Regina v Thomas William Hudson

[2006] NSWDC 93

CITATION:	Regina v Thomas William Hudson [2006] NSWDC 93
JUDGMENT DATE:	5 September 2006
JUDGMENT OF:	Finnane QC DCJ
DECISION:	I refuse to allow the Crown to call evidence of admissions made by the accused, during a telephone conversation with John Griffith concerning his knowledge of Elizabeth Bromfield and her death. In my opinion, such evidence would be unfairly prejudicial to the accused. I permit the Crown to call evidence of admissions by the accused to police officers and Margaret Mitchell, the mother of Elizabeth Bromfield, that he had been charged with the murder of Elizabeth Bromfield, that he had been acquitted of the murder, that she was receiving Centrelink benefits in 2006, that she was in a witness protection programme, that he had murdered her, that he had not murdered her. I also require the Crown if it calls any of this evidence, to call evidence that the accused was acquitted of the murder and that there was no evidence in the murder trial by a medical practitioner of the death of Elizabeth Bromfield. I also permit the Crown to establish that Elizabeth Bromfield was at no time in a witness protection programme, and at no time was receiving Centrelink benefits. In coming to these conclusions, I have had regard to the provisions of sections 90, 135 and 137 of the Evidence Act 1995.
CATCHWORDS:	evidence - unfairly prejudicial to accused - discretion to exclude - ailibi notice - onus proof - Crown to negative claims relied upon by the accused - ephedrine - methylamphetamine
LEGISLATION CITED:	Evidence Act 1995 ss. 90, 135, 137
PARTIES:	Regina Thomas William Hudson
FILE NUMBER(S):	06/11/0371
COUNSEL:	Crown: Mr G Rowling Accused: Mr J Fliece
SOLICITORS:	Crown: Ms J Brown for NSW DPP Offender: MJ Woods and Co

JUDGMENT

Introduction

1 Thomas William Hudson is presently on trial before me, and a jury of 12 on three offences, namely:

Attempt to manufacture ephedrine on the 7th of September 2004.
Manufacture methylamphetamine between the 7th and 30th of September 2004.
Conspired to manufacture ephedrine, between 1st of September 2003 and the 5th of August 2005.

2 The Crown case seems to be that the accused, together with three other men, namely Campbell, Griffith and Bangs were in a conspiracy to manufacture ephedrine, that he manufactured methylamphetamine and attempted to manufacture ephedrine.

3 Police, armed with search warrants, attended the premises in which each of the alleged conspirators either lived or controlled and carried out searches, which resulted in finding recipes for manufacturing drugs, the paraphernalia of drug making and various chemicals used in the manufacture of drugs.

4 Campbell, Bangs and Griffith have all pleaded guilty and have been sentenced. Campbell and Bangs received discounts on sentence for agreeing to give evidence against the accused, and they will be called during the trial to give evidence about their joint activities.

5 During the course of the search at his home, the accused, without being prompted to do so said:

"I was charged with the murder of a girl."

6 This admission was made whilst the search process was being filmed by a police officer on a video recorder and the sound recording device on the video recorder picked up the admission.

7 This rather startling statement was made, just after a police officer retrieved from a desk, a document, which seemed to me when I looked at the video, to have mention on it of some chemicals of a type that could be used for the manufacture of ephedrine or methylamphetamine. Nothing was put to him to elicit the startling admission that he had been charged with murder. This statement by him was true.

8 The Crown wishes to tender in evidence against the accused this admission and some admissions made to Constable Kirsty Ingle and Margaret Helen Mitchell, the mother of Elizabeth Bromfield. It also wishes to call evidence from Centrelink, by way of a certificate, evidence from a police officer concerned with the witness protection programme and evidence of admissions made during a telephone intercept of a conversation between the accused and Griffith.

The Alibi

9 On the 26th of July 2006, the solicitor for the accused sent a letter to the Director of Public Prosecutions claiming an alibi for the accused, between 8:30 p.m. and 9 p.m. on the 7th of September 2004. The letter claims that the accused was in the company of Elizabeth Bromfield, during that period. It goes on to give her date of birth as the 7th of March 1953. That is her date of birth, a fact that tends to establish that the accused knew her quite well.

