The Queen v Casimiro and The Queen v Pinto
[2020] NTSC 18
•29 April 2020
CITATION:The Queen v Casimiro and
The Queen v Pinto [2020] NTSC 18
PARTIES:THE QUEEN
v
CASIMIRO, Pedro Michael
and
THE QUEEN
v
PINTO, Abel
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21852872 and 21852871
DELIVERED: 29 April 2020
HEARING DATE: 17 and 26 February 2020
JUDGMENT OF: Kelly J
CATCHWORDS:
EVIDENCE – Police Administration Act s 120C – Whether search authorised – Whether reasonable grounds to suspect the accused had a dangerous drug in his possession – Search authorised
EVIDENCE – Evidence (National Uniform Legislation) Act s 138 – Whether evidence obtained on search of accused improperly obtained – Evidence not improperly obtained
EVIDENCE – Whether police body worn camera footage admissible to prove lies told in consciousness of guilt – Evidence admissible
EVIDENCE - Evidence (National Uniform Legislation) Act s 90 – Admissions made by accused to police delivering caution in accordance with Police Administration Act s 140 – Accused had been administered oxycodone for pain relief – Whether unfair to accused to admit evidence of admissions – No unfairness
EVIDENCE - Evidence (National Uniform Legislation) Act s 138 – Whether admissions improperly obtained – Not improperly obtained – Evidence admitted
EVIDENCE - Evidence (National Uniform Legislation) Act s 85 – Whether admissions made in hospital after administration of oxycodone made in circumstances that make it unlikely that the truth of the admission was adversely affected – Evidence admitted
EVIDENCE - Evidence (National Uniform Legislation) Act s 56 – Whether evidence from CCTV footage about five minutes before alleged knifing relevant – Evidence relevant
EVIDENCE - Evidence (National Uniform Legislation) Act s 137 – Whether evidence of CCTV footage should be excluded because its probative value is outweighed by the danger of unfair prejudice – Probative value high – Minimal risk of unfair prejudice - Evidence not excluded
Evidence (National Uniform Legislation) Act 2011 (NT), s 56, s 85, s 90, s 137, s 138
Police Administration Act 2013 (NT), s 120C, s 140Cleland v The Queen (1982) 151 CLR 1; Hussien v Chong Fook Kam [1970] AC 942; Parker v Comptroller-General of Customs (2009) 83 ALJR 494; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; The Queen v Layt [2018] NTSC 36; R v MacKenzie [2013] 3 SCR 250; Ridgeway v The Queen (1995) 184 CLR 19, applied
Bunnings v Cross (1978) 141 CLR 54; George v Rockett (1990) 170 CLR 104; Kelly v The Queen (2004) 218 CLR 216; Prior v Mole (2017) 261 CLR 265; R v Gionfriddo & Faure (1989) 50 A Crim R 327; Robinson v Woolworths Ltd (2005) 158 A Crim R 546; The Queen v Gehan [2019] NTSC 91, referred to.
R v Mercer (1993) 67 A Crim R 91; The Queen v Gehan [2019] NTSC 91, distinguished
REPRESENTATION:
Counsel:
Crown:C Dixon with L Hopkinson
Accused (Casimiro): J Adams
Accused (Pinto): M Thomas
Solicitors:
Crown:Director of Public Prosecutions
Accused (Casimiro): Northern Territory Legal Aid Commission
Accused (Pinto): Northern Territory Legal Aid Commission
Judgment category classification: B
Judgment ID Number: Kel2003
Number of pages: 44
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Casimiro and The Queen v Pinto [2020] NTSC 18
No. 21852872 and 21852871
BETWEEN:
THE QUEEN
AND:
PEDRO MICHAEL CASIMIRO
AND BETWEEN:
THE QUEEN
AND:
ABEL PINTO
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 29 April 2020)
Mr Casimiro and Mr Pinto have been charged with causing serious harm to Justin Pease.
The Crown Case
The Crown case against Mr Casimiro is that he unlawfully caused serious harm to the complainant by stabbing him with a knife.
The Crown case against Mr Pinto is based on common intention and, in the alternative, enabling or aiding Mr Casimiro to commit the offence.
The Crown alleges that in the early hours of the morning on Saturday 22 December 2018, Mr Casimiro and Mr Pinto were drinking at Monsoons Nightclub and were involved in a physical altercation with another patron. This altercation was captured on CCTV.
Mr Casimiro and Mr Pinto left Monsoons at about 12:55 am. The complainant had been drinking at another venue.
Shortly after they left Monsoons, Mr Casimiro and Mr Pinto were walking along Peel St near the ANZ Bank when they approached the complainant, Mr Pease.
Mr Casimiro accused Mr Pease of “bagging the blackfellas out”. He said, “That’s the one speaking shit about the boys,” and he said to Mr Pinto, “Grab him and I will stick him.” Mr Casimiro had a knife in his hand as he spoke.
Mr Casimiro tried to stab Mr Pease in the chest but Mr Pease blocked him. Mr Casimiro then stabbed the knife towards Mr Pease’s face twice. Mr Pease blocked the stab but was cut near his left eye.
Mr Pease tried to get away but Mr Pinto grabbed him by the shoulder and spun him around and then pushed him in the chest and knocked him over. Mr Casimiro and Mr Pinto punched and kicked Mr Pease while he was on the ground.
Mr Pease pulled himself up off the ground by leaning against a car.
Mr Casimiro told Mr Pease, “Just shut up about the boys.”
Mr Pease replied, “Fuck you man,” and then Mr Casimiro stabbed him in the right side of his chest.
Mr Casimiro and Mr Pinto then walked away towards Shadforth Lane. As they left, Mr Pinto said to a passer-by, “That cunt called me a black nigger.”
When police arrived, that passer-by gave them a general description of the two men and told them the direction in which they had walked away. The descriptions were, in essence, part Aboriginal – one in a bright orange t-shirt and one in a maroon singlet.
Police dealings with Mr Pinto
At about 1:00 am, police saw Mr Pinto wearing a maroon singlet and approached him. Mr Pinto ran down Shadforth Lane, tried to climb a carpark fence and fell on his back. Mr Pinto was arrested and taken to the Darwin Watch House where he was cautioned (“the first s 140 conversation”). He was then taken to the Royal Darwin Hospital (“RDH”) without being processed into the Watch House.
Police went to RDH and cautioned him again that afternoon (“the second s 140 conversation”). Both of these conversations were recorded.
Evidentiary issues raised by Mr Pinto
Mr Pinto objects to the Crown adducing evidence of:
(a)the Monsoons CCTV footage; and
(b)each of the s 140 conversations.
