[2017] TASCCA 23
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Standage v Tasmania [2017] TASCCA 23
PARTIES: STANDAGE, Stephen Roy
v
STATE OF TASMANIA
FILE NO: 767/2014
DELIVERED ON: 2 November 2017
DELIVERED AT: Hobart
HEARING DATES: 23, 24, 25 and 26 May 2016
JUDGMENT OF: Tennent, Wood and Pearce JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Particular grounds of appeal – Other matters – Appellant convicted of two counts of murder – Evidence of admissions in recorded conversations with undercover police officers – Pre-trial objection under Evidence Act 2001, s 137, overruled – At request of defence counsel scenario evidence considered by trial judge on a holistic basis – Crown prepared to redact prejudicial aspects of evidence – Forensic decision not to seek exclusion of any aspects of the scenario evidence – Impact of such a forensic decision on outcome of appeal – Probative value not outweighed by danger of unfair prejudice posed by evidence – Miscarriage of justice not demonstrated.
Evidence Act 2001 (Tas), s 137.
Criminal Code (Tas), s 402(1).
Tofilau v The Queen [2007] HCA 39, (2007) 231 CLR 396; Crampton v The Queen [2000] HCA 60, 206 CLR 161; R v Jelicic [2016] SASC 57, considered.
Aust Dig Criminal Law [3537]
REPRESENTATION:
Counsel:
Appellant: J Hannebery
Respondent: D Coates SC, J Shapiro
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASCCA 23
Number of paragraphs: 108
Serial No 23/2017
File No 767/2014
STEPHEN ROY STANDAGE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
WOOD J
PEARCE J
2 November 2017
Order of the Court
Appeal dismissed.
Serial No 23/2017
File No 767/2014
STEPHEN ROY STANDAGE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
2 November 2017
On 18 August 2014, Stephen Roy Standage (the appellant) was convicted by a jury of two counts of murder and sentenced to serve 48 years' imprisonment with a non-parole period of one half. The murders were committed in July 1992 (the Jarvis murder) and August 2006 (the Thorn murder). The appellant filed a notice of appeal in respect of the convictions. That notice contained several grounds of appeal. On 4 May 2016, the appellant, by his counsel, abandoned all grounds of appeal pursued up until that date, and was given leave to pursue one new ground. A fresh notice of appeal was filed on 6 May 2016 which contained one ground. The terms of that were as follows:
"That the trial miscarried because of the admission of 'scenario evidence' in circumstances where its probative value was outweighed by the danger of unfair prejudice to the appellant."
Appeals of this kind are provided for in the Criminal Code, s 402(1). It provides:
"(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should…
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CaseChat Overview and Summary
The appellant, Standage, was convicted of two counts of murder. The appeal concerned the admissibility of "scenario evidence," which comprised recorded conversations between the appellant and undercover police officers. The appellant argued that this evidence should have been excluded under section 137 of the *Evidence Act 2001* (Tas) because its probative value was outweighed by the danger of unfair prejudice.
The legal issue before the court was whether the trial judge erred in admitting the scenario evidence. Specifically, the court had to determine if the probative value of the evidence, which included admissions and potential confessions by the appellant, was outweighed by the danger of unfair prejudice arising from the appellant's demonstrated willingness to engage in serious organised crime and the suggestive nature of the police questioning.
The court found that while much of the scenario evidence presented a real danger of unfair prejudice, its probative value was not outweighed by that danger. The court reasoned that the jury could be adequately instructed to compartmentalise the evidence, distinguishing between admissions and confessions relevant to the murders and evidence of bad character or propensity. The court noted that the jury would be directed that the suggestive statements made by undercover officers were not evidence, and that the evidence of the appellant's participation in other criminal activities was solely to establish context and setting for any admissions. The court concluded that an average jury would be reasonably capable of following these directions and leaving the prejudicial background evidence out of account for other purposes, thus avoiding a miscarriage of justice.
The legal issue before the court was whether the trial judge erred in admitting the scenario evidence. Specifically, the court had to determine if the probative value of the evidence, which included admissions and potential confessions by the appellant, was outweighed by the danger of unfair prejudice arising from the appellant's demonstrated willingness to engage in serious organised crime and the suggestive nature of the police questioning.