The falseness of the Alibi

10 Mrs Margaret Mitchell, the mother of Elizabeth Bromfield, in her statement of the 22nd of August 2006 says that she has not seen her daughter, since the 14th of July 1984, when she went missing. She also claims of the accused over the years, has said various things to her, including apparently, that he killed her daughter, that he did not kill her daughter and that her daughter was in a witness protection programme, up north. Mrs Mitchell apparently took him to task for boasting to others that he had killed her daughter.

11 According to Constable Ingle, on the 13th of January 2006 when the accused attended the Wyong police station to report in satisfaction of his bail conditions, he said to her:

"Elizabeth Bromfield isn't missing. She is still getting money from Centrelink."

12 He then repeated this statement, in slightly different words. Constable Ingle, then said to him:

" how do, you know that he is on our system as missing?"

13 The accused then said:

"cause I was charged and acquitted for her murder."

14 Constable Ingle then sought to find out from the accused, how it was that he knew Elizabeth Bromfield was not missing but the accused commenced to walk away. Constable Ingle persisted in questioning the accused and established that the woman's name was Elizabeth Margaret Bromfield, that her maiden name was Garnham and that she went missing in 1984. When she asked him how he knew that Elizabeth Bromfield was not missing, he said:

"cause she is for still claiming money from Centrelink. The police have a block on her account, but she still receiving the pension."

15 He then claimed not to know where she was and suggested that the Constable ring Centrelink.

16 Subsequently, Constable Ingle attempted to get from Centrelink information about the whereabouts of Elizabeth Bromfield, but was refused that information.

17 Senior Sergeant Paul Mavin has provided a statement saying that Elizabeth Bromfield has never been a participant in the New South Wales police witness protection programme.

18 Centrelink has provided information that it has no information about Elizabeth Bromfield.

19 The accused was charged in 1990 with the murder of Elizabeth Bromfield and was acquitted. The Crown prosecutor has informed me that the Crown case against the accused was circumstantial and relied on his being, amongst other things, the last person to have seen her alive. No evidence was produced at that trial that she was dead. Rather, the jury were invited to conclude that she was dead and that the accused had killed her in circumstances that were not known.

What the Crown seeks to do

20 The Crown prosecutor wishes to call all of this evidence, with a view to establishing that the accused knowingly provided a false alibi. The Crown wishes to adduce all of this evidence to establish that at the time he made the alibi, the accused knew that Elizabeth Bromfield had disappeared in 1984 and was presumed to be dead.

Submissions by Defence Counsel

21 Mr Fliece of counsel, on behalf of the accused, objected to this evidence being given, relying on the provisions of sections 135 and 137 of the Evidence Act 1995. In his submission, the Crown could call evidence from Mrs Mitchell to establish that her daughter had been missing since July 1984 to rebut the alibi that she had been with the accused for half an hour on the 7th of September 2004 at a hotel, before she disappeared again.

22 He submitted, forcefully, that evidence of admissions by the accused that he had been acquitted of murder, would create enormous prejudice against him of such a nature of any directions that I might give could not overcome the prejudice. Furthermore, he submitted that if the Crown were permitted to call evidence of what had occurred at the murder trial, there would be introduced into this trial evidence, which would be misleading and confusing, as well as very time consuming and the effect of this would be to divert the jury from its essential task of concentrating on the evidence in this trial.

Consideration of these submissions

23 These submissions raise weighty issues, and it is important to consider the probative value of the evidence and its importance in the trial, whilst considering at the same time whether that evidence, if admitted could be used by the jury to come to a conclusion on an improper basis, logically unconnected with the issues in the case.

24 The principal issue in the case must be whether the accused, either alone or with others was involved in one or all of the offences charged against him. The supplying of a false alibi can, in certain circumstances, enable the Crown to submit to the jury that the evidence of false alibi raises a consciousness of guilt, not just a credibility issue.

