R v Strawhorn
[2004] VSC 535
•22 December 2004
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1427 of 2003
| THE QUEEN |
| v |
| WAYNE GEOFFREY STRAWHORN |
---
JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15-18, 25, 26, 29, 30 NOVEMBER AND 2 DECEMBER 2004 | |
DATE OF RULING: | 22 DECEMBER 2004 | |
CASE MAY BE CITED AS: | R v STRAWHORN | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 535 | |
Revised 31 October 2006 in accordance with provisions of suppression orders.
---
Criminal Law and Procedure – Application for the exclusion of the evidence of various witnesses- Issues of relevance, prejudicial effect, reliability and the exercise of fairness and public policy discretions considered.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Rapke QC with Mr D. Maguire | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr D. Allen SC with Mr J. McMahon | Galbally & O'Bryan |
HIS HONOUR:
Introduction
It is necessary to make a series of rulings upon the admissibility of evidence in this trial. Argument on these matters occupied nine days and reference was made to many pages in the depositional material. In the course of the preliminary legal argument, a number of evidentiary issues were, in fact, resolved. Accordingly, it is unnecessary to refer to those matters in the course of these rulings.
A major objection to large portions of evidence was that of relevance.
In order to properly consider the validity of that objection it is necessary to isolate the issues which the jury will be required to decide and, thereafter, to determine whether or not the impugned material may be regarded as having relevance to those issues.
Background Facts
The accused, Wayne Strawhorn, is presented on five counts of trafficking in pseudoephedrine (one of those counts involving a commercial quantity) and one count of threatening to kill.
The first of the trafficking offences is alleged to have occurred on 28 October 1999, and the last on 19 May 2000. During the time of the alleged offences Strawhorn was the officer in charge of Unit 2 of the Drug Squad, which was the Clandestine Laboratory Unit (CLU) of which a Chemical Diversion Desk (CDD) was a part. The CDD was established by Strawhorn in 1995. The desk fostered relationships between chemical companies, such as Sigma Pharmaceuticals (Sigma) and Victoria Police in order to initiate pro active police investigations and operations. These included attempting to identify clandestine laboratories and pursuing those involved in the illicit manufacture of drugs. One method used was to carry out controlled deliveries of precursor chemicals (being chemicals used in the manufacture of amphetamine and methylamphetamine) to suspected drug manufacturers and traffickers. One such operation targeting the Bandidos Motor Cycle Club had the name Operation Schild. During the relevant period, EE was a member of the CDD. These operations did not involve pure pseudoephedrine, a kilogram of which could be purchased by the police from Sigma for $170 and sold on the black market or within the drug trade for about $10,000.
As the officer in charge of the CLU, Strawhorn approved all operational directions and investigations that were undertaken.
Controlled deliveries were regulated by Drug Squad Standing Operating Procedures (SOP) 27A 'Controlled chemical sale/delivery'. (This Standing Order was modified in March 2000 and renumbered 31). Under the relevant procedure, all chemical purchases for controlled deliveries were to be arranged by the CDD. Prior to any chemical being purchased, or delivery made, written approval had to be obtained from an officer of or above the rank of Inspector.
Procedures were in place for recording not only the funding for the purchase of chemicals but also the receipt of money received from their subsequent sale.
All members or other persons (such as informers) involved in the controlled delivery of chemicals and who might otherwise be in breach of the Drugs Poisons and Controlled Substances Act 1981 were to be issued with a s.51 indemnity signed by a Detective Senior Sergeant or officer of higher rank. The original was to be filed in the relevant Inspector's office. Victoria Police Force policy also required that police informers be registered and referred to in official documents by their allocated number. Chemical deliveries were only to be made if resources were sufficient to allow monitoring of the chemicals. The use of surveillance was employed to enable the tracking of the chemicals to the suspected clandestine laboratory.
As part of the procedure, the investigating member (being the person immediately in charge of the specific investigation) was required to submit an Information Report (IR) which was recorded on the Drug Squad computer system.
In relation to the five pseudoephedrine transactions, there are no s.51 indemnities on file; nor are there any Information Reports on the Drug Squad computer system.
The Crown case in respect of the first four counts is that the accused was involved with another member of the Drug Squad, a Detective Senior Constable Stephen Paton and utilised a registered informer, AA in illegal transactions. It will be alleged that Paton obtained pseudoephedrine from a legitimate source, Sigma and passed it on to either Strawhorn or AA. Eventually AA passed it on to the Bandidos Motor Cycle Club who were involved in the illicit manufacture, sale and distribution of amphetamines.
It is the Crown case that these transactions occurred in a context where the accused was also involved in legitimate transactions, effectively using the same procedure. These transactions involved Paton obtaining Sudafed tablets from Sigma for the purpose of officially sanctioned controlled deliveries.
Additionally, in October 1999, the Drug Squad mounted Operation Vere. The original principal target was a Paul Sequenzia who was regarded as being involved with a syndicate responsible for the manufacturing and trafficking of large quantities of amphetamines. Sequenzia was the brother-in-law of a Mark Moran and, early in 2000, the principal target of the operation became Mark Moran and possibly through him a person named Antonious Mokbel. The central objective was to locate any clandestine drug laboratory, and to this end, the accused, and those under his control, sought the release of Sudafed tablets. Indeed, up until the death of Mark Moran on 15 June 2000, there were a series of controlled deliveries of Sudafed tablets, tablet binding material, red phosphorous, and caffeine.
It was the Crown allegation that, under the façade of these lawful transactions, the illicit transaction of 19 May 2000, involving pseudoephedrine, took place. The modus operandi for the legitimate transactions commenced with Paton attending at Sigma to purchase the Sudafed tablets. The tablets were then given to the accused who passed them on to a close associate of his, BB, a former member of the Drug Squad. BB in turn passed the tablets on to another ex-policeman named CC, an associate of the Moran family. Thereafter, the Sudafed tablets were delivered to Mark Moran. An associate of his, DD, would store the materials in his bungalow at the rear of his property. The same modus operandi was utilised for the trafficking in pure pseudoephedrine under the direction of the accused.
Over a period of months from January to June 2000 some eight or nine separate transactions were carried out by BB and CC on behalf of the Drug Squad by way of the delivery of precursor chemicals. This was pursuant to the authorised operation (Operation Vere) under the gaze of members of a surveillance unit. The one transaction which was not the subject of surveillance was the alleged delivery to Mark Moran in the 19 May transaction; albeit that surveillance crews were told to keep BB and CC out of their logs so that their identities would not be discovered. Neither BB nor CC were registered informers. Moreover, they were not operating pursuant to s.51 indemnities. The Crown allege that these latter omissions constituted an attempt by the accused to avoid scrutiny by senior officers.
In December 2000, the accused met with a security adviser to Sigma, a Mr Graeme Sayce, to discuss best practices in the ordering, obtaining of, and payment for, Sudafed tablets. During the conversation, Mr Sayce mentioned that the volume of sales of Sudafed tablets had grown significantly in the previous six months. A subsequent audit conducted by the accused revealed that there had been 12 unauthorised purchases of Sudafed tablets by Paton between May and December 2000, at a cost of $70,000 with a black market value of $230,000.
Immediately following the allegations about Paton's unauthorised chemical transactions with Sigma, an investigation was commenced under the leadership of Detective Inspector Peter De Santo, then attached to the Ethical Standards Department (ESD). As Senior Sergeant and Manager who had reported the potential corruption, the accused, according to Mr De Santo, became the main, if not sole, source of information from within the Drug Squad in this investigation and the ESD investigators, particularly De Santo, relied heavily on him to provide information about Paton and also EE. According to De Santo, the accused's audit investigations effectively set the parameters of the investigation which became known as Operation Hemi.
At the end of February 2001, Detective Inspector De Santo and his principal investigator in Operation Hemi, Detective Senior Sergeant Neville Taylor, met Detective Superintendent David Newton, who was head of the Drug Squad, and the accused. Both Newton and the accused wanted Paton to be apprehended as soon as possible fearing his interference with an unrelated Drug Squad investigation. At that meeting the accused advised that there had been no purchase by the Drug Squad of pseudoephedrine since August 1998, when there had been a major investigation conducted by the Victorian and New South Wales Police and codenamed Operation Orbost. On that occasion there was a controlled delivery of 10 kilos of pseudoephedrine with arrest occurring immediately after the receipt of, and payment for, these chemicals. Security of the pseudoephedrine was insured by the involvement of the Special Operations Group in the exercise.
Police officers EE and Paton were arrested on 29 and 31 July 2001 respectively. The accused was transferred from the Drug Squad in December 2001. Prior to his departure he had been Detective Acting Inspector in charge of Task Force Kayak, targeting high level dealers such as Lewis Moran and Antonious Mokbel.
In February 2002, the accused took up a position with the Major Fraud Group. He remained with that group until his arrest on 17 March 2003. Two days earlier, on 15 March, the accused and the witness BB met at a McDonalds restaurant in Oakleigh. BB had been fitted with a listening device. It was during this conversation that he made what the Crown allege to be a threat to kill police officer Peter De Santo who, by that stage, was attached to the CEJA Task Force, which was investigating allegations of police corruption involving (inter alia) the accused.
