Tasmania v Kefalianos - [2014] TASSC 17

[2014] TASSC 17

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Kefalianos [2014] TASSC 17

PARTIES:  STATE OF TASMANIA
  v
  KEFALIANOS, Elias Maffeking

FILE NO:  45/2013
DELIVERED ON:  2 April 2014
DELIVERED AT:  Burnie
HEARING DATE/S:  19, 21, 24 – 27 March 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Discretion to exclude – Unfairness – Intoxication, tiredness, unavailability of solicitor.

Evidence Act 2001 (Tas), s90.
R v Ostojic (1978) 18 SASR 188; R v Helmhout (2000) 112 A Crim R 10, referred to.
Aust Dig Criminal Law [2752]

Criminal Law – Evidence – Hearsay – Particular matters – Maker of statement not available – Witness refusing to give evidence – Representations by alleged co-offender in police interview.
Evidence Act 2001 (Tas), ss65(2)(d), 137.

R v Suteski (2002) 56 NSWLR 182; J v Tasmania (2011) 20 Tas R 425; R v Sood [2007] NSWCCA 214; Festa v R (2001) 208 CLR 593, referred to.

Aust Dig Criminal Law [2802]

REPRESENTATION:

Counsel:
             Crown:  J Dennison, J Wade
             Accused:  G A Richardson
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  G A Richardson

Judgment Number: [2014] TASSC 17
Number of paragraphs: 27

Serial No 17/2014
File No 45/2013

STATE OF TASMANIA v ELIAS MAFFEKING KEFALIANOS

REASONS FOR DETERMINATIONS BLOW CJ

2 April 2014

On 24 March 2014, during the trial of the accused on a charge of aggravated armed robbery, I determined that evidence of representations made by Christopher Stephen Stanley during a police interview was, subject to certain exceptions, admissible on the trial. On 25 March 2014 I determined that evidence of admissions made by the accused during a police interview would not be admitted on the trial. These are my reasons for those determinations.

