Standage v Tasmania
[2017] TASCCA 23
•2 November 2017
[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 be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."
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."
What was the "scenario" evidence and how did it come to be admitted into evidence?
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."
The sole basis for objecting to the admissibility of the scenario evidence was by reference to the Act, s 137. What Estcourt J was invited to do, for the purpose of the objection, was to consider the scenario evidence in "an holistic way" as opposed to considering the material by reference to individual parts of it.
The nature of the appeal and the role of this Court
Counsel for the appellant told the Court that he did not join issue with the principles Estcourt J applied to his consideration of the impact of s 137 on the scenario evidence presented to his Honour, nor did he cavil with the directions given at trial. He said he did however join issue with his Honour's assessment that the evidence had very high probative value, and submitted that the risk of unfair prejudice was of a magnitude that was simply not capable of being mitigated by directions such as to allow the evidence to be admitted.
The focus of this appeal is however not the scenario evidence as it was considered by Estcourt J during the October 2013 voir dire. It is the scenario evidence in the form in which it was presented to the jury. The two versions of the evidence were not the same. The recordings of conversations played to Estcourt J during the voir dire had already been edited. During the course of that hearing, counsel for the respondent offered to remove further significant portions of the material to mitigate any prejudicial effect. That offer was what prompted the comment by Estcourt J at [165] of his reasons. Trial counsel for the appellant did not take up the offer to further edit the material and, in fact, requested that previously edited material go back in. As counsel for the respondent said at the hearing of this appeal, the scenario evidence as led was ultimately in the form the appellant's counsel wanted.
What therefore is the Court's role on this appeal? For the appeal to succeed, the Court must be satisfied there has been a miscarriage of justice. What counsel for the appellant described as the "core proposition" on this appeal was that, when viewed holistically, the probative value of the scenario evidence did not outweigh the risk of unfair prejudice and that, in the circumstances, the evidence, by reference to the Act, s 137, ought not to have been admitted. It was submitted that the wrongful admission of that evidence has led to a miscarriage of justice in that the admission of the evidence unfairly denied the appellant a chance of acquittal.
How then does the Court need to approach this appeal? Both counsel asked the Court to review the scenario evidence as led on the trial in the context of all other evidence led at trial and the directions given by Estcourt J to the jury. The Court was asked to then assess the probative value of the scenario evidence and any danger of unfair prejudice which might flow to the appellant as a result of its admission, and conduct the balancing judgment required by reference to s 137: see KMJ v Tasmania [2011] TASCCA 7 at [4], 20 Tas R 425, per Evans J. Counsel also agreed that this Court was in as good a position as the trial judge to make the judgment, having regard to the fact it has heard all the material his Honour did: see Riley v The Queen [2011] NSWCCA 238 at [161]-[162], per McClennan CJ at CL, and McCartney v The Queen [2012] VSCA 268, 38 VR 1, at [39]-[45].
Counsel for the respondent however submitted that, in undertaking that balancing judgment, the Court had to consider how the evidence came to be led in the form it was. He submitted that trial counsel made forensic decisions to include more material in the scenario evidence than had been considered by Estcourt J. He submitted that this Court's decision as to whether there was a miscarriage of justice had to be made in the context that trial counsel for the appellant could have mitigated a great deal of prejudice to her client had she agreed to editing. She chose not to. In short, it was submitted that this Court had to take into account the forensic choices made by the appellant's trial counsel about the editing of the scenario evidence.
During the course of argument, an issue was raised with counsel about what was the correct approach to an appeal of this nature. Both counsel maintained it should be in accordance with the approach adopted in KMJ (above). Pearce J referred to some decisions of intermediate appellate courts in other States which suggested there was a divergence of opinion about the correct approach to be taken by appellate courts in respect of what are, in effect, appeals against interlocutory decisions. I have reviewed those decisions and, while I conclude that the approach as outlined in KMJ is that which this Court should adopt, in my view, it is not necessary to determine that issue for the purpose of this appeal. This is not an appeal against the ruling of Estcourt J in October 2013. His Honour ruled against a particular background and that had altered by the time of trial in that the scenario evidence was in a different form. There is no suggestion his Honour was asked to undertake any further exercise by reference to s 137 before the trial actually began or during it. The scenario evidence, in effect, ultimately went before the jury without further objection. The exercise on this appeal is to review the admission of the scenario evidence in the form in which it went before the jury by reference to s 137, and against the background of other evidence actually led, the way in which the cases of each of the appellant and the respondent were put, and the directions given by the trial judge.
The submissions of counsel for the appellant
Counsel for the appellant submitted that a severe risk of unfair prejudice to the appellant arose from, not only the nature of the material the scenario evidence contained, but also the volume of it. He said that the risk was that the jury would impermissibly use the evidence in a number of ways, namely, to reason the appellant was guilty for reasons other than those promoted by otherwise admissible evidence, to engage in propensity reasoning, and to draw adverse inferences from the appellant's failure to give evidence and his conduct of the trial. It was also submitted that the jury would have been unduly influenced by the repeated assertions by undercover police during their conversations with the appellant about the strength of the police case against him and the significance of particular parts of the evidence police had, and the particularly incriminating nature of that evidence. Even allowing for the impact of directions given by the trial judge, the risk of unfair prejudice remained at such a level that the evidence would have had to have extraordinary probative value to permit its admission. The evidence simply did not have that value.
Counsel for the appellant also submitted that there were limitations on what parts of the scenario evidence could have been excluded, because the very nature of the evidence required that there be context for the asserted admissions by the appellant. The respondent, it was argued, relied on this material to support a contention that admissions made by the appellant were reliable because the appellant accepted these undercover officers as trusted criminal confidantes and that, in that context, things said were more likely to be truthful. The respondent in that sense would not have agreed to edit material which removed that context.
Counsel for the appellant dealt with the issue of the impact of forensic choices made at trial early in his submissions because it was dealt with in the written submissions of counsel for the respondent. In doing so, he did not dispute that trial counsel were very experienced, and he did not challenge the forensic decisions senior counsel made. He submitted however that trial counsel did challenge the admissibility of the scenario evidence generally, and lost the argument. Once the evidence was admitted, trial counsel then had to make forensic decisions about how to deal with it. Counsel for the appellant did not dispute that certain portions of the scenario evidence, as put to the jury, could and would have been edited out had trial counsel requested it. However he submitted that the forensic realities of the trial were such that the choice was an illusory one. He submitted that any forensic decisions made had to be made in the context that, as a starting point, even with all edits which could have been done, the scenario evidence was going to be put before the jury and it could not just be ignored. It was not the case it could simply be trimmed down and left. Further it had to be dealt with in a manner consistent with trial counsel's instructions.
Counsel for the appellant submitted that trial counsel made the only decision reasonably available to her. That decision was to have put before the jury material which might forensically be required to explain the material generally, and be in accordance with the appellant's instructions, even if it carried prejudice with it. Those instructions were that the appellant knew these men to whom the appellant was talking were undercover police officers and was just stringing them along. Counsel also submitted that, had trial counsel's forensic decisions about this not been in accordance with those instructions, that would effectively have meant a decision was being taken right at the beginning of the trial that the appellant would not give evidence. His ability to give evidence would have been forensically excluded. In substance, the extent to which further editing could have been done, it would have amounted only to "tinkering around the edges" and would not have gone to significantly reducing the prejudice to the appellant.
Counsel for the appellant referred to legal aspects of probative value. Counsel for the State summarised the law as it related to a consideration of the probative value of evidence in detail, and I did not take counsel for the appellant to disagree with the summary.
Probative value is defined in the Act to mean the extent to which evidence could rationally affect the assessment of the probability of the existence of a fact in issue. In this case the Crown relied on the scenario evidence as containing certain admissions. The probative value of those admissions was required to be considered in the context of the entirety of the Crown case taken at its highest, and on the assumption that the jury would draw any available inference from that evidence that was favourable to the Crown. The reliability of the admissions and/or the credibility of the witness who gave the evidence of the admissions was irrelevant: see KMJ v Tasmania; Tasmania v Finngean (No 2) [2012] TASSC 1; R v Sood [2007] NSWCCA 214; R v XY [2013] NSWCCA 121, 84 NSWLR 363; R v Shamouil [2006] NSWCCA 112, 66 NSWLR 228 and IMM v The Queen [2016] HCA 14, 257 CLR 300.
