applicant)

FILE NO/S:

Indictment No 13 of 2010

DIVISION:

Trial

PROCEEDING:

Criminal Application

COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 January 2010

DELIVERED AT:

Brisbane

HEARING DATE:

28 January 2010

JUDGE:

Fryberg J

ORDER:

1.          The recording of telephone conversation between Glenn Luke Hargraves and Daniel Aran Stoten on 14 June 2005 is inadmissible.

2.          The recording of telephone conversation between Katherine Stoten and Daniel Aran Stoten on 15 June 2005 is inadmissible.

3.          The recording of telephone conversation between Katherine Stoten and Daniel Aran Stoten on 20 June 2005 is admissible.

CATCHWORDS:

Criminal law – Evidence – Hearsay – Particular matters – Telephone calls – Level of connection with calls already tendered

Criminal Code Act 1899 (Qld), s 590AA

R v Rudd [2009] VSCA 213, considered

COUNSEL:

J Hunter SC for the applicant
A MacSporran SC with C Toweel for the respondent

SOLICITORS:

Peter Shields Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

HIS HONOUR:  I am asked to make rulings on the admissibility

into evidence of three taped telephone intercepts.  The first

is of a conversation between two of the accused.  The second

and third are of conversations between the accused Stoten and

his wife.

The intercepts are among a total of some 16,000 intercepts

made by police in the course of this investigation.  Of those

intercepts, a smaller number, perhaps 20 or so, have been

tendered by the Crown.  When they were tendered, they were

admitted without objection.  Nobody has attempted on the

present application to undertake an analysis of their strict

admissibility or the basis of their admissibility.  However,

it seems to me that, looking at the matter broadly, they are

generally admissible for the purpose for which the Crown

contends; that is, to show that the accused were aware that

their conduct was dishonest. There are four which are in a

different category, but they need not be addressed for the

purposes of the present argument.

That said, it is again not the subject of detailed submission

before me whether they are admitted as direct evidence of the

awareness or as admissions against interest and, therefore, an

exception to the hearsay rule.  Without undertaking individual

analysis of them, my overall impression is that they are in

the former category.  My impression is that they are not

tendered to prove the truth of what was said, but rather,

because the fact that various things were said they enable

inferences to be drawn about the state of mind and level of

awareness of the speaker.  It may be said that these are

statements against interest but that does not mean that they

constitute hearsay.

So much for the ones that the Crown has tendered.  The three

in question now are sort to be tendered on behalf of the

accused Stoten and there is no opposition from the other

accused.

The first is of a conversation between Mr Stoten and his

alleged co-conspirator, Glenn Hargraves.  It is said that a

passage on p 10 is relevant in the present case.  The

conversation occurred on the 14th of June 2005, five days

after police had raided the homes of the two participants in

the conversation, as well as the office of their company, and

after they were aware that they faced potential charges of

fraud.

The raids had attracted a degree of media attention and it is

the submission on behalf of Mr Stoten that the passages in

question in the conversation show first that Mr Stoten was

concerned about the future of their business consequent upon

that media attention.  He was also concerned about the impact

that the raids had had upon the staff of the business and

wanted to protect the staff.

The submission is that demonstration of that state of mind

provides an alternative explanation for the inculpatory

material in the tapes tendered by the Crown.  The first

passage relied upon is at p 10 of the transcript of the

tape where Mr Stoten says to Mr Glenn Hargraves that he had

had a conversation with a solicitor, Christian Faes, and

reports what he said to that solicitor.  Other material

indicates that Faes was concerned with the impact which events

had had on media reporting and with the way the matter was

dealt with in the media.

