R v Tracey (No 6) - [2005] SASC 360

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v TRACEY & ORS (NO 6)
Reasons for Ruling of The Honourable Justice Nyland
22 September 2005
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Application to exclude evidence of the finding of shotgun shells - whether evidence inadmissible as being irrelevant - whether evidence more prejudicial than probative - evidence held admissible.
Smith v The Queen (2001) 206 CLR 650; Thompson and Wran v The Queen (1968) 117 CLR 313; Driscoll v The Queen (1977) 137 CLR 517, discussed.

R v TRACEY & ORS (NO 6)
[2005] SASC 360
Voir Dire Ruling on Application for Exclusion of Evidence Relating to Finding of Shotgun Shells.

In para 8 of his second Rule 9 Application dated 15 February 2002, John Tracey sought an order excluding the evidence relating to shotgun shells which were found at McDonald’s restaurant, Elizabeth Way, Elizabeth on Friday 2 August 2002, on the ground that the evidence was inadmissible as being irrelevant. In the alternative, he sought an order that the evidence be excluded in the exercise of the court’s discretion as being unfairly obtained.
On 26 August 2005, Tracey pleaded guilty to the crime of manslaughter but the trial against Wallace, his co-accused, was still proceeding. As a result, Mr Longson, as counsel for Wallace, made an oral application to exclude the evidence relating to the shotgun shells in Wallace’s trial, but adopted the arguments earlier presented by Mr Peek for Tracey without making any further submissions. On 31 August 2005, I ruled that the evidence relating to the shotgun shells was admissible at Wallace’s trial but reserved my right to deliver detailed reasons at a later date.
At about 10 am on 2 August 2002, an employee of the McDonald’s restaurant found a number of grey coloured shotgun shells (Exhibit VDP110) in a bin in the outside car park. Alongside the shot gun shells was a yellow box which contained 39 .22 calibre bullets (Exhibit VDP011). The bullets were contained in a plastic holder inside the yellow box. Fingerprints located on the plastic holder were identified as being identical to fingerprints of Michael Wallace and John Tracy. No fingerprints, however, were obtained from the shotgun shells.
The prosecution did not allege that a shotgun was used in the shooting of Stuart Watson and objection was therefore taken by the defence to the admission of the evidence with respect to the shells as being irrelevant or, in the alternative, as being more prejudicial than probative.
Notwithstanding that it was not alleged that a shotgun was used to kill Stuart Watson, the prosecution maintained that the evidence relating to the shotgun shells had significant probative value as a result of its link to evidence obtained by way of a listening device which was installed at 114 Main North Road, Evanston, ie the home of Joshua Considine and Naomi Wallace.
At about 6.30 pm on 19 December 2002, police arrested Naomi Wallace for impeding the investigation into the alleged murder of Stuart Watson. Naomi Walllace is the sister of Michael Wallace and the partner of Joshua Considine. Naomi Wallace was taken to the Elizabeth police station where she was interviewed by Detective Modra and Detective Georg. In the course of that interview, the police showed Naomi Wallace the shotgun shells as well as the bullets and the holder. It was put to Naomi Wallace that on the morning following the shooting, she made a phone call to Joshua Considine’s mobile telephone service from a pay phone at a service station at Elizabeth which was located only about 300 metres from where the shells and bullets had been found, and that she therefore had some knowledge about the dumping of them in the bin. Naomi Wallace, however, denied knowing anything about any of these items or anything about a gun.
The interview concluded at 9.13 pm, following which Naomi Wallace was granted bail. She then returned to the house which she shared with Considine at 114 Main North Road, Evanston. The listening device transcript shows that a conversation thereafter took place between Naomi Wallace and Joshua Considine which commenced at 9.57 pm. In the course of that conversation some discussion took place as to what had happened at the police station (CD10 and 11). The transcript thereafter records a conversation which commenced at approximately 10.33 pm (CD12), and notes “Michael [Wallace] and John [Tracey] arrive at 114 Main North Road, following Naomi’s release from custody”.
The relevant parts of that transcript (CD12) are as follows (at pp 6-8):
Michael: They fucken … don’t treat … like a fuckhead Naomi.
