The State of Western Australia v Rehu
[2016] WASC 112
•6 APRIL 2016
THE STATE OF WESTERN AUSTRALIA -v- REHU [2016] WASC 112
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 112 | |
| 06/04/2016 | |||
| Case No: | INS:66/2015 | 3 - 10 DECEMBER 2016 | |
| Coram: | FIANNACA J | 10/12/15 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA CONDY HOANI REHU |
Catchwords: | Criminal law Admissibility of evidence |
Legislation: | Nil |
Case References: | Dair v The State of Western Australia [2008] WASCA 72 The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
CONDY HOANI REHU
Accused
Catchwords:
Criminal law - Admissibility of evidence
Legislation:
Nil
Result:
Application allowed
Category: B
Representation:
Counsel:
Prosecution : Mr A D Hills-Wright
Accused : Ms S M De Maio
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Sandra De Maio Criminal Lawyer Pty Ltd
Case(s) referred to in judgment(s):
Dair v The State of Western Australia [2008] WASCA 72
The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618
- FIANNACA J:
(This judgment was delivered extemporaneously on 10 December 2015 and has been edited from the transcript.)
1 Condy Hoani Rehu (the accused) was tried on indictment on two counts of aggravated home burglary and two counts of aggravated armed robbery. He pleaded guilty at the start of the trial to two counts of stealing a motor vehicle and one count of driving a motor vehicle at a speed exceeding the speed limit by 45 km per hour or more to escape pursuit by the police.
2 The trial took place from 3 December 2015 to 10 December 2015. During the course of the trial I was required to rule on the admissibility of evidence which the State sought to adduce of the contents of telephone calls made by Mr Rehu while he was in prison on remand awaiting trial on the charges. The calls were referred to as 'Arunta calls', after the recording system that was used in the prisons to record the calls. The defence objected to the evidence on the basis that the content of the calls on which the State sought to rely had no probative value, having regard to the issues in the trial, alternatively that the prejudicial value of the calls outweighed any probative value.
3 I ruled that the evidence was admissible, although in relation to part of it, I ruled that the State could not rely on it in the way it had argued. I gave brief oral reasons for my ruling at that time and said I would publish detailed reasons in due course. The reasons for my ruling were on the basis of the evidence that was expected to be given both in the State's case and the accused's case, as disclosed in the prosecution brief and the opening addresses of the prosecutor and the accused's counsel.
4 These are my reasons.
The State's case
5 The State's case, as opened, was that on Thursday, 12 June 2014, around 7.00 pm, the accused and an accomplice committed an aggravated home burglary and aggravated armed robbery at a house in Port Kennedy. The offenders demanded the keys for a high-powered vehicle that was parked outside. They were not given the keys, but stole other property. Immediately after the offences were committed, the offenders were seen to leave in a Honda Accord sedan. The registration number was recorded by a witness.
6 Around 7.40 pm the accused and his associate committed a second aggravated home burglary and an aggravated armed robbery at a house in Waikiki. The offenders again demanded the keys to the victim's vehicle, a high-powered vehicle parked at the front. The victim, a heavily built man, was assaulted and injured when he tried to prevent the offenders from stealing his property. On that occasion, the Honda Accord was abandoned at the scene, and the offenders stole the victim's black Holden Commodore sedan.
7 At approximately 8.15 pm police began a pursuit of the Holden Commodore and, from that time, did not lose contact with it before it crashed into a tree at the front of a house in Singleton around 8.25 pm. The accused was arrested nearby. It was the State's case, given video footage captured from a police helicopter (PolAir) that assisted in the pursuit, and forensic evidence from the steering wheel of the car, which connected the accused to the car, that the accused was driving the Holden Commodore at the time of the crash.
8 On the State's case there was a period of approximately 35 minutes between the commission of the offences in Waikiki around 7.40 pm and the first sighting of the stolen Holden Commodore by police around 8.15 pm. The whereabouts of the offenders and the Holden Commodore during that period could not be established on the prosecution evidence.
9 The accused took part in a video recorded interview at 2.31 am on Friday, 13 June 2014, some six hours after his arrest. In the interview, he was vague and claimed to have only a partial memory of what had happened during the night. Nevertheless, the State's case was that some of his statements amounted to admissions of his involvement in both sets of offences at Port Kennedy and Waikiki, and that he was the driver of the Holden Commodore during the pursuit and at the time of the crash.