Stoten said, "Yeah, I sort of said to him, we're just blown

away by this whole - you know.  We always thought that it was

a tax deduction issue and we were told that, we're just blown

away that this - it has got to this sort of point.  It's mind

blowing."  Mr Hargraves responded, "Yeah.", and Mr Stoten

continued, "And, ah, he said, 'That sort of stuff works in

your favour.  Don't worry.', you know.  'That's the whole

point of it.  You - you never thought that this is the way it

was because you always thought that it was an ATO deduction

issue.'"  Then Mr Hargraves said, "Yeah."  Mr Stoten

continued, "Um, they're things that are - you know,

but we'll probably get a bit more insight tomorrow when - ah,

yeah, one more step and certainly - um, from, what we - when I

was just speaking to staff and getting a feel for it today,

the admin staff upstairs have sort of gone back to work, not

even - no dramas, you know, that - and they're busy."  And

then there is further conversation about what is happening at

the business.

The defence submits that the first part of that passage is

admissible on two bases, first as direct evidence of

Mr Stoten's state of mind.  It seems to me that that is not a

basis upon which a statement by Mr Stoten that he had said

something to a solicitor concerned with the media impact of

events can be used for.  The fact that Mr Stoten says that he

said something to the solicitor is not a basis upon which, in

my judgment, any inference can be drawn as to his state of

mind at the time before the raids when the allegedly dishonest

scheme was being carried out and when his awareness of the

dishonesty is relevant.

The second basis is that it is an exception to the hearsay

rule.  The objection, of course, to the material on the part

of the Crown is based on the fact that it is hearsay, it is an

out of Court statement tendered to prove the truth of what was

said, the alleged truth being that it was always thought that

it was a tax deduction.  That might be thought to be

inconsistent with a dishonest state of mind or an awareness of

dishonesty.

One difficulty with this argument is that it is really hearsay

upon hearsay.  It is a report not of a statement by the

accused from which his state of mind correctly can be

inferred, but, rather, a statement by the accused of what he

said to someone else which itself asserts something about his

thought processes.  It seems to me that in terms of relevance

that is a very remote connection.

Mr Hunter for Mr Stoten relied on the recent decision of the

Victorian Court of Appeal in R v Rudd [2009] VSCA 213,

particularly at paras 60 to 61.  There was discussion

about the basis upon which conversations might be admitted in

circumstances where some conversations had been admitted but

others, separate conversations, excluded.  The court concluded

on the basis that the conversations contained implied

admissions, that there was a continuity of purpose throughout,

a continuing intent by the participants to conceal the

applicant's guilt, to falsely assert his innocence.  That is

not really the position with this conversation.

In Rudd, the conversations were close in time and were between

the same participants, and the Crown allegation was that those

two participants had planned to deliberately deceive known

interceptors of the conversation.  Here the subject matter of

the conversation is quite different and so is the context.

The context is the handling of the media, not the same as the

context of the conversations tendered by the Crown.  The

conversation is with a co-conspirator, but Mr Hunter has not

been able directly to link it to any particular passage in the

material led by the Crown.

The ultimate test that one derives from the decision in Rudd

is that one must look at the material to see whether the level

of connection between the Crown material and the proposed

defence material is such that it would be unfair to the

accused not to allow it to be tendered.  I have come to the

conclusion that it would not be unfair to reach that

conclusion.

The same reasoning applies in respect of the purpose of

protecting the staff.  I am unable to see that the material

tendered by the Crown is even rebutted by material tending to

show that Mr Stoten was concerned about the position of the

staff.  Therefore, I rule that the transcript marked V12A for

identification is not admissible.

In V12B, the conversation is between Mr Stoten and his wife.

It occurs six days after the police raids, and the relevant

part relied upon on behalf of Mr Stoten is at pp 4 to 5.

It is apparent from the transcript that Mr Stoten has just

finished a meeting somewhere down south, presumably Melbourne,

with a Queen’s Counsel.  He tells his wife that, "We",

presumably he and at least some of his co-accused, "are going

back to have a chat about some things", before their flight

home.  One has the impression that he has moved slightly out

of earshot of the other participants in the meeting but is not

far away from them.

Mr Stoten reported to his wife that he had spoken to the

solicitor, Christian Faes, who was "coming from media and that

sort of angle", an approach which apparently he found not very

helpful, but he also reported - and this is the part that

leads into what was relied on by the defence - that, "We had a

good chat, Adam and I, and we had a chat to - we actually had

a chat to Matt Franklin."  Franklin was the lead investigator

for the police.

