New South Wales Supreme Court CITATION : Regina v Patsalis & Spathis [No 3] [1999] NSWSC 718 revised - 27/09/99 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 70002/97; 70200/97 28 June 1999 - 30 June 1999 2 July 1999 HEARING DATE(S) : 5 July 1999 - 7 July 1999 12 July 1999 - 14 July 1999 19 July 1999 JUDGMENT DATE : 20 July 1999 Regina PARTIES : v Michael Patsalis Alexios Spathis JUDGMENT OF : Kirby J P Power (Crown) COUNSEL : M Macgregor QC (Patsalis) D Campbell (Spathis) K Roots (Crown) SOLICITORS : Coustas & Co (Patsalis) Hancock Alldis (Spathis) CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE; Admissibility of Evidence; Impropriety - failure to warn ACTS CITED : Evidence Act, 1995 - s 138, s139 Crimes Act, 1900 DECISION : See para 45 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION KIRBY J Tuesday 20 July 1999 70002/97 - REGINA v MICHAEL PATSALIS 70200/97 - REGINA v ALEXIOS SPATHIS JUDGMENT (Re Hand-written Statement) [No 3] 1 HIS HONOUR: On 12 April 1996, Mr Patsalis handed police a document. It was a statement which he had prepared, and brought with him to the Bankstown Police Station. The Prosecution, in its case against Mr Patsalis for murder, seeks to rely upon that document. Objection is taken on behalf of Mr Patsalis upon a number of grounds: · First, it is said that the document was improperly obtained. No warning was administered before Mr Patsalis handed the document to police (s138, s139 Evidence Act 1995). · Secondly, and in any event, the document discloses previous offences or discreditable conduct, offending the rules relating to propensity evidence (s97(1) Evidence Act 1995). 2 I will deal separately with the second aspect. It also arises in the context of the electronically recorded interview (ERISP) conducted with Mr Patsalis later the same evening. In the course of that interview, the police invited Mr Patsalis to read the hand-written statement, and he did so. Relevant Provision of the Evidence Act 3 Dealing with the first issue, s138(1) is, relevantly, in these terms: "Discretion to exclude improperly or illegally obtained evidence 138(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or ….. 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." 4 Section 138(3) identifies matters which the Court may take into account in determining the issues arising under s138(1). It is in these terms: "138(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence … (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 5 Section 139 identifies circumstances in which impropriety under s138(1)(a) is to be inferred. It makes the following provision, omitting parts not material: "Cautioning of persons 139(1) For the purposes of paragraph 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest for an offence at the time; and … (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence." 6 Section 139(5) is also relevant, and is in these terms: "139(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if: (a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or (b) the official would not allow the person to leave if the person wished to do so; or (c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so." 7 My attention has also been drawn to s356B Crimes Act 1900 (introduced by Part 10A, and operating from 9 February 1998), and s424A. Background to Mr Patsalis' Arrival at Bankstown 8 The victim, Mr Ludwig, died some time after 7.00 pm on Thursday 11 April 1996. Mr Patsalis was present when he died. He, Mr Ludwig, and Mr Spathis were in a truck parked by the side of the road in Botany. Mr Patsalis has asserted that Mr Spathis attacked Mr Ludwig with a knife, repeatedly stabbing him. Mr Ludwig died immediately. He was carrying a substantial sum in cash. According to Mr Patsalis, Mr Spathis removed money from the body. Mr Patsalis denied any fore-knowledge or compicity in Mr Spathis' crimes, whether the stabbing, or the robbery. 9 Indeed, Mr Patsalis described his horror at these events, and his resolve to go to the police. At 4.30 am on Friday 12 April 1996, he went to the Hilton Hotel. He asked for writing paper. He began writing an account of Mr Ludwig's death, and the background to it. 10 At 9.00 am, or soon thereafter, Mr Patsalis spoke to his solicitor, Mr Coustas. He made arrangements to see him at his Bankstown office later that day. He attended Mr Coustas' office at 5.20 pm (Q11). From there he went directly to the Bankstown Police Station, taking with him a twelve page account of the background to Mr Ludwig's death. 