Both counsel referred to, and relied upon, a passage from the judgment of their Honours French CJ, Kiefel J (as she then was), Bell and Keane JJ in IMM v The Queen at [41]-[45]:
"41 Relevant evidence is admissible under s 56 unless an exclusionary rule operates, the court is required to exclude evidence by a provision such as s 137, or a discretion provided by the Evidence Act to exclude evidence is exercised. The exceptions provided with respect to the exclusionary rules of the Evidence Act have the effect that if relevant evidence liable to be excluded comes within an exception, it may nevertheless retain its character as admissible. The condition to be met for the exception in s 97(1)(b) to apply is that the court must think that the evidence will 'have significant probative value'.
42 Both s 97(1)(b) and s 137 require an assessment of the probative value of the evidence tendered. As mentioned, the Dictionary definition of the 'probative value' of evidence describes evidence which is probative in the same terms as how relevant evidence is described in s 55, namely evidence which 'could rationally affect the assessment of the probability of the existence of a fact in issue'.
43 The enquiry for the purposes of s 55 is whether the evidence is capable of the effect described at all. The enquiry for the purposes of determining the probative value of evidence is as to the extent of that possible effect. But the point is that in both cases the enquiry is essentially the same; it is as to how the evidence might affect findings of fact. An assessment of the extent of the probative value of the evidence takes that enquiry further, but it remains an enquiry as to the probative nature of the evidence.
44 The assessment of 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue' requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b), the enquiry is whether the probative value of the evidence may be regarded as 'significant'.
45 The use of the term 'probative value' and the word 'extent' in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge." [Footnote omitted.]
Counsel for the appellant in his submissions referred to the directions given by the trial judge, or as counsel described them, the efforts made to mitigate the risk of prejudice. Counsel also highlighted areas of particular prejudice. The first direction referred to was what was described as the general character direction. Counsel read it to this Court in the following terms:
"You've heard a great deal of evidence about Mr Standage's alleged involvement in growing and selling cannabis, owning illegal firearms, being prepared to be involved in criminal activities such as those simulated and suggested by Victorian undercover police, and about threatening people with firearms, and I think even assaults were mentioned during the course of road rage. Now, you may not like that type of conduct. I'm sure you wouldn't. But people in society commit those sorts of crimes, but they don't kill people, so you can't use that evidence going to bad character. You can't use that evidence to conclude that Mr Standage of a person of the type who would kill someone. That evidence is relevant in other ways, for example, the Crown say that Mr Standage was involved in a drug relationship with both Mr Jarvis and Mr Thorne and that there are similarities between their crimes charged. That's why you've heard the evidence about drugs, but you can't say to yourselves, oh, he's a drug trafficker therefore he's guilty of murder.
I think that should be obvious. That would be most improper to take that sort of approach. Of course, what's important about the undercover police evidence is that the Crown says that the accused has admitted being involved in growing and selling of cannabis and having guns stashed, and what the Crown says could only be construed as admissions to murder in other statements that he made. So that's the only relevance of that evidence, and the various scenarios that were enacted by undercover police merely put that into a context and merely showed that background of the statements that the Crown rely on as admissions. You only heard all that evidence about the scenarios and so on to provide that background and to put those statements into a context. It wouldn't be proper of you to say that because Mr Standage was willing to participate in criminal activities that he's the type of person who would commit murder. That would be wrong. It wouldn't be rationale or logical either, because, as I say, we know lots of people commit criminal activities – commit crimes – but they don't go out and commit murder.
Specifically, as to the undercover police operation, I direct you that the evidence of Mr Standage's participation in that purportedly criminal activity and his attitude to that activity is admitted solely to establish and the context and setting in which the alleged admissions or confessions are said to be made and you must not reason that because Mr Standage was willing to participate in what he may have believed to be other criminal activity he's the type of person likely to have committed the crimes with which he's charged."
Counsel for the appellant did not complain about the direction. He acknowledged that the direction about the potential misuse of bad character could not have been more specific without being counterproductive. Counsel for the appellant then however said:
"However in this case, there was prejudicial material that went beyond those bounds and prejudicial material that wasn't succinctly in the form of evidence of bad character, and I say specifically the – there was significant prejudice from his – the evidence of the Appellant providing something of a running commentary about how the case was going to be run, what rights he had, what rights he had to remain silent, the quality of his lawyer, his assessment of the DPP, all of those matters, had a substantial risk or prejudice, not within a character sense as in it may tend to show he's a smart aleck or it might tend to show he thinks he's cleverer than the police or a generally arrogant criminal if I can put it that way. It doesn't just tend to show it in that regard. What it sets up is a scenario where his failure to give evidence, having made those comments, was bound to carry with it a risk of unfair prejudice. Now clearly there's been standard directions given along the lines of as (indistinct words) about failure to give evidence and that is in a normal case considered to be acceptable to deal with a problem that probably didn't really exist to start with frankly, but in this particular case because of the evidence admitted about the appellants intentions at trial and his knowledge of his rights not to give evidence and indeed what might viewed as his manipulation of the trial process to avoid accountability in the witness box, his failure to give evidence in that context meant that that material within the scenario evidence was of particular risk of prejudicial effect."
Counsel for the appellant then proceeded to identify some areas of the scenario evidence which he submitted simply could not be neutralised by the directions he had referred to. The first was the suggestion that the appellant came highly recommended for membership in an organised crime gang. While it was accepted this was covered by the trial judge's direction, the extra aspect which could not be was that the appellant appeared to take pride in being so recommended, and indeed was enthusiastic about being involved. There was, in the course of discussion during the appeal, a suggestion that the activities of this purported gang were more in the nature of commercial crime rather than violence which therefore might not have led the jury to possibly engage in propensity reasoning. While this was accepted, the submission of counsel for the appellant was that this piece of the evidence needed to be considered in the context of all the scenario evidence and not simply on its own.
The second area referred to was the numerous references to the appellant being engaged independently in criminal activity for financial gain. This related to his cultivating and selling cannabis. Counsel for the appellant acknowledged there was evidence of these activities with both deceased, but submitted that what was in the scenario evidence was four years on from the last murder. Further, the material suggested that in 2010 the appellant was engaged in trafficking in cannabis and was using paid enforcers and firearms. That was different to the evidence otherwise admitted about trafficking with the deceased, and hence carried with it particular prejudice.
The third area referred to was material which portrayed the appellant as a generally unappealing person. The appellant said he did not like people, he disparaged women, he talked about a road rage incident which seemed simply to be an admission to an uncharged violent criminal act, and he talked about unspecified criminal activity for which he had avoided prosecution. There appeared to be a willingness to engage in any criminal activity going, including collection of protection money from brothels, and the trafficking of illegal firearms to bikies. It was suggested the appellant presented as a person comfortable with the use of firearms and the use of them to murder. The jury, it was suggested, would have to wonder as to why the appellant might own the guns he referred to as having. A related area included the appellant's comments about manufacturing silencers. The jury, it was suggested, would wonder why he would be doing that, and, in any event, the use of silencers had nothing to do with the Crown case.
Counsel for the appellant also referred to aspects of the scenario evidence which contained an apparent willingness of the appellant to consider defrauding the Commonwealth in relation to a carer's pension, in which the appellant referred to the possession of a fake passport, and references to an intended manipulation of the legal process which might also lead the jury into making an adverse finding about his failure to give evidence. There was also a reference to what was said to be repeated references to how strong the prosecution case was and that, to save himself, the appellant needed to use the crime boss and a corrupt police officer. It was not so much this evidence which was the cause of concern, but the fact that it was repeated and reinforced by comments from the police officers. As to this matter, the assertion by counsel for the appellant must be considered in the light that the jury at all times knew that this scenario evidence arose because the appellant was being set up by police officers who were leading the appellant on to try to get admissions from him. What police may have said about their view of material they had was not the important part of the evidence. It was the appellant's response.
Counsel for the appellant referred to the direction to the jury about what the jury could not make of the appellant's failure to give evidence. There was no criticism of the direction as such. Counsel however submitted that this case got to a point as far as the level of prejudicial material was concerned that even a perfectly acceptable direction became counterproductive. Counsel submitted that directions were as effective as they could be, but overall because of the nature and volume of material they were not effective to mitigate the unfair prejudice.