Naomi:Nah, … they spoke to me about gunshot bullets and another one of, you know those little red boxes.
Michael:Yeah.
Naomi:They had a red box with a few of the bullets.
Michael:Mmmm.
Naomi:And they had some other brown plastic bag. Now they’ve got photos of me in the servo the morning after on the way back from work or whatever, like I said well that’s ...
Michael:Yeah, yeah so.
Naomi:Yeah. Well now those bullets were found in a bin 300 metres away from the servo and they’re like, and we’ve got two fingerprints on it who we know of and the other two are …
Michael:They’d be mine I ditched …
Naomi:… to work out.
Michael:They’re yours aren’t they?
Naomi:Or it could be us I said, it could be one of yours I hadn’t …
Joshua:My what?
Michael:Bullets that you ditched.
Joshua:I didn’t ditch them.
Naomi:No we didn’t ditch the bullets we ditched the car seats, that’s it, I …
Michael:Well then they’re not ours then, they’re doing you.
Naomi:That’s what I … no I was just like, no I don’t know what you’re on about, I …
Michael:You sure of that, they’re not yours?
Joshua:Well.
Naomi:Yeah, well I …
Michael:Try to remember man, cause I need to know because if I’ve handled the box right.
John:Who cares they’re not my fucken …
Joshua:I’ve given them to someone else.
Naomi:Yeah
Joshua:And they’ve fucken …
Naomi:Michael …
Joshua:Gotten them disposed of.
Michael: …
Male:Can you recognise them …?
Naomi:… do you know what these are, and I went, well they’re obviously bullets its not … how stupid.
MichaelI remember you handling them when you found them at the dump remember?
Joshua:Hmm.
Naomi:And I said I don’t know what they are because, cause I didn’t … the gunshot.
Michael:… and that was from years ago.
Jon:What were they like, like shotgun ones, big ones?
Michael:Mine would have gone … shit there that night.
Naomi:Yeah, I said, yeah, they were big …
John:Big blue ones?
Naomi:Blue round ones like that cause I went I …
Michael:Nah I never owned them.
John:That’s right, that could have been … from my house.
Michael:Nah, I never owned them.
John:Who cares, what are they what are they?
Michael:Fine.
John:Who care, they could have come from my house actually yeah … Bullets.
And further in the transcript of CD13 (at p 5):
John:They showed you a box of bullets, that’s the stupidest thing they could’ve done in their fuckin life.
Naomi:       But no what … saying to me ‘cos I just went, I just went don’t tell me.
UK Male:    …
Naomi:So that’s when I said straight out, I said don’t you dare try to tell me that you I got my fingerprints on that ‘cos I’ve never seen them in my life.
UK Male:    Ohh
Naomi:       You know I said don’t try, don’t try telling me I dumped them in a bin.
Michael:     … prints in there of my own … fuckall … proves nothing.
Naomi:       D’you know what it’s on, they reckon. Ah, McDonalds carpark bin.
Michael:     White one?
Naomi:Ah … they reckon there’s they got cu, cameras all through McDonalds carpark.
Michael:That could’ve been the one there … down at the centre.
John:Yeah I remember you said that didn’t you.
Michael:‘Cos if it was at the centre I’ll put one in the McDnalds carpark bin.
Naomi:… would of seen you then, ‘cos you …
Michael:Nah you wouldn’t have. You wouldn’t have, you know why?
UK Male:Nuh.
Naomi:Because … evidence, because you … and how are you going to explain it, and that’s when I went oh …
Michael:Yeah they couldn’t have. There’s no fuckin cameras there it was the bin behind McDonalds near the train line. As you pull in through that back service road.
UK Male:… still a fuckin camera there.
Naomi:Mm. It would be towards, even towards the train station so they can get anyone that’s … be leaving McDonalds …
Joshua:… don’t have enough to, a custody style.
Michael:… the whole thing you know … fuckin have, be chuckin it in how would they not know it’s McDonalds rubbish.
Naomi:But they got me in there for fucks sake … Servo. They’ve got me ringing Joshua’s mobile from a phone box on South Road which I don’t even remember doing.