10 The State's case also included forensic evidence linking the accused to the Honda Accord and to a bag, and items found in it, that was left at the scene of the Waikiki offences.
The defence case
11 A notice of alibi was filed on behalf of the accused. The effect of it was that the accused could not have been responsible for either set of offences, because at the relevant time he was either in Rockingham at the IGA store, waiting to be picked up by the alibi witness, or en route to, or at, an unspecified address in Baldivis where the alibi witness dropped him off.
12 Defence counsel gave an opening address. She said the accused's case was that he was the driver of the Holden Commodore at the time it was pursued by the police and crashed in Singleton. However, the accused's case was that he had come into possession of the car at a 'drug house' in Baldivis a short time before the police pursuit. In fact, it was within a very short time of leaving the drug house that the accused became aware of police lights flashing and the police pursuit commenced.
13 The accused's counsel informed the jury that the accused was a drug user at the relevant time. She said he used amphetamine, methylamphetamine and heroin. She said the accused had acquired the Honda Accord in exchange for drugs, and that he sold it to someone else, again in exchange for drugs, before the Port Kennedy offences were committed. This explained the forensic evidence connecting the accused to the Honda Accord, although he was not involved with the offences.
14 As for the police interview, counsel informed the jury that, on the defence case, what appear to be admissions in the interview should not be regarded as admissions, that the accused was drug-affected and so vague that what he said could not amount to admissions.
Facts not in dispute
15 The conduct of the defence case did not take issue with the proposition that the same offenders were responsible for the offences in Port Kennedy and Waikiki. In each case there were two offenders. The link was the Honda Accord, which was used by the offenders to drive away from the scene of the Port Kennedy offences and was then abandoned at the scene of the Waikiki offences, from which the Holden Commodore was stolen. In each instance the offenders wanted the keys to the occupant's car. The cars for which they demanded keys were high-powered cars. The Waikiki offences occurred within a short time of the Port Kennedy offences.
The telephone conversations
16 The Arunta calls on which the State sought to rely were made by the accused on 18 June 2014 and 20 June 2014 respectively, while he was in custody at Hakea Prison on remand. The transcript of the calls is annexed to these reasons.
17 The State argued that certain statements made by the accused during the calls were admissible as admissions against interest. Those statements are contained in passages that are highlighted in the transcript. The statements made by the persons to whom he was speaking and any additional statements made by the accused in those passages were said to be admissible to provide context for the admissions.
18 There are five passages, which can be summarised as follows:
18 June 2014
1. The accused says, 'I'm fucked', and then says he is 'going' for a number of offences, two of which he correctly describes as armed robbery and aggravated burglary. He says, 'They reckon I've done heaps of shit', before going on to say that he does not remember the last few days because he had been 'hitting the shit hard' (a reference to drug use). He next says, 'I didn't know what the fuck was going on … Thinking cunts were killing me and this and that … turning fucking nasty'. He also refers to losing his 'wallet and everything … in there'.
2. The accused refers to himself as a 'dumb cunt' and says:
I should have stayed up on, I've got the one spot there up on the hill and I fucking, I should have stayed there a bit longer, just took my breath and had a bit of a breather.
- He says he thinks he 'might have been alright on that hill', because he 'could have stayed there for a while'.
3. There is a discussion between the accused and another male about the accused applying for bail and the prospect of a suspended sentence. The accused appears to indicate that a suspended sentence is not likely because the offences are 'pretty serious'. He says:
I think they got me for like, ag-, I don't know what they got me for. Ag-, burg-, armed robbery, um, unlawful wounding.
…
Um, stealing, chase, evade. Um, yeah. They got me for a few big ones, I think, so hopefully a suspended sentence would be alright. (emphasis added)
4. The accused says it was a 'mad couple of days'. He says he will tell the other party to the call all about it when he next sees him. He then says:
There's, there's gotta be a clause in there where you act under fear, you know what I mean?
- The other speaker appears to suggest that the accused could be diverted to the drug court, but the accused says 'you can't when there's violent charges involved'. The other speaker suggests the accused can rely on the fact that he was affected by drugs. The accused responds that 'they' do not believe him (that he was affected by drugs) when they see him as he is 'now', but that they would say he should be put in Graylands (a secure psychiatric hospital) if they had seen him as he was.