Counsel for the appellant then returned to the issue of probative value. As a starting point, counsel accepted the scenario evidence was relevant and therefore had a level of probative value. He submitted however that, for the prejudicial impact of the evidence to have been outweighed by its probative value, that level of probative value would have to have been extraordinarily high and it did not get there. Counsel referred to the decision of the High Court in Tofilau v The Queen [2007] HCA 39, (2007) 231 CLR 396, and the scenario evidence led in that case by way of contrast. The accused in that matter was the subject of an almost identical undercover operation conducted by police as that with the appellant. In that case, the accused was also charged with murder. In the course of his dealings with undercover police he made direct admissions in relation to committing the murder. Those admissions were capable of convicting the accused on their own. Their admissibility was challenged on the basis of the voluntariness of the admissions, and also by reference to s 137. The High Court upheld the admissibility of the material and approved the directions given by the trial judge, Galloway J, which were the directions given by Estcourt J, and to which no objection was taken. Counsel for the appellant in this case submitted that:
"There is a real distinction between the material relied upon in this case and the type of confessions that were considered in Tofilau and those other cases. There is a genuine basis to suggest that just because those matters passed muster with the Galloway directions, that that isn't necessarily the case and clearly every case turned on its own facts. I'd submit that in this case, even having regard to the probative value of the evidence at its highest, it did not get anywhere near the level where it could've sustained a conviction by itself as would clearly have been the case in the Tofilau and related cases. Now that's not to say it didn't have value to the Crown case – it most certainly did – however, that value was of a substantially lesser amount that permits this Court to draw a genuine distinction between this case and the Tofilau cases."
Counsel for the appellant, in his written submissions and then orally, submitted that the probative value of the scenario evidence was limited for a number of reasons. He listed a number of aspects of the evidence he specifically referred to. During the course of his submissions, an issue was raised about whether the Court needed to look at individual parts of the evidence and make a determination as to each or whether the scenario evidence should be looked at as a whole. Counsel for the appellant accepted that this Court needed to look at the overall probative value of the evidence. It was, he said, the cumulative effect of the evidence and not just whether a particular part might have probative value or not.
Nevertheless, the examples highlighted by counsel for the appellant were:
"aThe admissions in relation to the Appellant growing and wholesaling cannabis did not extend to involvement in these practices with Mr Jarvis as contended on the Crown case. The evidence did not support the motive for the murder contended by the Crown.
bThe admissions in relation to ownership of a .45 calibre revolver did not extend to admission of possession of the 'Webly' said to be the murder weapon in the Jarvis murder;
cThe admissions in relation to the Appellant growing and wholesaling cannabis did not extend to involvement in the practices with Mr Thorn as contended on the Crown case. The evidence did not support the motive for the murder contended by the Crown.
dSimilarly, the admissions to prior ownership of a .22 calibre rifle did not amount to an admission of possession of the Thorn murder weapon;
eThe statement from the Appellant that he would tell something to the 'crime boss' 'in the swimming pool' is not of itself an admission to anything. To suggest it is referring to either or both of the murders is pure speculation. At the very least the equivocal nature of the statement reduces its probative value;
fIndeed, no point in the 'scenario evidence' does the Appellant make any direct admission to having committed either murder. On the contrary, his refusal to admit any such thing in circumstances where he can apparently safely admit such matters secure that a benefit will flow in the form of the matter being 'fixed' was of itself something reducing the forensic value of the scenario recording to the Crown case;
gA number of the Appellant's remarks about the murders are only capable of interpretation as denials."
Counsel for the appellant did not deal with each of these asserted limitations in any detail. He did submit however:
"Now going back to forensic use of it, I've made – I've listed some limitations on it. Once again, the – the admissions about prior ownership of a .22 calibre rifle, was what I submit, was a long way short of evidence amounting to an admission of the Thorn murder weapon, it was of some use to the Crown, but in a broad circumstantial sense, but obviously not very much.
Now then, certainly, when one looks at the admissions themselves, it would seem that basically, it's the same admission more or less, were painted about 20 times. It sort of got to a point in the scenario evidence where there was effectively a proposition put by Gary, a sort of stonewalling non-denial from the Appellant, and that that then morphed into this suggestion about discussing something in the swimming pool at some point later on.
Now – I don't say that material wasn't capable at its highest, of being put to use by the Crown in support of their case, but not all admissions are created equal and I – I would submit that that material, in terms of its capacity to move the needle in favour of the Crown, did also have its limitations. And certainly was nothing like the type of explicit detailed, corroborated with – if that's a word – admissions that you see in the Tofilau case. It's a very different scenario. Not saying it is of no use. It absolutely was and it was admitted because it was capable of that use, but if you're assessing the extent to which it assisted the Prosecution, I would submit that the Respondent's categorisation of it as being of extreme probative value, I think was a word used, - is an over statement.
WOOD J: And even at its highest ambiguous as to whether it's Count 1 or Count 2 or both.
MR HANNEBERY: I think that's a fair summation. It was – it reached a point where it became usable for the Prosecution, but then didn't get to a point where it was overwhelmingly useful to the Prosecution. So that's the distinction between this case and the Tofilau cases, which I would submit means this case can be treated differently, because of that.
And I would submit further that there were a number – the broad sweep of the – of the scenario evidence – there are a number of statements he made that in fact would be better categorised as denials of the incident. Like for example at one point in time, the fact that somebody knows that he did it – it's been put to him and he said, 'No, no one knows.' Now all that material, and I – there was probably a few dozen examples of that – might, I'd submit, be capable of being interpreted as denials of it. As I said, I don't say this material's of no use, but I just suggest that it didn't quite get to the level that no doubt those in the operation were hoping and anticipating it might have got to."
In substance, counsel for the appellant highlighted specific parts of the scenario evidence and submitted they did not individually assist the Crown, while counsel for the respondent approached the issue of probative value on the basis of where in the overall case for the Crown the evidence fitted. Counsel for the respondent did not suggest that the scenario evidence in this case was of the sort dealt with in Tofilau. Clearly it was not. However counsel for the respondent submitted that, just because the scenario evidence in this case did not have the same character, that is contain direct admissions to murder, did not mean it could not still have significant probative value as a piece of evidence in a circumstantial case.
I do not propose to canvas each and every asserted limitation referred to by counsel for the appellant nor do I propose to canvas in detail each and every submission of counsel for the respondent about those particular asserted limitations. However I will refer to certain of the asserted limitations raised by counsel for the appellant to highlight the difficulty I perceive the appellant faces with his arguments about probative value. In his oral submissions about a gun, counsel for the appellant referred to an admission by the appellant to ownership of a .22 rifle. Counsel for the respondent identified what the appellant said to the undercover police about guns. A discussion took place about guns on 5 August 2010. At 83 of the typed transcript of the scenario evidence the appellant said:
"Those big like things are really 45 (inaudible) they're the best, you know, the best anti-personnel gun goin' round … Yeah.
It only takes one to kill ya … Yeah."
At 103 of the same transcript, the appellant admitted to having acquired a .45 calibre gun. He said:
"I've had a Smith and Wesson 38 and I've had one of those big US Navy 45's."
He then said at the next page of the transcript:
"I've still got a .38 – one of the old ones. I've got two different shotguns. I got rid of the rattle gun and I've got a .22 magnum and a Browning .22 pump-action. That's about it now. I've got a couple of other handguns that aren't in full working order, but it wouldn't take much to get 'em going. Sold the last big .45 I had – no use – no for the lot of 'em. Probably used to keep 'em there in case, well, order breaks down."
The appellant does in fact admit to having owned a "45". That admission needs to be considered in the context of other evidence on the trial. A Webley .455 revolver was tendered on the trial, as was a photograph of one. There was evidence it was a large revolver common during World War I, and that production ceased in the 1930s or 1940s. There was evidence the appellant had a similar revolver both before and after the disappearance of Jarvis. A witness, Ms Rix, identified a photograph of a similar gun and told someone in 1991 that the appellant had a large revolver with a spinning barrel. She described it as a .45 calibre. Clearly there is no direct admission from the appellant he possessed a Webley said to be the Jarvis murder weapon. However, when combined with the other evidence referred to, a strong inference can be drawn as to a fact in what was a circumstantial case. The admissions which were made also demonstrate a familiarity with firearms.
This highlighted the need to consider the probative value of the evidence in the context of all the evidence led on the trial and the issues which the State led the evidence to support.
Submissions of counsel for the respondent
Counsel for the respondent commenced his submissions by referring to the context in which the scenario evidence was put to the jury. The respondent's starting point was that it proposed to put an edited version of the scenario evidence to the jury. The appellant objected and the proceedings before Estcourt J were held. During those proceedings trial counsel for the appellant asked the judge to rule on the scenario evidence in an holistic manner. It was however also stated that, if the scenario evidence was ruled generally admissible, it may be that more material needed to go to the jury than was proposed. The respondent, on the other hand, was prepared to redact significant amounts of material to reduce unfair prejudice and to go through the recordings in detail to determine what could be removed.