Police dealings with Mr Casimiro
Also at about 1:00 am, Acting Sergeant Hoffman was driving to the scene of the stabbing and saw Mr Casimiro wearing an orange shirt and white shorts, walking along Shadforth Lane. She didn’t stop him.
At about 1:30 am, Acting Sergeant Hoffman saw Mr Casimiro again walking along Mitchell Street past People’s Choice Credit Union. She stopped him because he matched the description given of one of the attackers as wearing an orange t-shirt. She had a conversation with Mr Casimiro and also called for back-up.
While Acting Sergeant Hoffman was talking to Mr Casimiro, Officers Moon and Reeves arrived. There is body worn camera footage from all three officers of the conversation with Mr Casimiro.
The search and the evidence obtained
Officer Moon made certain observations (detailed below) and initiated a search of Mr Casimiro, purportedly pursuant to s 120C of the Police Administration Act.
The officer conducting the search found in Mr Casimiro’s pocket a tourniquet, a syringe, a disinfecting wipe, a small tube labelled “water for injections BP” and a knife.
Mr Casimiro was arrested on a charge of possessing an offensive weapon in a public place and taken back to the Darwin Police Station.[1] Later that night he was arrested for unlawfully causing serious harm. Later forensic analysis revealed the victim’s DNA on the knife and in blood stains on Mr Casimiro’s clothing.
Evidentiary issues raised by Mr Casimiro
Counsel for Mr Casimiro seeks to have the evidence obtained as a result of the search excluded on the ground that the search was unlawful and the evidence improperly obtained. The defence also objects to the Crown adducing evidence of the body worn camera footage of the conversation between Mr Casimiro and the police. (The Crown seeks to rely on this as containing lies the Crown alleges were told as evidencing a consciousness of guilt.) Counsel for Mr Casimiro consents to the CCTV footage from Monsoons being played.
(a)Evidence obtained on the search
On the voir dire, Officer Moon, who initiated the search, gave evidence that when she arrived on the scene, Mr Casimiro was talking to Acting Sergeant Hoffman. Mr Casimiro appeared to her to be in a heightened, agitated and anxious state. She also observed a large blue tourniquet hanging from his pocket. She was aware that tourniquets are used by intravenous drug users to aid vein dilation, making veins bigger and easier to inject into. These two observations combined made her suspect that Mr Casimiro had dangerous drugs in his possession. She therefore decided to exercise her powers under s 120C to search Mr Casimiro for dangerous drugs.
Section 120C provides, relevantly:
Searching without warrant
A member of the Police Force may, without warrant, stop, detain and search the following:
……
(c)a person in a public place if the member has reasonable grounds to suspect that the person has in his or her possession, or is in any way conveying, a dangerous drug, precursor or drug manufacturing equipment.
I accept the evidence of Officer Moon that she did suspect that Mr Casimiro was in possession of dangerous drugs. The next question is whether she had reasonable grounds for that suspicion. In my view she did.
It was suggested to Officer Moon, in cross-examination that she did not see the tourniquet in Mr Casimiro’s pocket until after it had been removed from his pocket and placed on the boot of the police car. She denied it. The body worn camera footage was played and Officer Moon pointed to the moment she saw the tourniquet. The footage bore out Officer Moon’s testimony. As Mr Casimiro put his phone into his back pocket, his shirt was lifted up. The tourniquet was visible hanging out of his front pocket and Officer Moon could be seen looking at it. It was then that she initiated the search.[2]
The operation of s 120C was recently examined by Grant CJ in The Queen v Gehan.[3] The following principles emerge.
(a)For the power under that section to be enlivened, the police officer must, subjectively, have a suspicion that the person has drugs in his or her possession and there must objectively, be reasonable grounds for that suspicion.
(b)Section 120C of the Police Administration Act does not require reasonable grounds for belief but rather reasonable grounds for a suspicion.[4] “Suspicion” and “belief” are different states of mind.[5] Suspicion denotes a less positive state of mind than belief.[6]
(c)“Suspicion in its ordinary meaning is a state of conjecture or surmise
where proof is lacking: ‘I suspect, but I cannot prove’.”[7]
(d)Hence, the facts which may provide reasonable grounds for a suspicion may be insufficient to provide reasonable grounds for a belief.[8]
(e)Nevertheless, there must be some factual basis for the suspicion.[9]
(f)“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’...”[10]
In The Queen v Gehan, Grant CJ referred to the balancing exercise to be undertaken by the court in assessing what is a reasonable suspicion and referred[11] to the comments made by the Supreme Court of Canada in R v MacKenzie [2013] 3 SCR 250 in which the majority stated:
Reasonable suspicion must be grounded in objectively discernible facts, which can then be subjected to independent judicial scrutiny. While it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue scepticism or the requirement that their every move be placed under a scanning electron-microscope.
In my view, the two observations made by Officer Moon, Mr Casimiro’s demeanour and the tourniquet in his pocket, combined with her knowledge derived from experience as a police officer of the common use of a tourniquet by intravenous drug users, and the time and place at which these observations were made (1:30 am in the CBD) provided a sufficient, reasonable objective factual basis for her suspicion that Mr Casimiro had drugs in his possession.
The significance of police experience was discussed by Nettle J in Prior v Mole:[12]
… But knowledge born of experience is not irrational − it is empirical − and, depending on the experience of a police officer, may properly comprise a significant part of the officer’s crime detection and prevention armoury. For example, a police officer might use knowledge based on previous experience to identify particular circumstances and behaviour that support a belief on reasonable grounds that observed individuals have engaged in a drug transaction. A further example was posed by counsel for the appellant in oral argument: it might be open to a police officer to believe on reasonable grounds that a visibly intoxicated person walking towards a car holding what appear to be keys to a car might be about to commit an offence of driving under the influence of alcohol. Accordingly, where a police officer encounters circumstances of a kind which, by reason of his or her previous experience, he or she rationally associates with an identified class of committed or anticipated offending, the occurrence of those circumstances may reasonably lead the officer to conclude that there is a significant probability of that identified class of offending taking place. As was observed by the United States Supreme Court in Terry v Ohio, although little weight can be given to an officer’s “inchoate and unparticularized suspicion or ‘hunch’”, due weight must be given to the specific reasonable inferences which a police officer is entitled to draw from the facts in light of his or her experience.
