R v Vandergulik (Ruling no 1)
[2008] VSC 407
•29 September 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No 1506 of 2007
| THE QUEEN |
| v |
| MARGARET AND MICHAEL VANDERGULIK |
---
JUDGE: | KELLAM J | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 22 – 23 September 2008 | |
DATE OF RULING: | 29 September 2008 | |
CASE MAY BE CITED AS: | R v Vandergulik (No 1) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 407 | |
---
Criminal law – Evidence – Tape Recordings – Admissibility – Enhanced transcripts of tape recordings – Whether probative value outweighed prejudicial effects of poor quality recording.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC with Mr A P Lewis | Solicitor for Office of Public Prosecution |
| For the Accused Margaret Vandergulik | Mr Ian Hill QC | Galbally and O’Bryan |
| For the Accused Michael Vandergulik | Mr M J Croucher | Lethbridges |
HIS HONOUR:
On 26 May 2006 a listening device authorised by warrant and which had been placed by police in a car used by the accused Margaret Vandergulik was activated.
On the same day and at the request of Detective Sergeant Coughlan of the Wangaratta CIU both accused persons attended at the Wangaratta police complex. Detective Sergeant Coughlan requested the accused to attend upon instructions earlier given to him by Detective Acting Senior Sergeant Solomon of the Homicide Squad. The depositions contain a statement made by Detective Sergeant Coughlan. He states as follows:
During the week starting on 22 May 2006 I received instructions from Detective Acting Senior Sergeant Solomon of the Homicide Squad to arrange for Margaret and Michael Vandergulik to come to the Wangaratta police complex and be shown a petrol can and some glass alcohol bottles. At 12.30 pm on Friday 26 May 2006 I spoke to Margaret and Michael Vandergulik at the Wangaratta police complex about their knowledge of this petrol can, glass alcohol bottles and an old bike. During the conversation I showed them both the petrol can and the glass alcohol bottles. I then took statements from both these persons in relation to Patrick Plumbe. I have retained possession of the petrol can and the glass bottles.
The conversation between Detective Sergeant Coughlan and the accused was not recorded, nor is there any record in the depositions as to what was said or the nature or relevance of the petrol can, glass alcohol bottles and an old bike to the investigation.
The statement made by the accused Margaret Vandergulik to Detective Sergeant Coughlan on 26 May 2006 refers to what she was shown by him at the police station that day in the following terms:
I have been asked to come to the Wangaratta police station today and been asked to view some empty alcohol bottles. These bottles were Cougar and Cola bottles and a large bottle of Victoria Bitter. I have been told that these bottles were found near where Patrick had his accident and have been asked as to whether these bottles could have been drunk by Patrick on the day he died. All I can say is that Patrick was a heavy drinker but I only saw him drink the occasional wine and some beers. I was aware that he was drinking in the shed.
The statement made by Michael Vandergulik to Detective Sergeant Coughlan on 26 May 2006 is as follows:
I have been asked to come to the Wangaratta police station today and been asked to view some empty alcohol bottles. These bottles were Cougar & Cola bottles and a large bottle of Victoria Bitter. I have been told that they were found near where Patrick had his crash but I do not recognise these bottles. I have stated that I only saw him drink beer and spirits. There was no particular brand of beer or spirit that I can remember.
It should be noted that neither statement makes any reference to the petrol can which Detective Sergeant Coughlan states he showed to each of the accused.
On the voir dire conducted before me in relation to the admissibility of recordings obtained in consequence of the placing of the listening device in Margaret Vandergulik’s car, Detective Sergeant Tremain of the Homicide Squad gave evidence. His evidence is that the showing of the fuel can and bottles to the accused was a “ruse” in an attempt to stimulate conversation between the suspects.
The discussion between Detective Sergeant Coughlan and the accused took place on the Friday preceding the intended date of the Coroner’s inquest into the death of Patrick Plumbe on Monday 29 May 2006, which inquest had commenced at an earlier date in April 2006. Upon the inquest coming on for hearing on Monday 29 May, the prosecutor informed the Magistrate that an adjournment was sought as the Homicide Squad was now investigating the matter as a “suspicious death”. The Magistrate was informed that an application was to be made for an order permitting the exhumation of the remains of Patrick Plumbe. Both accused were present at the inquest. They were accompanied by Margaret Vandergulik’s son, Kenneth Vandergulik, and by her daughter Megan Collinson. It is contended by the prosecution that those four persons left the Wangaratta Magistrates’ Court and travelled together in Margaret Vandergulik’s car to Shepparton.