In fact during the course of those proceedings, counsel for the respondent had the following exchange with Estcourt J:
"Mr Coates SC: Well I think if your Honour rules on a holistic basis that it is admissible then we will have to go through it word for word, because if … your Honour says that generally the admissions on the 2nd of September are admissible and outweigh the prejudicial effect, then obviously some of the other scenarios are admissible because it's going to have explain how they got there, but within that there is scope for substantial editing to reduce the prejudicial value of the evidence … I'd be prepared to have anything edited out about prostitutes, about any – any violence not involving the actual crime that we're talking about, and the purchase of the group of firearms as distinct from Mr Standage owning and possessing firearms – obviously any reference to Mr Standage being in gaol before. So –
His Honour: Well just hang on? What about any reference to Mr Standage having been a crim most of his life?
Mr Coates SC: Yes, your Honour. And any reference to having a fake passport.
His Honour: Yes.
Mr Coates SC: So as far as background or context evidence the jury would have that they went around and picked up money, had a fake drug deal, and he was in line to receive a substantial amount of money from a hashish importation from New Guinea, and that would therefore give – still give Ms Jago scope to argue to the jury, if she was so minded, that any implied admissions was because he was trying to big note himself to join this gang for those reasons.
His Honour: Mm, so in other words, you're prepared to cut the context and background material down to the bare minimum?
Mr Coates SC: Yes, your Honour."
After argument, Estcourt J ruled on an holistic basis and referred to further editing at [165] of his reasons. It was an agreed fact for the purpose of the appeal that the respondent was prepared to edit the material, and did in fact do so to an extent, but that the appellant's trial counsel had requested the material go to the jury in the form it did because it was to be relied upon to support the case that the appellant knew the police were in fact police and he was trying to string them along.
Counsel for the respondent also indicated during his submissions, when asked, that any editing would have, if sought, included comments by the appellant about strategic decisions at trials and not giving evidence.
Counsel for the respondent submitted that in determining whether there has been a miscarriage of justice in this case, the Court had to consider that the appellant had two very experienced counsel at trial and that it should also accept, absent any assertion that counsel were incompetent, that any forensic choices relating to the form in which the scenario evidence was put to the jury were made by them for good reason and based on instructions.
Returning to what this Court is being asked to do, while the Court can identify to a degree what further material would have been edited had trial counsel requested it (because it was identified in the course of the voir dire and on the appeal), the respondent's position was that the respondent now cannot identify what might have come out had trial counsel sought to edit as much prejudicial material as possible because no such request was ever made. What went to the jury was as sought by trial counsel. If, as is now being argued by the appellant, that has resulted in not simply material which was prejudicial to the appellant going to the jury, but material which created unfair prejudice which outweighed the probative value of it, then that was a deliberate choice of trial counsel, and the balancing judgment required of this Court needs to be conducted against that background.
Counsel for the respondent extracted at par 349 of his submissions a quote Gleeson CJ included in Crampton v The Queen [2000] HCA 60, 206 CLR 161 at 172, from L'Heureux-Dubé J of the Supreme Court of Canada. That quote was as follows:
"Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases."
In the same paragraph of his submissions, counsel for the respondent quoted the following further remarks of Gleeson CJ in Crampton at 172:
"… This increases the tendency to look for a new approach to the case, and carries the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges."
Those remarks were in the context of his Honour, Gleeson CJ saying:
"… it is common for appellants in criminal appeals to retain counsel different from the counsel who (by hypothesis, unsuccessfully) conducted the trial."
The remarks in this and the preceding paragraph are apposite when the Court looks at what it is faced with here.
Counsel for the respondent referred to some specific parts of the scenario evidence which counsel for the appellant identified as creating unfair prejudice not ameliorated by directions. The first was the reference to trafficking in cannabis in 2010. Counsel for the respondent submitted there was other evidence on the trial, not objected to, that the police raided the appellant's home in 2010 and found cannabis compounds. One of those was right next to where one of the bodies was found, thus creating a link between the appellant and a murder. There was a reference to the appellant making $100,000 out of his cannabis dealing. The Crown's case was not that the appellant was making a fortune out of drugs. In fact, its case was he was living basically hand to mouth. The references to these matters in the scenario evidence could not have created any prejudice in themselves because there was already evidence before the Court about the same matters. The admission of that other evidence had not been objected to, and there was no ground of appeal by reference to its admission.
As to references to what firearms the appellant had, counsel for the respondent submitted that was highly probative evidence. Police gave evidence that, during the course of their investigation prior to 2010, they had asked the appellant if he had any firearms. He said that he had handed them all in during the firearm amnesty following the Port Arthur massacre. It was the Crown's case the appellant lied when he told police that, and the appellant's statements in the scenario tapes were relied on to prove that lie.
Having then referred to the extract from IMM's case extracted at [20], counsel for the respondent submitted again that, when considering the probative value of the scenario evidence, this Court was required to take the evidence at its highest and look at what inferences could be drawn. The evidence could, he said, be used in two ways, firstly to support an inference to a higher degree of probability, and secondly to strengthen other evidence. In the present case, counsel submitted the scenario evidence contained material from which it could be inferred the appellant admitted to murder and also strengthened other evidence in the Crown's case.
Counsel for the respondent then dealt in detail with the evidence in relation to each murder. He referred to material in the scenario evidence, the Crown's case against the appellant in relation to each murder, and the evidence of witnesses on the trial, and outlined the interconnections between them and the way in which it was submitted parts of the scenario evidence strengthened the Crown's case. Counsel, commencing at par 363 of written submissions, incorporating into those submissions earlier paragraphs as they related to the facts of each case, dealt in significant detail with the evidence generally and its place in the context of the Crown's circumstantial case. At par 369, counsel submitted:
"In summary, the probative value of the undercover evidence was immense in respect of the Jarvis case. It amounted to admissions, it helped prove the appellant had a gun similar to the murder weapon, it helped prove a relevant tendency, it supported witnesses who the jury could conclude the appellant made admissions to, it helped prove a lie to police that a jury could conclude was told out of a consciousness of guilt, and finally, it supported the coincidence and tendency evidence."
Counsel for the respondent then moved to the issue of unfair prejudice. Firstly, he submitted that it was not for the Crown to raise the issue of unfair prejudice. It was for the appellant to raise it. Counsel referred to remarks of Santow JA in Gilmour v EPA [2002] NSWCCA 399, 55 NSWLR 593. In that case, the appellants had been convicted of certain environmental offences in the Land and Environment Court. They appealed. One of the grounds of appeal was that the evidence of one of the appellants, who was actually called by the prosecution, should have been excluded by reference to s 137. No such application was made at trial. Santow JA said at [46]-[47]:
"46 As to whether the court should have excluded the evidence under the mandatory provisions of s137 of the Evidence Act, the short answer is this. Even if otherwise it were the case that its probative value in retrospect was outweighed by the danger of unfair prejudice to the defendant, the onus to have that evidence so excluded lay on the defence, who simply did not invoke s137 at trial. Clearly the onus to have such evidence excluded lies on the defence. Self-evidently this is because it is only the defence that can point to the danger of unfair prejudice, to be weighed against any probative value.
47 In any event, in circumstances where Mrs Gilmour, though reluctant to give evidence, did not chose to invoke s18 of the Evidence Act, it is difficult to see how such a contention can tenably now be made. An examination of her evidence, moreover, does not support that contention insofar as unfair prejudice is concerned."
Counsel for the respondent submitted that in the present case it was not incumbent on the respondent to point out where any unfair prejudice lay, and to, in effect, insist on material being edited from the scenario evidence to remove that prejudice. The respondent had been prepared to go through the scenario evidence in detail, and excise any material which might have been considered highly prejudicial. It was for the appellant's trial counsel to take up that offer. They did not. The respondent, it was submitted, was obliged in the circumstances to lead the scenario evidence in the way the appellant's trial counsel wanted. It could have done nothing more than it did.