Later that same afternoon, BB met with other members of the CEJA Task Force for a debrief. On that occasion he told the police that at the time the accused made the threat, he had no doubt that he absolutely meant it.
Following his arrest, the accused made a no comment record of interview.
Paton, EE, AA, BB, and CC are each persons who, subject to any rulings I may make, the Crown intends to call, proffering them, at least as to the major allegations brought against the accused, as witnesses upon whom the jury may rely.
In relation to the first five counts on the presentment, it was the Crown's submission that it was relevant in order to place the role of the accused in an appropriate context, to inform the jury of the hierarchy of the Drug Squad and the procedures and rules which controlled its operations.
It was put by the Crown that since the unlawful activities were intermingled with legitimate transactions involving controlled deliveries of Sudafed tablets, it was important to emphasise that the activities engaged in by the accused were contrary to the standard procedures and, in themselves, unlawful and illegitimate.
Further, the Crown needed to demonstrate the power and influence exerted by the accused within the Drug Squad at the relevant time; particularly in respect of the Drug Squad's use of controlled deliveries. This included the relationship of the Squad to chemical suppliers such as Sigma; the control which the accused exercised over the conduct of officers within the Squad; and the control that he exercised over informers such as AA, BB and CC.
It was submitted that, quite apart from the direct evidence of witnesses such as Paton, EE, AA, BB and CC, there was relevant material constituting a substantial body of circumstantial evidence supportive of the allegation that the accused was knowingly involved in the illegal transactions.
Moreover, it was argued that, in assessing the relevance of this material, the anticipated defence of the accused must be taken into account. First, it is not admitted that the alleged transactions took place in the manner claimed by the witnesses, (albeit it is not denied that if they did take place, they were totally unauthorised, contrary to police policy and illegal). Secondly, if the illegal transactions occurred, the accused had no knowledge of the deliveries and played no part in any such transactions.
It was conceded by the defence that it would be appropriate for some evidence to be given as to the operation of the Drug Squad including its command structures and basic procedures and, in particular, the history of the activities of the Chemical Diversion Desk. However, for various reasons which I shall address, it was argued that evidence falling outside this ambit was irrelevant.
The concept of relevance has been articulated in a number of authorities. In DPP v Kilbourne[1] (a decision of the House of Lords) Lord Simon of Glaisdale stated[2]:
"Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. … Relevant (i.e., logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable. …
Exceptionally evidence which is irrelevant to a fact which is in issue is admitted to lay the foundation for other, relevant, evidence (e.g., evidence of an unsuccessful search for a missing relevant document in order to lay the foundation for secondary evidence of the document). Apart from such exceptional cases no evidence which is irrelevant to a fact in issue is admissible."
[1][1973] AC 329
[2]ibid at 756
In R v Stephenson[3] the Full Court of the Supreme Court of Victoria put it this way[4]:
"Although logic is the test of relevance, not all evidence which is logically relevant is legally admissible. The logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and evidence of it as inadmissible. In some cases, such evidence is described as being irrelevant, an expression which must be taken to indicate that its weight is so minimal that it does not serve to add to or detract from the probability of the principal issue being established. Such evidence may be more correctly described as insufficiently relevant or too remotely relevant."
[3][1976] VR 376
[4]ibid at 380-381
The Court also quoted with apparent approval the statement of Willes J in Hollingham v Head[5]:
"It may be often difficult to decide upon the admissibility of evidence, where it is offered for the purpose of establishing probability, but to be admissible it must at least afford a reasonable inference as to the principal matter in dispute. No doubt the rule, confining evidence to that which is relevant, is one of great importance; not only with regard to the particular case in which it has to be applied, but with reference to saving the time of the Court, and preventing the minds of the jury being prejudiced, and distracted from the point of issue."
[5](1858) 27 LJCP 241 at 242
In Pollitt v R[6] Brennan J stated[7]:
"The first condition of admissibility of evidence is relevance: apart from questions relating to the credit of a witness, a fact which evidence is tendered to prove (a 'fact to be proved') must be a fact in issue or a fact relevant to a fact in issue. Where a fact to be proved is a fact in issue, admissibility of evidence tendered to prove it depends solely on the manner in which that evidence tends to establish the fact to be proved. Where a fact to be proved is a fact relevant to a fact in issue, admissibility depends first on the manner in which that evidence tends to establish the fact to be proved and, secondly, on the relevance of the fact to be proved to a fact in issue."
[6](1992) 174 CLR 558
[7]ibid at 571
The final case to which I propose to refer is Smith v R[8], a decision of the High Court of Australia. In it, Gleeson CJ, Gaudron, Gummow and Hayne JJ put it this way[9]:
"As is always the case with any issue about the reception of evidence, … the first question is whether the evidence is relevant. … Further, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore [reference cited]:
'None but facts having rational probative value are admissible,
and
All facts having rational probative value are admissible, unless some specific rule forbids'."
[8](2001) 181 ALR 354
[9]ibid 355[6]
The principles pertaining to admissibility are easy enough to enunciate but their application to potential evidentiary material will not always be so simple. This is particularly so when the strategies of the forensic battle cannot always be discerned in advance.
Bearing in mind the approach of the courts to the question of admissibility I turn to the evidentiary material.
To put the evidentiary material of the various witnesses in context, it is convenient to note the hierarchy within the Drug Squad. As I have mentioned, the accused was the Detective Senior Sergeant in charge of Unit 2 of the Drug Squad. Above him was the Inspector for Unit 2, Inspector David Reid. In turn Inspector Reid answered to Chief Inspector Victor McKoy until early 2000.
The Officer in Charge of the State crime squads, which included the Drug Squad, was Detective Superintendent David Newton. The hierarchy ascended by way of Commander Rodney Lambert, Assistant Commissioner for Crime George Davis and finally Deputy Commissioner Operations Graeme Sinclair (until early 2000) and, thereafter, Deputy Commissioner Neil O'Loughlin.
It was argued by the defence that the necessary background evidence, including the rules and procedures governing Drug Squad operations could be sufficiently placed before the jury through the witnesses Newton and Reid.
I accept that the Crown is entitled to adduce foundational evidence which will educate and inform the jury about the rules and procedures governing the operation of the Drug Squad in relation to controlled deliveries. Such evidence will enable the jury to consider the various charges brought against the accused in context. Further, such evidence as will enable the Crown to objectively demonstrate the illegality of the various drug transactions, is also relevant.
Moreover, given the defence advanced by the accused which, so far as may be gleaned at this stage, involves a denial of participation in or knowledge of, the alleged illegal transactions, it is relevant for the Crown to adduce evidence relating to the role of the accused within the Drug Squad at a time proximate to the commission of these alleged offences.
Circumstantial evidence tending to implicate the accused in these criminal activities may also be led. Such material may, for example, comprise acts of non-compliance with the rules and procedures relating to controlled drug deliveries. It would be forensically relevant and legitimate to contrast any such non-compliance with the situation pertaining to the admittedly legitimate transactions conducted during the period of the commission of the purported offences.
However, to be relevant, the evidence adduced must not be too tenuous or temporally remote; its significance (as proffered at the time of this ruling) must not be outweighed by its prejudicial effect.
Unless otherwise stated, this is the conceptual basis upon which I will approach the impugned material. In doing so it is hoped to avoid the tedious process of giving detailed reasons for the inclusion or exclusion of the material contained in the statements of witnesses, many of those statements having been the subject of argument paragraph by paragraph.
I make one further preliminary comment. It has been argued in relation to a number of witnesses that the Crown seek to call, that their evidence is repetitious and, in effect, duplicates the evidence to be adduced from more knowledgeable members of the Drug Squad hierarchy. In this regard it was submitted that, for example, the witnesses Newton and Reid were the most appropriate ones to give evidence as to the operation of the Drug Squad. There is no doubt that these witnesses can give evidence of that type. If other witnesses can also give that evidence then, providing it passes the test of relevance, this Court cannot prevent the Crown calling it. However, in a trial already estimated to last for two to three months the repetition in material is not desirable and, if a witness is providing little additional evidence, and that evidence may be subject to an admission by the defence, I would urge that consideration be given to such a course.
I now turn to the individual witnesses.
Individual Witnesses
McKoy (2439)
This witness is able to give relevant evidence in the terms that I have set out. However, I regard paragraph 2 as irrelevant; paragraphs 5, 6, 7 and 8 as relating to events which are either irrelevant or too tenuous or having a prejudicial effect that would outweigh any probative value; and paragraphs 13, 14 and 15 are conceded to be irrelevant by the Crown. The final paragraphs, 16, 17 and 18 have marginal relevance but are admissible for completeness.
Lambert – only to be called if required by the defence
Hornbuckle – not to be called
O'Loughlin (2998)
I regard the evidence of this witness as to the operations of the Drug Squad as too remote in time to the offences charged.