Defence counsel contended that, even if the conditions for a search under s 120C were satisfied, the search was nevertheless improper because it was conducted for an improper motive. Mr Casimiro matched the description of one of the two people witnesses described as being at the scene of the stabbing: he was wearing an orange shirt. When Acting Sergeant Hoffman radioed for back-up she mentioned that she was talking to someone who could match the description of one of the men involved. Therefore, when Officers Moon and Reeves arrived they must have thought Mr Casimiro might be one of the two men involved in the stabbing. Although they did not as yet have sufficient grounds to arrest him for the stabbing, they would have been interested to find out as much as possible about Mr Casimiro and they used the opportunity to search him pursuant to s 120C as a pretext to see if they could find anything related to the stabbing.
In cross-examination, Officer Moon agreed that she did not have sufficient grounds to arrest Mr Casimiro in relation to the stabbing. When it was put to her that she thought he might be one of the two involved in the stabbing, she emphasised that at that point he was not yet “a suspect”. She denied that the search for drugs was a mere pretext. She said the situation evolved; that, essentially, she focused on one thing at a time. When she saw the tourniquet, having observed Mr Casimiro’s demeanour, she was focused on the search for drugs.
I accept that evidence. The search under s 120C initiated by Officer Moon was not simply a pretext to see if they could find anything related to the stabbing. It was a genuine search for drugs which the officer suspected Mr Casimiro had in his possession.
Nevertheless, I consider that, in the circumstances, there may have been a mixed motive for searching Mr Casimiro. Officer Moon did suspect that he was in possession of drugs and she had objectively reasonable grounds for that suspicion. She also had some reason to suppose that he might have been one of the two men involved in the stabbing. He was in the vicinity, in an orange shirt and she had been alerted by Acting Sergeant Hoffman that she was with someone who might match the description of one of the men involved.
The body worn camera footage shows Officers Reeves and Moon, Officer Moon in particular, carefully studying Mr Casimiro, shining her torch on him and viewing him from different angles. She also observed that he had some blood on his ankle and his foot.
The operation of s 138 of the Evidence (National Uniform Legislation) Act (“UEA”)
UEA s 138(1) provides:
Exclusion of improperly or illegally obtained evidence
(1)Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
The UEA contains no definition of “impropriety”. In Robinson v Woolworths Ltd Basten JA said:[13]
[T]he identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards.
This is consistent with the common law position that in order to warrant the exclusion of evidence on the basis that it was improperly obtained, the impugned conduct must be “inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”.[14] Moreover, that conduct must be “clearly inconsistent” with those minimum standards.[15]
The burden is on the party seeking exclusion of the evidence to establish that the evidence was improperly obtained.[16]
In The Queen v Gehan, the court was concerned with an application to exclude evidence under UEA s 138 after police stopped the vehicle in which the accused was a passenger for the purpose of a random breath test. The police made certain observations of the accused and on the basis of those observations, searched him under s 120C. In the course of that judgment, Grant CJ said:
The use of the power to conduct a random breath test for the ulterior purpose of general criminal investigation would be both improper and in contravention of the law which confers the power.
That is because the power to conduct random breath tests is conferred for the purpose of road safety and the detection of the offences of driving under the influence of alcohol or a prohibited drug, and there is a clear delineation between powers conferred for that purpose and powers conferred for the criminal investigation of other types of offence.[17]
That does not answer the question whether there would be a relevant impropriety in a case like the present in which the conditions for a search under s 120C had been met; the officer in question was genuinely searching for drugs which she suspected were in the person’s possession; but she also thought the person may have been involved in another crime. Defence counsel contended that a search conducted in those circumstances would be improper, but cited no authority to support the contention.
The Crown submitted that there was nothing in those circumstances to make the police conduct illegal or improper. The police conduct was not clearly inconsistent with the minimum standards which a society should expect and require from police. I agree.
I also agree with the Crown submission that even if, contrary to my finding, the police search in the circumstances was improper, evidence of the finding of the knife should not be excluded under UEA s 138 because the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which this evidence was obtained.
(a)The probative value of the evidence of the finding of the knife is high. The evidence establishes that not long after the stabbing, Mr Casimiro was in physical possession of the knife which DNA evidence confirms was used to stab the complainant.
(b)The evidence is also important. The Crown relies on circumstantial evidence to prove the identity of the accused. The knife forms part of the circumstantial evidence against Mr Casimiro and is a significant piece of evidence. In the absence of the evidence of the finding of the knife, the Crown case would be significantly weakened.
(c)The case involves an allegation of serious offending - unlawfully causing serious harm - and a serious example of such an offence due to the use of a weapon.
(d)Further, as I have found, Officer Moon genuinely suspected that Mr Casimiro had dangerous drugs in his possession. She held a view that she had reasonable grounds for that suspicion and I have found that that was the case. I have also found that the search for drugs was a genuine one – and not a mere pretext to search Mr Casimiro. In those circumstances, if, contrary to my finding, the fact that Officer Moon also thought Mr Casimiro might have been one of the two people involved in the stabbing made the search improper, that impropriety was inadvertent and not deliberate. Officer Moon was acting in good faith, believing that there were reasonable grounds for suspecting Mr Casimiro possessed a dangerous drug, giving her the power to search.
(e)If, contrary to my finding, this was improper, then it was an error of judgement, not a reckless or flagrant contravention of the provisions of s 120C. In Bunnings v Cross[18] Stephen and Aickin JJ said:
On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
(f)If there was a failure in this case it is not sufficiently serious “as to warrant sacrificing the community’s desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end.”[19]
The evidence obtained as a result of the search of Mr Casimiro pursuant to s 120C of the Police Administration Act will be admitted into evidence.
(b) The body worn camera footage of “Edwards” lies
The conversation between Mr Casimiro and Acting Sergeant Hoffman was captured on body worn cameras on Acting Sergeant Hoffman and, when they arrived, on Officers Moon and Reeves.
The Crown seeks to rely on that footage to prove what the Crown contends are four lies, each capable of being used by a jury as evidence of consciousness of guilt.
The first alleged lie relied on is in the following part of the conversation:
HOFFMAN: Did you see what happened at Peel St just now?
CASIMIRO: Nuh. Nothing.
HOFFMAN: You didn’t see anything?
CASIMIRO: Nup. I’ve just come out of the club now.
Later in the conversation Mr Casimiro said: “Well I just came out and walked straight down here. And I’m here now.”
The Crown relies on the following evidence to show that this was a lie.
(a)The conversation began at about 1:30 am. Monsoons CCTV footage shows that Mr Casimiro did not “just come out of the club”. He and Mr Pinto left Monsoons at about 12:55 am, minutes before the attack on Mr Pease which took place in Shadforth Lane, not far from Monsoons.