And again in the transcript of CD13 (at pp 8-11):
Naomi:Then he asked me about … the bullets and they go oh what d’you know about a gun then? And I went, I don’t know nothing about a gun and they’re going oh so you’re telling us that a gun had been used in this or whatever, I said you just asked me where a gun was and …
Michael:… did we have blue ones in that bag. Just red ones eh?
John:… blue ones.
Naomi:A blue.
Michael:You reckon?
Naomii:They’re all blue.
UK Male:Dunno.
Michael:Nah I had red ones I didn’t have all blue.
Naomi:Gun shot.
Michael:No shot gun.
John:Shot guns, big ones like that.
Naomi:Shot guns
Michael:Yeah no I didn’t have a …
Naomi:Well they …
Michael:I had, I had blue.
John:New, new or old looking?
Michael:How big were they? How big were they?
Naomi:They were sort of old looking.
Michael:How Big?
Naomi:Like, be about …
Michael:You, that big?
Naomi:That big I reckon.
John:Yeah but there’s …
Michael:‘Bout that round?
John:Yeah well shot guns only one fuckin roundness …
Michael:What how fat.
John:… length.
Michael:Yeah but …, the ones I had were … this.
Naomi:Probably like, at least like that, that round.
UK Male:I was the …
Michael:I don’t know if they’re mine eh?
Naomi:I’m not joke they were … fat.
Michael:I don’t think they’re mine.
Naomi:They were pretty fat and they were about like that.
Michael:The ones I had.
Naomi:But …, he had had a bag like that.
John:Of the blue ones?
Naomi:Of the blue ones.
Michael:How full?
Naomi:It would and it would’ve been about that full.
Michael:Nah nah nah nah nah. I had about this much, I only had about this much.
John:One or two’s understandable.
Michael:Nah.
Naomi:The other bag. Had like a little red box … the corner and then it had a …
Michael:Was it a yellow and red box?
Naomi:Red, it just had red.
Michael:Did it have WI … Written on it? Wi, WI
Naomi:I don’t, I think so had in, in white it had like a …
Michael:No No yellow box with a red strip round it?
Naomi:No it was red.
Michael:No it’s not ours then, Josh had the yellow box. Its not ours.
Naomi:It was, it was red it was like as I said it was like a … sort of white like on the ends …
Michael:Not ours mate, I know. Remember Josh, … yellow box … I remember man.
(jumble of conversation)
Naomi:Like a lare yeah and then there would be.
John:Like a big matchbox it’d sorta look like.
Naomi:… that’s what it looked like yeah.
Michael:Yeah, No these ones are long, … rectangular.
Naomi:Over here they would’ve been, I can probably at least say even, ten, little bullets.
Michael:Naomi.
Naomi:And they had little black clips on the end.
Michael:Nah.
UK Male:…
Naomi:I said well that’s, I said to Josh so maybe they even covered up the end of the bullet.
Michael:Nah, the box we had’s about that wide, about that long and about that thick.
Naomi:Well, showing on that. That would’ve been probably about the same size. About that tall.
Michael:Nah. The box we’ve got is smaller and skinnier.
UK Male:Yeah, yeah I know.
Michael:They’re skinnier, they’re way skinnier. They’re only about this wide the box …
Naomi:And they were red, and it was like … on the end and it had like a, sign or number over … white …
Michael:No because the box is yellow so it wouldn’t be ours. I remember man for sure …
John:… we don’t know any cunt … that got … model fucken blue ones.
Naomi:It was big yeah it was like it …
Michael:Nah … I remember us maybe havin’ one or two.
John:One or two, maybe one or two blue ones.
Michael:Two or four at the most.
John:… fucking that many …
Naomi:Well ‘cos of … I just thought oh fuck.
Michael:No not ours mate, they’re not ours.
UK Male:…
Naomi:I freaked I was just holding my eyes I was like get that shit away from me I don’t wanna see that crap …
Michael:No they’re not ours man.
John:He’ll have … fuckin high fives so fuckin you know.
Naomi:Exactly. Exactly.