Sinclair (2446)
Assuming that the necessary admissions are made as to the ambit of Operation Orbost, as revealed by the authorising documentation of this witness, I do not regard his evidence as otherwise having any sufficient probative value to render it relevant.
Davis (2462)
Much of the statement of this witness is in generalised if not vague form. It serves to emphasise his lack of hands-on involvement in the operation of the Drug Squad and, in my view, is not relevant to the issues that will confront the jury in this case.
Interview with Gleeson (3140)
On 29 August 2001, an Inspector Steve Gleeson, attached to the Corporate Management Review Division, conducted an interview with the accused. The principal objection taken to the admission of this interview was that, having occurred some 15 months after the last alleged offence, it could not be linked to any activities of the accused within the Drug Squad at the relevant time. Furthermore, the recounting of such activities had no probative value if, as was asserted by the defence, the activities of Messrs Paton, AA, BB and CC were, in effect, frolics of their own. Even if logically relevant, the material either had minimal probative value or related to facts which were not in issue. Indeed, in the circumstances, it was argued that the material, not constituting admissions against interest did not fall within an exception to the hearsay rule.
In my view the interview provides an historical perspective involving the operations of the Drug Squad and the accused's role in them during the relevant period of the offences. Further, the material is capable of constituting admissions against interest insofar as it demonstrates the intimate relationship of the accused to aspects of the Drug Squad operations including the direction of colleagues and the management of informers. It would be open to the Crown to argue that any significant illegal operations could never have occurred without the knowledge, complicity or connivance of the accused. No doubt there are countervailing arguments (for example, that both Paton and EE were involved in illegal activities without the knowledge of the accused) but ultimately this becomes a forensic dispute.
Moreover, the compliance or otherwise with the procedures and rules involving the treatment of informers (for example, in relation to the provision of s.51 indemnities for BB and CC) is relevant to the case against the accused. Similarly, the absence of any surveillance of the 19 May transaction in the course of what the witnesses BB and CC regarded as an ongoing operation (Operation Vere) may assume considerable significance in the Crown case, albeit that such significance will depend on a substantial acceptance of the evidence of these witnesses. Accordingly, I regard much (although not all) of this interview as being relevant. Those portions which I find to be relevant appear under the following headings:
"Personal Details
Drug Squad Policies/Protocol/Instructions
Investigation Management
Chemical Purchase Issues
InformersRisk Management."
In accordance with my earlier ruling I would delete from the interview the passage contained in Chemical Purchase Issues commencing: "Did receive a direction" to "account being used for operations." Moreover, although self-serving, the material under the heading "Additional Comments" should be admitted into evidence in the interests of balance.
The next pieces of evidence objected to were responses by the accused to a letter sent to him by Deputy Commissioner Peter Nancarrow, the Chairperson, Drug Squad Review, on 1 November 2001, seeking answers to a number of questions about managerial issues. The Crown do not seek to lead that letter but two responses by the accused in a letter dated 9 November 2001 (p.4305 depositions). The first is found at 1.6 of that letter. I do not intend to read it out. It refers to two transactions involving the delivery of red phosphorous in February and March 2001, respectively. There was apparently criticism of the accused for having authorised those purchases. Part of the response relates to a document SOP31 apparently amended after the arrest of the witness Paton in July 2001. It is unnecessary to go into detail; it is sufficient to state that I regard the material, relating as it does to incidents and procedures subsequent to the alleged offences, as having no real probative value and consequently irrelevant.
In relation to the second passage sought to be led, 3.1.3 (p.4307 depositions) the material is relevant insofar as it demonstrates the accused's knowledge of Operation Orbost having involved the use of powdered pseudoephedrine and the distinction between this type of transaction and those involving tablets containing pseudoephedrine. The reference to police officer Hornbuckle is irrelevant. It is a matter for the parties as to whether this evidence requires the calling of a witness or whether it may conveniently be placed before the jury by way of admission as suggested by the defence.
Biggin (3577)
Argument on the evidence of this witness was deferred and I have no record of any later submissions in relation to it.
Laing (3905)
This witness, who held the position of Manager, Investigations, with the National Crime Authority (NCA) is able to give evidence that the NCA has never requested any Victoria Police officer to assist in obtaining precursor chemicals, in particular pseudoephedrine, to further its investigation into criminal activity. In fact, the witness Paton lied to a Mr Nicholson at Sigma that he required pseudoephedrine for use in a covert operation involving the NCA. The witness Paton admits to this lie. Accordingly, in some quaint way, the evidence of Laing would bolster the credit of Paton in that he honestly admitted telling a lie. In any event, in the circumstances, the evidence is irrelevant.
Eramo (3823)
This witness sold a car to the witness Paton on 28 February 2000, for $3,159. Paton says that part of the purchase monies, namely $2,500, came from the accused as part of the proceeds of the drug transaction of 27 January 2000. No doubt Paton can give that evidence. The fact that Eramo received a sum of money from Paton about one month after the alleged drug transaction does not, in any way, tend to prove that the accused was a source of that money. Accordingly, the evidence of Eramo is irrelevant.
Jones (2971)
In about November 2000, Jones, a Detective Sergeant attached to the CLU, was instructed by the accused to compile a report about the police officer Paton. It appears that the report was something to do with the death of a Renee Williams. The Crown are unaware of precisely what the report was about and the request was made prior to any exposure of Paton (which occurred on or after December 20, 2000). Nonetheless, the Crown submit that this material is relevant as demonstrating a process of humiliation of Paton by the accused, for the purpose of isolating him and ultimately having him leave Victoria Police.
The defence submit that this is a truly machiavellian proposition and even if the material had some probative value it is extremely slight and is outweighed by any prejudicial effect it may have.
In my view, on the state of the materials, the circumstances giving rise to the request for this report are quite nebulous and incapable of providing a proper (non-speculative) foundation for the inference the Crown seeks to draw. Accordingly, I regard this evidence as inadmissible.
Newton (2468)
Objection was taken to paragraphs 17-20 (depositions p.2502-2503) of the statement of this witness. In essence, it makes reference to Victoria Police policy on informers and the fact that this witness stressed the importance of proper informer management and the risks associated with informer interaction to new members arriving in any of his squads. The witness also states that, as the informer registrar manager for the Drug Squad, he at no time received an application to register either BB or CC as an informer. I need not refer to paragraph 20 which the Crown concede need not be led.
At the outset it seems to me that what the witness Newton might have told new members of his squad about informer management is irrelevant. However, the Crown submit that evidence of the failure of the accused to comply with police force policy in relation to informers and his running of unregistered informers in defiance of that policy is relevant. The Crown submit that it is open to a jury to infer that the lack of registration was to enable the accused to pursue the criminal conduct with which he is being charged.
The defence submit that this is drawing a long bow particularly having regard to the fact that the informers in question, BB and CC, were used at the same time by the accused in legitimate Drug Squad operations.
It is trite to say that, eventually, pieces of evidence of this nature will not be viewed by a jury in isolation. Whether, ultimately, it would be proper to draw the inference for which the Crown contends will be determined by the final state of the evidence. It follows that I regard evidence directed specifically to Drug Squad policy in relation to the management of informers and the accused's non-compliance with it, to be admissible.
AA (3159)
The contentious material in the statement of this witness commences at p.3166 of the depositions. It is in the context of AA describing a number of transactions he had with the accused and Paton. These transactions involved the payment to them of sums of money and the receipt, in return, of pure pseudoephedrine and, in addition, the repatriation to them of a portion of the profits subsequently generated by amphetamine manufacture.
The relevant passage is as follows:
"During many conversations I had with Strawhorn, he told me on occasions that if I ever robbed him he would have me murdered. Wayne Strawhorn has threatened to kill me on at least six (6) separate occasions. I can recall on one occasion sitting in the front passenger seat of an unmarked police car with Strawhorn at the Village Green Hotel after having a few drinks. Strawhorn was upset with the amount of money ($20,000) that I had for him. He suddenly pulled out a gun and started threatening me with it. To the best of my recollection I recall the vehicle being a station wagon. He then started to wave the gun in my face. I recognised the gun as being a .38 calibre revolver, the standard police issue. There was a serious look on his face and I formed the opinion he was fair dinkum about the threat to kill me. I recall him telling me, 'I’ll fuckin kill, I'll fuckin kill you'. By the tone of his threat, I think he meant that I had ripped him off. Strawhorn was not happy unless he got his money, drugs or a pinch. He has on occasions threatened me that if I ever speak with police from ESD [Ethical Standards Department] he again would have me killed. I took these threats as being genuine. I was so concerned about the threats that at the time I told my father and de facto wife of my concern.
In relation to some other threats I recall working on the job site in South Melbourne in November 1999, when I met Strawhorn with the $10,000. Strawhorn told me that if I robbed him he would kill me, if I do anything behind his back he would charge me and if I do not continue to work as an informer he will expose me to the underworld and outlaw motor cycle gangs. I also knew that he had access to the taped conversations between myself and Peter Butland [a Detective from Rosebud CIU] that exposed various drug suppliers."