(b)Acting Sergeant Hoffman passed Mr Casimiro in Shadforth Lane just before 1:00 am.
(c)The Crown will also rely on the fact Mr Casimiro was wearing a shirt that matched the description given by witnesses of someone seen at the scene of the stabbing and the DNA evidence tying him to the knife used in the attack half an hour before.
Defence counsel submits that these (and the other lies relied on) are simply denials of guilt which cannot be relied on as evidencing consciousness of guilt. He relied on the statement of principle by the Victorian Court of Criminal Appeal in R v Gionfriddo & Faure:[20]
[A] lie consisting of a bald denial of guilt made in or out of court ([as] we suppose the case in every contested trial) which is only shown to be a lie by proof by the prosecution of the crime charged axiomatically is not a lie that can assist in proof of guilt. For it to do so would be for the prosecution to lift itself by its own bootstraps.
The New South Wales Court of Criminal Appeal made a similar statement in R v Mercer:[21]
Where, however, the lies of the accused upon which the Crown relies are his denials of the complainant’s evidence, those lies cannot be used in order to assist the tribunal of fact to determine whether the complainant’s evidence is to be accepted.
However, neither the first alleged lie, nor the other three are lies of this nature. Mr Casimiro was not denying that he was guilty of stabbing Mr Pease. He had not been accused of stabbing him and had not been asked whether he had stabbed him. This was a denial that he was present and had seen anything at a location where it can be established he must have been, combined with an assertion that he was somewhere else (ie out of “the club” until “just now”; “I just came out and walked straight down here.”).
In my view the Crown is correct in its contention that this is capable of being used by a jury as evidence of consciousness of guilt and the Crown should be permitted to put this part of the body worn camera footage into evidence.
The jury will be given the usual “Edwards” direction that they can only use the evidence for that purpose, to draw an inference of guilt, if they are satisfied that:
·the accused did tell a deliberate lie;
·the lie related to a material issue in the case; and
·the reason for the lie is because the accused realises that telling the truth would implicate him in the commission of the offence.
They will also be given the usual warning that there may be reasons for telling lies apart from a realisation of guilt, for example panic, to escape an unjust accusation, or for some other reason.
The second alleged lie relied on by the Crown to support an inference of consciousness of guilt arises out of this part of the conversation:
MOON: You’ve got blood on your leg.
CASIMIRO: Yeah, a little scratch when I scratched myself.
The Crown relies on the evidence of police officers that they saw no scratch and also the DNA evidence which establishes that the blood on Mr Casimiro’s clothes was the victim’s blood, to establish that this was a lie.
Again, in my view, if the jury are satisfied that this was a lie, it is capable of being used by the jury as evidence of consciousness of guilt and the Crown should be permitted to put that part of the body worn camera footage into evidence for that purpose.
The third alleged lie the Crown seeks to rely on is what Mr Casimiro said during the conduct of the search when asked about the content of his pockets:
REEVES:Is there anything uncapped, or any knives or anything like that that could hurt me?
CASIMIRO:Nah. Do you want me to pull the thing out for you (presumably referring to “the fit” he said was in his pocket)? So you don’t have to put your hand in there?
Defence counsel submitted that Officer Reeves asked this very quickly and it is possible Mr Casimiro did not hear the reference to a knife. There is also the possibility that it may not have been a deliberate lie. He was asked if there was anything sharp in his pocket and the blade of the knife was folded away.
I agree with the Crown that this too is capable of being used by the jury as a lie evidencing consciousness of guilt. The possibility canvassed by defence counsel is a matter for submission, and the possibility that it may not have been a deliberate lie will be covered by the usual Edwards direction.
The fourth alleged lie relied on by the Crown is as follows:
MOON:Who have you been out with tonight Pedro?
CASIMIRO:Myself.
Monsoons CCTV footage shows that he had been there in company with Mr Pinto and had left the venue with Mr Pinto. By the time of this conversation, Mr Pinto had been arrested, accompanied by much shouting, in Shadforth Lane.
I agree with the Crown submission that this too is capable of being used by the jury as evidence of consciousness of guilt, provided they are satisfied of the things they will be told about in the Edwards direction.
The body worn camera footage in which these alleged lies can be seen and heard will be admitted into evidence. They are all capable of being “Edwards” lies. They should therefore be left to the jury who can make up their own minds after hearing the evidence, counsels’ submissions, and the usual Edwards direction and warning.
Evidentiary issues raised by Mr Pinto
(a)The s 140 conversations
Section 140 of the Police Administration Act provides:
Person to be warned and given opportunity to inform friend or relative of person’s whereabouts
Before any questioning or investigation under section 137(2) commences, the investigating member must inform the person in custody that the person:
(a)does not have to say anything but that anything the person does say or do may be given in evidence; and
(b)may communicate with or attempt to communicate with a friend or relative to inform the friend or relative of the person’s whereabouts,
and, unless the investigating member believes on reasonable grounds that:
(c)the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or
(d)the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed,
the investigating member must defer any questioning or investigation that involves the direct participation of the person for a time that is reasonable in the circumstances and afford the person reasonable facilities to enable the person to make or attempt to make the communication.
When Mr Pinto was arrested and taken to the Darwin Police Station, Officer Cleary had the first s 140 conversation with him which was captured on the body worn camera worn by Officer Munday. In it, on request, Mr Pinto politely gives his name and date of birth; Officer Cleary tells him he does not have to say anything but anything he does say or do will be recorded and may be given as evidence in court; Mr Pinto indicates that he understands; Officer Cleary asks for the details of the person he wants contacted (his mother) and Mr Pinto gives them. This was initially objected to by the defence on the ground that Mr Pinto was said to be heavily intoxicated at the time.
The Crown sought to lead expert evidence from a toxicologist, Dr Robertson, on the voir dire in support of the Crown case that the recordings of these interviews should be admitted. I admitted limited parts of Dr Robertson’s reports:
(a)the information provided in the reports about the effects produced by different levels of blood alcohol concentration;
(b)his evidence based on the CCTV footage that Mr Pinto acting in a particular way makes it likely that he would have had a blood alcohol content of not more than the amount specified in the report;
(c)his opinion that a blood alcohol content of that amount means Mr Pinto would not have had significant impairment of his cognitive functioning;
(d)the information about the rate at which alcohol is removed from the system and his opinion that all the alcohol would have been gone from Mr Pinto’s system by the time of the second s 140 report; and
(e)his opinion about the effects of oxycodone.
