R v Strawhorn

[2005] VSC 261

IN THE SUPREME COURT OF VICTORIA Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1427 of 2003

THE QUEEN

v

WAYNE GEOFFREY STRAWHORN

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 JULY 2005
DATE OF RULING:	28 JULY 2005
CASE MAY BE CITED AS:	R v STRAWHORN
MEDIUM NEUTRAL CITATION:	[2005] VSC 261

Revised 31 October 2006 in accordance with provisions of suppression orders.

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Criminal Law and Procedure – Admissibility of telephone intercepts considered – Ruling.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Rapke QC with Mr M. Tinney	Stephen Carisbrooke, Acting Solicitor for Public Prosecutions
For the Accused	Mr D. Allen SC with Mr J. McMahon	Galbally & O'Bryan

HIS HONOUR:

1. I am required to rule on the admissibility of telephone intercepts (or portions thereof) following objections to their introduction into evidence by the defence.  In essence the objections are founded upon issues of relevance or upon the assertion that the prejudicial effect of the material outweighs its probative value. 

1. Such objections need to be addressed within the overall factual matrix of this prosecution.  In R v Strawhorn[1], I briefly summarised these facts and it is unnecessary to do so again.  Similarly, I set out the relevant legal principles.

   [1][2004] VSC 535

1. I should add that the telephone intercepts to be considered constitute a limited number of those recorded and, in many instances, agreement has been reached between the parties as to their relevance.  Moreover, in the course of argument, some of the issues of admissibility were resolved and these need not be mentioned in the course of this ruling.

1. I will deal with the various objections in the order in which they were argued. 

Call 63

1. It is not necessary to go into the subject matter of this call.  Insofar as it relates to the policeman De Santo, the Crown is entitled to lead evidence of the accused's attitude towards him.  Arguably that attitude is inextricably bound up with the accused's hatred of the Ethical Standards Department (ESD).  Put another way, De Santo's association with that organisation may be seen as a constituent or contributing factor to the opprobrium in which he was held by the accused.  That being so, the references to ESD may be regarded as admissible in relation to count 6 on the presentment.  It is, of course, open to the defence to seek to minimise the effect of such evidence by asserting the existence of a culture of antipathy towards the ESD by operational police.  That, however, is a forensic exercise.

1. What is to be excluded (in effect by agreement) is the reference in this call to interfering with the aircraft (p.1) and that part of the material on p.2 commencing:  "See …" down to "MM.MM".

Call 64

1. The same linkage between De Santo and the ESD is expressed in this telephone call and for the reasons indicated above, may be regarded as relevant. 

1. Again, by agreement, the reference to there being a God (p.1) is to be excluded, as well as the passage commencing:  "I've been on leave" down to the exchange: 

"Spare me

MM.MM."

Call 440

1. The Crown seeks to introduce this call into evidence because it involves a police officer, Firth (then a member of the Drug Squad) informing the accused on 27 November 2002 that a statement was being taken from the witness AA.  That statement, which was produced during argument, describes AA's activities with the Bandidos motor cycle gang, but contains no reference to the role of the accused in the delivery of pseudoephedrine to the Bandidos.  The Crown submission is that the absence of such reference is explained in a subsequent statement made by AA on 15 July 2003.  In that statement he alleges that the omission of any mention of the accused in the November 2002 statement was the result of telephone calls of an intimidating nature made to him by the accused coupled with an uncertainty about who he could trust in the Drug Squad.  Accordingly, it is argued that this phone call, which indicated that the accused was being kept informed by Firth of Drug Squad activities with AA, lends some support to the reasons advanced by AA for his failure to mention the accused in the statement of 27 November 2002.

1. The second aspect of this phone call relied upon by the Crown, concerns an unflattering reference to De Santo made by the accused.

1. On its face much of this phone call contains irrelevant material, an explanation of which would add to the length of the trial and hence the burden placed upon the jury.  On my present understanding of the overall Crown case, if the phone call were to be admitted into evidence, it would need to be severely edited.  Ultimately, such relevance as this phone call may bear, appears to me to be dependent upon the nature of any attack made by the defence on the credit of the witness AA.  If, for example, the omission from the November 2002 statement was to be relied upon by the defence, the issue of relevance would be squarely raised.  In summary, a final determination of whether this aspect of the telephone conversation is admissible, and in what form, should await the cross-examination of the witness AA.

1. Insofar as any disparaging references to De Santo are contained in the telephone conversation, they are relatively weak examples of that genre. 

1. As I indicated to counsel in the course of argument, there must be some limit to the ambit of the evidence adduced by the Crown in this case and I would not, at this stage, admit call 440.

Call 668

1. In the midst of this material, the relevance of which is dubious and may take time to explain to a jury, there is a comment which, despite defence submissions, is, in my view, a reference to De Santo namely:  "Dirty fucken scum."  This expression by the accused is no doubt admissible, but whether it is worth leading in the context of the surrounding material to which I have made mention, is a matter which the Crown should carefully consider.

Call 74

1. It is conceded by the defence that the comments of the accused about De Santo contained in this conversation, are relevant.  However, objection is taken to that portion of the material in which the accused describes the deceased Slusarczyk as a maggot who has "jumped on board with the maggots" (being the ESD).  No doubt this is an unpleasant description, even of a deceased drug dealer, but it is linked to the following passage about De Santo (p.2).  Taken in context, I regard this material as being admissible. 

1. The earlier expressions about Slusarczyk's death, couched as they are in praise of the Deity, add nothing and may be seen as importing a level of prejudice.  Consequently, I would excise the passages:  "Oh please God" and "Please God make that be true."

1. Further objection is made to that portion of the conversation in which there is, on one view, some lighthearted banter between the accused and a policeman Allison about robbing a person (apparently Antonius Mokbel) of his racetrack winnings.  It was the concern of the defence that this may be construed adversely to the accused.  I regard this as problematic, but since the material is conceivably prejudicial and its probative value nil, it should be pared from the conversation.  This would necessitate the removal of that portion of the exchange from:  "He doesn't know" down to "So cop that you maggots."

1. In conclusion I should make clear that this ruling is based on the current state of the depositional material. 

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CERTIFICATE

I certify that this and the 3 preceding pages are a true copy of the reasons for ruling of Coldrey J of the Supreme Court of Victoria delivered on 28 July 2005.

DATED this 28th day of July 2005.

Associate