Counsel for the respondent then referred to Tofilau v The Queen (above) which had already been referred to by counsel for the appellant. The appeal proceedings in which Mr Tofilau's appeal was determined in fact involved four appellants, each of whom had been convicted in trials where evidence of scenarios of the same kind as was carried out with the appellant occurred. In one of those appeals, which related to an accused by the name of Clarke, directions given by the trial judge, Kellam J, were under scrutiny. At trial, counsel for Clarke advanced the argument that the reception of admissions made in scenario evidence would create the forensic disadvantage of revealing Clarke to be a person with a criminal past who was prepared to engage in criminal acts in the future, and to encourage criminal acts involved in interfering with the police investigation. The trial judge accepted that, while this difficulty could be lessened by editing parts of the confessional statements, some prejudicial material would remain. He took the view that the disadvantage could be overcome by careful directions and indicated the issue might have to be revisited during the trial. In the judgment of Callinan, Heydon and Crennan JJ at [406], their Honours said:
"As to the forensic disadvantages of the scenario evidence in revealing Clarke's criminal propensity, it misrepresents Kellam J's reasoning to suggest that he relied only on the effect of jury directions to cure the problem. He relied also on the effect of editing, and left open the possibility of the problem being revisited later if necessary. The Court was taken to no passage indicating that counsel for Clarke at the trial took up this invitation … ."
Counsel for the respondent referred to a second case where a similar problem arose. This was a decision of Peek J in R v Jelicic [2016] SASC 57. His Honour in that case was dealing with a question of editing of material pre-trial arising from exactly the type of "sting" operation conducted in respect of the appellant by undercover police. His Honour was there considering the possible exclusion of the evidence by reference to a provision in the relevant State Evidence Act which his Honour described as the general fairness provision. His Honour said at [104]-[107]:
"104 One important factor to be considered in the context of an application to exclude evidence of a Mr Big operation is the matter of any serious forensic disadvantage to the accused caused by the admission of such evidence.
105 In the present case, there would appear to be three relevant skeins of this problem. First, the aurally recorded conversation of the accused may alienate a jury by dint of its content of such things as profanity, extreme sexism, immoral views and anti-social views. Secondly, and more seriously, the conversation of the accused may contain admissions (or boasting) of past discreditable or frank criminal behaviour. Thirdly, the conversation and particularly the conduct of the accused may display an eagerness to participate in unlawful behaviour and, as the scenarios progress, in very serious criminality.
106 I raised these matters with counsel at the very outset of the voir dire hearing. I indicated that the ability to minimise the prejudicial effect was a matter that needed to be addressed before, rather than after, a principal ruling concerning general admissibility since the likely prejudicial effect of the evidence to be admitted would be an important factor to be taken into account when exercising the fairness discretion. I indicated that, subject to the wishes of the accused, I would be prepared to excise a very large proportion of the proposed prosecution evidence in order to mitigate the effect of the first two skeins referred to above.
107 After consequent discussions between counsel, it was agreed between them that most of the scenario evidence would be led by agreed short summaries of scenarios in neutral language (the 'culling process'). In this particular case, this culling process proved very effective in largely obviating the first two skeins of prejudice. I mention that the accused indicated, for no doubt good forensic reasons, that he wished to have played some passages that the prosecution did not intend to play. If that resurrected any aspect of the first two skeins of prejudice, it did so as a matter of forensic choice."
That final consideration in the last words of [107] underpinned the approach of counsel for the respondent in this appeal. He argued that, as I indicated before, the scenario evidence as led was what trial counsel for the appellant wanted led. While it was not for this Court to determine what the forensic reasons for that were, this Court must consider, when determining whether there had been a miscarriage of justice, that any unfair prejudice it might find existed, could have been significantly addressed by further editing, and that because trial counsel chose not to do that it could not now be said there had been a miscarriage of justice.
Discussion
I have not set out in these reasons the detailed examination made by counsel for the respondent of its case at trial, and where the scenario evidence fitted into it. Suffice to say I have considered those submissions in the light of the material put before this Court which includes the scenario evidence as led, a transcript of the evidence at trial, closing submissions and the trial judge's summing-up. I have also considered the submissions of counsel for the appellant. As I foreshadowed earlier in these reasons, counsel for the appellant, while acknowledging that it was appropriate to deal with the scenario evidence in an holistic way, still emphasised particular parts of the evidence. He also tended to do that in isolation from the whole of the evidence on the trial, and the way in which the scenario evidence was relied upon by the Crown as one part of a circumstantial case.
As I said earlier in these reasons, I did not take counsel for the appellant to join issue with the conclusions Estcourt J reached about inferences which could be drawn from the parts of the scenario evidence to which his Honour referred in his ruling. Having considered the scenario evidence and heard and read submissions about how parts fitted into the Crown case and the inferences which the Crown sought be drawn, I generally agree with his Honour's assessment of the material he considered and the inferences he said could be drawn. I also agree that the evidence had significant probative value.
This Court is being asked to make an assessment as to the probative value of the scenario evidence as presented to the jury. That contained more material than was considered by Estcourt J. There were clearly parts of the scenario evidence as ultimately led which perhaps had little probative value as individual pieces of evidence. For example, the willingness of the appellant to be involved with prostitutes, violence not involving murder, the purchase of firearms as opposed to possession of some, and the fake passport. However, that material remained at the request of the appellant's counsel and it must be assumed they were relying on it to support an argument that the appellant wanted to pursue. The probative value of the evidence as a whole must be considered in that light.
Having considered those matters, I accept that the scenario evidence as led had significant probative value.
The issue of whether that probative value was outweighed by the danger of unfair prejudice to the appellant is the more problematic. Estcourt J outlined at [128]-[131] of his reasons extracted above, the legal considerations which needed to be considered when dealing with an assertion as to the danger of unfair prejudice. I agree with his summary. The words of Crawford CJ in Neill-Fraser v Tasmania [2012] TASCCA 2 quoted at [129] of Estcourt J's reasons are particularly apposite in the present case because of the matters raised by counsel for the appellant.
There can be no doubt having regard to the totality of the scenario evidence which ultimately went to the jury that it contained material prejudicial to the appellant. Whether however it can be accepted that the material, viewed holistically and having regard to its cumulative effect, created a danger of unfair prejudice which, in the context of the judicial directions actually given, outweighed the significant probative value, is another question. It was incumbent on the appellant's trial counsel to raise the issue of whether particular evidence gave rise to a danger of unfair prejudice. While trial counsel unsuccessfully did so at a preliminary stage, she then chose for forensic reasons to allow in significantly more prejudicial material than had initially been ruled admissible. Counsel did not suggest at trial that the scenario material in its ultimate form created a danger of unfair prejudice, nor was the issue of editing ever revisited. It is only now that the outcome of the trial is not what the appellant wanted, that the issue has been raised.
There can equally be no doubt that the nature and quantity of the prejudicial material which went to the jury could and would have been significantly limited had the appellant's trial counsel sought to do so. This Court, absent any challenge to the competence of trial counsel, must accept that the forensic choice not to do so was made for good reason and as a result of the appellant's instructions. As counsel for the respondent said, the scenario evidence ultimately went to the jury in the form sought by the appellant's counsel.
I am not satisfied that trial counsel's choice as to whether to edit or not was an illusory one. Once the preliminary ruling was made, trial counsel had to deal with the material and deal with it in the context of her instructions. However, having heard counsel's submissions about the various specific parts of the evidence, I am satisfied that many of the parts of the evidence identified by counsel for the appellant could have been edited, and still allowed trial counsel for the appellant to maintain the argument she ultimately pursued which was that the appellant knew these so-called crime gang members were police.
Counsel for the appellant referred a number of times to the cumulative effect of this material which he submitted gave rise to the overwhelming prejudice. However, that cumulative effect could have been ameliorated by editing in the form identified by counsel for the respondent. The directions given by the trial judge were detailed and carefully crafted. For example, Estcourt J flagged in his preliminary ruling on admissibility of this evidence that he would give the directions Galloway J gave in Tofilau. There is no indication that that course of action was objected to or that trial counsel for the appellant sought anything different from those directions. In his submissions on the appeal, counsel for the appellant implied that while those directions were appropriate in Tofilau because the situation in that case was far more clear-cut as far as direct admissions were concerned, the directions were not enough in the present case. Having said that, counsel for the appellant conceded that in some respects had his Honour become more detailed than he had, directions might have been counterproductive.
Estcourt J's direction about the failure to give evidence was clear and concise, as was his explanation about the context in which the jury was hearing this scenario material. As his Honour said in his ruling, it is expected that a reasonably capable jury will follow the directions it is given. That approach remains the same for this Court.