The prosecution seeks to rely upon passages of conversation recorded in Margaret Vandergulik’s car following the adjournment of the inquest on 29 May 2006. In addition, it seeks to rely upon a passage recorded in her car on 2 June 2006. Counsel for each accused submit that the tape recordings are inadmissible.
The listening device in Margaret Vandergulik’s car was activated and monitored between 26 May and 15 June 2006. A master CD containing what was thought by police to be relevant conversations was identified for enhancement.
The enhancement of that master tape was undertaken by a Mr Mudalo on behalf of Victoria police. A transcript was produced by him. Over a period of time leading up to the committal hearing three transcripts were produced from the enhanced recording. Each of the transcripts differed as to the interpretation of what the enhanced master recording revealed was said by each of the accused and others.
The committal proceedings took place in June 2007. Margaret Vandergulik was committed to trial on a charge of murder. Michael Vandergulik was discharged. It would appear that the Magistrate expressed some concern about the quality and reliability of the transcripts of the recorded conversations and about the audibility and reliability of the enhanced master CD.[1] Subsequent to the committal hearing, and in August 2007 the master recording was provided to a Mr McPhee for enhancement. Mr McPhee is an audio engineer. He has provided a statement dated 11 February 2008 which describes the technical processes used by him to reduce background noise. As a result of these technical processes, Mr McPhee produced audio files, which had an “increased volume of the quieter voices” and an “increase in overall volume”. Mr McPhee provided the enhanced compact discs to the informant, Detective Sergeant Tremain who then reviewed the discs and edited the transcriptions of those discs to accord with his understanding of what was said in the relevant conversations. It would appear that two further transcripts were produced by Detective Sergeant Tremain following this process. Accordingly, a total of five transcripts came into existence, the first three based upon the work of Mr Mudalo on the basis of the first enhancement and the latter two being transcripts prepared by Detective Sergeant Tremain based upon the second enhancement undertaken by Mr McPhee.
[1]The transcript of the Magistrate's remarks do not form part of the material before me, but this matter was referred to by counsel in the course of the pre-trial submission before me.
No exception is taken to the admission of the enhanced recordings on the basis of the fact of enhancement alone, nor could it be. As the New Zealand Court of Appeal said in R v Taylor[2]:
We therefore accept that Williams J was correct in holding that the original and the enhanced tapes are admissible and that the written transcripts of them may be used as an aid to the jury's understanding of the tapes. It may, perhaps, bear repeating that, provided the methodology used can be effectively verified, and subject always to the overriding importance of ensuring that nothing unfair to the accused is allowed, the courts will not exclude from the law of evidence, the manifest advantages of electronic techniques and advances.
[2][1993] 1 NZLR 647 at 651.
In R v O’Neill[3] the Court of Appeal clearly proceeded on the basis that the provision to the jury of enhanced recordings is permissible.[4]
[3][2001] VSCA 227.
[4]See also DPP v Selway [2007] VSC 247.
The prosecution now seeks to rely upon specific excerpts of conversations recorded on the master CD and enhanced by Mr McPhee and the fifth transcript as prepared by Detective Sergeant Tremain. The first excerpt relates to a conversation which is alleged to have taken place in the car of Margaret Vandergulik after the inquest was adjourned on 29 May 2006. The conversation is transcribed by Detective Sergeant Tremain as follows:
MEGAN Is that something you may have touched?
MARGARET No, but I've never seen it before. Or not to my knowledge, I haven't. It wasn't one of my tins, it was a, a Honda tin.
Whether it was on the back of Pat’s truck, one of his tins.
MEGAN Well, is it something Michael may have touched?
MARGARET Michael he didn't, he said he's never even seen it. Because the fuel tin we ever used was the gold one. You know, the Gold jerry can, so I.
MARGARET Did Tony look good.
MEGAN No he didn't.
MEGAN He looked a bit shocked though when they adjourned it.