On the prosecution case, this conversation between the three accused which mentions the bullets as well as dumping car seats and shotgun shells was of significant probative value. The fact that shotgun shells were found in close proximity to bullets which can be linked to two of the accused by fingerprint evidence provided an explanation for the fact that, with the exception of one very old bullet which Ms Chapman said was located in John Tracey’s home, no ammunition or weapons of any kind were found in any search of the houses of the respective accused. This evidence of the dumping of any item which may have associated any of them with the use of the firearms following the shooting of Stuart Watson was therefore proposed to be relied upon by the prosecution as proof of consciousness of guilt. On the defence case, however, the evidence which related to the finding of the shotgun shells was irrelevant and was therefore inadmissible.
The question of relevance is discussed in Smith v The Queen[1], wherein Gleeson CJ said (at 653-654):
As is always the case with any issue about the reception of evidence, identification evidence being no exception, the first question is whether the evidence is relevant … 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 of admissibility arise. These propositions are fundamental to the law of evidence and well settled. …
In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. …
[1] (2001) 206 CLR 650
In making submissions as to the lack of relevance of the evidence of the finding of the shotgun shells, Mr Peek QC referred to the case of Thompson and Wranv The Queen[2]. In that case, the accused was charged with a number of crimes involving the stealing and opening of safes by means of explosives. The accused had in his possession other implements for opening or breaking into safes which were not used to blow open the safes and thus could not have been used in the commission of the offence of opening or breaking into the safes by way of explosives. The High Court held that the evidence of other implements in the possession of the accused not used in the commission of this offence was inadmissible. According to Barwick CJ (at 317) (with whom McTiernan and Menzies JJ concurred) this evidence went beyond what was permissible.
[2] (1968) 117 CLR 313
Mr Peek also relied upon Driscoll v The Queen (1997) 137 CLR 517. In that case, the appellant was charged with the murder of a man who had been shot with a .22 machine pistol. The police found in his possession various other types of firearms which the appellant admitted were his. The High Court held that evidence of the finding of the .22 machine pistol was admissible but the other weapons not used in the crime charged were inadmissible as they did not go to prove the fact that the accused was the person who had committed the murder. Further, it could not be said that the evidence was so inextricably interwoven with the admissible evidence that it could not properly be presented without the whole of the evidence being led (per Gibbs J at 533).
Mr Peek argued that the evidence of the shotgun shells in this case was on all fours with the evidence relating to the other firearms which was excluded in Driscoll. There was no suggestion that a shotgun had been used in the killing of Stuart Watson. There were no fingerprints on the shells. The shotgun shells which were found in the bin were grey in colour and the only mention in the listening device conversation of shotgun shells related to some of a different colour. There was nothing to link the shells found in the bin to any of the accused. The evidence was therefore irrelevant and on that basis inadmissible.
In my opinion, however, the evidence relating to the shotgun shells in this case cannot be as easily excised as the evidence relating to the other weapons in Driscoll or the safe breaking implements in Thompson and Wran. The conversation recorded by listening devices contains statements by the various accused which are probative of the prosecution case. The conversation arose out of the showing of those items to Naomi Wallace and were the subject of a debate between the three accused. The conversation relating to the shells was intertwined with the conversation about the bullets. I do not consider that the recording of that conversation could be edited in any meaningful way in order to exclude any reference therein to the shotgun shells. The shells were found in the bin adjacent to the bullets. If the fingerprint evidence was accepted by the jury there was a link to Tracey and Wallace. It would be open to the jury to infer that the shells were dumped in the bin at the same time as the bullets. In my opinion, the evidence of the finding of the shotgun shells is relevant and admissible as part of the prosecution case.
The question then remains whether the evidence relating to the shotgun shells should be excluded in the exercise of discretion as being more prejudicial than probative.
The defence submissions on this aspect of the matter were relatively brief. Mr Peek referred to the fact that at the present time there was a general concern or fear of firearms in the community. It would therefore be a substantial prejudice to the defence for there to be admitted into evidence at the trial other types of ammunition which were not alleged to have been used in the crime and which had limited probative value.
Whilst I accept that there is some merit in that submission, I consider that the probative value of the evidence outweighs the prejudicial effect thereof and does not give rise to discretionary exclusion.
Accordingly, on 31 August 2005, I declined to make any order excluding the evidence relating to the shotgun shells from evidence to be led at the trial.