Conclusion
I have formed the view that the probative value of the scenario evidence was significant. I am also satisfied that, notwithstanding there was significant material within that scenario evidence that was prejudicial to the appellant, it did not give rise to a danger of unfair prejudice which outweighed that probative value such as to give rise to a miscarriage of justice.
It did not do so because:
· The level of prejudicial material contained within the scenario evidence could have been significantly reduced had trial counsel sought to request that it be excluded.
· The level of prejudicial material put before the jury was as a consequence of a conscious decision made by trial counsel for the appellant to have it led before the jury.
· It must be accepted that conscious decision was made for good reason and in accordance with instructions from the appellant.
· It must be inferred that decision was made in anticipation that the appellant's case could be conducted in such a way as to sufficiently mitigate the level of prejudice contained in the material, even as led by providing an alternative explanation for statements made within it.
· The directions given by the trial judge were, as I have said, detailed and well-crafted, and it must be assumed a reasonably capable jury would follow them.
· The closing address of trial counsel emphasised in detail what might be seen as the deficiencies in the scenario evidence, and gave the jury ample material upon which, if it chose, to refuse to accept the submissions of the respondent as to its use.
I would dismiss the appellant's appeal against his convictions for two counts of murder.
File No 767/2014
STEPHEN ROY STANDAGE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
2 November 2017
I have had the advantage of reading the reasons for judgment of Tennent J. I agree with those reasons and her conclusion that the appeal should be dismissed. The probative value of the scenario evidence was high and the evaluative task required by s 137 of the Evidence Act 2001 weighed in favour of admitting the evidence. I have read the additional remarks of Pearce J with respect to the probative value of the scenario evidence and I also agree with his reasons.
While there was significant prejudice in the evidence, I agree with Tennent J that that prejudice was effectively addressed by the trial judge's well-crafted directions. Undoubtedly, discrete aspects of the scenario evidence were particularly prejudicial both in isolation and in their cumulative effect. In this context, I wish to add some brief comments regarding the course taken by defence counsel at trial and the implications on appeal.
At trial, an objection was taken to the scenario evidence solely on the basis of s 137 of the Act. At the request of defence counsel, the evidence was approached by the trial judge in a generalised way, without evaluating individually each admission, potential admission or confession. The question for the trial judge was whether applying s 137, the scenario evidence viewed at a relatively high level of generality was inadmissible. The objection couched in these terms was rejected and the learned trial judge ruled that the evidence not be excluded. The trial judge noted that there remained a question of whether individual aspects of the evidence should not be admitted:
"164 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."
Defence counsel did not take up that offer of further editing or object to specific aspects of the evidence. In fact, ultimately during the trial, at the initiative of defence counsel, more extensive scenario evidence was admitted than was originally sought to be admitted by the Crown. Once the ruling was provided that generally the scenario evidence was admissible, the defence counsel made a forensic decision that the defence would be in a more advantageous position if the evidence was not curtailed.
The defence case regarding the admissions made by the appellant was that the appellant knew that the men he was speaking to were undercover police officers or people trying to "set him up" and that he was stringing them along. The scenario evidence in its entirety was treated by the defence as revealing the implausibility of the scenarios; nobody would believe they were real, showing the admissions to be unreliable. As a result, a decision was made to not object to aspects of the evidence that were arguably inadmissible.
An example of part of the scenario evidence relied on in the appellant's arguments as presenting a danger of unfair prejudice to the appellant was evidence of remarks made by the appellant about how he could run a defence at trial, and mentioning his knowledge of his right to remain silent. It was contended that this evidence carried a general prejudice that he presented as an arrogant criminal, but it also carried an additional risk of unfair prejudice. It was argued that the appellant's ultimate failure to give evidence at his trial may have been viewed by the jury as a manipulation of the trial process to avoid accountability in the witness box. The jury may have drawn adverse inferences from the appellant's failure to give evidence. There is some force in that submission, but again, it must be kept in mind that the decision was made on behalf of the appellant not to seek to have this particular evidence excluded.
There has been no criticism of senior defence counsel in the way she conducted the defence in not objecting to aspects of the impugned evidence. Indeed, it was submitted for the appellant that his counsel, in reality, had no choice and any choice faced by defence counsel was illusory. This is no more than to say that in the context of the trial, and given the defendant's instructions, there were compelling reasons for making the tactical decision to not object to the evidence. It is worth adding that in the absence of any criticism, the judgment made by defence counsel stands as just as valid and legitimate today as it was at trial, and as representing the most advantageous course for the defence. Just because the strategy did not result in an acquittal does not undermine its validity and does not reveal any flaw in the decision that was made.
There could be no suggestion that the trial judge should have interfered in the conduct of the defence case and insisted on the exclusion of parts of the scenario evidence, overriding the forensic choice of senior and experienced counsel. If that had occurred, the appellant would have been entitled to be aggrieved. The adversarial nature of our criminal justice system and judicial independence and impartiality dictate that the issues at trial are chosen and defined by the parties and their counsel:
"A trial is fought as a contest between the executive government and a citizen. The judge presides neutrally over that contest. Counsel for the respective parties define the issues, decide what witnesses will be called and what questions will be asked, and decide what arguments will be pursued and what will be abandoned.": R v Taufahema [2007] HCA 11, 228 CLR 232 at [37]; Crampton v The Queen [2000] HCA 60, 206 CLR 161 at [19].
The implications of this forensic choice and deliberate decision of defence counsel for an appeal are clear. The general rule is that litigants are bound by the conduct of their counsel at trial, not only at trial, but also on appeal. This rule is described as essential to the adversarial system of justice. That rule has been stated by six Justices of the High Court in University of Wollongong v Metwally [No 2] [1985] HCA 28 at [7], 60 ALR 68 at 71 in the context of civil proceedings:
"Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."
This rule applies in criminal cases as well to preclude a reliance on a new point unless the circumstances are exceptional. In criminal appeals the rule is tempered to some extent by the focus of the governing legislation upon the test of "miscarriage of justice": Fingleton v The Queen [2005] HCA 34, 227 CLR 166 at [148]. Nevertheless, the focus of an appeal court is upon the question of whether the case is exceptional. The reasons for that limitation were comprehensively outlined in Crampton at [14]-[19]. Reasons include "the overarching societal interest in the finality of litigation in criminal matters". Allowing a new approach on appeal would carry the "danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges". Another reason arises from an aspect of the adversarial system and the procedure that is bound up with notions of judicial independence and impartiality. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice: Crampton at [19].
This is not an exceptional case and nothing has been advanced to suggest that it is; the appellant is bound on appeal by his counsel's decision at trial not to take the point that particular parts of the scenario evidence should be excluded due to their prejudicial impact. There is no criticism of the forensic decision that was made, and, in fact, it is acknowledged by the appellant in his arguments on appeal to have been the most advantageous path for the defence at trial. In these circumstances, a danger of unfair prejudice to the appellant associated with specific aspects of the evidence could not be said to result in a miscarriage of justice. Even if it were the case that the unfair prejudice arising from those aspects of the evidence was shown to outweigh its probative value, the appeal should not succeed. The question in this appeal of whether there was a miscarriage of justice involves more than an evaluative judgment under s 137. It captures the realities of the trial, including the conduct of the defence and applies within a contextual framework of our adversarial system of justice.
File No 767/2014
STEPHEN ROY STANDAGE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
2 November 2017
I agree with Tennent J that the appeal should be dismissed. I agree, in substance, with her Honour's reasons but wish to make a few additional comments of my own on the issue of the probative value of the impugned evidence.
The appeal
The appellant was found guilty of the murder of Ronald Frederick Jarvis on 3 July 1992 and the murder of John Lewis Thorn on 24 August 2006. The appeal challenges his conviction on both counts. The sole ground of appeal is that the trial miscarried because the learned trial judge admitted evidence of conversations between the appellant and undercover police officers in the context of a number of "scenarios". I will refer to the evidence as the "scenario evidence".
For some time before 2010, the police suspected the appellant to be responsible for the murders of Mr Jarvis and Mr Thorn. Between May and September 2010 a group of undercover police officers posed as members of an organised criminal gang. They approached the appellant and, over a period of time, endeavoured to gain his trust and confidence. He was invited to become involved in a criminal enterprise but told that, in order to do so and profit from their activities, he must tell the boss of the gang the truth about his involvement in the murders. The boss of the gang was supposedly capable of influencing corrupt police and prosecutors to protect the appellant from prosecution for the murders. The scenarios were an endeavour to induce the appellant to make admissions relevant to his commission of the murders. During some of the meetings the undercover officers wore audio recording devices. In one case, a meeting conducted in a hotel room on 2 September 2010, was audio-visually recorded.