I have listened to the recording of the first excerpt on several occasions, and although I am unable to discern every word of the recording as appears in the transcript as edited by Detective Sergeant Tremain it seems to me that the transcript is substantially in accordance with what can be heard on the enhanced CD disc, and in terms of reliability the recording of this conversation would be admissible. However, there is another major problem with this passage. The Crown concedes that this conversation evolved in consequence of the “ruse” of the accused being shown a petrol can and empty bottles and a bike at the police station on the previous Friday. There is no record of precisely what was shown to the accused, nor is there any record of what was said to them about the petrol cans and bottles. The recorded response thus has little context. The prosecution concedes that the conversation in the car was, as intended by police, precipitated by whatever was said and done at the police station. The probative value of the recorded conversation is substantially diminished by reason of the absence of any evidence as to what words and conduct of the police so precipitated the response recorded in the car. In particular the alleged statement made by Margaret Vandergulik that “because the fuel tin that we ever used was the gold one” cannot be seen to be an admission of having used such a tin to cause a fire. I might add I heard the words “could be” rather than the word “because” in the sentence referred to above. The statement is quite equivocal in its meaning, and particularly so in a circumstance whereby what was said, or shown to the accused in the course of the “ruse” is unknown. Indeed the whole excerpt is consistent with an innocent response to the ruse rather than probative of any guilt.
In my view, this first excerpt of the surveillance recording is not admissible. It would be unfair to use it in circumstances where there is an absence of evidence as to what was said, and demonstrated, by police in order to stimulate the conversation, before the jury. In addition, it is not probative of guilt of murder and has the capacity by reason of its ambiguity to be unfairly prejudicial to the accused Margaret Vandergulik. It is of course, as is conceded by the prosecution, not admissible in any way against Michael Vandergulik, he not having been a party to the conversation.
The second excerpt of the master disc is relied upon by the prosecution as being admissible against both accused.
Detective Sergeant Tremain has given evidence that he has spent over 200 hours listening to the master tapes. His evidence is that the second excerpt relates to a conversation about the fact that the accused were shown a petrol can in the course of the unrecorded “ruse” at Wangaratta police station on the Friday before the committal. Accordingly, the recording which forms the subject of the second excerpt suffers from the same difficulty that it is not possible to examine what was said in the context of what had been said to the accused on the previous Friday at the police station. This context is critical to the determination of whether what was said can be said to be reflective of an admission of guilt or merely reflective of an innocent discussion endeavouring to determine what flowed from whatever it was the police told (and showed) the accused on the Friday. In addition, there is the further serious problem that much of what is said upon the recording is not clearly discernible. Detective Sergeant Tremain’s evidence is that in his opinion the recording reveals the following conversation:
KEN I think, even if, even if that can was on the back of, right …
MARGARET It had to be either Pat or me.
KEN I mean. All of us would’ve touched it.
MARGARET Touched it.
MICHAEL Yeah.
KEN You know, so they’ve got to, you know.
MARGARET Everybody would be on it.
KEN I mean the prints could be on anyone.
MICHAEL And why when we were on Friday when we gave a statement we made up a mention about the bottle right, well there was nothing mentioned about the can. With the fingerprints we’re busted.
FEMALE Inaudible.
MICHAEL … melted petrol. The can actually looked like it had been sitting on its side. Then it would have been on fire.
MALE Inaudible.
MARGARET Inaudible.
MICHAEL If that can was on the back and I don’t think it was. It had been sitting there for 13 months. It would have had rust all over the can. The can would … Inaudible. Do you know what I mean?
MARGARET That’s right.
MICHAEL There’s only one half bottle of fucking, gets tripped over, shit running out of it when it lit up … I don’t know. The can was too new. … Inaudible … You know if you leave a can out somewhere for 13 months, it’s gunna get rust on it even though its been painted, do you know what I mean. There’s nothing on it.
MEGAN … Inaudible … Did you guys fill up any petrol cans anywhere?
MARGARET No. No, and I honestly haven’t seen the can.
MEGAN Did you go to a petrol station to fill up where they would have cameras?
MARGARET No, no. No.
MEGAN Haven’t?
MARGARET No.
MEGAN I’m just thinking of all the things that they could be.
MARGARET Yes, yes. No.
MEGAN Did you pay for anything by EFTPOS that day?
MARGARET I wouldn’t, I didn’t even go out of the place. They’ve already got records of the phone, mobile and everything.