Dr Robertson expressed the opinion, based on the CCTV footage that, at the time of the first s 140 conversation, Mr Pinto was not substantially cognitively impaired. He was cross-examined about whether the fact that Mr Pinto was a heavy drinker might affect his tolerance for alcohol and the validity of this opinion. Dr Robertson stuck with his opinion. I also formed the view that Mr Pinto was not so intoxicated during the first s 140 conversation that he was unable to understand what was happening or exercise a proper judgment as to whether or not to speak. In the body worn footage, he appeared to be coherent and was not slurring his words. He answered appropriately and rationally and his demeanour was polite.
Ultimately, however, none of this mattered because the first s 140 conversation contained no admissions or material adverse to the defence. There would seem to be no reason why the Crown would want to lead it in evidence and no possible prejudice to the defence if they did so. At the hearing of the voir dire, defence counsel conceded that the “major” defence objection was to the reception of the second s 140 conversation.
The second s 140 conversation occurred at the hospital 11 or 12 hours later at 12:14 pm on the afternoon of the Saturday, 22 December. Intoxication was not an issue in relation to this conversation because the effects of the alcohol Mr Casimiro had drunk the night before would have worn off by then according to Dr Robertson.
Mr Pinto had been admitted to Royal Darwin Hospital with a suspected broken back from falling off the fence.[22] He was reported to be in great pain – 10/10. He was given oxycodone 5 mg at 2:51 am, 6:18 am, 7:40 am and 10:55 am as well as some ibuprofen and paracetamol.
Dr Robertson’s evidence was that the first three doses of oxycodone would have worn off by the time of the second s 140 conversation but the dose given at 10:55 am would still have been effective. He said that 5 mg was not a high dose. He said that that level of oxycodone would not have affected Mr Pinto’s ability to decide whether or not to speak, though he could not rule out that he may have been experiencing a state of relaxation, reduced anxiety, and/or mild euphoria.
The Crown seeks to rely on the following statements, said to be admissions made by Mr Pinto in the course of the second s 140 conversation.
(a)‘I had an altercation with him but where are these knives.’
(b)‘At the end of the day, I had the altercation with the guy. Where did the stabbing come from?’
(c)‘At the end of the day as you saw, if you saw from inside Monsoons. Outside that bloke, I’m just loyal mate, that’s it.’
(d)‘No we are talking about the incident that was inside Monsoons where you see from there. That’s why I said to thing, go check Monsoons, mate. Talk to the big bouncer, you’ll see the footage. You’ll see Abel Pinto what he does.’
(e)‘No, I’m saying, if you listen, the person who done it at Monsoons, you will see everything. That bloke puts his hands up and throws his punch at us. We chase him. That’s it.’
(f)‘… check Monsoons and you’ll see from the get go … who’s the one there who started it.’
(g)‘So what happened with the stabbing footage?’
(h)‘I’m trying to guide you guys … to see inside Monsoons, to see what happens … then you know. If you’ve seen the footage, then you see how it played out and then you’ll see how it played out with the other one [emphasis added].’
(i)‘… did you grab my co-offender … I’m his cousin, he’s my older cousin.’
(j)‘At the end of the day, the guy’s going to identify me because (1) we punched him (2) he was standing behind me threatening me when I get arrested … he was standing behind the gate that I jumped over … cussing at me and calling me a nigger. And when I said remember what you said mate? And I told him, “You gonna call me a fucking nigger. Don’t tell me to rape white, white little girls. You are not going to get (inaudible) mate. Okay. Don’t call me a nigger and it goes from there mate.” In front of the officers that arrested me, that’s what I said to them, (inaudible) then he was, “I never said that.” I said, “What nigger got your tongue mate, nigger got your tongue, white piece of dog, mate.”’
(k)‘Watch the footage, raises his hands up, he throws and he gets punched. What do you want us to do?’
(l)‘You know I’ve got to get a hold of people because this guy was also seen and was cussing at a father, son and me mate on Tuesday alright. That’s when I see him and say, “Hey, I’m that nigger that rape white girl” (inaudible) the footage goes for me mate.”’
(m)‘He did the same story that he’s trying to do when he walked past us … Father son and him and, “You fucken niggers. Twelve niggers raped a white little girl. You fucken pair or what. This is what I do to niggers”. And then I see him again.’
(n)‘We were going home after the incident in Monsoons. We were going home mate and the nigger had to walk past us.’
(o)‘I didn’t start on this bloke and we see him Tuesday. We let him run off his mouth. Just a drunk white bloke. Then when we walk past him, he is still carrying on about same shit.’
(p)‘All I know is that a bloke got stabbed. I just kept saying to youse that if you’d seen how the incident happened at Monsoons, you would have seen how we reacted and I let it, we let it go until it had to get to that point, you know. I’m not denying that we didn’t have fights but I didn’t stab him that’s why I asked you. “Who stabbed this bloke? Am I stabbed or is this bloke stabbed?”’
Defence counsel objects to these statements being adduced in evidence. In written submissions, counsel submitted that “there was no urgency in an interview occurring with Pinto”. It was submitted that Mr Pinto was intoxicated, and in significant pain. Police persisted in trying to speak with him despite the fact that he said three times he could not participate in an identification parade and on five occasions that he does not do interviews or talk to police. Counsel submitted that the conversation was “a thinly disguised attempt to gain information in what amounted to an interview from Pinto when [he] was in no fit state, either physically or mentally, to engage”, and that it was fundamentally unfair: he was suffering from confusion and memory loss.
I reject those submissions. They totally mischaracterise the tone and content of the conversation.
(a)First, this was not an “interview” and police were not questioning Mr Pinto. The police officers who conducted the second s 140 conversation gave evidence on the voir dire and were cross-examined by defence counsel. There were a number of reasons why they attended Mr Pinto at the hospital. The first was to ensure that he was aware of his rights pursuant to s 140 of the Police Administration Act (and to see if he wanted anyone notified); they also gave consideration to seizing clothing. They also wanted to ask him if he wanted to participate in an electronic record of interview and an identification parade. One of the officers explained that it’s a requirement when asking a person in police custody if they would participate in an identification parade to digitally record the request and response. They made it clear to Mr Pinto that they were not conducting an interview and they told him why they were there.
(b)The admissions the Crown seeks to rely were made in parts of the conversation initiated by Mr Pinto in which he appeared keen to explain to the police officers the context in which events occurred in Monsoons and to urge them to look at the CCTV from Monsoons to see how what occurred there had started. The police were not questioning him about what had happened in relation to the alleged stabbing – or indeed at all: most of the questions were asked by Mr Pinto.