Putting aside the reference to AA speaking with police from the ESD, which was said to be capable of evincing a consciousness of guilt, the defence argued that the balance of the material demonstrated criminal disposition, bad character and disreputable conduct. It exposed potential offences, such as threats to kill, which were not the subject of any charges before the jury. Moreover, the alleged conduct of the accused did not relate to any of the specific charges of drug trafficking. In essence, the material was characterised as propensity evidence, having virtually no real probative value but carrying with it a very high order of prejudice. Insofar as it demonstrated a corrupt relationship between the accused and AA, there was ample evidence of this if the evidence of AA was accepted. Further, in terms of relationship, the material did not suggest that what AA did, in engaging with the accused in the trafficking, was the product of some fear that he would be killed by the accused. Rather, the alleged threats relate to a concern by the accused that he not be "ripped off" by AA.
It was submitted by the defence that not only this material, but that relating to possible consciousness of guilt, should be tested for admissibility against the criteria set out in s.398A of the Crimes Act 1958 as interpreted by the Court of Appeal.
In an argument in favour of admissibility the Crown outlined what it submitted were practical questions a jury would need to ask in relation to each of the alleged drug transactions. First, whether the transaction took place; second, if it did was it legally authorised and conducted for a legitimate purpose; and third, what was the accused's role in the transaction. It was the Crown case that the transactions occurred, and were illegal, and that the accused was involved in each of them. In the case of the first four transactions (known as the Operation Schild transactions) the Crown argument was that they arose from a corrupt relationship which the accused had with Paton and AA. Accordingly, so it was argued, it was necessary to present evidence to the jury of the nature of the relationship which existed between AA and the accused at various points of time during their dealings. Such evidence was relevant to counter any suggestion by the defence that the relationship between the accused and AA was a proper one. It was the Crown contention that these conversations, threatening dire consequences, were designed to ensure that AA was kept in a subservient relationship with the accused. Moreover, the threats were designed to keep AA in line and ensure that his mouth remained shut.
Whilst characterising the evidence as relationship rather than propensity evidence the Crown, nonetheless, conceded that it was prudent to view the material through the prism of s.398A of the Crimes Act.
Propensity evidence includes, but is not limited to, evidence which discloses the commission of crimes other than those charged. One category of propensity evidence is that of relationship. Such evidence may be led in a trial for a number of purposes. It may, for example, be adduced to place in a realistic context, and make intelligible, a complainant's allegations; to establish an accused's intent; to disprove accident; to establish motive; or to negate the innocent or harmonious character of a relationship.
It may be doubted if this species of propensity evidence was ever required to be subjected to the test of admissibility enunciated by the majority of the High Court in Pfennig v R[10] namely, that it must possess:
"a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged."
It may well be that the majority intended to limit such a test to similar fact evidence properly defined.
[10](1994) 182 CLR 461 at 481
Indeed, also in Pfennig's case, McHugh J[11] remarked:
"In the relationship cases, … propensity reasoning may simply reinforce or explain other evidence that directly implicates the accused. In such cases, it would be contrary to both the practice of the criminal courts and the interests of justice to use the no rational explanation test as the condition of admissibility of such evidence. In other cases, particularly those where the evidence is admissible for a reason other than the accused's propensity, the risk of prejudice may be so small that justice both to the accused and to the prosecution can be done by admitting evidence that is probative of guilt and warning the jury that they must not use the evidence in the way that is likely to create prejudice."
[11]Ibid at 530
In any event the law in Victoria may be regarded as governed by s.398A of the Crimes Act 1958 which relevantly reads:
"(2)Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence."
Commenting on this sub-section, Callaway JA stated in R v Best[12]:
"... it is appropriate that any division of propensity evidence be inadmissible unless its probative value makes it just to admit the evidence despite any prejudicial effect it may have on the accused. Mere background evidence [case cited] is unlikely to meet the test but legitimate evidence of relationship will usually be admitted. That is because, if the proper directions are given, the probative value of such evidence ordinarily outweighs its prejudicial effect."
In making this assessment[13]:
" … all the circumstances bearing on probative value and prejudicial effect are relevant to admissibility but not factors impugning the reliability of the evidence."
[12](1998) 4 VR 603 at 612
[13]Ibid at 616
In R v TJB[14], Callaway JA discussed the approach that should be adopted by a trial judge[15]:
"Section 398A prescribes the rule that must be satisfied before a particular class of evidence is admissible, not a discretion to exclude evidence that is admissible. It may be thought that there will be few cases where the Christie discretion will have any room for practical operation once propensity evidence has satisfied the test in sub-section (2), but that question need not be explored."
[14](1998) 4 VR 621
[15]Ibid at 632
In fact, in R v Tektonopoulos[16] Winneke P (in whose judgment Charles and Batt JJ agreed) essentially rejected the proposition that the determination whether or not to admit propensity evidence pursuant to s.398A(2) involved the exercise of a discretion. He stated:
"The question, as the trial judge accepted, is one of law and not discretion, although it must involve matters of degree and value judgment in which the experience of the judge will play a prominent role [cases cited]. In truth, the trial judge has no discretion because if he concludes that the evidence is sufficiently probative as to render it just to admit it despite its prejudicial effect, he must admit it; … There seems to me to be little room for the 'Christie discretion' [R. v. Christie [1914] AC 545]."
[16][1999] 2 VR 412 at 419
The material sought to be led by the Crown relates to serious threats and the purported encounter at the Village Green Hotel is particularly dramatic and vivid. It is to be noted, however, that these conditional threats of death are not specifically linked to any of the charged offences. Further, these threats are solely directed to the consequences for AA if he "rips off" the accused in any (unspecified) drug deals.
Insofar as the material illustrates the corrupt relationship between the accused and AA, there will be ample evidence before the jury from AA to demonstrate the nature of their association.
There can be no doubt that the challenged material would engender a high degree of prejudice against the accused. If the material were to be admitted in evidence a strong warning to the jury would be required as to the limitations of its use. This is especially so given that count 6 of the presentment involves a specific charge of threat to kill. No doubt such a warning could be fashioned, but it may well have the effect of highlighting this evidence.
On balance I am not satisfied in all the circumstances that it will be just to admit the evidence of, and surrounding, the Village Green Hotel incident. However, some of the material objected to, namely, that commencing with the words: "He has on occasions", down to and including the penultimate paragraph, goes beyond the simple revelation of an ongoing corrupt relationship. It serves to demonstrate the dynamics of that relationship, in particular that the continuing co-operation and usefulness of AA was secured by a raft of threats emanating from the accused. Additionally, the threat of the terminal consequences of contacting the ESD are clearly capable of evincing a consciousness of guilt.
Applying the test enunciated in s.398A(2), I would admit this latter material (apart from the portion: "If I robbed him he would kill me") into evidence.
Fontana (3278)
The background to this matter is that following information supplied by Graeme Sayce, a Security Adviser for Sigma, Superintendent Fontana initiated the investigation termed Operation Hemi which initially investigated illicit transactions involving Paton and EE. Ultimately, Operation Hemi became Task Force CEJA.
Information passed on by Sayce to Fontana included material supplied by the accused. It is the Crown case that by limiting the information provided to Sayce to Sudafed tablets rather than pseudoephedrine, the accused deliberately derailed the initial police investigation.
It was not contested that the evidence of Sayce as to his conversations with the accused was admissible. However, Sayce, in January 2001, at a time subsequent to his conversation with the accused, passed on (inter alia) information as to that conversation to the witness Fontana. Fontana made notes of what he was told by Sayce. What the accused told Sayce is apparently to be led by the Crown as constituting admissions against interest and/or consciousness of guilt. It is disputed by the defence that the accused made the potentially damaging comments attributed to him.
Sayce apparently made no contemporary notes of this conversation with the accused to which he could refer in the course of his evidence to refresh his memory. He could, no doubt, have access outside the courtroom to the notes made by Fontana for this purpose. So much is clear. However, what the Crown wish to do is have Fontana (probably by reference to his notes) regurgitate the conversation that he had with Sayce. It was argued by the Crown that such a process would not constitute the adducing of hearsay evidence because the purpose of leading it was not as to any truth it may contain, but to inform the jury as to why, at the initial stages, the police investigation followed a circumscribed path.
Whether or not the disputed evidence constitutes hearsay is not, to my mind, to the point. What it does constitute is, in effect, an effort by the Crown to reinforce the evidence of Sayce and to bolster his credit; or, as the defence put it, to buttress that evidence. The prohibition of the leading of evidence which has, as its purpose, the bolstering of the credit of a witness, is well recognised.[17] In the absence of allegations of recent invention against Sayce the course proposed is, in my view, impermissible.
[17]See R v Turner [1975] QB 834 at 842; Palmer v R (1998) 193 CLR 1 at 21-2; and R v PLK (1999) 3 VR 567 at 577-78.
If there is some relevance, perhaps by way of background information, in acquainting the jury with the reason for the direction the investigation took at the outset, this may be sufficiently achieved by evidence that on the basis of information received from Mr Sayce, the ESD conducted the investigation in a particular manner.