The court found that while much of the scenario evidence presented a real danger of unfair prejudice, its probative value was not outweighed by that danger. The court reasoned that the jury could be adequately instructed to compartmentalise the evidence, distinguishing between admissions and confessions relevant to the murders and evidence of bad character or propensity. The court noted that the jury would be directed that the suggestive statements made by undercover officers were not evidence, and that the evidence of the appellant's participation in other criminal activities was solely to establish context and setting for any admissions. The court concluded that an average jury would be reasonably capable of following these directions and leaving the prejudicial background evidence out of account for other purposes, thus avoiding a miscarriage of justice.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The miscarriage of justice in this case is said to arise as a consequence of the admission of evidence described as the "scenario evidence" on the trial of the appellant contrary to the Evidence Act 2001 (the Act), s 137. That provides:"137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." Pursuant to a memorandum of understanding between Tasmania Police and Victoria Police, undercover police officers pretending to be criminals engaged the appellant in a number of conversations. These conversations took place between 6 May 2010 and 2 September 2010 and were recorded. The content of these conversations was collectively referred to as the "scenario" evidence. The admissibility of the scenario evidence, and other evidence, on the trial was the subject of a voir dire conducted over several days in 2013 before Estcourt J. By the time the voir dire was conducted before Estcourt J, the recordings of the conversations which made up the scenario evidence had already been edited by the respondent. On 30 October 2013, his Honour ruled the scenario evidence, as it was presented to him, admissible. It is useful to set out that part of his Honour's reasons for so ruling because it provides a summary of the relevant legal principles, and also refers to parts of the scenario evidence and inferences which could be drawn. I do not take counsel for the appellant to argue that the inferences his Honour found could be drawn were not open. The challenge was to the outcome of the balancing exercise his Honour conducted. The relevant ruling appears at [113]-[166] of his reasons in the following terms:"113 There is one further aspect of the evidence proposed to be adduced by the State upon which I am asked to rule. It involves so-called 'scenario evidence' taken on a second voir dire following that involving the evidence with which I have dealt already in these reasons. It is the only aspect of the evidence with which I am concerned that is challenged solely on the basis of the Act, s137.114 On 27 April 2010, a memorandum of understanding was entered into between Tasmania Police and Victoria Police for the staging of a joint undercover operation conducted by Victorian police officers sworn-in as Tasmanian special constables. The objective of the operation was to gain the accused's trust and to endeavour to induce him to volunteer confessions to the two counts of murder with which he is charged.115 In order to achieve that objective a number of planned scenarios were conducted between 6 May and 2 September 2010. Each scenario involved the deployment of police undercover operatives enlisting the accused's voluntary participation in simulated criminal activity. The accused was paid small sums of money for his involvement and was led to believe the possibility existed for him to earn far greater amounts in the future from the commission of major crime.116 No illegal activity was in fact involved. For example it was arranged for the accused to be involved in a simulated drug transaction in Launceston involving two kilograms of ecstasy tablets, where the tablets were harmless legal substances and where the other persons involved in the sale and purchase were police undercover operatives. Another example was an arrangement for the accused to be involved, in Melbourne, with the placing of an order for illegal guns which were in fact authorised firearms. 117 In all, some 12 scenarios were staged with a view to having the accused believe that he was being considered for recruitment into an organised criminal gang.118 On 2 September 2010 the operation culminated in the accused being 'interviewed' in a hotel room in Melbourne by the purported crime boss who told the accused that Tasmania Police were close to arresting him for the two murders but he could 'fix' things if the accused made full disclosure to him so that he, the boss, could know all the evidence that existed and 'deal with it'. If he did as he was asked the accused was told that the way would then be clear for him to join the gang.119 Audio and visual recordings were made during the undercover operation and they disclose numerous statements made by the accused to the undercover operatives which a jury could accept were admissions in respect of facts relevant to the State's case against him, if not indeed, amounting either expressly or impliedly, by words or conduct, to confessions to one or both of the murders with which the accused is charged.120 Counsel for the accused has objected to the admission of the relevant material on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused within the meaning of the Act, s137, and that therefore it must be excluded. Accordingly I took the evidence on a voir dire, with over four hours of recordings being played to me. The proofs of evidence of the relevant police witnesses were tendered by consent.121 I was also referred by consent to the contents of volume 19 of the Crown papers which contains notices of the State's