Ryan & Thondan v Director of Public Prosecutions
[2022] VCC 1238
•5 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
CONFISCATION LIST
Case No. CI-19-04017
| MARK DARREN RYAN | First Applicant |
| and SHANTI GAYLE THONDAN | Second Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 November 2021 | |
DATE OF RULING: | 5 August 2022 | |
CASE MAY BE CITED AS: | Ryan & Thondan v DPP | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1238 | |
RULING
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Subject:Admissibility of evidence
Catchwords: Asset confiscation; Record of interview; Evidence obtained in
consequence of impropriety
Legislation Cited: Confiscation Act 1997; Evidence Act 2008 s 138
Cases Cited:Pollard v The Queen (1992) 176 CLR 177; R v Haddad (2000) 116 A Crim R; R v Dalley (2002) 132 A Crim R; Tasmania v Crane (2004) 148 A Crim R; Rogers v The Queen 181 CLR 251; Aon Risk Services Australia Limited v Australian National University 239 CLR 175; Dalley v R [2002] NSWCCA 284
Ruling: Application to admit extract from record of interview refused
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APPEARANCES: | Counsel | Solicitors | |||
| For the First Applicant | Mr S. Thomas | Vasilaras & Co Lawyers | |||
| For the Second Applicant | Mr S. Andrianakis | Furstenberg Law | |||
| Ms E. Ruddle QC with Ms H Jager | Office of Public Prosecutions |
HIS HONOUR:
1The Director of Public Prosecutions (‘the Director”) seeks to adduce evidence contained in an extract from a record of interview of Shanti Gayle Thondan on 9 November 2017 in circumstances where the entirety of that record of interview had been ruled inadmissible in a criminal trial involving Ms Thondan in August 2019.
2In the present civil proceeding the Director seeks to rely upon questions 1 to 53 of the record of interview, which are said to precede any impropriety which led to the ruling made in the criminal trial to exclude the whole of the record of interview.
3The applicants, Mr Ryan and Ms Thondan, seek a ruling to exclude the whole of the record of interview pursuant to s 138 of the Evidence Act 2008.
4It is helpful to set out a brief chronology of events in order to fairly assess the competing arguments that have been advanced in this application.
· On 15 October 2019, on application by the Director pursuant to s 36K(1) of the Confiscation Act 1997 (“the Act”), His Honour Judge Murphy made a restraining order on the real property situated at 113 Broad Gully Road, Diamond Creek (“the Diamond Creek property”).
· The application seeking the restraining order was supported by an affidavit from Detective Senior Constable Jon Ebinger of the Victoria Police Criminal Proceeds Squad, deposing in essence to the following:
§That police had executed a search warrant at the Diamond Creek property on 9 November 2017. In the course of that search a large quantity of cannabis plants were found. The weight of the cannabis plants found at the property exceeded the statutory threshold for a large commercial quantity.
§That Lee Reginald Tangey (“Tangey”) was a tenant in possession of the Diamond Creek property.
§That both the first and second applicants were residing at the Diamond Creek property prior to the execution of the search warrant.
· At the time of the execution of the search warrant the applicants were joint proprietors of the Diamond Creek property, having purchased it in around January 2015. Neither applicant resided permanently at the Diamond Creek property, although it was used occasionally when they were visiting Melbourne from their usual place of abode in Queensland.
· The second applicant, Ms Thondan, had previously been married to Tangey and became aware, in early 2016, that Tangey was looking for a place to live. After discussion with Mr Ryan the applicants agreed to enter a tenancy agreement with Tangey and this was executed on 20 March 2016.
· The applicants maintain that they had very limited access to the Diamond Creek property between 20 March 2016 and 9 November 2017. An affidavit sworn by the second applicant on 21 February 2020 describes having access to the property on perhaps four occasions when visiting Melbourne for business reasons during that period.[1]
· Ms Thondan’s affidavit denies any knowledge that Tangey was cultivating cannabis at the Diamond Creek property until she became aware of the fact when the search warrant was executed at a time that she and Mr Ryan were at the property.[2]
[1]Joint Court Book (“JCB”) pp 74 [20] -75 [23]
[2]JCB p 75 [25]
5The relevance of the record of interview is brought sharply into focus by Ms Thondan’s denial of any knowledge of the cultivation as set out in her affidavit.