Accordingly, the material the subject of objection on p.3279 is inadmissible.
The Tape Recorded Conversation Between BB and the Accused
On 15 March 2003, the accused met with BB and the ensuing conversation was tape recorded. It is the defence submission that the whole of that recorded exchange should be excluded from evidence.
It was put that the conduct of the police in setting up, and seeking to direct the course of the meeting, was improper, if not unlawful, and consequently the public policy discretion was enlivened. I do not think that the argument of unlawfulness was strongly pursued, but in any event it can have no basis on the facts of this case.
The impropriety was said to stem from a denial or circumvention of the accused's procedural rights which I assume to be essentially the right accorded by s.464ff of the Crimes Act 1958. This denial flowed from the failure to arrest the accused, who was a suspect and who was scheduled for arrest on the morning of 17 March, and formally interview him.
This circumvention of the accused's procedural rights also attracted the operation of the fairness discretion since it created a forensic disadvantage (reflected, for example, in the need for the accused to give evidence to explain some of the comments made during the conversation).
Another aspect of unfairness asserted by the defence was the exploitation by the police of the friendship and trust that existed between BB and the accused.
Further, it was submitted that the impugned material could not be saved on the basis of urgency such as the need to locate a dangerous co-accused or the body of a victim.[18]
[18]See R v Lewis [2000] 1 VR 290 and R v Franklin [2001] 3 VR 9.
It was also argued generally that the conversation did not produce any material that was logically probative; and, even if it did, the probative value of such evidence was outweighed by its prejudicial effect. In this regard the tone of the conversation, the manner in which it occurred, and the topics discussed, were said to reflect adversely on the accused's character. Moreover, there were portions of the conversation which would invite jury speculation.
Insofar as the recorded conversation founded the charge of threat to kill it was argued that it should be excluded first, as "fruit of the poisoned tree" and secondly, on the basis of what was termed "the Ridgeway discretion"[19] which also provided a warrant for the exclusion of evidence improperly (or illegally) obtained by police or their agents. Here the impropriety was said to be the procuring or inciting by BB, at the behest of the investigating police, of the threat to kill police officer De Santo. Indeed, it was put that the witness BB exploited the mutual animus he and the accused had for Mr De Santo and tailored the conversation to obtain the threat. On this topic the test propounded in Bunning v Cross[20], was also invoked.
[19]See Ridgeway v R (1995) 184 CLR 19.
[20](1978) 141 CLR 54
It was further argued that the threatening words uttered in the recorded conversation amounted only to the actus reus of the offence. This submission was not developed and, in my view, had no substance.
The defence also made a number of submissions to the effect that the accused had no real motive to kill Mr De Santo who was not a dangerous witness against him, and that his tone of voice, and the context of the conversation generally, belied the genuineness of the purported threat. These are matters which, in my view, go to the weight of the evidence and would normally be tested in the forensic arena.
In the course of argument reference was made to a number of authorities relating to the covert recording of conversations by police or their agents and the application of the public policy and unfairness discretions to them. It is desirable to refer to them in order to place the submissions in a legal context.
The basal authority is the decision of the High Court in R v Swaffield & Pavic[21].
[21](1998) 192 CLR 159. The principles have also been enunciated in such cases as R v Heaney & Welsh (1998) 4 VR 636 and R v Juric (2002) 4 VR 411.
Factually (insofar as is relevant) this case involved the use, by investigating police, of a friend of Pavic named Clancy. It was arranged that Clancy meet with Pavic and converse with him about the killing. It is to be noted that Pavic had already been interviewed by police and had made a “no comment” record of interview. Additionally, after speaking with Clancy, and before he was sent to meet Pavic, the police believed that they had sufficient evidence to arrest Pavic and charge him. Further, at the time of the conversation, Clancy was under the impression that he was a suspect and he conveyed this fact to Pavic. In the ensuing conversation Pavic made a number of inculpatory statements.
In the result the Court found no cause to interfere with the exercise of the trial Judge's discretion to admit the inculpatory evidence. In the course of their joint judgment Toohey, Gaudron and Gummow JJ stated the applicable legal principles:
"… In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the Court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the Court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the Court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the Court but it does not prevent the development of rules to meet particular situations."[22]
[22]Ibid at 202
In terms of the unfairness discretion the joint judgment recognised that one aspect of it is to protect against forensic disadvantage which may be caused by the admission of improperly obtained confessional statements.[23]
[23]Ibid
In the course of his dissenting judgment, Kirby J approached these concepts in the following manner:
"Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspects and their agent so as to extract a statement which would not otherwise have been made."[24]
[24]Ibid at 220-21
The Victorian Court of Appeal in R v Lewis[25] made the point that:
"No doubt there is always a degree of deception involved in the use of an undercover operative but, as has been frequently said, investigation of serious crime [our emphasis] cannot always be played out in accordance with a sportsman's code of conduct."
In R v Carter[26] it was also accepted that a measure of manipulation and exploitation could occur in the process of obtaining an admission. It will always be a matter of degree in the individual case.
[25][2000] 1 VR 290 at 314
[26][2000] 1 VR 175 at 190
Similarly, the fact that admissions have been obtained as a result of some elicitation will not be conclusive on the question of admissibility. The Victorian Court of Appeal stated in Lewis[27]:
"In this vexed area of admissibility of confessional material given to a police undercover operative, some store appears to have been placed by the authorities upon the question of whether the operative has elicited 'the impugned material' or whether it has been willingly conveyed to him during 'mutual conversation'.
It has been suggested, we think with some justification, that such a subjective and nebulous test is an unsafe touchstone to guide the trial judge's discretion on the question of admission or exclusion of relevant and admissible evidence."
[27]Ibid at 315
Additionally, during argument such authorities as R v Roba[28] and R v Dewhirst[29] were cited; to these cases could be added R v K.S. & Said[30]. Without descending to any detailed examination of such cases it is relevant to note at the outset that in each of them, what may be characterised generally as a violation of the accused's procedural rights, occurred in a custodial setting subsequent to the accused having been charged. This was also the situation in R v Juric[31]. It is not the situation in the instant case. Nor does the taped conversation in this case contain false claims as to the evidence residing in the hands of the police as occurred in both Roba[32] and Heaney & Welsh[33]. Of course, as I have emphasised in previous judgments, questions of admissibility fall to be determined on the individual facts of each case.
[28](2000) 110 A Crim R 245
[29](2001) 122 A Crim R 403
[30](2003) 6 VR 264
[31](2002) 4 VR 411
[32]Ibid
[33]Ibid
Finally, in this review of the authorities, mention should be made of Ridgeway v R[34]. For the purposes of the current submission it will suffice to identify the following statement of principle:
"The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offence or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged. …
In what has been written above, the existence of the Bunning v Cross discretion to exclude illegally procured evidence has been relied upon as supporting, by way of analogy, the recognition of a discretion to exclude evidence of an illegally procured offence or an element thereof. It is arguable that the preferable view that the two discretions are not distinct and independent but represent complementary aspects of a single discretion which encompasses them both. Regardless of whether that be so, there is, at the least, a broad correspondence between considerations, both positive and negative, to which regard should be had by a trial judge in determining whether the challenged evidence should be excluded in a case where either discretion exists and is invoked. Those considerations were identified in judgments in this Court in cases in which the Bunning v Cross discretion was established and explained."[35]
[34](1994-1995) 184 CLR 19
[35]Ibid at 37-38
Before embarking upon an examination of the recorded conversation it is pertinent to place its occurrence in the matrix of surrounding events.
From 18 January 2000, BB became involved with the accused in Operation Vere. Previously they had known each other as members of the Victoria Police and the Drug Squad. The accused had only met CC once in a context divorced from any drug trafficking operations.
After the queries raised by Mr Sayce of Sigma, investigations centering on the activities of Paton and subsequently EE commenced (Operation Hemi). It was the Crown case that the accused must have realised the investigation of the pseudoephedrine transactions could lead, via Paton, to Messrs BB and CC. Indeed, the debriefing of Paton and EE in the March/May period of 2002 resulted in suspicion increasingly directed to his own activities.
On 1 June 2002, Detective Inspector De Santo, a senior officer involved in these investigations, received a threatening phone call on his home phone – a fact which inevitably led to an assessment of the safety of police members.
In about August 2002, the accused was relocated to the Fraud Squad and, shortly before 13 September 2002, according to BB, the accused turned up unannounced at his office. In his statement BB has the accused stating (inter alia) that the pseudoephedrine transaction did not occur and to tell CC if he was interviewed that it never happened.
On 24 September, in a telephone conversation with another Drug Squad detective named Anastasiadis, the accused learned of the involvement of Mr De Santo in the seizing of his, and co-officers' diaries.
In October-November, CC was debriefed and on 24 October, a Detective Senior Sergeant Allison was telephoned by the accused.