Representations made by Mr Stanley

The charge of aggravated armed robbery alleged that on 12 January 2014 the accused committed an armed robbery in company with Mr Stanley at the Ridgley Roadhouse. The Crown case is that he was armed with a sawn-off shotgun. Mr Stanley was called as a witness. He refused to give evidence on oath or affirmation, even after being charged with contempt of court. Mr Stanley was interviewed by two detectives on 25 January 2013. The interview was audio-visually recorded. During that interview he confessed to participating in the robbery in question and made representations that tended to implicate the accused. All reasonable steps were taken by the Crown to compel Mr Stanley to give evidence in accordance with those representations, but without success. For the purposes of the Evidence Act 2001, he was therefore required to be taken not to be available to give evidence about the relevant facts: s3B(1)(g).
The prosecutor sought to adduce evidence of Mr Stanley's representations to the detectives, relying on s65(2)(b), (c) and (d) of the Evidence Act. Those provisions read as follows:
"(2)   The hearsay rule does not apply to evidence of a previous representation given by a person who saw, heard or otherwise perceived the representation being made, if the representation —
(a)…; or
(b)was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c)was made in circumstances that make it highly probable that the representation is reliable; or
(d)was —
(i)    against the interests of the person who made it at the time it was made; and
(ii)   made in circumstances that make it likely that the representation is reliable."
Section 67(1) provides to the effect that s65(2) may not be relied on unless reasonable notice in writing has been given to the opposing party of the intention to adduce the evidence in question. However, by virtue of s67(4), when such notice has not been given the Court may give a direction that s65(2) is to apply. The Crown prosecutor sought such a direction. He was taken by surprise by Mr Stanley's refusal to give evidence. The accused was not prejudiced by the lack of written notice. His counsel made it clear that he was taking no point about the lack of written notice. I concluded that, subject to the evidence in question being admissible, it was appropriate to give a direction pursuant to s67(4). I was required by s192(2) to take into account various matters when deciding whether to give the direction sought. The charge was serious. The evidence of Mr Stanley's representations was very significant in that it implicated the accused. I considered that it was not unduly unfair to the accused to admit the evidence of the representations, even though they could not be tested. I concluded that their admission would not unduly lengthen the hearing. It was certainly not appropriate to abort the trial so that there could be a new trial at which the adducing of the evidence of Mr Stanley's representations would come as no surprise.
Counsel for the accused objected to the admission of the evidence of Mr Stanley's interview on two bases. He submitted that s65(2) did not apply. He also submitted that the probative value of the evidence of Mr Stanley's representations was outweighed by a danger of unfair prejudice to the accused, and that s137 therefore made the evidence inadmissible.
I concluded that the bulk of Mr Stanley's interview fell within the scope of s65(2)(d).
During that interview he gave an account of events leading up to the robbery, during the robbery, and after the robbery. He confessed to having committed a robbery at the Ridgley Roadhouse in company with another man who was armed with a shotgun. All of the representations that he made in relation to the robbery, its aftermath, and the events leading up to it were clearly against his interests within the meaning of s65(2)(d)(i).
However not everything that he said during the interview was against his interests. He gave the police information as to his phone number and as to the location of his car, assisting them with their enquiries. Answers in which he gave information as to those matters were not against his interests. Also, there were answers to the detectives' questions in which he simply said that he did not remember certain things. Those answers did not amount to representations against his interests. He also answered some questions of no relevance to this case about making off from a service station without paying for some petrol.
Evidence is admissible under s65(2)(d) only if the representations were made in circumstances that made it likely that they were reliable: s65(2)(d)(ii). Mr Stanley was of course a person who was criminally concerned in the robbery. It has long been recognised that information provided by such an individual may be unreliable because such individuals have a tendency to try to shift blame away from themselves and onto others, sometimes onto innocent people. The representations that he made to the detectives were not made on oath or affirmation. He told the police that he had been under the influence of drugs at the time of the robbery.
However I was satisfied that Mr Stanley's representations were made in circumstances that made it likely that they were reliable, having regard to the following matters:
·     His representations were made during a formal police interview.
·     He assured the police that he was not intoxicated at the time of the interview, and they continued with their questioning.