6The issue of Ms Thondan’s knowledge of the cannabis crop at the Diamond Creek property is the subject of a number of questions and answers set out in the record of interview, which was ruled inadmissible in the criminal trial. The Director wishes to lead evidence of questions 1 to 53 in the present application on the basis that those questions and answers pre-dated the initial transgression by the interviewing police officer, which underpinned the ruling made in the criminal trial.
7I note that in the criminal trial the application made on behalf of Ms Thondan was for the exclusion of the whole of the record of interview, with the prosecution submitting that the bulk of the interview containing significant admissions ought not to be excluded, notwithstanding that there were aspects of the questioning which were improper and therefore should be excluded.
8In the present case I am not bound by the decision to exclude the record of interview which was made in the criminal trial. Conversely the provisions of s 138 of the Evidence Act 2008 are not limited in their application to criminal proceedings. Therefore the application to exclude the material sought to be relied upon by the Director must be assessed in accordance with the requirements of that section.
9I had the benefit of written submissions provided by all parties, including submissions on behalf of the Director in reply. These submissions were supplemented by oral argument which proceeded on 12 November 2021.
10It is convenient to set out a precis of the arguments advanced by the competing parties. I note that Mr Thomas of counsel, who appeared for Mr Ryan, essentially adopted the submissions advanced by Mr Andrianakis, who appeared on behalf of Ms Thondan.
11Ms Ruddle QC, who appeared with Ms Jager on behalf of the Director, submitted that for the purposes of the confiscation proceeding, the Director only sought to rely on the first 53 questions from the record of interview, that is those preliminary questions prior to any impropriety occurring in relation to the formal record of interview.
12In those circumstances s 138 of the Evidence Act was not engaged.
13Alternatively, if s 138 was to be considered, then this court would need to exercise the statutory discretion in a manner consistent with the present application which was a civil trial with a different burden of proof, a different standard of proof, and in effect an entirely different test from that which had been applied by His Honour Judge Stuart in excluding the whole of the record of interview in Ms Thondan’s criminal trial.
14Ms Ruddle QC specifically acknowledged that the Director did not seek the admission of any part of the record of interview beyond question 53, from which point she acknowledged that some degree of impropriety commenced. She submitted that the exclusion of the whole of the record of interview in a criminal trial was to be considered in light of the significant and important protections provided for accused persons in criminal proceedings, including the right to silence and the obligation of the prosecution to prove each element of a criminal charge beyond reasonable doubt. On such a basis it could not be argued that the Director’s wish to rely upon extracts from the record of interview in this proceeding was in any way an abuse of process.
15Ms Ruddle QC also submitted that s 138 of the Evidence Act was not engaged with regard to the record of interview extract as the questions and answers in the extract sought to be relied upon were not obtained as a consequence of any improper conduct. The present case, where there had been no improper conduct involved in the initial portion of the record of interview could be contrasted with the case of Pollard v The Queen[3] where there had been an initial improper off-tape discussion and then a subsequent recorded record of interview which was ultimately excluded as in that case it was an impossibility to untangle the improper conduct from the subsequent record of interview.
[3](1992) 176 CLR 177
16The Director conceded that the record of interview from question 54 onwards was necessarily tainted and would properly engage the wording of s 138.
17Ms Ruddle QC further submitted that the Director did not condone improper conduct by the police officers who had conducted the record of interview. The consequences of that conduct had effectively resulted in the withdrawal of the criminal prosecution against Ms Thondan. The Director did not in any way seek to challenge the ruling made by His Honour Judge Stuart in the criminal trial.
18Additionally, the questions and answers beyond question 53 in the record of interview would undoubtedly have been of assistance to the Director in the present confiscation proceedings. Ms Ruddle QC submitted that those consequences could also be taken into account in the balancing exercise required by s 138 of the Evidence Act.
19Mr Andrianakis submitted on behalf of Ms Thondan that the entire record of interview should be excluded from the present proceeding, notwithstanding that the improper conduct of the police investigator had occurred subsequent to the portion of the record of interview sought to be relied upon by the Director. Mr Andrianakis referred to the statutory powers available to investigating police officers in criminal proceedings, noting that such a wide range of powers, including powers of arrest, extend beyond powers available to an ordinary citizen and include express power to question a person apprehended. He submitted that it was not necessary to show a causal nexus between the improper conduct of an investigating official and the relevant admissions which are contained in the record of interview.