11 Mr Patsalis arrived at the police station at about 6.20 pm. He was seen briefly by Const Kelly, who was at the counter. He was then taken to Det McGillicuddy. Within a matter of minutes, Mr Patsalis handed the notes to Det McGillicuddy. The matter turns upon the circumstances in which the notes were handed over. 12 It is common ground that no warning was administered before Mr Patsalis provided the notes to the police. The Crown asserts that there was no occasion for warning, and no impropriety. Mr Patsalis was, at this point, simply a witness. Counsel for Mr Patsalis contends otherwise. Mr Patsalis was a person under arrest, or in police custody, in the circumstances identified by s139(5). There being no warning, there was impropriety. 13 The absence of a warning may amount to an impropriety in four circumstances: · First, if Mr Patsalis had already been arrested (s139(1)(a)). · Secondly, if, before the notes were handed over, either Const Kelly or Det Snr Const McGillicuddy believed that there was sufficient evidence to establish that Mr Patsalis had committed an offence which was the subject of questioning (s139(5)(a)). · Thirdly, if, before the notes were handed over, such officers would not have allowed Mr Patsalis to leave the police station had he wished to do so (s139(5)(b)). · Fourthly, if, before the notes were handed over, either Const Kelly or Det Snr Const McGillicuddy had given Mr Patsalis reasonable grounds for believing that he would not be allowed to leave if he wished to do so (s139(5)(c)). Initial Interview at Bankstown 14 Const Kelly gave the following account of his initial conversation with Mr Patsalis: "Mate, I witnessed a murder last night. I was there when it happened." 15 Const Kelly then ushered Mr Patsalis into a hallway at the rear of the police station. He sought the name of the person murdered, and the identity of the person responsible. Mr Patsalis provided this information, nominating Mr Spathis. Conversation with Det McGillicuddy 16 Const Kelly then took Mr Patsalis into the office of the Chief Detective, Det Sgt Katsogiannis. One gathers that Det McGillicuddy was nearby. He was apparently assigned the matter by Det Sgt Katsogiannis. Det McGillicuddy then addressed a number of questions to Mr Patsalis. The conversation was witnessed by Const Kelly. The account of Det McGillicuddy is in these terms: "I said, 'Hello. Lindsay McGillicuddy's the name.' He said, 'Michael. Michael Patsalis.' I said, 'Michael, can you tell me what you told the Constable?' He said, 'I witnesses a murder last night. The body is at Terrey Hills. He burned it.' I said, 'Who did the murder?' He said, 'Alex.' I said, 'Alex who?' He said, 'Alex Spathis.' I said, 'Who was killed?' He said, 'Peter. I don't know his name.' I said, 'Where did this happen?' He said, 'Botany.' I said, 'Why was he killed?' He said, 'Alex was going to rob him. Peter had fifty eight and a half thousand dollars ($58,500) on him.' I said, 'How was Peter killed?' He said, 'Alex just pulled out a knife and stabbed him in the neck. I was in the van and he bled all over me. I rang Mr Coustas, my solicitor, this morning and told him. Then I saw him this afternoon.' I said, 'What did he say?' He said, 'He said go to the Police. I've made some notes.'" 17 Mr Patsalis then handed Det McGillicuddy twelve pages of hand-written notes. The notes described, in some detail, Mr Patsalis' relations with Mr Spathis, and the accumulation of a debt to Mr Spathis of $16,500. The notes acknowledged conduct towards Mr Spathis which involved forgery and deception. The material certainly describes conduct which is discreditable. It is relied upon by the Crown to support its assertion of a joint criminal enterprise between Mr Patsalis and Mr Spathis to rob and murder Mr Ludwig. 18 Det McGillicuddy's Duty Book discloses that the notes were handed to him some time shortly before 6.40 pm (in other words, less than twenty minutes after Mr Patsalis' arrival at the police station). He did not read them immediately. Rather, he continued to question Mr Patsalis for a short time, culminating in the following exchange: "I said, 'Michael, what I'd like to do is speak further with you about this. Do you mind being interviewed on audio and video?' He said, 'No.'" 19 In order to prepare for the interview, Det McGillicuddy then began reading the notes. 20 Det McGillicuddy said that he had not noticed that Mr Patsalis had notes before he produced them. It was Mr Patsalis who drew his attention to them, and willingly handed them over. At that point Det McGillicuddy regarded Mr Patsalis as a witness. He did not have sufficient evidence to justify an arrest. 21 Neither Mr Patsalis nor any police officer suggested that Mr Patsalis had been formally arrested (cf s139(1)(a)). If Det McGillicuddy's account of his conversation with Mr Patsalis is accurate, he plainly did not have sufficient information to establish that Mr Patsalis had committed an offence at the time the notes were handed over (cf s139(5)(a)). 