25 In my opinion, since the accused raised an alibi that he was with a woman, whom other facts can establish was missing for 20 years, clearly, he was raising a false alibi. If evidence is given of his admissions to police and to Mrs Mitchell, it is clear that he must have known not only that she was missing, but also that she was probably dead. This would certainly enable the Crown to argue that a consciously guilty man gave the false alibi. This would be, in my opinion, strongly probative evidence.

The Crown seeks to prove what happened in a murder trial

26 The Crown also seeks to call evidence as to what happened at the murder trial. It would put before the jury the fact that the accused was acquitted, but would also seek to adduce other evidence given at that trial to show what his state of mind must have been at the time he gave the false alibi. Mr Fleice, in submissions, told me that the murder trial material comprises four large volumes. The trial itself went for 13 days.

27 The Crown also wishes to adduce evidence of something said by the accused in a telephone conversation with John Griffith, one of the persons with whom he is alleged to have conspired. In this conversation, the accused was putting to Griffith, that Sergeant Carney, who was present as an independent witness during the search of his premises, had threatened him by claiming that he should sign a statement that he had stolen Elizabeth Bromfield car, had robbed her of heroin and killed her and if he did not do this, Sergeant Carney would ensure that he was convicted of bank robbery. Amongst other things, he said, was this:

"what would provoke a man to sign a fucking statement saying he's killed a girl he's never met, someone he didn't know at the time?"

28 Whilst this telephone conversation clearly contains damaging admissions, it also raises quite confusing issues for a jury concerning the conduct of Sergeant Carney and a supposed bank robbery. In my opinion, it would be unfairly prejudicial to the accused to permit this evidence to be given.

Decisions on these issues, and submissions

29 In my opinion, I should not permit the Crown, to put before the jury the entirety of the evidence in a 13-day murder trial or any substantial part of this evidence. To do this, would certainly be to invite the jury to divert itself from its essential task in this trial of deciding whether the accused is guilty of any of the drug manufacturing counts alleged against him in this trial. To do this would be to lead evidence, which was unfairly prejudicial to the accused.

30 However, in my opinion, it would not be unfairly prejudicial to the accused to lead evidence against him of the admissions, which he made to the police and to Mrs Mitchell, since this evidence would rebut his alibi, show it was false and would raise a consciousness of guilt on his part. If the Crown were to lead this evidence, I would require it also to lead evidence that the accused was acquitted at the murder trial and that no evidence was called by the Crown that Elizabeth Bromfield had been certified by a medical practitioner to have died. If the Crown called this evidence, in my opinion, it would be doing nothing, which was unfairly prejudicial to the accused and the evidence would have considerable probative value.

31 Evidence of the telephone conversation with John Griffith clearly contains damaging admissions, but it also raises quite confusing issues for a jury concerning the conduct of Sergeant Carney and a supposed bank robbery. In my opinion, it would be unfairly prejudicial to the accused to permit this evidence to be given, and I disallow this evidence.

32 I have also considered the provisions of section 90 of the Evidence Act 1995, and I am satisfied that none of the admissions made by the accused were obtained in circumstances in which would be unfair to him to use this evidence.

Conclusion

33 I refuse to allow the Crown to call evidence of admissions made by the accused, during a telephone conversation with John Griffith concerning his knowledge of Elizabeth Bromfield and her death. In my opinion, such evidence would be unfairly prejudicial to the accused.

34 I permit the Crown to call evidence of admissions by the accused to police officers and Margaret Mitchell, the mother of Elizabeth Bromfield, that he had been charged with the murder of Elizabeth Bromfield, that he had been acquitted of the murder, that she was receiving Centrelink benefits in 2006, that she was in a witness protection programme, that he had murdered her, that he had not murdered her.

35 I also require the Crown if it calls any of this evidence, to call evidence that the accused was acquitted of the murder and that there was no evidence in the murder trial by a medical practitioner of the death of Elizabeth Bromfield. I also permit the Crown to establish that Elizabeth Bromfield was at no time in a witness protection programme, and at no time was receiving Centrelink benefits.

36 In coming to these conclusions, I have had regard to the provisions of sections 90, 135 and 137 of the Evidence Act 1995.

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