That call was said by the Crown to bear the interpretation that the accused wanted someone to contact CC for him to inform CC that he had been "burnt" concerning his role in the Moran operation, and that he was not to come to Melbourne again. The accused indicated that he wanted CC to panic into thinking that if he came to Melbourne, he would be killed.
Next in the sequence of events, on 29 October, Mr De Santo's wife and child were followed by a man in a Commodore vehicle. This had the effect of raising the level of concern about his safety.
On 3 November, a criminal named Slusarczyk was killed in a plane crash. This event was followed on 4 November, by a telephone conversation between the accused and BB. On this occasion the accused called the deceased "a maggot" for working with the ESD (who he referred to as "the filth") and added that De Santo should have crashed with him and lost his life. On the same day a telephone conversation with an identical theme was had with a man named Obeid.
Disparaging remarks about Mr De Santo were also made to police officers Firth (of the Drug Squad) and Allison on 27 November 2002. Yet further comments, antagonistic to Mr De Santo, were made by the accused to Mr Firth on 16 and 20 December of that year.
On 20 January 2003, BB was debriefed by ESD members Commander Dannye Moloney and Detective Sergeant Elizabeth Murphy and the next relevant occurrence was on 18 February when a warrant was executed on the home of the accused and he was suspended from duty. Four days later, on 22 February 2003, Mr De Santo received another threatening telephone call on his home telephone.
On 25 February, the accused visited BB. A statement detailing this meeting is found at page 3431ff of the depositions and it records (inter alia) that the accused told BB that as far as he was concerned the supply of pseudoephedrine never happened and that was as far as anyone else needed to know. The accused also indicated that if spoken to by the ESD he would deny that the 19 May transaction ever occurred. In turn, BB revealed to the accused that both he and CC had been approached by Dannye Moloney and he (BB) had been interviewed via an inducement about their involvement in Operation Vere and the pseudoephedrine transaction.
This meeting was reported to the ESD and is the subject of an Information Report dated 26 February 2003. It records BB as also having told police that the accused asked him to speak with CC and make sure that it was covered.
By 11 March, the witness AA had been fully debriefed. His statements contained reference to threats by the accused to kill him including a threat that this would occur if he spoke to police from ESD. Subsequently, AA received a telephone call in which the accused expressed the hope that he was behaving himself.
Finally, in this chronology of events the police, by 10 March 2003, had the signed statements of the witness Paton. Those statements asserted that the accused told him (on the day that Paton resigned in December 2000) that if he said anything about the accused he would hunt him down and kill him. Later, on 3 January 2001, Mr Paton received a voicemail message on his mobile phone which simply said: "Sh". This was followed about one month later by a letter containing four police issue bullets. It was Paton's belief that the source of both events was the accused.
It was against this background that BB, having received a request from the accused to meet with him, was persuaded by the police to attend a meeting and record the ensuing conversation.
In the course of legal argument there was some debate as to the aims and purposes of this expedition. I do not intend to venture into any detail upon this topic. I have read the relevant depositional material and I am satisfied that the aim of the investigating police was as stated by Commander Moloney[36], namely to protect witnesses (in particular CC) and obtain evidence of any prior criminal conduct by the accused. I accept that BB was told that if there was a proposal by the accused to harm witnesses, he was not to advance it in any way. Further, it is clear that Mr Moloney wanted the meeting to occur as soon as possible.
[36]2171-2172 depositions
On the depositional material BB's own understanding was that the police were concerned about possible threats to witnesses[37], in particular CC, and that it was desired that the meeting occur as a matter of urgency. In regard to any suggested agreement involving threats to witnesses, BB understood that the DPP had been consulted and he was not legally at risk.[38] Certainly he was not instructed to seek to elicit any threats from the accused.[39]
[37]1660-61 depositions
[38]1661 depositions
[39]1677 depositions
BB also understood that his role included the obtaining of corroboration of what the accused had said to him in the past about trafficking in pseudoephedrine.[40] In fact, that was part of his own agenda in attending this meeting. In the context of this factual background, which I have deliberately set out at some length, the legal issues may be resolved.
[40]1679 and 1846 depositions
First, given the sum total of the information in the possession of the interrogating police, which suggested at least the potential for harm to Crown witnesses, there was nothing improper in attempting to ascertain the accused's intentions. Indeed, it is arguable that the police had an obligation to do so. It is not to the point that a number of these threats could not be specifically linked to the accused at that stage.
Secondly, the meeting itself was not contrived by the police but occurred at the request of the accused, and there was no exploitation of any special relationship between the parties such as concerned Kirby J in Pavic's case. This was a mutually agreed meeting between experienced police officers.
Thirdly, there was no impropriety in attempting to obtain admissions from the accused as to the pseudoephedrine transaction at a time prior to his arrest and charging. The method employed has become a conventional part of the evidence gathering process employed in a police investigation. There is no obligation on investigating police to charge and interrogate a suspect at the earliest possible opportunity. As the cases indicate, the statutory safeguards contained in s.464ff of the Crimes Act 1958 are primarily designed to protect the rights of a suspect in a custodial situation. Indeed, cases such as Pavic[41] have involved a secretly recorded conversation subsequent to the conduct of a formal record of interview where the suspect has not been immediately charged but released back into the community. This is not to say that pre-arrest police behaviour can never amount to a circumvention of a suspect's procedural rights. This, however, is not such a case.
[41]Ibid. See also R v Tofilau [2003] VSC 188; R v Ghiller [2003] VSC 350; R v Clarke [2004] VSC 11; R v Favata [2004] VSC 7; and R v Marks [2004] VSC 476.
Fourthly, even if elicitation does constitute a basis for the refusal to admit admissions, the present conversation comprises a series of exchanges between parties well known to each other on topics of common interest. True it is that BB raises the situation of CC on a considerable number of occasions, but it cannot sensibly be said, in my view, that he seeks to elicit threats against CC as distinct from attempting to gauge the accused's attitude towards him.
I make the further general comments which are in addition to those I ventured when discussing the applicable law.
Apart from the evidence of the threat to kill, the conversation contains what may broadly be construed as statements against interest. These include the assertion that the pseudoephedrine transaction did not occur and, in effect, to reinforce this matter to CC; and the assertion that since Mr Paton is a tarnished witness, no prosecution would be possible if those involved in the pseudoephedrine transaction said nothing.
The fact that the accused's utterances on this topic tend to reinforce the statements of BB about the parties' earlier interaction is also relevant, as is the nature of their relationship as revealed in the conversation.
Of course, this material is prejudicial as is any evidence led against an accused person; but its prejudicial effect does not, in my view, outweigh its probative value. Insofar as it was argued that the material involving the discussion of drug traffickers occasioned its own prejudice, the short answer is that the comments are consistent with the involvement of the speakers in pursuing such criminals. In fact, much of this conversation, viewed from the perspective of the accused, is self-serving.
Insofar as the ambiguity of some of the accused's responses is asserted, a reading of the cross-examination of BB at the committal proceedings indicates that explanations that would avoid jury speculation are available for most of the subjects canvassed in the conversation.
As for the argument that the admission of this material would cause forensic disadvantage to the accused, in that he may be required to provide some explanations, this is not an unusual situation. As the prosecution pointed out, evidence which is otherwise relevant is not rendered inadmissible merely because it may require an explanation. The forensic disadvantage referred to in the authorities[42] in this area of the law stems from the circumstances involved in the obtaining of the evidence/admissions by investigating police, covert or otherwise, or their agents.
[42]See for example R v Amad (1962) VR 545; R v Roba (ibid); R v K.S. & Said (ibid); and R v Su & Goerlitz (2003) 7 VR 13.
Specifically in relation to the admissions founding the prosecution on count 6, I do not accept the defence contention that the threat to kill Mr De Santo was incited by BB and hence offended against the strictures contained in Ridgeway's case[43]. The subject of Mr De Santo's demise was raised by the accused and BB's query: "Are you gonna kill him …?", flows naturally, and is in character with, the general conversation.
[43]Ibid
I have already commented upon the forensic factors relevant to assessing the strength of the Crown case on this count. To those mentioned above should be added the prior utterances of the accused about Mr De Santo, and evidence of his prior relationship with him.
Accordingly it is my opinion that the tape recorded conversation is admissible in evidence.
As the transcript of argument reveals, there was considerable time occupied by counsel in a painstaking examination of this conversation. I do not intend to duplicate this exercise particularly as the defence have previously indicated that all of the conversation may need to be before the jury if any portion of it was to be admitted. On the other side of the coin, the Crown have already evinced a willingness to delete some parts of the conversation and to consider defence requests for further deletions.
I note for the record that the Crown propose to expunge the portion of the material appearing at page 3455 commencing with "Yeah I had to give …" and concluding with the words "put in fuckin jeopardy"; at page 3468 commencing with "When we caught …" and concluding with the first comment on page 3469 ending "See ya Noel"; on page 3472 commencing "Is run by fuckin" through to "Mocchy boy" on page 3474; all of page 3478 down to "Oh well"; page 3482 from "And the who? …" up to the sentence commencing "Yeah but no, …" on page 3484; and finally on page 3487 from "Well I fuckin, well I am Ken …" through to "it's all gone, life's fucked" on page 3488.