5. The accused says:
I should have stayed on the hill this one night, boy. I should have stayed on the hill. I should have just stayed there but then - - -
…
Yeah. When they got me, boy, they reckon they had a spotter plane and everything. The spotter plane was telling the other coppers where we were. The helicopter fucked off, apparently, and then come back and then, yeah. Spotter plane was, ah, had spotted us so - - -
The parties' submissions
Passage 1
20 In relation to passage 1, the State submitted that:
1. The accused's reference to 'thinking cunts were killing me', things 'turning nasty' and losing his 'wallet and everything' was in 'clear reference' to the charges and could be construed as an admission that he was involved in the offending;
2. In particular, the statements could be taken as a reference to the Waikiki offences, in which an altercation occurred with the victim who attempted to resist;
3. The statements correlated with an admission made by the accused in his police interview, in which he said he remembered being punched by 'the big bloke' with 'long hair', a description that was consistent with the victim;
4. The accused's reference to losing 'his wallet and everything' was consistent with the fact that, property which was alleged to belong to the accused was found in a backpack left at the scene of the Waikiki offences, although his wallet was not among that property.
21 The defence submitted that the accused's statements in passage 1 were vague and consistent with him describing his drug-affected thinking generally in the last few days. He had in fact lost his property, but his statements could not be construed as an admission that it was lost in the commission of offences.
Passages 2 and 5
22 In relation to passages 2 and 5, the State submitted that the content is linked. In passage 5, the accused returns to the topic he first mentioned in passage 2 and provides further context. The State submitted that:
1. The accused's comments are capable of being regarded as an admission that, after the Waikiki offences, he had the opportunity to stay on 'the hill' a bit longer and have a breather and avoid being seen by the spotter plane, and that he 'might have been alright on that hill'. As noted earlier, there was a period of some 35 minutes between the Waikiki offences and when the PolAir helicopter spotted the stolen Holden Commodore;
2. What the accused says is capable of being regarded as a statement of regret that he did not stay 'on the hill' for longer after the commission of the Waikiki offences. It is inconsistent with the suggestion that nothing of any moment happened before he was on 'the hill';
3. The words 'but then' suggest the accused was on 'the hill' waiting, and that he should have stayed longer, because it was after that time the spotter plane saw him; and
4. The accused's reference to having 'a bit of a breather' is consistent only with some prior event having occurred which necessitated the accused having to recover.
23 The defence submitted, in relation to passages 2 and 5, that:
1. Unless the State could establish that there was a location fitting the description of a hill, it could not be known where the accused was referring to, nor the time to which he was referring. In other words, it could not be linked to a period proximate to the offences. As the evidence in the State case could not establish the topography of the areas where events were alleged to have occurred, the accused's statements could have no probative value;
2. The accused's apparent expression of regret could be referring to any number of things, including having got involved with the people from whom he acquired the Holden Commodore, because he knew he had been involved in a police pursuit in a stolen car;
3. A proper consideration of the manner in which the conversation flows, listening to the audio recording, suggests that when the accused refers to the 'spotter plane', he is moving onto a different topic and is not relating that, either by reference to time or otherwise, to being on the hill;
4. The State is trying to string together disjointed statements in order to make sense of them, whereas they should be regarded as unrelated; and
5. The accused's references to what the spotter plane did are statements made in hindsight. He is relating what the police have told him about the way in which he was apprehended. They do not amount to an admission of guilt in respect of the Port Kennedy or Waikiki offences.
Passage 3
24 In relation to passage 3, the State submitted that, in context, the words 'they got me', followed by the reference to a suspended sentence, are capable of being regarded as an admission of guilt of the serious offences, rather than merely a comment about his being charged with those serious offences.
25 The defence submitted that the accused's statements in this passage could not be regarded as admissions that he committed the offences with which he was charged. The accused knew he was in prison, on remand, because he had been charged with serious offences, including stealing a motor vehicle and being involved in a police pursuit, to which he later pleaded guilty, so he knew he was in a lot of trouble. He was simply relating what the police had told him about the charges he was facing. Nowhere in the passage does the accused actually say that he committed an aggravated burglary or an armed robbery.
Passage 4
26 In passage 4 the accused refers to 'a mad couple of days' and then tells his friend, 'Next time I see you I'll tell you all about it'. The State submitted that the comment is capable of being regarded as an admission by the accused that he does have a memory of the events and intends to talk to his friend about them. It was argued that this tended to rebut the argument that the accused's apparent admissions in the police interview were just speculation or reiterating what the police had told him.
