R v Tarantino (No 3)

[2019] NSWSC 985

Supreme Court

New South Wales

Medium Neutral Citation:	R v Tarantino (No 3) [2019] NSWSC 985
Hearing dates:	29 July 2019
Date of orders:	29 July 2019
Decision date:	05 August 2019
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Evidence admitted
Catchwords:	EVIDENCE – statements of accused’s cousin recounting conversation with accused – whether conversation is evidence of accused planning the alleged kidnapping or whether propensity evidence – evidence of conversation admitted
Cases Cited:	Gipp v The Queen (1998) 194 CLR 106
Category:	Procedural and other rulings
Parties:	Regina (Crown) Vinzent Tarantino (Accused)
Representation:	Counsel: P Barrett; V Garrity (Crown) B Rigg SC; P Coady (Accused)   Solicitors: Office of the Department of Public Prosecutions (Crown) Watsons Solicitors (Accused)
File Number(s):	2016/347591
Publication restriction:	Not to be published prior to the conclusion of the proceedings at first instance
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 13 October 2017 Before: Wass DCJ File Number(s): 2016/66546, 2015/280031

Judgment

1. Senior Counsel for the accused, Ms Rigg SC, objected to the Crown adducing part of the evidence of Godwin Joseph White concerning two conversations he had with the accused, one prior to 27 July 1998 and one after. At the conclusion of argument on 29 July 2019 concerning the objection, I gave my ruling and advised that reasons would be provided at a later date. This judgment constitutes my reasons.

Background

2. On 27 July 1998, the deceased, Ms Quanne Diec, disappeared sometime after leaving her home in Granville and before arriving at her school. At the time of her disappearance, Ms Diec was twelve years old. The Crown case is that the accused kidnapped Ms Diec from Factory Street, Granville that morning while driving a white van, took her to his father’s home nearby and then murdered her.

3. Part of the Crown’s case relies on admissions allegedly made by the accused. One Crown witness, Ms Laila Faily, provided a statement to the effect that the accused confessed to her in late 1998 that he had kidnapped a schoolgirl from Granville as part of an extortion attempt but when the attempt had miscarried he had murdered her. It is disputed that admissions were made to Ms Faily. The Crown also seeks to tender evidence of a video-recorded confession the accused made to police in 2016 in which he admitted abducting and strangling Ms Diec. In that confession he also made reference to proposing to extract “ransom” but panicking and then murdering Ms Diec. An objection to the tender of that material has yet to be resolved.

Mr White’s Statement

4. Mr Godwin White is the cousin of the accused. In his statement dated 22 November 2016, he recounts his dealings with the accused and the fact that the accused was working as the head of security at the “Black Market Café” when shootings occurred at those premises in November 1997. He recounts that after that shooting he believes his cousin “started to change”. The first part of Mr White’s statement that is the subject of objection relates to a conversation that Mr White asserts happened “after the Black Market [Café shooting in November 1997], but before July 1998”. In relation to that, Mr White’s statement is as follows:

“…Victor asked me stuff about kidnapping and extortion. He asked me, ‘Do you think it’s alright to extort people, or to hold people for money and stuff?’

I told him that, ‘No it’s not. You don’t do that, if you have a problem with people, you deal with that person only. You don’t involve other people, that is the wrong thing to do. People like that are nothing but dogs.’

I said, I told him, ‘You don’t do things like that, you do things for honour and [valour], you don’t do things for yourself. If you have to do bad stuff, you have to do it for a good reason, like protecting an innocent or saving someone’s life’. I pretty much shut him down, and the conversation ended. He only ever asked me this once.” (emphasis added)

5. The second part of Mr White’s statement to which objection is taken is an account of a conversation that occurred at a later time. The relevant part of the statement that is objected to reads as follows:

“I remember Victor saying, ‘You know that question I asked you a while ago about extortion and kidnapping and stuff… well I might be involved in something like that.’