MEGAN Yeah, but I’m just thinking of anything.
MARGARET Of anything.
MEGAN Cameras that they could come up with like. Did you Michael anytime that day go to any service station and fill up any petrol?
MICHAEL No, how could I, I don’t have a licence.
I have listened to the recordings of this extract on numerous occasions. I am unable to confirm to my satisfaction that the transcript is an accurate reflection of what can be heard on the recording.
It is true that Detective Sergeant Tremain might be seen as a temporary expert as to what was said, in the sense discussed in Butera v DPP[5] , that is that by repeated listening to the recording he has qualified himself ad hoc, as an expert. However, the recording must still be clear enough to a jury for them to test the conclusions he has reached as to the accuracy of the transcript prepared by him upon his listening to the recording. In my view, the appropriate test is whether the recordings, (which may be indeed required to be played to the jury on several if not many occasions) are adequate in clarity and coherence to enable the jury to form a fair and reliable assessment of the conversations which were recorded. I must decide whether there is a real risk that the jury might misconstrue the conversations in a manner which would be unfairly prejudicial to one or other of the accused. I then need to decide whether in the exercise of a general discretion the recording should be excluded from evidence.[6]
[5](1987) 164 CLR 180 at 187-188.
[6]See R v Smith ,Ashford, Schevella 50 A Crim R 435 at 451.
As I have said, having listened to the recording on numerous occasions I have no confidence that the words attributed to Michael Vandergulik as being “With the fingerprints we are busted” are what is recorded. The first few words are inaudible to me and the word “busted” could equally be the word “rusted” or indeed something else. Furthermore, his alleged statement that there was “only one half bottle of fucking gets tipped over shit running out of it when it lit up … “ is simply not discernible to me after having played it on numerous occasions. Whilst with the assistance of the transcript, some individual words can be identified, others cannot. It must be remembered that there is virtually no evidence against the accused Michael Vandergulik, other than this excerpt and another excerpt which forms part of excerpt 4. In such circumstances, the probative value of the recording must be of real substance to be admissible. There is a real risk that the provision to the jury of Detective Sergeant Tremain’s transcript of this excerpt will have the effect, despite proper judicial direction, of displacing the evidence of the actual recording, which of course required significant electronic enhancement for any part of it to be intelligible.
In my view the content of the recording is so inaudible in relation to the alleged admissions of Michael Vandergulik that it is an unreliable account of what was said between the parties. When that consideration is combined with the fact that the conversation in question was deliberately prompted by a police discussion with the accused, of which there is no record, I consider that in the proper exercise of my discretion the evidence of excerpt 2 should be excluded.
Excerpt 3 is conceded by the prosecution as having no relevance to Michael Vandergulik. The recording is audible, it apparently having been recorded whilst the car was stationary en route to Shepparton from Wangaratta. Whilst it is true that to a degree, it was precipitated by the discussion forming “the ruse” on the previous Friday, it does not rely upon whatever discussion took place at the police station on Friday to the same extent as the other conversations contained in excerpts 1 and 2. The recording is not inadmissible on the grounds of unreliability, nor does it seem to me to suffer from the same level of unfairness as the other excerpts to which I have referred. Whilst its probative value may well be limited, I do not conclude that I should rule it as inadmissible in the case against Margaret Vandergulik.
Excerpt 4 is relied upon by the prosecution as being admissible against both accused. Detective Sergeant Tremain has prepared a transcript, whereby he concludes that the proper transcription of what was said and revealed by the enhanced reporting is as follows:
MARGARET Anyway we can’t do much about what they're going to do, all we can do is worry about what we're going to do. Now we've done something to Pat we've killed him, right? We can't plan for what.
MEGAN We don't actually know whether somebody said something. ...
(Inaudible)
MARGARET Yeah, I think today means because he's been killed there(sic) going to dig his body up.
MICHAEL I ‘m the one that puts him in his car.
MEGAN If there is a tarp over it.
The first enhancement and transcription of this excerpt, which was undertaken by Mr Mudalo is in the following terms:
MARGARET Anyway, we can't do much about what they're going to do, all we can do is worry about what we are going to do. We’ve been looked as we have done something, they think you've kill Pat, right?
MEGAN Then the police can get it wrong too, I am sure.