27 As for the discussion about potential defences, the State submitted that it was capable of being regarded as an implied admission by the accused that he committed all of the offences, and an attempt by him to explain the causes of his offending.
28 The defence submitted that passage 4 consists of the accused and the other person just 'tossing around ideas' about potential defences. Otherwise, the accused's statements do not go beyond acknowledging that he has been arrested for serious charges and could go to gaol, and that he will talk to his friend about those matters in more detail when he next sees him.
Are the accused's statements admissions?
29 In the Arunta calls the accused does not directly admit that he committed any of the offences with which he is charged. The statements he makes, that are relied on by the State, could amount to admissions of his involvement in the offences only by inference. They are part of the circumstantial evidence on which the State relies to establish the accused's guilt. As such, they are not to be considered in a piecemeal way: The Queen v Hillier[2007] HCA 13; (2007) 228 CLR 618. It is necessary to consider the statements in the context of other evidence in the case.
30 More particularly, the meaning that can reasonably be attributed to the accused's statements in the five passages must be considered in the context of the whole of the conversation in which a particular passage appears, but also in the context of both conversations. Whereas in isolation the meaning of a particular statement may appear to be ambiguous, or even unascertainable, the combination of the statements and the context in which they are made may give specific meaning to such a statement.
31 In my opinion, although at times the accused refers to things he has been told, some of his statements during the course of the conversations are capable of amounting to admissions about his conduct and his state of mind (more particularly, his state of intoxication) in the days preceding his incarceration. In other words, a jury would be entitled to conclude that, in respect of some of the statements, he was relating events he could recall.
32 Whether any of the admissions amount to a confession of the offending is a different matter. As I outlined above, counsel for the accused argued that several of the statements should be construed as having a different meaning from that for which the State contended. However, provided the meaning contended for by the State is reasonably open, the question of whether that is the only meaning reasonably open is a matter for the jury to consider in light of all the evidence, and having regard to the burden and standard of proof.
33 If the accused's statements are capable of amounting to admissions that are relevant to a fact in issue, then they are admissible, subject to exclusion in the exercise of my discretion on the basis of any probative value being outweighed by the prejudicial effect of the evidence.
Do the accused's statements have probative value?
34 In order to be relevant the evidence must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: Dair v The State of Western Australia [2008] WASCA 72 [60] (Steytler P).
35 The fact in issue to which this evidence is said to relate is the central issue in the case, namely whether the accused was involved in the two aggravated home burglaries and the associated aggravated armed robberies (the central fact).
Passage 1
(a) Whether an admission of guilt of the offences
36 At the start of passage 1, the accused says that he is 'fucked' and is 'going' for a number of offences. Although the State did not press specifically that these comments amount to admissions of guilt, the State's submissions in respect of passage 3 seemed to encompass these comments as well, the submission being that the accused was not just stating he was charged with certain offences, but was acknowledging guilt.
37 In my opinion, these particular statements of the accused, in context, could not be regarded as admissions of the offences, or at least any particular offences, to which he then refers. The opening comments are qualified by the statement, 'They reckon I've done heaps of shit' and the statement that he does not remember the last few days. In context, the opening comments are consistent with an acknowledgement by the accused that he was in trouble because he had been charged with a number of serious offences and was not likely to be released on bail, without intending to convey any admission of those offences.
(b) Whether an admission of involvement in the offences
38 As to the accused's statements that he was 'thinking cunts were killing me' and 'just turning fucking nasty', I am of the opinion that the words are far from being a 'clear reference' to the charges, as contended for by the State. More particularly, in my opinion, the words are too ambiguous to be regarded as an admission of involvement in the Waikiki offences. While it may be accepted that the comments suggest involvement in violence, and circumstances becoming 'nasty', there are two matters in particular that distinguish them from statements made by the accused in his police interview about his confrontation with 'the big bloke' with 'long hair'.
39 First, in passage 1, the accused uses the plural 'cunts'. The victim of the Waikiki offences was alone.
40 Secondly, in the police interview, the accused refers to being punched by the 'big bloke'. Apart from being relatively specific in his description of the man, in comparison to the lack of description in passage 1, one could hardly equate being punched with thinking others were killing him.
41 I am also not persuaded by the State's submission that the reference by the accused to losing his 'wallet and everything … in there' links the statements about thinking he was being killed and things turning nasty to the Waikiki offences. It is not clear that the two topics are linked, other than the fact that the accused says he did not know what was going on. He was obviously aware when speaking on the telephone that he had lost his belongings, but that is consistent with his having realised at some stage, either before or after he was arrested, that his property was missing. It says nothing about where he may have lost his property or in what circumstances.