I said ‘I told you if you are involved in anything like that, I would fucking kill you. You just want me to shoot you, you piece of shit, so you don’t have to deal with it.’ He just stood looking at me. I said ‘I lent you my car, I let you stay here with my children’.

I just remember him saying to me, ‘I’m scared’. I didn’t ask what of, I just assumed it was of me.

I said, ‘Come down here, I want to talk to ya’. He came down to the basement, and I said, ‘I told you what I’d do if you were ever involved in this shit’. I removed a .22 rifle from my gun safe and shot Victor in the left thigh. I hit him on the outer side of his thigh and I said ‘Fuck off, and get out of my house.’ The bullet went straight through his leg. Victor left the house on foot, and I didn’t see him for ages after that. It could have been months or even years.” (emphasis added)

6. There is evidence that it is capable of identifying the date of this conversation and shooting as 30 June 1999, in that on that day a police officer observed the accused at a train station with what appeared to be a gunshot wound to his leg.

Submissions and Ruling

7. The Crown Prosecutor sought to tender evidence of the first conversation on the basis that it amounted to the musings or planning by the accused of the events that led to the death of Ms Diec. The Crown Prosecutor sought to tender evidence of the second conversation as an admission that he had in fact been involved in Ms Diec’s disappearance. The Crown Prosecutor submitted that the evidence of the first conversation was not evidence of tendency or propensity but was, in effect, proof of the accused’s “intention” to commit the particular crime with which he is charged (citing Gipp v The Queen (1998) 194 CLR 106 at 168, [182]).

8. Ms Rigg submitted that, in effect, this material was propensity evidence in that it merely showed a propensity of the accused to either engage in, or indeed simply talk about, extortion. She also submitted that this conversation was not reasonably referable to the events surrounding Ms Diec’s disappearance because there was no apparent attempt at extortion after Ms Diec was abducted. In relation to the first part of Mr White’s statement, Ms Rigg said that the evidence only identified a broad timeframe for the occurrence of the conversation (ie, as somewhere between the shooting at the Black Market Café on 9 November 1997 and the disappearance of Ms Diec on 27 July 1998).

9. The fact that there may have been a period of months between the occurrence of that conversation and the commission of the crime, does not in this context render it inadmissible or otherwise suggest that it is evidence merely showing a propensity or tendency on the part of the accused to commit an offence of extortion. When considered together with the conversation that occurred afterwards, and given that there is no suggestion of any other occasion of the accused having engaged in such conduct, the conversation with Mr White prior to 27 July 1998, if it occurred, could be treated by the jury as the accused contemplating in his own mind the prospect of carrying out the specific crime for which he is charged. Ms Faily’s statement is capable of supporting the contention that the reference to extortion in the conversation between Mr White and the accused was a reference to the events surrounding Ms Diec’s disappearance.

10. In respect of the evidence concerning the conversation that occurred after Ms Diec’s disappearance, Ms Rigg noted the present tense in which the statement was uttered (“I might be involved in something like that”) as suggestive of something ongoing rather than something that may have occurred up to one year prior. However, at the point of considering admissibility I consider that this submission reads too much into the precise words of that statement. At the very least, I think it is equally capable of being the expression used by someone revealing their past involvement in the kidnapping of someone, especially in circumstances where that person was not returned safely.

11. Accordingly, subject to one matter, I indicated to the parties that the disputed evidence would be admitted. The one matter of exception concerned the evidence of Mr White in which he recounts shooting the accused in the leg. I expressed a concern that this evidence may be prejudicial to the accused in that it might suggest to a jury that he had violent and unsavoury acquaintances. The Crown Prosecutor indicated that that part of the evidence was required because it allows the fixing of a date upon which the conversation with Mr White occurred. I left it to Counsel to consider some means by which evidence connecting the alleged conversation to a date could be adduced without necessarily divulging the fact that the accused was shot. I will, however, rule on that evidence if no accommodation can be reached.

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Decision last updated: 28 November 2019