intention to adduce tendency and coincidence and hearsay evidence, and a notice pursuant to the Act, s38, in respect of certain witnesses. This material was considered by Evans J in Tasmania v Standage (above) and forms the basis of his Honour's narrative and summary of the State's case against the accused on each of the two counts.122 It is appropriate for me to take this material into account in this way as it is important in assessing the danger of unfair prejudice to assess it in the context of and by reference to other available evidence. If the impugned evidence does not add significantly to the other available evidence it may more readily be said to be outweighed by the asserted danger of unfair prejudice: Australian Law Reform Commission Report 102 'Uniform Evidence Law' at par16.15; Aytugrul v R (2012) 247 CLR 170 185 – 186; (2012) 86 ALJR 474 at 482 - 483, [26] - [30].123 Evidence of the nature, and gathered in the manner of the scenario evidence with which I am now concerned, withstood challenge in four appeals heard together by the High Court and reported in Tofilau v R (2007) 231 CLR 396.124 The challenges to the scenario evidence in each of those appeals were based in all cases on basal voluntariness, public policy and unreliability and in one only, on the basis that the trial judge's discretion to exclude the evidence as unfair should have been exercised in favour of the particular appellant.125 The principles to be derived from Tofilau v R seem to me to clearly apply to all admissions not just admissions that are, or for practical purposes amount to, confessions: Tofilau v R at 401, [2] per Gleeson CJ. 126 I am however, concerned in the present case with an objection based solely on s137 of the Act, which has been held by this Court not to involve a discretion but rather, an evaluation process involving 'a matter of judgment': L v Tasmania (2006) 15 Tas R 381 per Underwood CJ at 401, [51] - [52], with whom Tennent J agreed.127 As to probative value, I bear in mind that in carrying out the required balancing exercise, the assessment of probative value is one, in effect, of the potential of the evidence to further the State's case against the accused. The assessment is predicated on an assumption that the evidence is accepted by the jury, without any inquiry on my part as to whether the jury would or would not be likely to accept it, or whether the jury would give it any, and if so what, particular weight. That is the position in this State and also in New South Wales: KMJ v Tasmania [2011] TASCCA 7; R v XY [2013] NSWCCA 121.128 As to the danger of unfair prejudice, Blow J (as he then was) in W v R (2006) 16 Tas R 1 at 43, referred to as 'very useful' the following exposition in Report No 26, Evidence (Interim), Australian Law Reform Commission, Vol 1, at par[644]:'By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.'129 In Neill–Fraser v Tasmania [2012] TASCCA 2, Crawford CJ said at [184]:'184 When considering the danger of unfair prejudice, care must be taken not to confuse prejudice with unfair prejudice. Too often, defence counsel fail to distinguish between them. All evidence that may tend to convict an accused person is prejudicial, but that does not mean that it is unfairly prejudicial. What is meant by unfair prejudice is that the jury may use the evidence to make a decision on an improper, perhaps emotional basis. If there is a real risk that the evidence may be misused by the jury in some way, then it may be unfairly prejudicial: R v BD (1997) 94 A Crim R 131 at 139, [151].' 130 When assessing the danger of unfair prejudice, the effect of appropriate directions by the trial judge to the jury must also be taken into account. It should be assumed that a jury will follow directions from the trial judge. So much is clear from the observations of Hayne J in Gilbert v R (2000) 201 CLR 414 at [31]. There his Honour said:'The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public — could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.'131 However as was observed, albeit in another context, by Neasey J in Leaman v R [1987] TASSC 21 at [17]; A9/1987:'A basic question faced by a trial judge considering whether to order a separate trial, or an appellate court considering whether a miscarriage of justice has occurred because he did not, always is whether the prejudicial effect of the inadmissible evidence is (or was) capable of being adequately neutralised by appropriate instructions to the jury. That question will usually involve two further issues, namely:(1) will an average jury be reasonably capable, as an intellectual exercise, of performing the task thus given them?and(2) is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against a particular accused even though it is inadmissible against him?'132 With these considerations in mind I turn to the challenged evidence. Counsel for the accused asks me to approach this task in an 'holistic' manner and I accept that, given the amount of material involved in the scenario evidence recordings, it is appropriate to assess it for the purpose of s137 of the Act at a relatively high level of generality.133 On the basis of the material contained in the recordings there are a number of things, at the very least that a jury acting reasonably could conclude.134 The jury could accept that the admissions by the accused in respect of growing and wholesaling cannabis, and in respect of his prior ownership or possession of a .45 calibre revolver, is circumstantial evidence from which it could be inferred that the accused had the means and motive to have fatally shot Mr Jarvis.135 The jury could accept that the admissions by the accused in respect of growing and wholesaling cannabis, and in respect of prior or possible present ownership or possession of a .22 calibre rifle is circumstantial evidence from which it could be inferred that