42 Accordingly, I ruled that the comments to which I have been referring were too ambiguous to be left to the jury as admissions of the offences in respect of which the trial was proceeding. I indicated I would be directing the jury accordingly, that is, that they could not draw the conclusion, from those words, that the accused was admitting involvement in the violence that occurred at Waikiki.
43 However, in my opinion, the words were part of the accused's description of the effect that drugs were having on him at the relevant time, which included distorted thinking about what others were doing to him. For the reasons that follow, I consider that the statements are relevant to a fact in issue.
(c) Whether relevant to a fact in issue
44 In passage 1, the accused talks about 'hitting the shit hard', which is obviously a reference to drugs. What follows appears to be a description of the effect of the drug use on him, including distorted thinking.
45 In my opinion, these statements are relevant to the jury's consideration of the issue of whether he was involved in the offences for which he was being tried, because it suggests that he was, at the relevant time, operating under the influence of drugs. The accused went on to say more about the effect of drugs on him in a passage in the second conversation.
46 The influence of illicit drugs is relevant to the accused's state of mind. The accused's counsel informed the jury in her opening address that the accused was using amphetamine, methylamphetamine and heroin. Notoriously, the effects of amphetamine and methylamphetamine can include aggression and loss of inhibition. All three drugs are capable of affecting judgment and may have a bearing on a person's intention to achieve a particular result, which is an element of each of the offences for which the accused was standing trial.
47 In my opinion, evidence of the accused's statements about his drug use and its effect on him at the relevant time was, therefore, capable of rationally affecting, at least indirectly, the jury's assessment of the probability of the accused's involvement in the aggravated burglaries and the armed robberies.
48 Evidence of the conversation in passage 1is admissible on that basis.
Passages 2 and 5
49 In relation to passages 2 and 5, the State's submission assumes that:
1. both passages refer to the same event; and
2. what the accused says in passage 5, when he uses the words 'and then', followed by discussion about the involvement of the 'spotter plane', amounts to an admission that his being on 'the hill' and having 'a bit of a breather' occurred immediately before police pursuit in which the PolAir helicopter was involved.
50 In my opinion, it would be open to a jury to draw both conclusions.
51 A jury would be entitled to conclude that, given the course of the conversations, it is highly unlikely the accused would be referring to two unrelated incidents in which he should have stayed 'on the hill'. In isolation, the reference in passage 2 in the first conversation to being 'a dumb cunt' and needing to stay on the hill a bit longer might not have made a lot of sense. However, when he comes back to the topic in passage 5 in the second conversation and appears to relate it, at least in terms of time, to the pursuit with the spotter plane, passage 2 is given context. It is given further context by the accused's statement in passage 5 that the spotter plane was telling the other police 'where we were', which suggests that, whatever he was involved in at that point in time, he was involved in with somebody else.
52 The context also flows in the other direction. First, the reason why he was on 'the hill', which is not referred to in passage 5, is explained in passage 2. Secondly, the apparent regret in passage 5, which may be inferred from the words, 'I should have stayed', is reinforced by the comment in passage 2 that he is a 'dumb cunt'.
53 The defence submission that the apparent expression of regret could have been referring to any number of things, including his involvement in a police pursuit, is a matter for the jury to consider. For reasons which I will outline shortly, that would not detract from the probative value of the evidence. At face value, the regret appears to relate to his failure to have remained on the hill and the consequence of being apprehended by the police. It is only one aspect of the evidence on which the State relies in support of the inference that the accused was involved in the offences for which he was being tried.
54 I listened to the recording before ruling on the evidence, and I considered the defence submission that the accused appears to move onto a different topic when he refers to the spotter plane, and that the State is trying to string together disjointed statements. I understood the defence to be suggesting that the State's argument involves circular reasoning. In my opinion, this again is a matter for the jury to weigh. On listening to passage 5, it did not appear to me that the accused was speaking about unrelated events. In fact, it seemed he was progressing naturally to an explanation of why he should have remained on 'the hill', namely that he was then apprehended because of the use of the spotter plane or helicopter.
