The Queen v Russell Peter Collins (No 2)

[2017] NTSC 12

The Queen v Russell Peter Collins (No 2) [2017] NTSC 12

PARTIES:THE QUEEN

v

RUSSELL PETER COLLINS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:21606614

DELIVERED:  17 FEBRUARY 2017

HEARING DATE:  13 FEBRUARY 2017

JUDGMENT OF:  MILDREN AJ

REPRESENTATION:

Counsel:

Crown:J. Stuchbery  

Accused:R. Pettit and J. Murphy

Solicitors:

Crown:Office of the Director of Public Prosecutions

Accused:North Australian Aboriginal Justice Agency

Judgment category classification:    C

Judgement ID Number:                    Mil17542

Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Russell Peter Collins (No 2) [2017] NTSC 12

No. 21606614

BETWEEN:

THE QUEEN

Plaintiff

AND:

RUSSELL PETER COLLINS

Defendant

CORAM:     MILDREN AJ

REASONS FOR RULINGS
(Delivered 17 February 2017)

[1]The accused, Russell Peter Collins, is charged with aggravated unlawful entry and with aggravated robbery.  The Crown case is that he broke into the residence of a Ms Henwood and robbed her of her handbag and its contents which included $3,500 in cash, whilst armed with a knife.

[2]The Crown alleges that whilst the accused was in remand he became aware that another prisoner, Peter Zanoni, had been spoken to by police at the gaol.  Peter Zanoni is to be called as a witness at the trial.  His evidence concerns being present on an occasion when the accused called at the home of a Ms Parker and was given a small bottle of whiskey.  The bottle, with the DNA of the accused and a person other than the accused on it, was located at the home of Ms Henwood after the robbery.  The purpose of Peter Zanoni’s evidence is to link the accused with the whiskey bottle and hence the robbery.

[3]After the police left the prison, it is alleged that the accused spoke to Peter Zanoni asking him about what had happened with “some bottle” and “his DNA”.  The accused told Peter Zanoni that if he went to court he should say “no comment”, or he was going to kill him.  The accused is also alleged to have threatened to hurt Matthew Zanoni, Peter Zanoni’s son, who was also a prisoner, if Peter Zanoni “spoke to the cops”.

[4]The Crown proposes to call Matthew Zanoni who will give evidence that he overheard part of the conversation between Peter Zanoni and the accused.  Matthew Zanoni also will be called to give evidence of a conversation he had with the accused when the accused admitted to him that it was he who committed the robbery.

[5]It is also proposed to call both Zanonis to prove that in the evening after the conversation with Matthew Zanoni, the accused entered the cell occupied by both the Zanonis and assaulted Matthew Zanoni.  The purpose of the assault, so it will be alleged, was to discourage the Zanonis from giving evidence against the accused at the trial.

[6]Objection was taken by counsel for the accused to the admission of the evidence, relying on s 137 of the Evidence (National Uniform Legislation) Act (NT), (the Act). At the conclusion of the voir dire, I ruled that the evidence of Matthew Zanoni as to the admissions allegedly made by the accused would be admitted into evidence; but that the evidence relating to the threats to Peter Zanoni and the assault on Matthew Zanoni would be excluded.  I said that I would provide reasons later.  These are my reasons.

Admissibility of the threats and assault of Peter Zanoni

[7]These allegations, if proved, would amount to the offences of aggravated assault on Matthew Zanoni (maximum penalty 5 years); one count of causing physical injury to a witness, Matthew Zanoni, vide s 103A(1)(b) of the Criminal Code (maximum penalty 7 years); and one count of corruption of a witness, Peter Zanoni, vide s 100(b) of the Criminal Code (maximum penalty 7 years); or perhaps a single count of attempting to pervert the course of justice, vide s 109 of the Criminal Code (maximum penalty 15 years imprisonment).

[8]The purpose of the Crown leading this evidence is to show consciousness of guilt of the offences with which the accused is presently charged.  I was in no doubt that the evidence, taken at its highest, is capable of being evidence of consciousness of guilt, and is therefore prima facie relevant and admissible.

[9]Section 137 of the Act provides that 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”. This requires a balancing exercise between the interests of the Crown in having the evidence admitted and the interests of the accused, to the extent that he may be prejudiced if the evidence is admitted.

[10]The first stage of this exercise is to consider the probative force of the evidence as evidence of consciousness of guilt.  Evidence of consciousness of guilt is admissible as a piece of circumstantial evidence in proof of the offence charged. For this purpose it must be assumed that it is both reliable and credible.[1]  The Dictionary definition of “probative value” of evidence “means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.  As Counsel for the accused submitted, the evidence is only circumstantial evidence in aid of proof of the fact of guilt, unless the jury is able to find beyond reasonable doubt that the matters alleged are not only true and accurate, but that no other inference, apart from an inference of guilt, is reasonably open on the evidence.  In the absence of any other explanation, the probative value of the evidence is high.  Counsel for the accused submitted that there is another possible explanation, namely, that the accused was anxious to prevent the Zanonis from giving false testimony against him.  As counsel for the Crown submitted, there is simply no evidence of this, and nor could there be any unless the accused gave evidence.  I accept the submission of the Crown that the evidence is highly probative. 