the accused had the means and motive to have fatally shot Mr Thorn.136 The jury could conclude from admissions made by the accused that there was potentially one piece of evidence about which he was prepared in time, 'in a swimming pool' to tell the purported crime boss about, so it could be 'fixed', that the accused murdered Mr Thorn.137 The jury could conclude from the nature and content and tone and context of the conversations with the purported crime boss and other undercover operatives that he would in time, 'in a swimming pool', be willing to tell the 'boss' anything he wanted to know about the potential evidence linking the accused to Mr Thorn's murder, that the accused was accepting that he had committed the murder but was simply not ready at the time of those conversations to formally admit to having done so.138 The jury could conclude from the nature and content and tone and context of the conversations with the purported crime boss and other undercover operatives that the accused accepted that he had murdered Mr Jarvis.139 That is by no means a complete survey of all aspects of the scenario evidence from which the jury could conclude that the accused committed both murders but it will suffice for present purposes.140 There can be no doubt, even on that limited survey and without any necessity at this stage for any detailed analysis of every admission or potential admission or confession contained in the recordings, that the challenged evidence has very high probative value.141 Equally there can be no doubt that much of the evidence presents a real danger of unfair prejudice to the accused.142 Again, without any detailed analysis of individual conversations or parts of conversations, overall the challenged evidence is capable of establishing that the accused has been a criminal for most of his adult life, that he has grown and trafficked in cannabis for many years and made 'millions' from doing so, and that he has owned or possessed and is very familiar with various types of firearms, including those said to be the murder weapons in this case.143 It is also obvious from the scenario evidence that the accused was willing to participate in and/or countenance serious organised crime including illegal prostitution, money laundering, illegal firearms, police corruption, trafficking in ecstasy and hashish, illicit diamond sales and armoured truck robbery.144 The prejudicial effect of that evidence is such that is very likely that, unless it can be 'adequately neutralised by appropriate instructions to the jury', the jury could use the evidence to make a decision on an improper or emotional basis.145 If there is a real risk that, even properly instructed as to the use of evidence, admitted only as evidence of the background to and the context of the asserted admissions and/or confessions, the jury might nonetheless misuse it in some way; then the danger of unfair prejudice could well outweigh the probative value of the asserted admissions and confessions, and compel the exclusion of the scenario evidence in its entirety.146 From the material available to me it appears that there will be other evidence on the accused's trial that will show an involvement with cannabis and firearms and drug related criminal activity, and were those the only categories of evidence contained in the scenario evidence, the impugned evidence would not add significantly to the other available material and may more readily be said to be outweighed by the asserted danger of unfair prejudice.147 There is, of course, more to the scenario evidence than those categories of circumstantial evidence. There is the direct evidence in the nature of confessions or admissions from which the jury could conclude that the accused committed one or possibly both of the murders with which he is charged. There is no similar evidence to be adduced on the trial outside of the scenario evidence.148 Counsel for the accused argues however, that even the high probative value of that evidence is outweighed by the risk of unfair prejudice. The prejudice, she submits arises in two ways.149 First, counsel contends that the jury would see and hear the scenario evidence recordings in which, particularly in the audio visual recordings, undercover police officers, in order to induce the accused to confess all to the 'boss', make repeated lengthy statements to the accused which contain suggestions of his guilt and repeat on numerous occasions how strong the evidence against him is. Counsel submits that the danger is that the jury will inevitably misuse those suggestions as being cogent evidence of guilt in their own right and will treat those statements as containing opinion evidence of experienced police officers as to the accused's guilt.150 Second, counsel for the accused contends that the scenario evidence contains evidence of blatant bad character in demonstrating the accused's preparedness to participate in crime including, as already noted, illegal prostitution, money laundering, illegal firearms, police corruption, trafficking in ecstasy and hashish, illicit diamond sales and armoured truck robbery.151 The prejudicial effect of this, counsel contends, will be compounded if, as indicated by counsel for the State, the confessional material in the scenario evidence will be put to the jury as relating to both murders, whereas in the main the specific words of the relevant conversations concern only the details of the murder of Mr Thorn. 152 Counsel's submission continues that the directions that will have to be given to the jury, that evidence of such propensity cannot be used as evidence of guilt and can only be used for the very limited purpose for which it is adduced, namely to show the background to and context of any admissions and confessions elicited during the staged scenarios, will appear to the jury to be contradicted by the direction that will also need to be given, that other propensity evidence adduced independently of the scenario evidence can be used as evidence of guilt.153 Counsel is referring, of course, to the tendency and coincidence evidence which was held by Evans J in Tasmania v Standage (above) to be both admissible on the trial and cross-admissible on both counts on the indictment. 