·     There was nothing about his answers to suggest that he was intoxicated.
·     The detectives' questions were not unpleasant or overbearing.
·     Mr Stanley volunteered a detailed account of the relevant events.
·     Mr Stanley co-operated to the extent of disclosing his phone number, and disclosing the location of his car – something that he had evidently kept from the police earlier on the day of the interview.
·     Mr Stanley stopped short of saying in so many words that the accused was his companion at the time of the robbery. It would seem that he was scared to do so. He referred to the fact that he had a "missus" and a child. It was quite clear that, if his account of events was true, the only sensible inference was that the second robber was the accused, but that Mr Stanley was not quite willing to say so. In my view that circumstance gave his account of events what is sometimes called the "ring of truth".
·     From other evidence adduced on the trial, it was clear that Mr Stanley had a fairly accurate recollection of the details of the robbery. The robbery took only about 75 seconds, from the time that the two robbers got out of his station wagon to the time they got back into it. There were some minor details that Mr Stanley did not remember, and some minor inaccuracies in his account. At one point he said that "another bloke" walked in during the robbery, but that was plainly wrong. However, on the whole, his recollection of details was fairly accurate.
·     There was nothing implausible in his account of events.
Generally speaking, in a situation like this it is desirable for those parts of a recorded police interview that do not constitute representations to be admitted as part of the evidence so that the jury can assess the representations in context: R v Suteski (2002) 56 NSWLR 182 at [93]. I therefore concluded that, subject to the exceptions identified above, all of the interview was admissible under s65(2)(d).
Counsel for the accused made submissions in relation to a number of specific passages in the interview. I will address some that are not covered by other passages in these reasons:
· Mr Stanley was asked some questions about surveillance footage from the Highclere Roadhouse. I decided that that part of the interview should be admitted in order to give context to a comment by Mr Stanley to the effect that the accused's blue Commodore was out in the bush.
· Counsel for the accused submitted that I should exclude a comment by Det Sen Sgt Chugg to the effect that that vehicle was "stuffed down a track down near the Fossey River somewhere" on the basis that that assertion came from nowhere. I disagree. I think it came from Mr Stanley's comment about the vehicle being in the bush. I decided it should be admitted to give context to the representations made by Mr Stanley.
· At one point Mr Stanley agreed to the proposition that it was hard to deny that the accused was his "offsider". What he said was capable of being regarded as a representation implying that the accused was the co-offender. There was no basis for concluding that that response by Mr Stanley could not fall within the scope of s65(2)(d).
· At one point Mr Stanley gave an ambiguous answer to the effect that either he or the accused had had the idea to commit the robbery. There was nothing about that ambiguous answer to cause it to fall outside the scope of s65(2)(d).
· At one point Mr Stanley said that, on entering the roadhouse, he did not say anything, but went straight to the tills. There was nothing about that answer that causes it to fall outside the scope of s65(2)(d).
Section 137 of the Evidence Act provides as follows:
"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."
When assessing the probative value of the evidence, it must be assumed that the representations will be accepted as true, and that all possible reasonable inferences favourable to the Crown will be drawn from them: J v Tasmania (2011) 20 Tas R 425; R v Shamouil (2006) 66 NSWLR 228; R v Sood [2007] NSWCCA 214. The probative value of the representations made by Mr Stanley implicating the accused in the robbery was as high as is ever possible. His representations amounted to evidence from which one could only infer that the accused committed the crime charged.
There was a danger of unfair prejudice. Such a danger exists when there is a danger that the jury will give evidence more weight than it deserves: Festa v R (2001) 208 CLR 593 at [51].
Mr Stanley is a person who was involved in the commission of the robbery. His representations could not be tested by cross-examination of him. He could not be asked about intoxication at the time of the robbery, the shifting of blame onto the accused, the identity of his companion, or matters of detail. I took into account the fact that the jury would have to be given appropriate directions as to all those matters. I concluded that, subject to certain exceptions, the evidence of Mr Stanley's representations had a probative value that was not outweighed by the danger of unfair prejudice resulting from those representations possibly being given undue weight.
However there were several passages in Mr Stanley's interview when he said things suggesting criminal activities on the part of the accused. I determined that those passages in the interview were not to be admitted.
For the reasons stated above, I concluded that, subject to the exceptions that I have referred to, the evidence of Mr Stanley's representations was admissible pursuant to s65(2)(d), and not made inadmissible by s137.