(c)Mr Pinto had been in pain earlier in the day. He had been administered strong pain medication (oxycodone). There is no indication in the s 140 conversation that Mr Pinto was in great pain at the time of the conversation. If he was he did not disclose it to police. (Nor did he tell them he had taken oxycodone.)
(d)He was not intoxicated. He had not had a drink in over 11 hours and the evidence of Dr Robertson was that all of the alcohol would have been out of his system by that time.
(e)There is nothing in the s 140 conversation to indicate that Mr Pinto was confused. He responded appropriately to questions that were asked of him - which questions were not about the alleged offence, but were directed to the purposes the police said they were there to pursue.[23] [See (a) above.] Defence counsel suggested that there was a large section of the conversation towards the end in which Mr Pinto was not responding to questions. However, when one examines what Mr Pinto was saying, he appears to have been giving an explanation as to why he did not want to participate in an identification parade in future. [Essentially, he said that the person concerned would identify him because he had punched him and they had had prior dealings.]
(f)The evidence of Dr Robertson was that the dose of oxycodone Mr Pinto had taken would not have affected his ability to decide rationally whether or not to speak to police, and in the conversation he had with police, Mr Pinto appeared to make rational decisions about when to speak and what to say. He said he did not want to take part in a recorded interview and explained that he doesn’t normally talk to police, he has his barrister do that. Similarly, he declined to take part in an identification parade at some future time and gave a fairly detailed, and apparently reasoned explanation as to why not.
(g)Mr Pinto did not refuse three times to participate in an identification parade. The first time he was asked he said, “I can’t stand up, mate.” The second time, he said, “I can’t mate, I’ve got a broken back, mate.” One of the police officers clarified that they wanted to know if he would be prepared to take part in an identification parade in the future, if and when he was able. That is when Mr Pinto said, “At the end of the day, the guy’s going to identify me because, one, we punched him; two he was standing behind me threatening me when I get arrested.” (He clarified, “He was standing behind the gate I jumped over.”) He then gave details of their previous interactions in the rather lengthy explanation referred to at (d) above. The police officers seemed determined to tape his definitive response to the request to participate in an identification parade and this exchange occurred. One of the officers said, “When you are better, when you have healed, will you participate in an identification parade?” Mr Pinto said, “There is no need for me. At the end of the day you are charging two people.” The officer said, “Say yes or no.” Mr Pinto said, “No it’s not.” The officer said, “No you don’t want to?” and Mr Pinto finally said, “I said no.”
(h)The officers also wanted to get a definitive answer to the question whether Mr Pinto wanted to participate in an electronically recorded interview. At the end of Mr Pinto’s explanation of his prior dealings with the person from Monsoons who was standing behind the fence, one of the officers asked, “In relation to participating in an electronic record of interview in relation to what the allegations are, that you’ve committed serious harm against the victim …” Mr Pinto interrupted, “Just me yeah or is it (inaudible) …” The officer cut him off, “Do you want to participate in an electronic record of interview?” and Mr Pinto said, “No.”
(i)At this point the officers were about to leave. One of them recorded the time, but Mr Pinto kept on talking. One of the officers said, “I’m just about to finish it unless there is something else important that you wanted to say.” Mr Pinto kept talking and asking questions. (The officers then seized his clothing, noting on the recording the presence of blood which Mr Pinto said was his own.) Thereafter, Mr Pinto kept on talking and asking questions. Finally, the officers ended the recorded conversation.
At the oral hearing, defence counsel relied primarily on UEA s 90[24] which provides:
Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a)the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
Defence counsel submitted that it would be unfair to the accused, Mr Pinto, to admit the admissions he made during the second s 140 conversation into evidence because Dr Robertson agreed in cross-examination that he could not exclude that Mr Pinto may have been in a state of relaxation from the final dose of oxycodone and saying things he otherwise might not have said.
I do not agree that it would be unfair to admit this evidence. Dr Robertson went on to clarify the answer relied on by defence counsel:
However when I look at the context of some of the things he did say he appeared to be assessing certain aspects of his situation with an element of judgment and making certain responses to the police. So he was certainly at that point in time able to delineate the differences. He was considering his position and he was able to give appropriate responses to that. So from my perspective there was certainly no evidence to suggest that he was saying things that he otherwise would not have chosen to say had he not been under the influence of Oxycodone. However I can’t exclude it as a possibility.
Dr Robertson also said in the course of cross-examination:
Well, I think there is certainly enough information to say that he wasn’t profoundly impaired by oxycodone. ... I think there is certainly enough information to say that there was no confusion. There was no disorganisation of thought. Any of those things. He was able to respond appropriately to all questions asked. He certainly had sound memory because he was able to recall certain aspects of events and his own personal life at that point together with events that occurred on the Tuesday prior and various other dates that he was able to recall that I have assumed to be correct in my listening to his responses. So, certainly there is no gross impairment or intoxication.
In my view, it would not be unfair for evidence of admissions made in the course of the second s 140 conversation to be adduced. The conversation has every appearance of one in which Mr Pinto was in control and chose whether or not to speak and what to say. He appeared eager to tell the police officers about what happened at Monsoons and to urge them to look at the Monsoons CCTV footage.
In written submissions, defence counsel also relied on s 85 and 138, but did not elaborate and these were not pursued at the hearing.
UEA s 138 provides, relevantly:
Exclusion of improperly or illegally obtained evidence
(1)Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
In written submissions, defence counsel contended: “This material was improperly obtained. It breaches s 140 and the general orders.” The argument that the admissions were obtained in breach of s 140 was rightly not pursued at the hearing of the voir dire. The police officers in question were complying with s 140 by advising Mr Pinto of his right to remain silent and asking him if he wanted someone to be contacted.[25] Thereafter they did not question him about the alleged offence and made it clear to him that they were not conducting an interview. The general orders said to have been breached were not specified.
UEA s 85 provides:
Criminal proceedings – reliability of admissions by defendants
(1)This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a)to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b)as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
Note for subsection (1)
Subsection (1) is inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.
(2)Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3)Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:
(a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b)if the admission was made in response to questioning:
(i) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned.
Defence counsel submitted that s 85 was “activated” because: “A person who is in significant pain, in hospital, intoxicated, in a neck brace, unable to recall the detail of how they got there, either ingesting or about to ingest medication such as oxycodone and/or ibuprofen, and suffering from a broken back provides nothing in the way of reliable circumstances necessary for satisfying s 85.”