55 It may be, as the defence submitted, that, in referring to what the spotter plane or helicopter did, the accused was simply relating what happened in hindsight, based on what he was told by the police. References to what 'they reckon' and what the helicopter 'apparently' did might be thought to support that submission. However, even if it were correct, it does not diminish the significance of the connection between being on the hill and the subsequent involvement of the spotter plane. At the time the accused was speaking on the telephone from prison, he was aware of a helicopter having been involved in the pursuit that resulted in his arrest. It is that connection that matters, irrespective of whether he was aware of the helicopter while the pursuit was occurring, or he became aware of it from what the police told him.
56 The accused's counsel submitted that this evidence has no probative value unless the State can establish what 'the hill' is that the accused was referring to. I do not agree. It is correct that it is not possible to know, on the prosecution evidence, what the accused meant by 'the hill'. However, what is important in assessing the probative value of the evidence is the temporal connection between:
1. his having stopped to get his breath;
2. his leaving that location;
3. the police 'spotter plane' (in fact a helicopter) telling the police where he was, after he left the location where he stopped for a breather; and
4. his being caught.
57 In my opinion, evidence of the statements made by the accused in passages 2 and 5 could rationally affect the jury's assessment of the probability of the central fact, at least indirectly. It can do so by rationally affecting the question of how the accused came into possession of the Holden Commodore, there being no dispute that he was the driver of the vehicle at the time of the police pursuit that concluded in the crash and the accused's arrest.
58 If it were the fact that the accused stopped somewhere for a breather, as he described it in these conversations, before the pursuit that was assisted by PolAir, that would be a fact from which an inference could be drawn that he had been involved in some activity beforehand that required him to rest or recover. If he was involved in the aggravated burglaries and robberies, that would be an explanation for such a need, and would explain the whereabouts of the vehicle and the offenders between the commission of the offences in Waikiki and the time when the vehicle was seen by the police and the pursuit commenced.
59 On the other hand, the jury would be entitled to conclude that what the accused said during the course of these conversations about stopping for a breather is inconsistent with the defence case, as opened.
60 The defence opening suggested that the accused saw the police vehicle almost immediately after he had come into possession of the Holden Commodore and had driven away from the drug house. He saw the police emergency lights come on. That alerted him to the fact that the Holden Commodore must be stolen, if he did not already believe that to be the case. It was that realisation that caused him to try to evade the police in the pursuit that followed.
61 On that version of events, it would seem there was no occasion for the accused to have stopped for a breather. There was no need for him to have stopped for a breather.
62 In my opinion, in deciding whether the accused was involved in the offences described by the witnesses whose homes were invaded and who were robbed, the jury would be entitled to take into account what the accused said during the telephone conversations that suggests he needed to stop and have a breather, at a point in time before the chase. It is evidence that can rationally affect the assessment of the probability that he acquired the car as one of the offenders who committed the offences in Waikiki, rather than by means unconnected with those offences at a drug house in Baldivis.
63 Evidence of the conversations in passages 2 and 5 is admissible on that basis.
Passage 3
64 In passage 3, the accused says, 'They got me for a few big ones, I think', and then suggests a suspended sentence would be alright, having already indicated a suspended sentence was not likely because of the seriousness of the offences. It is certainly the case that the accused expresses uncertainty immediately before that as to what 'they' have 'got' him for, although he does refer to 'agg burg' and armed robbery. It may be accepted, as the defence submitted, that the accused knew he was in trouble, at the very least because he had been driving a stolen vehicle and had engaged police in a high speed chase. However, in my opinion, it would be open to a jury to find that the accused's use of the word 'got', as opposed to 'charged', coupled with the expectation of a sentence, amounted to an admission that he had been caught for offences in which he was involved, including aggravated burglary and armed robbery, rather than simply a statement that he had been charged with those offences. In assessing whether that conclusion should be drawn, the jury would need to consider the passage in the context of the other passages. Importantly, it would be required to make the assessment having regard to directions on the law concerning the criteria about which they would need to be satisfied before they could regard a statement as an admission of guilt, and having regard to the burden and standard of proof.
65 Evidence of the conversation in passage 3 is admissible on that basis.
Passage 4
66 The first part of passage 4, referring to 'a mad couple of days', appears to reprise the statements in passage 1 about the accused's drug use and its impact on him in the period leading up to his incarceration. It is relevant and admissible on the same basis.