The accused's police interview

The accused was interviewed by two police officers about the robbery and other matters on Friday 18 January 2013. He denied participating in the robbery, and being present when it occurred, but made a number of admissions as to less significant matters. The interview was audio-visually recorded. The Crown sought to adduce evidence of it, proposing to tender an edited recording of it. Counsel for the accused objected on two bases:
· Relying on s90 of the Evidence Act, he submitted that I should exercise my discretion to refuse to admit the evidence on the basis that, having regard to the circumstances in which the accused made admissions during the interview, it would be unfair to him for the Crown to use the evidence.
· Relying on s137 of the Evidence Act, he submitted that the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused, and that I was therefore obliged to refuse to admit the evidence.
Evidence was given on the voir dire by one of the interviewing officers, Sgt Chugg, and by the accused. The accused gave evidence to the effect that he was intoxicated at the time of the interview as a result of taking drugs, and that he was exhausted, not having slept for several days. It was common ground that he had been arrested at Elliot, outside Burnie, on that Friday afternoon, brought to the Burnie Police Station during business hours, held incommunicado, and given permission to contact a legal practitioner only at about 6.55pm. It was common ground that attempts were made to phone his solicitor on his home and office numbers at about that time, without success. There was conflicting evidence as to whether the calls were made by Sgt Chugg or the accused, but nothing really turns on that. Arrested persons may be held incommunicado in certain circumstances pursuant to the Criminal Law (Detention and Interrogation) Act 1995, s6(3), but counsel for the accused argued that, in the circumstances that existed on the day, that provision was inapplicable; that his client was improperly held incommunicado; and that it was unfair for him to have been interviewed without having had a greater opportunity to obtain legal advice. The interview commenced at 7.06pm and took a little over an hour. Counsel submitted that it could have been put off until the next morning.
Having viewed the interview, I am satisfied that the accused was both significantly intoxicated and extremely tired. I accept that, as a matter of principle, if intoxication loosens a person's tongue, it does not automatically follow that it would be unfair to receive evidence of that person's admissions: R v Ostojic (1978) 18 SASR 188 at 197; R v Helmhout (2000) 112 A Crim R 10 at [39]. In deciding whether to exercise the unfairness discretion, it is appropriate to take into account the degree of intoxication and the impact of the intoxication.
I had the advantage of being able to compare the accused's manner and demeanour when giving his evidence, no doubt free of intoxicants, with his manner and demeanour during the interview. In the witness box, he sat still and gave his evidence calmly, lucidly and without difficulty. During the interview, he rocked and reeled in his chair, made strange facial gestures, and made unusual arm movements. At times he answered questions without difficulty, but at other times he plainly had difficulty. He gave some answers that were plainly wrong. For example, he said that the utility of a motorist who had stopped on the Murchison Highway when his car broke down was white, but the motorist gave credible evidence at the trial that it was blue. I am satisfied that the accused went into the interview intending not to answer questions but that, after answering a series of uncontroversial questions, he started to make significant admissions, and that he only did so because his judgments as to what questions to answer were affected by intoxication and tiredness. Sgt Chugg asked him twice whether he was feeling all right – once at the beginning of the interview and again several minutes later. I infer that he asked because the accused was showing signs of intoxication and tiredness. I have the benefit of hindsight, and of having seen the accused give evidence when sober. In my view he was severely affected by drugs.
There was no urgency about the interview. It was six days since the robbery. The interview could have been deferred for some hours, perhaps overnight, giving the accused an opportunity to sleep or rest, and a greater opportunity to make contact with his solicitor.
I am not able to make a finding as to whether the accused was improperly held incommunicado. Sgt Chugg gave evidence that he directed that the accused be held incommunicado because there was an "outstanding person of interest" in relation to another matter that had occurred overnight, and because he had not looked at the scene. Not having looked at a relevant scene might be a good reason to delay an interview, but it cannot provide a reason for an investigating officer to require an arrested person to be held incommunicado during the period of delay. The only relevant circumstances are those listed in s6(3), which reads as follows:
"(3) Where a person in custody is of or over the age of 18 years, the police officer conducting the investigation may deny the person in custody communication with all or any of the persons referred to in subsection (2)(a), (b) or (c) for a period not exceeding 4 hours if the police officer believes on reasonable grounds that —
(a) any communication referred to in subsection (2) is likely to result in the escape of an accomplice or the fabrication or destruction of evidence; or
(b)the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed."
The interview contained questions about an allegation that the accused and his partner had spent the previous night at a motel in Burnie and then made off without payment. Making off without payment is an offence: Police Offences Act 1935, s38A. If the accused was under arrest not only for aggravated armed robbery but also for making off without payment, and if Sgt Chugg was conducting an investigation into that alleged offence, it would have been open to him to deny the accused communication with a friend, relative or lawyer if he believed on reasonable grounds that any such communication was likely to result in the escape of the accused's partner. Copies of charge room records tendered on the voir dire indicate only that the accused was under arrest for aggravated armed robbery, but it may be that he was also arrested for making off without payment. I do not know whether he was or not. Sgt Chugg was not cross-examined about his thinking concerning the "outstanding person of interest". He may well have had reasonable grounds for believing that if the accused's partner could not find him, she might fear he had been arrested, ring his lawyer, learn that he was in custody, and go into hiding in order to escape a charge of making off without payment. It may be very unlikely that he had reasonable grounds for such a belief, but I cannot rule out that possibility.

However in assessing whether, having regard to the circumstances in which the admissions were made, it would be unfair to the accused for the Crown to use the evidence, it is relevant that the accused was interviewed at a time when he had sought legal advice, had had little opportunity to obtain it, and had not succeeded in obtaining it. If he had been provided with advice, I think it is highly likely that he would have declined to participate in an interview, at least until the following morning.
Because of that circumstance, his level of intoxication, and the impact of his intoxication on his memory and his judgment as to whether or not to answer questions, I concluded that it was unfair to him for the evidence of his interview to be used.