To succeed in the appeal the appellant must establish that admission of the evidence resulted in a miscarriage of justice: Criminal Code, s 402(1). The appellant contends that admission of the scenario evidence resulted in a miscarriage of justice because its probative value was outweighed by the danger of unfair prejudice to the appellant: Evidence Act 2001, s 137. The parties conducted the appeal on the basis that this Court ought make the evaluative judgment required by s 137 about whether the scenario evidence, as it ultimately went to the jury, should have been admitted. In light of that joint position, and the conclusion which should be reached, it is not necessary to determine whether a different approach should be taken.
Assessment of the probative value of the scenario evidence requires consideration of the evidence and issues at trial.
The trial
Both counts of murder were included in the same indictment. An application to sever the indictment was refused by Evans J in 2012: Tasmania v Standage [2012] TASSC 88. No challenge is made to that ruling. The trial took more than five months. The appellant neither gave nor adduced evidence. He was represented by two experienced counsel. It is impossible in these reasons to refer to all of the evidence. The following narrative is intended to state enough of the findings open on the evidence to address the issue for determination in the appeal.
The murder of Ronald Jarvis
Ronald Jarvis was last seen alive on 31 July 1992 when he was aged 37. He lived in a suburb of Hobart. His remains were found on 11 February 1993 in bushland adjacent to a rough track in a very isolated location near Nugent, a small town in south east Tasmania. There was evidence suggesting that the body had been dragged along the ground before being left. Two nearby saplings had been broken off. Two spent bullets were found near the body. Both bullets were fired from a Webley .455 revolver, a type of firearm common until its manufacture ceased in the 1930s or 1940s. Because of the state of Mr Jarvis' remains a post mortem did not establish a cause of death. However, the Crown contended that Mr Jarvis died after having been shot. There was a cannabis compound less than two hundred metres from where the body was found.
It was open for the jury to conclude that the appellant and Mr Jarvis had known each other for some years and that together they were involved in the illicit trade of cannabis. The appellant owed Mr Jarvis a substantial amount of money, between $7,000 and $10,000. Mr Jarvis became increasingly agitated about not being paid, and repeatedly phoned the appellant in the days before his disappearance. He told others that he was expecting a call from a person who owed him money. There was evidence that the appellant was in financial difficulty arising from a gambling problem and the failure of a business.
On 31 July 1992, Mr Jarvis packed his car intending to travel the following day to Strahan, where he worked for a professional fisherman. Later that afternoon, he met friends at a hotel. He left at about 3.30pm promising to return later. The appellant telephoned Mr Jarvis at 3.45pm. The phone call was pre-arranged. The appellant later admitted to the police that, after phoning Mr Jarvis, he met him at another hotel until Mr Jarvis left at 4.30pm. A witness, Diane Rattenbury, gave evidence that Mr Jarvis phoned her from the other hotel, telling her he was leaving with someone to "get money". Mr Jarvis did not return to his friends and was not seen or heard from again. The appellant was the last known person to see Mr Jarvis alive. Mr Jarvis' car, still packed for the fishing trip, was found at his home. There was evidence that Mr Jarvis always carried a wallet. It was not with his body and no wallet was ever found.
The Crown adduced evidence that the appellant admitted that he owed money to Mr Jarvis, that he grew cannabis and that he had drugs and firearms which he kept hidden in PVC pipes underground. There was also evidence that, after 31 July 1992, the appellant made statements to the police and to other persons disclosing esoteric knowledge of the murder. There was evidence that, both before and after the murder, the appellant owned a gun of similar appearance to a Webley .455 revolver.
Two witnesses, James Zammit and David Pope, independently of each other, gave evidence of admissions made by the appellant. Mr Zammit told the jury that the appellant, after suggesting to him a joint cannabis growing venture, said "if we're going to do this for real you don't want to fuck me around 'cause if you do I'll put a bullet in you and I'll put two the same as I did Jarvis, everyone else thinks he only got one bullet in but I'd tell you I put two in him". Mr Pope gave evidence from which the jury could find that the appellant admitted murdering Mr Jarvis for a $10,000 debt, but that the police could never "pin … the murder charge on him because he was too smart and the police were stupid". The appellant showed Mr Pope newspaper clippings about Mr Jarvis' murder he had kept to "remind himself how smart he was".
There was evidence that Mr Jarvis, to the appellant's knowledge, kept a stash of cannabis at the property of another man, which was removed on 5 August 1992, after Mr Jarvis' death. A witness gave evidence of, on that day, seeing a vehicle at the location of the stash similar to the vehicle owned by the appellant at the time. The Crown contended that the appellant later made statements to the police which were intended to divert attention from himself. The Crown also contended that the appellant's denials that he owed money to Mr Jarvis were lies told from a consciousness of guilt.
The murder of John Thorn
John Thorn was murdered on Thursday, 24 August 2006. He was then aged 59. He lived with his partner, Susan Fletcher, at a property called Lake Yallena, at Lake Leake in Tasmania's central north. Ms Fletcher returned home from Launceston during the afternoon of 24 August 2006, having spoken to Mr Thorn on the phone the night before. Mr Thorn was not at home. When he had not returned at 7pm she reported him missing. His body was found on Saturday, 26 August in a remote location off a bush track about four kilometres from the Lake Leake Highway. He had been shot in the head. A .22 calibre fired bullet was recovered from inside his skull. The bullet was consistent with having been fired from a .22 calibre rifle.
Blood was found pooled on the bush track about 20 metres away from Mr Thorn's body. Drag marks led from the blood to the body. Two saplings were placed over the body. One had been broken off nearby. Another was cut. A nail had been freshly inserted into the stump of the cut sapling. Mr Thorn's Nissan flat tray 4WD was found about 2.3 kilometres back towards the highway. Physical evidence of tyre marks and paint scrapings showed that the vehicle had been driven to the scene and then back to where it had been left. Not far away was a tripod made from sticks which bore the appearance of a marker.
At the time of Mr Thorn's murder, the appellant also lived at Lake Leake. The two men were friends and had frequent contact. Mr Thorn was relatively affluent but the appellant, who spent large sums of money on gambling, was not. Mr Thorn lent him money from time to time. They had a connection through cannabis. Mr Thorn grew cannabis on his property and sold it to a small number of locals. To the appellant's knowledge, Mr Thorn kept a stash of cannabis on his property. The appellant also grew cannabis in compounds at Lake Leake, which he located by use of markers, and at Coles Bay. He had previously grown cannabis in a compound not far from where Mr Thorn's body was found. He also sold cannabis. The appellant told another person that he and Mr Thorn were about to grow cannabis together.
Nails of a type similar to those found in the stump of the sapling were found at the appellant's property, but not at Mr Thorn's property. Fingerprints matching those of the appellant were found on Mr Thorn's vehicle. DNA was found on the nail in the stump of the cut sapling, in Mr Thorn's vehicle and from Mr Thorn's shirt and cap. Comparison with the appellant's DNA disclosed that part of the mixed DNA profile found on the nail in the cut sapling matched the DNA profile of the appellant. The chance of a second person, unrelated to the appellant, matching this remaining component of the DNA profile is less than 1 in 76 million. A profile obtained from a chrome strip above the outside of the passenger door of the utility matched the DNA profile of the appellant, and the chance of a second person, unrelated to the appellant, also matching is less than 1 in 100 million. DNA consistent with being from the appellant was also found elsewhere in the vehicle. The chance of a second person, unrelated to the appellant, matching a profile obtained from the key tag to the keys in the utility's ignition is less than 1 in 6. The chance of a randomly chosen person having a DNA profile that would not exclude them as a possible contributor to a profile obtained from the passenger side arm-rest is less than 1 in 49. The chance of a randomly chosen person having a DNA profile that would not exclude them as a possible contributor to a profile obtained from the steering wheel is less than 1 in 38. There was evidence that on 24 August 2006 Mr Thorn's vehicle was seen driving on the Lake Leake Highway towards the area in which Mr Thorn's body was later found at about 2pm. There was evidence that the appellant admitted to the police that on that day he drove his car on the highway in the same area at about the same time. He told the police that Mr Thorn had been at his home but had left at about 12.20pm.