20Mr Andrianakis referred in some detail, in both his written and oral submissions, to the reasoning of His Honour Judge Stuart when excluding the entire record of interview in Ms Thondan’s criminal trial. Mr Andrianakis quite properly referred to the conduct of the investigating police officers in the record of interview which led His Honour to comment that:
“It was a technique, a ploy if you like, designed or developed more accurately … to meet the scenario where an accused was exercising his or her right to remain silent. … It is a case which in my view involves a blatant impropriety.”[4]
[4]Ruling dated 2 August 2019 page 234, lines 2 to 11
21Reference was made to a number of authorities including R v Haddad,[5] R v Dalley[6] and Tasmania v Crane[7] in support of the proposition that the particular impugned conduct of the investigating officials is highly relevant in determining whether or not the evidence of admissions is to be excluded. Mr Andrianakis submitted that the conduct of the particular investigating police officer, which had been the subject of considerable criticism by His Honour Judge Stuart, provided a strong basis for the whole of the record of interview to be excluded in this proceeding. He referred to a further passage of His Honour Judge Stuart’s ruling:
“This misconduct is of a grave kind and deliberate. The courts must make it plain that when evidence is sought to be presented derived from unlawful conduct or impropriety, the courts will stand against such misconduct and in appropriate circumstances of which this is one, exclude the evidence in the circumstances of this case.”[8]
[5](2000) 116 A Crim R p 12
[6](2002) 132 A Crim R p 169
[7](2004) 148 A Crim R p 346
[8]Ruling dated 2 August 2019 page 238, line 24, to page 239, line 1
22Mr Andrianakis submitted that the exclusion of the entirety of the record of interview was warranted in the present case, notwithstanding that the present proceeding involved a civil trial where Ms Thondan bore the onus of proof.
23He further submitted that a ruling to permit the Director to rely upon the extract from the record of interview would condone the very same conduct that had been excluded in the criminal trial.
24Mr Thomas, who appeared on behalf of Mark Darren Ryan, adopted the submissions that had been made on behalf of Ms Thondan. He further referred to the High Court authority in Rogers v The Queen[9] which effectively described such conduct as amounting to an abuse of process. Mr Thomas set out in his written submissions the proposition that the Director’s purported reliance upon an extract of the record of interview, the admissibility of which had already been determined in the criminal trial, would amount to an abuse of process as had been discussed again by the High Court in Aon Risk Services Australia Limited v Australian National University.[10]
[9]181 CLR 251
[10]239 CLR 175
25Mr Thomas further submitted that the admission of improperly or unlawfully obtained evidence undermines the integrity and the legitimacy of the administration of justice. Such a principle should weigh heavily on any discretionary decision, particularly where the investigating police officers have used an improper or unlawful device to obtain the evidence for the purpose of curial advantage.
Discussion
26The ruling to exclude the entirety of Ms Thondan’s record of interview in the criminal proceeding was not the subject of any appeal, nor was it in any way criticised in the present application. The arguments advanced by Ms Ruddle QC that s 138 of the Evidence Act is not engaged in the present application require me to conclude that the extract was not obtained in consequence of an impropriety.
27The entire circumstances in which the record of interview was conducted involved a deliberate ploy or device being used by one of the interviewing police officers. This tactic was strongly criticised by His Honour Judge Stuart in the earlier ruling. Even accepting the proposition that the extract sought to be relied upon occurred prior to the first use of the “device” by the investigating officer, I am concerned that gravity of the impropriety, together with the detention of Ms. Thondan at that time, lead to a conclusion as postulated by Spigelman CJ in Haddad[11] that the formulation of the phrase “obtained in consequence of an impropriety” does not require a direct causal link where the impropriety impacts fundamental freedoms such as those relating to arrest and interview contained in the Crimes Act.
[11](2000) 116 A Crim R [74] – [75]
28I am satisfied that the broad power to exclude evidence that was obtained improperly or in consequence of an impropriety is available to the court, but must be exercised balancing the discretionary matters which are set out in s 138(1) and further described in a non-exhaustive manner in s 138(3).