MARGARET He's done enough to get something, you know, but they wouldn't think that I would kill anybody. To think that he is being exhumed there had to be something.
MICHAEL Wonder what I got from his car.
MEGAN If there’s a tarp over it, that’s it.
A second version of the transcript was provided to the solicitors for the accused in the following terms:
MARGARET Anyway, we can't do much about what they’re going to do, all we can do is worry about what we are going to do. We’ve been looked as we have done something, they think you've kill Pat, right?
MEGAN Then the police can get it wrong too, I am sure.
MARGARET He’s done enough to get something, you know, but they wouldn’t think that I would kill anybody. To think that he is being exhumed there had to be something.
MICHAEL I am the one that puts him in his car.
MEGAN If there's a tarp over it, that’s it.
As can be observed there were significant changes in the transcription of the surveillance recording from the time of the first transcript to the time of the final fifth version of the transcript. I have listened to the enhancement CD of excerpt 4 on numerous occasions. In my view, the sound quality is so poor that it is possible that what was considered to be said in the first transcript is to a significant degree, correct. It is also possible that what is said in the final transcript is substantially correct. As to the statement allegedly made by Michael that he was the one that “puts him in his car” the only words which were clearly discernable to me were “his car”. The words preceding that may be “puts him” but I am entirely unable to say clearly that the words that precede that are “I’m the one”. My concern about the ambiguity of what was said is underlined by the next statement attributed to Megan which appears to me to be entirely out of context. According to the first transcript, that statement is either “Is there a tarp over it, that's it”, or, according to the fifth transcript, “if there is a tarp over it”. I might add that, although I am satisfied there was a mention of “a tarp”, I am far from satisfied that either transcript is necessarily correct in relation to the words used in the balance of the sentence. However, if the statement alleged to be made by Michael Vandergulik is as suggested by the fifth transcript then the following statement about “a tarp”, made by Megan Collinson is incongruous.
For the above reasons it appears to me to be clear that the use of the transcript which the prosecution now seeks to rely upon will not be of assistance to the jury in the perception and understanding of the evidence tendered by the playing over of the enhanced recording. The quality of the recording is such that the transcript proposed to be used would not permit the jury to follow what is on any view, a most indistinct recording. In particular the crucial aspects of the recording cannot be heard clearly. In my view there is a perceptible risk that the transcript will become a substitute for the words heard, notwithstanding the strength of any judicial direction given in relation to the use of the transcript. This is of heightened concern in circumstances whereby my listening to the recording of this excerpt on several occasions, leads me to the conclusion that the first transcript is equally as likely to match the words on the recording as does the fifth transcript. Taking into account the fact that this evidence is, as the Crown concedes, the substantial part of the case against Michael Vandergulik, it would not be appropriate to provide the recording together with all transcript versions to the jury and leave it to them to work out the intelligibility or otherwise of the recording. On the other hand, I am not satisfied that the fifth version the prosecution seeks to rely upon, is sufficiently cogent and unambiguous to be of any real assistance to the jury in understanding the recording. I am not satisfied that the transcript can be said to be reliable.
I have given consideration to a submission made in the alternative by Mr Croucher of Counsel for Michael Vandergulik that if, contrary to his principal submission, the listening device material was to be admitted the transcript should not be provided to the jury. That is he raised the possibility that the excerpts could be played to the jury with the provision of no transcript. Each of the excerpts upon which the Crown seeks to rely is short. Indeed, the total length of the material sought to be relied upon by the prosecution is slightly more than six minutes. However, in circumstances where the audibility of the enhanced material is generally so poor, the playing of the tapes without any transcript would create a grave risk on the part of the jury of speculation as to what was said.
I accept that the fact that much of the conversation on a recording is unintelligible, and the fact that those parts which are distinct cannot be heard in their full context, does not mean that the probative value of the evidence is destroyed. However, in circumstances where the quality of the recording in question is as poor as it is in this case, and the construction of its meaning is ambiguous, I conclude that the proper exercise of my discretion is to exclude the admission of the recording of excerpt 4 into evidence in each of the cases before me.
I turn to the final track which the prosecution contends is admissible against the accused Margaret Vandergulik only. What is said by Detective Sergeant Tremain to be the transcript is, I think, consistent with what can be heard on the recording, and in my view is admissible.
3
0