154 The result, she contends, will be that the complexity of the necessary directions will be such that the jury will not be reasonably capable, as an intellectual exercise, of performing the task required by such confusing directions.155 I am unable to accept counsel for the accused's submissions that the risk of the prejudicial effects contended for will materialise, given proper directions, or that even if they do that they outweigh the high probative value of the evidence from which the jury could conclude that the accused, by words and/or conduct, expressly or impliedly confessed to the commission of both murders to undercover police.156 The jury will be directed in accordance with the directions suggested by Callaway JA in R v Tofilau (No 2) (2006) 13 VR 28 at 32 – 33, [6] - [7], Buchanan and Vincent JJA agreeing: '6 It should therefore be explained to the jury that –(a)the evidence of the accused's participation in other purported criminal activity, and his or her attitude to that activity, is admitted solely to establish the context and setting in which the alleged confession came to be made; and(b)the jury must not reason that, because the accused was a willing participant in what he or she believed to be other criminal activity, the accused is the kind of person who is likely to have committed the crime charged. 7 There are no doubt other directions that will prove to be necessary or desirable in relation to confessions obtained in this way. The common law develops in response to experience and I do not claim to foresee what that experience may show, but it will often be appropriate to direct the jury that –(a)the manipulation involved in this technique of investigation has the capacity to undermine the probative value that might otherwise be given to a confession; (b)a person who believes that it is in his or her interests, and safe to do so, may well make an untrue statement; and (c)the jury should consider any explanation for the confession put forward by defence counsel or by the accused in the course of his or her evidence or record of interview.'157 I do not accept that the jury would be unable to follow such directions, even when instructed that other evidence of propensity in the form of tendency and coincidence evidence may in itself be used as evidence of guilt and not merely in a limited way to give context to other evidence.158 In my view, the scenario evidence can be compartmentalised and the jury can be told that the evidence of bad character thrown up by it is in a completely different legal category to propensity evidence that shows in a unique way, a tendency or coincidence that may be probative of guilt.159 Indeed, as counsel for the State submitted, I will have to draw such a distinction in any event between the admissible and cross-admissible tendency and coincidence evidence, and other evidence of bad character concerning the accused's drug dealings quite outside of the scenario evidence.160 The jury will also be instructed that the contents of the statements put by undercover police to the accused suggesting his guilt, in order to manipulate him into confessing it, are not evidence and that only what the accused actually said or did in response to those suggestions is evidence. 161 The jury will also be told that the undercover police officers, in particular the 'boss' were not acting as police officers at the relevant time but were acting as criminals, and that the jury is to disregard any colour given by them to the evidence said in the conversations with them to be available against the accused.162 In any event, as pointed out by counsel for the State, the evidence which the undercover officers were repeatedly emphasising was quite specifically confined by them in the scenario evidence to what were described by the 'boss' as 'a couple of major things'. They were, evidence of the accused's DNA on a nail in a branch covering Mr Thorn's body, a video of the accused in an hotel with a wallet with several hundred dollars in it which could have been Mr Thorn's wallet, and evidence of the accused's wife being seen on the day of the murder at the end of the track where Mr Thorn's body was found.163 As to whether the scenario evidence is capable of amounting to a confession to both murders and not just that of Mr Thorn, the contents of the relevant conversations will have to be carefully analysed and teased apart in my summing-up to the jury. The jury will be exhorted again to consider only the accused's statements which are capable of relating to either or both of the murders, which statements are evidence, and to wholly disregard the contents of the pregnant questions or statements to which those answers respond and which are not evidence.164 I am satisfied that with such directions 'an average jury' would 'be reasonably capable, as an intellectual exercise' of leaving the prejudicial background and context evidence of the scenarios out of account for other purposes.165 That is not to say that there should not be further editing of that background and context evidence as has been offered by counsel for the State. That is a matter of forensic judgment for counsel for the accused and I say nothing further about it.166 In all of the circumstances I am satisfied that the probative value of the scenario evidence is not outweighed by the danger of unfair prejudice to the accused and it will not be excluded."
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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