On 27 August 2006 the appellant's property was searched. No firearms were found. The appellant told the police that he had handed in his guns when the gun laws were changed "after Port Arthur". In 2010 the appellant told a Tasmania police undercover officer that he had sold all the guns he did not need and that the others "just got stashed". When his property was searched in September 2010 the police found a .22 calibre rifle bolt, magazine and silencer, several .22 calibre shell casings, several boxes of .22 calibre ammunition as well as other ammunition. The Crown contended that the appellant's statements to the police in August 2006 denying possession of firearms were lies told from a consciousness of guilt.
On 30 and 31 August 2006 Mr Thorn's son and another man took the police to a place on Mr Thorn's property where they said he kept a stash of cannabis Although some remnants were found, the rocks covering it had recently been disturbed. DNA was obtained from one of the rocks. The DNA matched the appellant's DNA and the chance of a second person, unrelated to the appellant, also matching the DNA profile is less than 1 in 100 billion.
Other evidentiary matters
At trial, the Crown, having given the notice required by the Evidence Act, ss 97(1)(a) and 98(1)(b), relied on tendency and coincidence evidence and reasoning. The trial judge gave directions to the jury about how the tendency and coincidence evidence may be used. The Crown claimed that the circumstances of the two murders were strikingly similar. The Crown contended that the appellant had a tendency to threaten to kill persons with whom he had or was contemplating a drug association over money, and a tendency to arm himself with a gun and lure persons with whom he had a drug association to a remote bush location with the intention of killing the person or threatening the person with a gun in order to obtain money.
The tendency reasoning extended between both counts in the indictment, but also to other evidence. The Crown relied on the evidence of James Zammit referred to earlier in these reasons, which the Crown also said was an admission. The Crown also relied on evidence given by a witness, Scott McNally, about another event involving the appellant. Mr McNally's evidence was that he and the appellant knew each other. In about 1995 the appellant asked Mr McNally for a loan of $15,000 and offered cannabis as collateral. They arranged to meet on a forestry road near Nugent. The location was not far from where Mr Jarvis' body was found. Mr McNally brought another man, Bruce Avery, to the meeting. When Mr McNally and Mr Avery arrived the appellant walked into the bush and returned holding a plastic bin from which he produced a revolver. He threatened to kill both men if Mr McNally did not hand over the money. Mr McNally did so and he and Mr Avery left. The appellant's revolver was visually similar to a Webley .455 revolver used to kill Mr Jarvis.
At trial, the tendency evidence and reasoning, and the lies and admissions alleged by the Crown, were in issue.
The challenged evidence
The scenario evidence consists of hours of audio and audio-visual recordings, all of which were played to the jury. All of it has been considered. It is to be evaluated in its cumulative effect, not just by reference to selected parts. In my own assessment of the recordings I take into account, as the jury was entitled to do, the nature, tone and context of all of the statements made by the appellant to the undercover police officers. There are some statements of the appellant, however, which I specifically refer to. In the course of his conversation with an undercover police officer on 2 September 2010 he said, when the subject of both murders was raised with him:
"Well they've obviously got nothing on that 'cause I'm, I'm walking around a free man. I mean, they don't follow me any more. They did fucking intensive surveillance for quite a while."
When talking with one officer about an earlier conversation with another officer, the appellant said:
"The only way I can work that is if you get your police contacts. They say, 'Look, we've got this, we've got that', and you say, 'Well get rid of it for me'.
I just can't see how they can possibly have enough evidence. I said, 'You have to convince me. You have to actually come in and put something there and say, look at this they've got – because I can't tell you anything that they've had that would enable them to charge me with murder. No, I really can't.
He wants me to admit to him that I knocked those two blokes that the jacks think I knocked … And I said to him if I'd knocked those two blokes I wouldn't be tellin' anybody. So it looks like I'm out …
Listen here, the fucking cops have got nothing on me, the only thing they can possibly have on me is if I open my fucking mouth and I'm not prepared to do that, not for him, not for anybody."
During the conversations the appellant said that he grew and sold cannabis. He was asked whether he had difficulty collecting money. The appellant referred to a man he said he took with him, when necessary, to help obtain payment, and the following exchange occurred:
"Paul:Aright, well that's good.
Stephen:Yeah, he's reliable and he don't mind doing more if I want him to.
Paul:With, um
Stephen:We do the opposite to you. We do it out in the sticks.
Paul:Yeah, yeah, yeah, yeah.
Stephen:And I just have him, he just stands there with a shooter and no-one fucks with him.
Paul:Yep.
Stephen:You know. It's just someone if ya, if I had to do a bit for other people, you arrange it ya know.
Paul:Yeah. What sort of shooters have you fuckin' …
Stephen:Usually when we're out there, it's a big one but he's got another, he's usually got a couple but he's got the obvious one, the shotty, which deters everybody.
Paul:Yeah, yeah, yeah, yeah, yeah, bigger, the bigger (inaudible)
Stephen:I just say, that's my insurance there, you know. I don't try to rip anyone off, so. They give me the money bang then. That's done. But like I said, most of its done with people I've known for years and years."
As to firearms, the appellant said that:
· he had firearms stashed;
· he had a couple of "shotties", a couple of handguns, and an assault rifle;
· when speaking of where the firearms were, "No they're miles away … I don't use them – I only got them there";
· "I've got a .22 magnum and a Browning .22 pump action";
· "I've got a couple of handguns not in full working order … I sold the big .45";
· "I don't own any weapons, I handed all my weapons in when they changed the gun laws; well that's what we think you know."
The appellant referred to Mr Thorn as "Well fucking greedy man … probably got what he deserved I reckon". As to Mr Thorn's murder, other statements made by the appellant included:
· "the police have got nothing on me or they haven't got enough";
· "I can't see how they could possibly have enough on me";
· "There is only one possible thing that could get me undone";
· "I just tell you, if I shot somebody, right, the weapon just disappeared. If they got it, if they got the weapon. But they obviously can't trace it to me or anything, I mean a fucking gun is just a gun";
· "The fucking cops have got nothing on me. The only thing the cops would have on me is if I open this fucking mouth."
During the course of the conversations with the police the appellant made various references to telling them what happened if he was in a swimming pool. The Crown claimed that from a statement of a willingness to speak, but only if in a swimming pool, it was to be inferred that the appellant had knowledge he was able to convey, but only when ready and in circumstances which would ensure the absence of listening devices.
Probative value
The principles to be applied to the evaluative judgment required under s 137 are not in dispute in this appeal. The statutory definition of probative value is directed to assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue": IMM v The Queen [2016] HCA 14, 330 ALR 382 at [44]. Thus, the possible use to which the evidence might be put, which is to say how it might be used, must be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue. In this case no issue arises from the credibility or reliability of the witnesses. Because the statements of the appellant were recorded there was no dispute that the words were said by him. At issue is assessment of the degree to which the evidence is probative of the existence of the facts in issue, the ultimate fact being whether the appellant committed the crimes. The probative value of the evidence must be considered in the context of all of the evidence.
The appellant submitted that the evidence was not of high probative value. I accept the submission that none of the statements amounted to a direct or express admission by the appellant of either crime. Many of the remarks he made were ambiguous and equivocal. The appellant's statements about firearms did not constitute direct admissions of the possession of either murder weapon. There were no confessions of the type referred to in Tofilau v The Queen [2007] HCA 39, 231 CLR 396. However, in my judgment, the impugned evidence is capable of adding significantly to the other available evidence. I respectfully agree with the conclusions reached by the trial judge that the jury could accept the statements made by the appellant as admissions of growing and wholesaling cannabis, that he had owned or possessed a .455 calibre revolver, that he had owned or possessed a .22 calibre rifle, that he had threatened others with firearms for money in bush locations, and that he had knowledge of the murders which, in time, he may be prepared to give to the purported crime boss. The statements tended to prove that the appellant had the means and motive to commit the murders, were probative of the tendency alleged by the Crown, corroborated the evidence of other witnesses, and were probative of the lies which the Crown relied on as evidence of guilt.
In my assessment the evidence had, in the context of all of the evidence, significant probative value as part of the circumstantial case against the appellant.
The danger of unfair prejudice
Tennent J has dealt, in detail, with the danger of unfair prejudice posed by admission of the evidence. I respectfully agree with her Honour's assessment and conclusions and there is nothing I wish to add. I share her view that the danger of unfair prejudice was adequately addressed by the trial judge's directions to the jury, and did not outweigh the probative value of the evidence.
Conclusion
In my judgment the scenario evidence was properly admitted. There has been no miscarriage of justice. I would dismiss the appeal.
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