The Evidence of Messrs BB and CC
It was the defence submission that the evidence of the Crown witnesses BB and CC should be excluded in its entirety. In relation to each witness it was argued that the manner in which their statements were obtained rendered them potentially unreliable and, further, attracted the exercise of what has become known as the Bunning v Cross discretion.[44]
[44]Ibid
Before examining the factual basis for this submission it is, in this instance, convenient to first consider the applicable law in this area.
The leading Victorian case on the issue of reliability is that of Rozenes & Anor v Beljajev & Anor[45]. This was a case involving a witness (Hills) who was the subject of a "use indemnity" supplied by the prosecution. Hills had earlier received a lighter sentence for his involvement in a drug importation conspiracy as a consequence of his guilty plea and co-operation with the authorities. The trial Judge acceded to a defence application to exclude the evidence of Hills on the basis (inter alia) of his lack of credibility arising from his status as an accomplice, his general bad character, and the existence of motives to implicate others (particularly the accused Beljajev) in criminal activities. The trial Judge also expressed an opinion (regarded by the Court of Appeal as speculation) that the police may have stimulated the memory of the witness from their own considerable knowledge of the activities of the accused Beljajev. It was suggested that, as a consequence of this, the witness had tailored his statements. In the result it was held that the trial Judge had wrongly excluded Hills' evidence.
[45][1995] 1 VR 533
It is not necessary to embark upon a detailed analysis of this case. Rather, it is sufficient to refer to several legal propositions enunciated in the joint judgment of the Court (Brooking, McDonald and Hansen JJ).
First, the Court accepted the existence of a general discretion to reject any evidence, whether or not confessional in nature, on the ground that to receive it would be unfair to the accused in the sense that any trial would be unfair. In this regard the Judges accepted the proposition enunciated by Vincent J (as he then was) in R v Peirce[46]:
"I have no doubt of the existence of a general discretion which may be exercised by a trial judge in appropriate circumstances to exclude virtually any piece of evidence in a criminal trial. This residual discretion represents the concern which has often been expressed that the rules of admissibility of evidence should not operate to produce unfairness to accused persons. There is an overriding responsibility to ensure that the processes of our courts are as just as it is reasonably practicable to make them according to current standards."
[46][1992] 1 VR 273 at 274
Moreover, the Court held that this discretion extended beyond the probative value as against prejudicial effect discretion and the discretion set out in Bunning v Cross[47]. Secondly, however, the appellate court doubted the application of that general or residual discretion to the issue of unreliability. This was regarded as essentially a jury question.[48] Indeed, the High Court decision in Doney v R[49] was seen as being "against the existence of a discretion to exclude evidence of significant probative value on the ground of unreliability."
[47]Ibid
[48]Ibid
[49](1990) 171 CLR 207
Several extracts from the judgment will suffice to make the point.
"As we have said, we do not think that one can dispute the proposition that, quite apart from the other circumstances which have been authoritatively accepted as giving rise to the discretion to exclude admissible evidence in a criminal trial, the discretion arises whenever it is shown that the reception of certain evidence will be unfair to the accused. But, as we have said, once it is accepted that this proposition does not commit to the judge a broad and undefined discretion to determine what is in all the circumstances fair, but requires the judge to consider whether the reception of the evidence will make the trial unfair, it becomes difficult to think of a set of circumstances which might give rise to the discretion in cases where it is not suggested that there is a disproportion between the probative value of the evidence and its prejudicial effect. In particular, as Carter J observed at 255 in R v McLean & Funk Ex parte Attorney-General[50], it is difficult to see how it can be said that the trial is unfair by reason of the unreliability of evidence which is probative where the circumstances which make the evidence unreliable are properly exposed for the consideration of the jury. His Honour went on to conclude at 260 that there was no discretion to exclude evidence which was based wholly or primarily upon the trial judge's conclusion that the evidence was unreliable: the exercise of such a discretion interfered with one of the most integral of the jury's functions, a function which there was no reason to believe any properly instructed jury to be incapable of properly performing.
We are, with respect, in general agreement with the view of Carter J on these questions."[51]
[50][1991] Qd R 231 [note that Carter J was in the minority in this decision]
[51]Ibid at 553
Later, the Court commented:
"Leaving aside any suggestion that prejudicial effect was out of proportion to probative value, what would the defence have to show in order to satisfy the judge that it would be unfair to the accused to receive certain evidence in view of its unreliability in the sense that the trial would be unfair? Presumably what would have to be shown is that there would be a significant danger of a miscarriage of justice, in the sense of an improper conviction, in that the jury, in assessing the evidence in question, would not have given proper weight to the circumstances which make it unreliable. But it is for the jury alone to decide the facts; it is not for a judge to withdraw a case from the jury on the ground that a conviction would be unsatisfactory or unsafe; and the common law deals with the problem of 'unreliable' evidence by leaving the matter to the good sense of the jury, in the light of warnings given by the judge, especially in relation to corroboration. If these warnings are properly given, the accused has received the trial which the law requires him to have; the according to him of such a trial is not unfair. If a conviction results the Court of Criminal Appeal will if necessary consider, having regard to the nature and quality of the evidence, the directions given to the jury and the advantage enjoyed by the jury as the triers of fact, whether the jury were bound to entertain a reasonable doubt about guilt. It is one thing to recognise in courts of criminal appeal a power to review a jury's determination of fact; it is altogether another to permit a trial judge to pre-empt such a determination; [case cited]."[52]
[52]Ibid at 556-557
Finally on this aspect:
"We accept the view of Carter J that there is no discretion to exclude evidence which is based wholly or primarily upon the trial judge's conclusion that the evidence is unreliable. But if this view be too extreme, then at least it would have to be said that the circumstances calling for a favourable exercise of the discretion would have to be most exceptional. For it can only be in a most exceptional case that one could say, as Vincent J put it in Peirce at 277 that the considerations affecting reliability were not 'comprehensible to a jury and capable of assessment by them as the proper tribunal of fact'.
The circumstances of the present case [being the factual situation of the witness Hills] could not be regarded as most exceptional for this purpose."[53]
[53]Ibid at 559
In the course of argument the defence referred to the decision of R v Falzon[54]. This was the decision of a trial Judge in which he excluded the evidence of a Crown witness on three grounds; first, a perceived discretion to exclude statements where there existed a grave risk of their being untruthful or unreliable; secondly, on the ground of public policy as in Bunning v Cross; and thirdly, as statements emanating from an indemnified witness with a strong incentive to ingratiate himself with the prosecution.
[54][1990] 2 Qd R 436
The factual circumstances found to exist were inducements which concerned the witness not being charged with activities involving drug dealing and police protection if he gave evidence for the authorities coupled with threats of being revealed as a police informer or charged with perjury if he gave contrary evidence. The persistent denials of the witness of his participation in criminal activities were branded as lies by the investigating police. The interviews the police conducted were gruelling and the questioning was interspersed with insults. At the time the witness was not in good health. In all the circumstances the trial Judge concluded:
"The statements of W followed and should be regarded as having been induced by threats, promises and intimidation of a gross character."[55]
[55]Ibid p.438
The Court of Appeal in Beljajev may be seen as regarding the validity of the decision in Falzon's case as resting upon the exercise of the Bunning v Cross discretion rather than either of the other grounds proffered in the reasons of the trial Judge.
In R v Knox[56] the New South Wales Court of Criminal Appeal, in a case decided prior to Beljajev, recognised that a ruling in advance of a trial that a jury could not rely upon a witness' evidence would be an exceptional one.
[56](unreported decision NSW CCA 287 of 1989 delivered on 29 September 1989)
In DPP (C'wlth) v Bayly (No. 3)[57] Olsson J, after reviewing the scant authority in this area, accepted the reasoning of the Victorian Court of Appeal in Beljajev and declined to apply that of the earlier Queensland decisions of Falzon and McLean.
[57](1996) 89 A Crim R 542
In R v Lowe[58] the Victorian Court of Appeal reaffirmed the approach adopted in Beljajev.
[58][1997] 2 VR 465 at 479-480
More recently in R v Griffiths[59] Chesterman J, whilst noting that Carter J was in the minority in McLean's case expressed the view that
"… The force of the reasoning must, I think, produce the result that evidence will not be rejected on the ground of its apparent unreliability unless its acceptance by the jury would, in the circumstances, be perverse."[60]
His Honour went on to state:
"The pre-emptive rejection of testimony which on its face proves or tends to prove the commission of a crime will require more than a demonstration of reasons why the evidence might not be accepted, or inconsistencies or discrepancies in the evidence. These are features to be considered by a jury when deciding whether the evidence should be accepted. They are not features that lead inexorably to its being disbelieved. …
More fundamentally the authorities show, in my opinion, that applications of this kind based upon these sorts of objections to evidence should not ordinarily be entertained."[61]
[59](unreported judgment 597 of 1999 Qld SC delivered 25 January 2000)
[60]Ibid at p.4
[61]Ibid at 4 and 7
Indeed, apart from Falzon's case no application for exclusion of evidence on the basis of unreliability has been successful.