The conversation the two police officers had with Mr Pinto was not aimed at investigating the commission or possible commission of the alleged offence. Their purpose was to advise him of his rights and to see if he wanted someone contacted. However, assuming that these purposes (and asking whether Mr Pinto wanted to participate in an interview and/or an identification parade) were functions “in connection with” such an investigation, in my view, the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admissions were adversely affected.
(a)Mr Pinto was advised of his right to remain silent and he seemed to be keenly aware of his legal rights. During the conversation he made the following comments;
· “… I wanted to notify my mother cause then she will notify the barrister and then it will all go from there.”
· “… I’ve always barrister. I never deal with you guys.”
· “I don’t do interviews. I told you.”
· “I don’t talk. I don’t usually do that.”
(b)The admissions were not made in response to questions about the alleged offence from the police officers. They were spontaneous utterances by Mr Pinto who appeared eager to tell the police the genesis of events at Monsoons and to urge them to look at the CCTV footage from Monsoons to confirm what he told them. (He said, “I don’t talk. I don’t usually do that … I’m trying to guide you guys.”)
(c)The admissions were made shortly after the events in question when they were likely to have been fresh in his memory.
(d)As to the matters relied upon by the defence, for the reasons set out above, I do not accept that Mr Pinto was intoxicated, confused or that his reason or judgment were adversely affected by the approximately 5 mg of oxycodone in his system, or by continuing severe pain.
Defence counsel did not seek exclusion of the admissions under UEA s 135 or 137.
The Monsoons CCTV footage
Mr Pinto objects to the Monsoons CCTV footage being admitted; Mr Casimiro does not.
The Crown provided a composite description of what is shown on the police and Monsoons CCTV footage. (The parts in italics are not from CCTV footage.)
(a)At 00:52 am on 22 December 2018 police CCTV footage shows Mr Pinto entering Monsoons from the Nuttall Place side entrance.
(b)At 00:55 am (3 minutes later) Monsoons CCTV footage shows Mr Casimiro raising his hands before patron Luke Froggatt falls backwards off a platform towards the bar. Mr Casimiro is seen to be coming towards him and an altercation commences. Several seconds later Mr Pinto joins in and Mr Froggatt falls to the ground and Mr Casimiro comes over to Mr Froggatt and Mr Pinto.
(c)At 00:55:22 am the CCTV footage shows security staff at Monsoons pulling Mr Pinto away from Mr Froggatt who is on the ground.
(d)At 00:55:26 am the CCTV footage shows security staff helping Mr Froggatt off the floor.
(e)At 00:55:45 am the CCTV footage shows Mr Pinto being escorted by security staff to the exit.
(f)At 00:55:51 am the CCTV footage shows Mr Casimiro walking away from Mr Froggatt towards Monsoons’ exit door.
(g)At 00:55 am the police CCTV footage taken from Shadforth Lane depicts Mr Casimiro and Mr Pinto leaving the side entrance to Monsoons and walking together along Nuttall Place in the direction of Shadforth Lane. Mr Casimiro is shown wearing a bright orange t-shirt, white shorts and a hat and Mr Pinto is shown wearing a maroon and yellow singlet and jeans.
(h)The alleged assault on the complainant Justin Pease took place sometime between approximately 00:55 am and 00:59 am along Peel Street, which connects with Shadforth Lane.
(i)Eyewitness Amber Reuben was walking along Peel Street when she saw an altercation involving three men. She described one of the men involved in the altercation on Peel Street as wearing a bright orange t-shirt (Male 1) and a second man who was taller and stockier than the first man wearing a singlet that was a Queensland State of Original [sic] or similar (Male 2). She described seeing these men punching and kicking a third man who was pinned against a white car.
(j)As Ms Reuben walked towards the three men, Male 1 and 2 began to walk off towards Shadforth Lane. Male 2 said, “That cunt called me a black nigger.” Ms Reuben then saw Male 1 and 2 run off and turn down Shadforth Lane. Ms Reuben then saw the emergency lights from a passing police car.
(k)At approximately 00:59 am after the alleged assault on Mr Pease took place, police received a general description of the alleged assailants and the direction they had gone.
(l)Police saw a man (Mr Pinto) fitting the description of one of the attackers and approached him.
(m)At approximately 1:00 am Mr Pinto is shown on police CCTV footage running along Shadforth Lane and climbing over a fence on Shadforth Lane and falling into the Darwin City Hotel carpark. Mr Pinto hurt himself in the fall and was arrested by police. Mr Froggatt and his friend Peter Scott ran over from Monsoons to where Mr Pinto fell and the parties yelled at each other. The two men claimed Mr Pinto hit Mr Froggatt from behind inside Monsoons. A fence separated Mr Froggatt and Mr Scott from Mr Pinto.
(n)At approximately 1:00 am a man wearing an orange shirt was observed walking calmly along Shadforth Lane by Acting Sergeant Anya Hoffman who was driving by in an unmarked police car. She requested further information from police communications but did not receive it and so Acting Sergeant Hoffman drove past the man in the orange shirt towards Peel Street. As she was travelling down Shadforth Lane, Acting Sergeant Hoffman noticed that another man (Mr Pinto) had already been apprehended by police further down Shadforth Lane.
(o)At approximately 1:30 am Acting Sergeant Hoffman stopped the same man in the orange shirt (Mr Casimiro) on Mitchell Street and he produced his driver’s licence in the name of Pedro Casimiro. Police observed specks of blood on both of his feet and when searched Mr Casimiro had a knife in his pocket.
The Crown submits that this footage is relevant to the following issues in the trial.
(a)It shows that both accused were inside Monsoons and in each other’s company and both were involved in an altercation in which (other evidence, including statements by Mr Pinto in the second s 140 conversation, suggests) racial slurs were made.
(b)It is relevant to the motive for the assault on the complainant. Other evidence suggests that the motive for attacking the complainant may have been a perceived racial slur – perhaps wrongly attributed to the complainant. The complainant said that the man who stabbed him said, “That’s the one that’s been bagging the blackfellas out. That’s the one that’s been speaking shit about the boys,” and the witness Ms Reuben said that immediately after the assault on the complainant, the attacker wearing clothing fitting the description of that worn by Mr Pinto said, “That cunt called me a black nigger.”
(c)It shows that both accused were willing to engage in a physical altercation to assist each other.
(d)The footage confirms the physical appearance and clothing worn by both accused approximately five minutes before the stabbing occurred. (Mr Pinto’s shirt as shown in the CCTV footage matches that seized by police. It is distinctive in colour and style and has the number 23 on it.)