It emerges from the conversation that presumably at the

meeting Franklin was telephoned, not with regard to the

charge, it is said, but "with regards to our business and

things like that and, ah, certainly."  Mrs Stoten asks, "What

did he  say?"  Mr Stoten says, "Yeah, well, he sort of pushed

the point again about the whole idea that, um, it's not, you

know - we're not in - he actually said his words were that - I

was trying to listen on the phone.  He said that the - the –

um, that the more we've - we - since we've, um - um, gained -

gained, you know, access and, ah, now looking through it, it's

even probably more clearer that there won't be any shutting

down of - you know, the business,” et cetera.

Mrs Stoten responded that she hadn't even thought about that.

Mr Stoten said, "Yeah, yeah, well, we sort of - well, this is

the thing that we're doing a little bit now, is that, um,

you're sort of looking at every possible horrible option,"

and he continued, "And sort of going through that motion of,

ah, what's - what's there and it was really good today.  There

was a lot of things that made us realise where we were at with

- you know, compared to others and things like that.  We were

able to get a feel for different things like that, which, you

know, being an appendage to it rather than - anyway, it was -

um, yeah, it was just - ah, interesting day and good day from

that point of view and I feel a lot better."

Now, that is material which in the defence submission

demonstrates Mr Stoten's concern about the closure of the

business.  It is submitted that that is direct evidence that

he was concerned about that and that this indicates an

alternative explanation for why he might have said some of the

things which he did say in the recordings tendered by the

prosecution.

I would accept that the conversation does tend to show that at

least at the time of the meeting there was concern at the

possibility that the business might have to close.  It does

not seem to me, however, that that can translate into a basis

for explaining material in the prosecution case which strongly

suggests that Mr Stoten ordered the destruction of evidence

and was aware of the use of a credit card as a key element in

the scheme, possibly one which would give away its dishonest

purpose.  There does not seem to me to be a sufficient

connection.

The state of mind that is indicated is a concern about the

business, but that he was concerned about the business some

days later in the light of what had happened in the raids does

not seem to me to bear upon the question of his honesty.  I

would, therefore, not admit the conversation recorded in the

transcript marked V12B for identification.

The third recording is of a conversation between Mr Stoten and

his wife on the 20th of June 2005.  Mr Stoten was in Brisbane

in between meetings with barristers and QCs.  It is evident

that his wife was distressed.  It appears from the material

that she was concerned about an impending interview with

police and I was told from the Bar table that, in fact, she

was interviewed by the Australian Crime Commission

compulsorily two days later.  Mr Stoten is evidently

attempting to reassure her.

It is unnecessary to record the whole of the conversation.  It

is sufficient to say that he, on a number of occasions, says

to her, "We thought - I mean, what was the point of doing all

that if we - all that we did if we thought it was illegal?"

That is restated in a number of ways.

If the jury were to accept the truth of the implied

proposition in the statement that Mr Stoten and the others

thought that the whole thing was legal, then that would, I

think, be some evidence bearing directly on the issue of the

awareness of dishonesty raised in the tapes tendered by the

prosecution.

It seems to me that this conversation does fall within the

principle enunciated in R v Rudd.  There is a direct

connection notwithstanding that Mrs Stoten was not a party to

any of the conversations tendered by the Crown and the

connection is close enough for it to be unfair for this

conversation not to be tendered.

Of course, the explanation sought to be advanced by the

defence is not the only explanation for this conversation.  It

may well be that what Mr Stoten was attempting to do, despite

the fact that he repeatedly said to his wife that she had to

be honest, was to convince her that there was no dishonesty

against her own commonsense feeling about the way the scheme

operated and to influence thereby her evidence on the

question.

Less importantly, but also another construction which may run

cumulatively, is he was attempting to reassure her in her

state of distress.  The defence is aware of those

constructions and persists in the desire to tender the tape

and I think it is admissible.  I will therefore permit that to

be tendered through the appropriate witness.

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