The second legal wing of the defence contention relied upon the application of the discretion set out in Bunning v Cross[62]. The genesis of this discretion (usually described as the public policy discretion) is found in the comments of Barwick CJ in R v Ireland[63]:
"Whenever such unlawfulness or unfairness [by the authorities] appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."[64]
[62]Ibid
[63](1970) 126 CLR 321
[64]Ibid at 335
In applying that principle in Bunning v Cross Stephen and Aickin JJ stated[65]:
"Since it is with these matters of public policy that the discretionary process called for in Ireland is concerned it follows that it will have a more limited sphere of application than has that general discretion to which Lord Widgery refers [see Jeffrey v Black [1978] 1 All ER 555] which applies in all criminal cases. It applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon CJ put it in Wendo's case unlawful or improper conduct). Moreover, it does not entrench upon the quite special rules which apply to the case of confessional evidence. Its principal area of operation will be in relation to what might loosely be called 'real evidence' such as articles found by search, recordings of conversations, the result of breathalyser tests, fingerprint evidence and so on. …
There is no initial presumption that the State, by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry. It is not fair play that is called in question in such cases but rather society's right to insist that those who enforce the law themselves respect it, that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired. A discretion exercisable according to the principles in Ireland's case serves this end, whereas one concerned with fairness may often have little relevance to the question."
[65](1977) 141 CLR 54 at 75
Their Honours pointed to four factors to be considered by judicial officers in determining whether this public policy discretion should be exercised. They are well known and may be shortly stated:
"1.Where there has been non-compliance with the law, whether the law was deliberately or recklessly disregarded by those whose duty is to enforce it.
2.In the absence of deliberate or reckless disregard of the law, the cogency of the evidence itself, where the nature of the illegality does not affect that cogency.
3.The ease with which the law might have been complied with in procuring the evidence.
4.The seriousness of the offence charged."
The foundation of the Bunning v Cross discretion is not reliability, although no doubt that is an aspect of it. As is made clear in the case itself, the discretion is primarily aimed at ensuring that those who enforce the law respect and abide by it.
Despite the earlier comments of Stephen and Aickin JJ, it is to be noted that this discretion has developed over time to encompass not only confessional evidence but evidence other than confessional evidence which has been obtained by unlawful or improper conduct. (The latter can include unfair conduct although the focus of the Court in determining the discretionary exercise is not upon the unfairness to an accused.)[66]
[66]See R v Juric ibid at 440-441.
It may be more sensible in the post-Pavic era to employ a general test directed to the assessment of the conduct of investigating officials in the light of prevailing community standards and utilising the factors identified in Bunning's case as providing guidelines for making what is ultimately a judicial value judgment.
So much for the law. I now turn to the facts relevant to this submission.
Messrs BB and CC were both interviewed under an inducement offered by Commander Moloney. Each witness affirmed their understanding of its terms. Each was, of course, an ex-member of Victoria Police.
The procedure by which each man was debriefed and the manner in which their statements were formulated was clearly laid out in the voir dire conducted in the course of this preliminary legal argument. Those responsible, namely Commander Moloney, Detective Senior Sergeant Peter Brigham and Sergeant Elizabeth Murphy were called by the Crown and cross-examined by defence counsel. For the purposes of this already extended ruling I do not intend to detail their evidence.
Based upon that evidence as well as the contents of the debriefing, which had been preserved on audio and video tape, and the material contained in the statements themselves, the defence made submissions which may be summarised as follows.
(1)The statements of both BB and CC were elicited by way of formal inducements that evidence provided by them would not be used in any civil or criminal prosecution against them provided they were fully co-operative and frank. There were additional informal inducements to the effect that the investigating police accepted that the men had acted in good faith believing they were covered by s.51 indemnities.
(2)The statements were also the result of threats that non-cooperation would result in ongoing investigations of their conduct with the possibility of ultimately being charged with trafficking in pseudoephedrine. Such public exposure could involve recriminations from members of the criminal underworld (such as the Morans) and in the case of BB, loss of superannuation as well as loss of livelihood because of the effects of being charged. True it was that as prosecution witnesses, each man would necessarily be publicly exposed; but if the former situation prevailed, the lack of police protection could be added to any financial devastation.
(3)In the interviews giving rise to the statements, both BB and CC were misled by Commander Moloney as to the existence of other witnesses who had agreed with, or signed, statements about the events surrounding the pseudoephedrine transaction.
It was not submitted that any misleading was done deliberately or dishonestly, or that it did not represent the belief of Mr Moloney at that time as to the state of events. However, the effect was to induce both men to say what the police believed to be the truth.
(4)In the course of the interviews there was gross leading of these potential witnesses by Commander Moloney, for example, as to the circumstances of the delivery of the pseudoephedrine. Although it was not suggested that any such assertions were made dishonestly, nonetheless it was argued that this was highly improper.
Another aspect of this improper police conduct was said to be the telephonic communication by Sergeant Murphy to CC of portions of the statement made by BB during the course of compiling CC's own statement.
(5)Finally the defence pointed to forensic difficulties in exposing the flaws in the statements occasioned by their manner of compilation and in attacking the integrity of apparently decent witnesses such as Moloney, Brigham and Murphy who were involved in the process of their creation.
It was the defence submission that the application of the relevant law to these facts should result in the exclusion of the statements of Messrs BB and CC. (I use the term statements as synonymous with evidence.)
Although the Crown submitted that the defence assertion of investigative improprieties was greatly exaggerated, it is convenient, for the purposes of this exercise, to accept them as prima facie accurate. However, those facts should be placed in context. Messrs BB and CC are presented as being persons of good character. They are experienced former police officers familiar with the operations of Victoria Police. Moreover, they were familiar with the police culture and the status of the ESD within it. Any reluctance to co-operate may not only be linked to that culture, but to a message from the accused in September 2002 (relayed by BB to CC) that the transaction with the pseudoephedrine never occurred.
It should also be noted that, before signing their initial statements at Tallarook on 18 February 2003, each made alterations to those statements. Later, after further amendments at the committal proceedings, both swore that the contents of their statements were true and correct. Each was subjected to cross-examination at that preliminary hearing.
Accepting that there is a residual discretion in the most exceptional case to withdraw evidence from the consideration of a jury on the ground of unreliability, the instant case falls far short of any such characterisation. It has some similarities to Beljajev but does not come near the high watermark represented by Falzon (insofar as that decision is founded upon unreliability.)
As in Beljajev the mechanisms employed by investigating police to produce the statements of the witnesses are laid bare in audio and video form for the scrutiny of the jury. Further, the jury will be in a position to assess the veracity and reliability of the Crown witnesses – a benefit I have not had.
It follows that I would not exclude the statements of Messrs BB and CC on the ground of unreliability.
I should add for completeness that the question whether an attack on the processes giving rise to the statements will upset the balance of the defence case, is ultimately a matter for forensic consideration. It is not, in this instance, a ground for the non-admissibility of the material.
The exercise of the public policy discretion must be seen in the same general context that I have previously enunciated. But it must also be recognised that there is no necessary dovetailing of the factors set out in Bunning's case with the facts under consideration. This is no simple breathalyser case involving real evidence. This should be borne in mind when examining the matters raised by the defence.
It was not suggested that there was any impropriety in the use of a formal inducement by the investigating police. Indeed, it appears that prior to embarking upon this process, the advice of the Victorian Director of Public Prosecutions was sought. In conducting the debriefings it was also made abundantly clear by the investigators that they were concerned to learn the truth about the pseudoephedrine transaction. Further, it was not asserted that there was any deliberate misleading of the interviewees or that the use of leading questions was dishonestly motivated.
Additionally, the evidence garnered as a result of the debriefing is critical to the Crown case on count 5 and, to that extent, may be regarded as cogent. But if cogency relates to the strength of the evidence, as I suspect it does, that ultimately involves an assessment of its reliability by a jury.
There can be no doubt that the technique employed by Commander Moloney involved subjecting both of the witnesses to some pressure. However, given their background history, to which I have already referred, including their experience of and familiarity with, police operations and culture, what have been described as threats emanating from the interrogators may be seen as statements of options which the witnesses would have already well understood. Whether the line of propriety is crossed will always depend upon the circumstances of the individual case.
Finally, in any balancing procedure one needs to consider the heinousness of the charge itself. Trafficking in not less than a commercial quantity of pseudoephedrine is at the higher end of any scale of seriousness.
In all of the circumstances to which I have referred, I have concluded that none of the factors raised by the defence, individually or in combination, are sufficient to enliven the public policy discretion (however it is defined). Accordingly, I rule that the evidence of Messrs BB and CC is admissible.
---
CERTIFICATE
I certify that this and the 44 preceding pages are a true copy of the reasons for ruling of Coldrey J of the Supreme Court of Victoria delivered on 22 December 2004.
DATED this 22nd day of December 2004.
Associate
13
0