(e)It is relevant to the state of mind of both accused approximately five minutes before the stabbing – ie angry and belligerent over a perceived affront.
(f)It is relevant to assist the jury to assess the accuseds’ level of intoxication and physical co-ordination.
The Crown asserts that the incident in Monsoons and the incident outside on Peel Street were part of a continuum of drunken belligerent violence directed against people perceived to have made racial slurs which culminated in the stabbing. The Crown submits that this is borne out by statements made by Mr Pinto in the second s 140 conversation at the hospital in which Mr Pinto repeatedly asked the police officers to look at the CCTV footage from Monsoons so they could understand what was going on.
The Crown submits further that evidence of the events in Monsoons is necessary for the jury to understand why Mr Pinto and Mr Casimiro attacked the complainant minutes after they were evicted from Monsoons.
Counsel for Mr Pinto submits that the CCTV footage from Monsoons which is said to implicate Mr Pinto in a scuffle in Monsoons is not relevant to the case for which he is standing trial. The defence contends that “the Crown argument that an alleged desire to become involved in a physical incident in regard to Monsoons means that he was involved in the attack on Mr Pease amounts to flawed tendency reasoning”. This misstates the Crown’s contention.
Defence counsel submits that the Monsoons affair establishes nothing in relation to motive; that an angry mood is impossible to establish from CCTV footage and that, in any event, an angry mood in Monsoons proves nothing in relation to intent at a later time.
I disagree. I consider that, in combination with the other evidence referred to above, the CCTV footage from Monsoons is capable of rationally affecting the jury’s assessment of the probability that Mr Pinto and Mr Casimiro were in an aggressive, belligerent mood, over perceived racial slurs and willing to resort to violence as a result; that they were in the vicinity at the time of the attack and that they were the ones in the clothing described by the witness Ms Reuben. It is therefore relevant and prima facie admissible.
Counsel for Mr Pinto contends that even if the evidence is relevant, it should be excluded under s 137 because its probative value is outweighed by the danger of unfair prejudice to Mr Pinto. I disagree.
I agree with the Crown submission that the probative value of this evidence is high. The case against Mr Pinto is a circumstantial one and the Monsoon CCTV footage is a small but important part of the circumstantial case, as it ties together and helps make sense of other aspects of the evidence in the case, in particular the evidence of what Mr Pinto said in the second s 140 conversation.
The fact that the evidence makes it more probable that the Crown can prove its case against Mr Pinto does not amount to unfair prejudice. To amount to unfair prejudice there must be a risk that the jury could misuse the evidence. The only unfair prejudice defence counsel was able to identify was that “the jury might focus on this aspect of the evidence which raises the risk of diverting them from their true task, namely the Pease incident”, and that this problem could not be cured by direction.
I do not think it at all probable that the jury might focus on the Monsoons incident and be diverted from a consideration of the alleged attack on Mr Pease. The jury will receive the usual warning against propensity reasoning and I see no reason why this would not be effective.
The Monsoons CCTV footage will be admitted.
[1] Although not located in his pockets during the initial search by police on Mitchell Street, once back at the police station, Mr Casimiro was also found to be in possession of a small quantity of methamphetamine.
[2] Mr Casimiro was cautioned before the search. He told the police officers present that he had “a fit” in his pocket but that all the drugs were used.
[3] [2019] NTSC 91
[4] ibid [37]
[5] George v Rockett (1990) 170 CLR 7 at 115
[6] [2019] NTSC 91 at [38]
[7] Hussien v Chong Fook Kam [1970] AC 942 at 948, adopted and applied by the High Court in George v Rockett (1990) 170 CLR 104 at 115
[8] ibid
[9] ibid
[10] Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 per Kitto J at 303, cited with approval by the High Court in George v Rockett (1990) 170 CLR 104 at 115-116
[11] at [41]
[12] (2017) 261 CLR 265 at [71]
[13] Robinson v Woolworths Ltd (2005) 158 A Crim R 546 at [23]
[14] Ridgeway v The Queen (1995) 184 CLR 19 at 36 per Mason CJ, Deane and Dawson JJ
[15] See also The Queen v Gehan at [9]
[16] Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28] referred to in The Queen v Layt [2018] NTSC 36 at [73]
[17] The Queen v Gehan at [11]
[18] (1978) 141 CLR 54 at page 78
[19] Cleland v The Queen (1982) 151 CLR 1 per Dawson J at 34
[20] (1989) 50 A Crim R 327 per Crockett and O’Bryan JJ at 332-333
[21] (1993) 67 A Crim R 91 per Hunt CJ at 98
[22] Hospital clinical progress notes indicate that a CT scan did not reveal any C spine injury and only L spine precautions needed to be maintained.
[23] The only questions the officers asked that were related to “what happened”, were to clarify things Mr Pinto had told them. After a lengthy explanation by Mr Pinto, one of the officers asked, “Are we talking about the incident that occurred on Peel Street?” Mr Pinto went on, “No, we are talking about the incident that was inside Monsoons where you see from there. That’s why I said to thing, go check Monsoons, mate. Talk to the big bouncer, you’ll see the footage. You’ll see Abel Pinto what he does.” The officer asked, “Is this, so was the stabbing a continuation of what happened” and Mr Pinto said, “What stabbing?” … The officer said, “Okay. So, well, are you saying that the stabbing had something to do with something that happened in Monsoons?” to which Mr Pinto answered, “No, I’m saying if you listen, the person who done it at Monsoons, you will see everything. That bloke puts his hands up and throws his punch at us. We chase him. That’s it.”
Later, when Mr Pinto talked about someone standing behind him threatening him when he was arrested, an officer asked, “He was standing behind you what, sorry?” They did ask several times if Mr Pinto wanted to tell them anything else and then they asked for clarification of what he had said in questions like, “What Tuesday?” “Same fellow?” and, “What was his name?”
[24] In written submissions, defence counsel argued that the second s 140 conversation was conducted in breach of s 140 because it amounted to “an interview” and should have been deferred because “the preconditions for the application of s 140 had been triggered”. Quite apart from the fact that police were not questioning Mr Pinto at the time, these submissions did not make sense. For example counsel submitted that the interview “must be deferred if the items in c and d above [ie paragraphs (c) and (d) of s 140] are triggered”, but the section talks about deferring any questioning unless the conditions in paragraphs (c) and (d) are met. This argument was not pursued at the hearing of the voir dire.
[25] The evidence was that after they spoke to Mr Pinto at the hospital, they notified his mother at the address Mr Pinto nominated, where he was and that he was under arrest.
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