67 In my opinion, it would be open to a jury to infer from the accused's statement that he would tell his friend 'all about it' when he next sees him, that he did have a memory of the events, as was submitted by the State. That would be relevant to the jury's consideration of whether the accused was actually recalling events in his apparent admissions in the police interview, or whether he was speculating or simply repeating what he had been told by the police. Again, this is an area where the defence submission, suggesting a different meaning can be attributed to the accused's words, is a matter for comment for the jury's consideration. The question is whether the words are capable of bearing the meaning contended for by the State. In my opinion, they are, although they would need to be weighed against statements in passage 1 in which the accused purports to lack memory of the preceding days.
68 I am also of the opinion that the balance of what the accused says in passage 4 is capable of being regarded as an implied admission that he committed all of the offences with which he was charged.
69 His comment that there has to be a clause dealing with when one acts under fear suggests that was his reason for committing the offences. He does not confine his comment, in terms or context, to the driving offence. The comment suggests a defence of duress. A jury would be entitled to conclude that the comment is not consistent with a defence that he was not involved in the offences, and that he came into possession of the vehicle in a manner unrelated to the Waikiki offences.
70 Similarly, the accused's subsequent comment in passage 4 that, if 'they' had seen him as he was, they would say he should be put in Graylands, may be regarded as implying that the accused was labouring under a mental state that explains his involvement in the commission of the offences.
71 Again, in considering whether the accused's comments amount to implied admissions, it would be necessary to consider them in the context of other passages in both conversations.
72 The defence submission that the accused and his friend appear to be 'tossing around' ideas about potential defences does not negate the probative value of the evidence. It begs the question why defences concerning fear or his drug-affected mental state would be discussed if he was not involved in the offences at all. In any event, that is a matter for the jury's assessment.
73 Evidence of the conversation in passage 4 is admissible on the basis I have outlined.
Should the evidence be excluded in the exercise of discretion?
74 Having concluded the evidence of each of the passages is admissible for the reasons I have outlined, the question is whether any of it should be excluded on the basis that the evidence may result in improper prejudice to the accused, and that the risk of such prejudice outweighs the probative value of the evidence.
75 The prejudice as identified during discussion with counsel with the accused's counsel was considered to arise in the following ways:
1. When he made the calls, the accused was in prison on remand. In the jury's mind, that fact might suggest an assessment by the authorities of the strength of the prosecution case against him and perhaps the danger that he may be considered to pose to the community. There is also potentially a stigma that attaches to the fact that an accused has been in prison.
2. It is obvious that the accused and the person he is speaking to are not strangers to the criminal justice system. This raises the potential risk that the jury would engage in improper propensity reasoning.
3. The accused's discussion of sentencing might unduly influence the jury to conclude that he was admitting guilt, when in fact it was his friend who raised the subject, and the accused may be regarded as simply indicating what he thinks the consequences would be if he were convicted, without making any admission of guilt.
76 As for the first matter, the jury is aware that the accused pleaded guilty to offences of stealing a motor vehicle and reckless driving to evade police. It is evident from the driving offence that he posed a risk to the safety of the community. In light of the accused's admitted offending, any prejudice that might attach to the first matter would not be significant, in my opinion. In any event, directions are routinely given to juries to guard against prejudice when the fact that an accused has been in custody is a matter that is disclosed in the evidence for proper forensic reasons. Such a direction would be given in this case, and the jury would be expected to give effect to it.
77 As for the second matter, the jury were told in the defence opening that they would hear about (a) the accused's involvement in the drug subculture, including his dealing in drugs, (b) the fact that he was prepared to use vehicles that he knew were stolen and (c) the fact he engaged police in a high speed pursuit. These revelations would tend to defuse any prejudice flowing from the suggestion in the conversations that the accused was familiar with the criminal justice system. Some knowledge of the criminal justice system might be expected, given his background in the drug subculture. The jury would be directed that they could not infer guilt in respect of the charges they were considering on the basis of his guilt on the other charges.
78 As for the third matter, in my opinion, the directions in respect of admissions would provide adequate protection against any improper reasoning.
79 I am not satisfied that the risk of improper prejudice outweighs the probative value of the evidence.
Conclusion
80 On the basis of the above reasons, I concluded that the evidence was admissible, subject to the proviso about the way in which parts of passage 1 could be used. I also concluded that the probative value of the evidence was not outweighed by any prejudice that might attach to the evidence improperly, and the evidence should not be excluded in the exercise of my discretion.
ANNEXURE - TRANSCRIPT OF ARUNTA CALLS
18 June 2014
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20 June 2014
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