29It is plain that the Director’s application to admit the record of interview extract is pursued in circumstances where the present proceeding is civil in nature rather than criminal. Nevertheless the powers available to police officers to arrest or detain persons suspected of criminal offences and the rights of those persons when in custody are set out comprehensively in the provisions of the Crimes Act. The High Court in Pollard v The Queen[12] emphasised the need for courts to be vigilant “to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence.”[13]
[12](1992) 176 CLR 177
[13]Ibid per Deane J at 202-203
30The balancing exercise to be undertaken in accordance with s 138(1) of the Evidence Act must be undertaken in accordance with the matters set out in s 138(3), together with any other matters of particular relevance to the case.
31In broad terms, in criminal proceedings at least, the balancing of the public interest in securing a conviction against the public interest of the protection of individual rights would tend to weigh against exclusion of the impugned evidence depending on the gravity of the offending.[14]
[14]Dalley v R [2002] NSWCCA 284 per Spigelman CJ at 177
32The present proceeding is civil in nature and the applicants carry the onus of proof in their applications for exclusion.
33Quite properly the submissions on behalf of the Director drew a distinction between the nature of the present proceedings and the purpose for which the record of interview extract was sought to be relied upon. Importantly the difference in the nature of the proceedings was relevant to an assessment of the probative value of the evidence in the present civil proceeding as distinct from its value in the earlier criminal proceeding.
34There is effectively no dispute that the property which is the subject of the exclusion application was used as a “grow house” by Tangey. It would appear likely that a court would find the property to be tainted property and would further find that the applicants had acquired the interest in the property before the commission of the Schedule 2 offending by Tangey.
35In such circumstances the applicants for exclusion would need to satisfy a court on the balance of probabilities that:
(A)The applicant was not, in any way, involved in the commission of the Schedule 2 offence; and
(B)Where the applicant acquired the interest before the commission, or alleged commission, of the Schedule 2 offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with the commission of the Schedule 2 offence;”[15]
[15]Confiscation Act 1997 s 22(1)(b)(i)
36The broad wording employed in s 22 of the Confiscation Act requiring proof that an applicant is not and was not in any way involved with the alleged offending demonstrates the significant probative value of the record of interview extract sought to be relied upon by the Director.
37The importance of the evidence in the proceeding must be considered in light of the nature of the civil proceeding which would clearly permit the Director, as respondent, to adduce evidence for example from banking records or travel documents to contradict evidence given by the applicants seeking to establish their right to exclusion. Given the nature of the proceeding and its subject matter, a ruling to exclude the impugned evidence in the record of interview would not in my view be fatal to the respondent.
38In relation to questions concerning the gravity of the impropriety and whether or not it was deliberate or reckless, little needs to be said given the earlier findings made by His Honour Judge Stuart. I am also satisfied that the impropriety in the conduct of the interview with Ms Thondan was clearly inconsistent with the provision of Article 14 of the Human Rights and Equal Opportunity Commission Act 1986 – Schedule 2.[16]
[16]International Covenant on Civil and Political Rights
39The further matters set out in s 138(3)(g) and (h) can be shortly dealt with. The ruling made by His Honour Judge Stuart in excluding the entirety of the record of interview in the criminal proceeding satisfies the matters set out in paragraph (g).
40Although there is an obvious difficulty in reconciling the admissions contained in the record of interview extract sought to be relied upon with the material filed in affidavit form by Ms Thondan, there is in my assessment an abundance of sources from which evidence could be obtained by the respondent in seeking to challenge the matters contained in Ms Thondan’s affidavit.
41In the final analysis the weight of that evidence will need to be determined on the merits when the civil exclusion applications are determined.
42Finally, I am not satisfied that the application made on behalf of the Director in any way constitutes an abuse of process. The present proceeding is a civil one and its outcome is ultimately to be determined in accordance with the provisions of the Confiscation Act 1997 and not in accordance with any criminal statute. The applicants carry the burden of proof which must be proved to the civil standard. The respondent is entitled to challenge the civil claims notwithstanding that the earlier criminal proceedings were discontinued.
43I am not in any way critical of the manner in which the Director pursued this application.
44I rule the extract of the record of interview sought to be relied upon by the Director as inadmissible in the present exclusion applications.
45I grant leave to the parties to apply in relation to the formal orders sought and in relation to the question of costs.
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