[11]As to the danger of unfair prejudice, if the evidence is admitted it will place the accused in a dilemma.  The evidence reveals the significant offences to which I have referred which amount to uncharged, post-offending, conduct.  Moreover, it is highly likely that charges of this or a similar nature will eventually be brought against the accused.  If the evidence is admitted, the accused may well be forced to give evidence, in the course of which it will be necessary for him to reveal in advance his defences, if any, to the uncharged conduct.  Further, his evidence could be led against him in any subsequent trial.  This affects his fundamental right of silence.  In effect, the result would become a trial within the trial.  Moreover, it could lead the jury into adopting an illegitimate form of reasoning towards the accused on the basis of his bad character and propensity for violence.  Furthermore, the accused will not have had the benefit of a committal hearing or the delivery of a brief of evidence, although to some extent that has been overcome by holding a Basha Enquiry before the trial began.

[12]In my judgment the danger of procedural unfairness to the accused is such that the evidence is so prejudicial as to outweigh its probative value.  The circumstances have some similarity to the dilemma faced by the accused in Commissioner of the Australian Federal Police v Zhao & Others.[2]  In that case, the Commissioner had brought forfeiture proceedings against the accused pursuant to the provisions of the Proceeds of Crime Act 2002 (Cth). At the same time, charges were brought against the accused for aiding and abetting another to deal with the proceeds of crime, contrary to ss 11.4 and 400.4 of the Criminal Code (Cth). The accused sought a stay of the civil action until after the criminal charges had been dealt with. The Court of Appeal (Victoria) granted the stay and the Commissioner appealed to the High Court which dismissed the appeal. The Court accepted that if the civil proceedings were not stayed, it would be necessary for the accused to depose to matters directly relevant to the criminal proceedings, which would compromise the accused’s right of silence and privilege against self-incrimination. Therefore the Court concluded that the prejudice was real, such that the stay was rightly granted. Of course that case was not concerned with the exercise of the balancing of prejudice required by s 137 of the Act; but nevertheless it illustrates acceptance of the argument put forward by counsel that the prejudice in this case is real.

[13]I was referred also the judgment of Blokland J. in Mulhall v The Queen.[3] In that case the accused faced a number of charges of property offences and three charges of aggravated assault. The Crown also charged in the same indictment a charge of attempting to induce a person called or to be called as a witness to give false testimony or withhold true testimony, contrary to s 100(b) of the Criminal Code. Blokland J found that the charge was properly joined in accordance with s 309 of the Criminal Code, but her Honour ordered that this charge be severed from the indictment because considerable prejudice would be occasioned to the accused if the count was left to the jury, and because the risk of misuse of the evidence remained high even if directions were given as to the appropriate use of the evidence. That case also bears some similarity to the present case, albeit that it does not directly deal with the risk of prejudice which s 137 requires to be weighed.

[14]In my opinion, on the facts of this case the risk of unfair prejudice to the accused is so high that it outweighs the probative value of the evidence proposed to be led. In particular, the accused will be forced, in order to defend the current charges, to either give evidence in denying the allegations and thereby waiving his right to silence and privilege against self-incrimination in respect of the uncharged acts, or to say nothing about them, which would seriously undermine any chance he may have of an acquittal. The evidence would also have the potential to show the bad character and moral shortcomings of the accused which I do not consider could be effectively cured by giving an appropriate jury direction. Consequently, I ruled that this evidence is excluded pursuant to s 137 of the Act.

Evidence of admissions

[15]Making the assumption that the evidence of the admissions is both reliable and credible, the evidence is plainly relevant and its probative value is high.  The first matter of prejudice which counsel for the accused is able to point to is that the evidence will reveal that the accused was in custody at the time.  This is a matter which is not uncommon when gaol-house confessions are led into evidence and can adequately be dealt with by an appropriate direction.

[16]Secondly, it was submitted that the evidence of the admissions was so intrinsically linked with the evidence of the threats and assaults referred to above that it could not be separated from it.  I reject this submission.  Although there is a danger that the impugned evidence may inadvertently come out if the evidence is not handled with care, I see no reason why the evidence cannot be separated in such a way that the jury is not made aware of those matters.

[17]In those circumstances, I concluded that any unfair prejudice to the accused by the admission of that evidence was slight, and did not outweigh its probative value, and I therefore declined to exclude it.

_____________________________

[1] IMM v The Queen (2016) 330 ALR 382 at 392 [52] per French CJ, Kiefel, Bell and Keane JJ.

[2] (2015) 255 CLR 46

[3] [2016] NTSC 25