22 There is a body of evidence which supports Mr McGillicuddy's account. First, Const Kelly gave evidence in similar terms. 23 Secondly, Det McGillicuddy made notes the same evening concerning the conversation. Indeed, he made those notes in the presence of Mr Patsalis. The notes were then read to Mr Patsalis, who was invited to sign the notebook. Mr Patsalis did so. Later, during the video interview, Mr Patsalis verified to Det Hull his signature on the notes. He was also asked the following questions: "Q20. Is that a true and correct record of the conversation between yourself and Detective Senior Constable McGillicuddy? A. Yes, it is. Q21. I also understand that when you spoke to the police here at Bankstown you handed them a handwritten document. Is that correct? A. That is correct." 24 Thirdly, in the Duty Book of Det McGillicuddy, completed at the end of the shift, Mr Patsalis was described as a witness: "Then 6.30 pm speak to Det Sgt Katsogiannis, Cst Agnew & Cst Kelly re murder witness. Then speak to Michael Patsalis re witnessing murder @ Terry Hills. Patsalis hands over notes, 12 pages of steno." 25 Finally, once Det McGillicuddy had read Mr Patsalis' notes, he recognised an address which Mr Patsalis had referred to on the first page, namely 12B Restwell Street, Bankstown. Det McGillicuddy had been asked about that address at 5.40 pm by Det Const Cooke of the Major Crime Squad North (Chatswood). When Det McGillicuddy read Mr Patsalis' notes, he inferred that the murder described by Mr Patsalis was the subject of an investigation by the Major Crime Squad. He therefore telephoned that Squad. He was told that detectives would come to Bankstown to interview Mr Patsalis. Det McGillicuddy then had the following conversation with Mr Patsalis, which he recorded in his notebook: "Q21. Michael, I have just spoken to some gentlemen from the North Region Crime Squad. Apparently the body has been found. I was going to speak to you about what you told us, but they'd like you to wait around so they can speak to you. A. Yes, I understand. I'm prepared to wait. I know I'm not going anywhere for a while I've done some things but I've never seen a murder. I accept the fact that I might not leave here tonight." 26 The question and answer were incorporated in the notes which were signed by Mr Patsalis later that evening. This conversation does not suggest that Mr Patsalis was under arrest at that point. 27 On the basis of this evidence, were it accepted, there was no occasion for warning by the police before the notes were handed over. What, then, is said on behalf of Mr Patsalis to suggest that this evidence should not be accepted? The Evidence of Mr Patsalis 28 Mr Patsalis identified a number of matters which suggested to his mind that he was under arrest shortly after his arrival at Bankstown Police Station. He twice asked Const Kelly if he could have a cigarette. Being a Government office, this would have involved going outside. Twice he was refused permission. Further, he was accompanied by a police officer wherever he went, including to the toilet. During the interval between his presenting himself at the station, and the arrival of detectives from the Major Crime Squad (Det Hull and others), he was, at all times, accompanied by a police officer. 29 Much of this evidence was non-specific in terms of time. Some of it plainly related to events well after the notes were handed over. What is important is what occurred before the notes passed into the possession of the police. The directions allegedly given by Const Kelly concerning cigarettes are ambiguous. They are consistent with a concern on Const Kelly's part for efficiency. Const Kelly was on the counter. A person had presented at the counter who needed to be dealt with. He was directing that person to the detectives who would deal with him. The circumstances described are consistent with Const Kelly asking Mr Patsalis to postpone his desire for a cigarette for the time being. 30 Mr Patsalis gave an account of the circumstances in which notes were handed to Det McGillicuddy. The account in Det McGillicuddy's notebook (which he acknowledged he signed) was inaccurate. He did not volunteer the notes, as Det McGillicuddy's notebook suggested. Rather, Det McGillicuddy had asked him what he had in his hands (T.335). He then identified the notes. Det McGillicuddy then asked whether he could have them (T.335). He handed them over because he believed himself obliged to do so, and that because he was under arrest. The notes were made for himself (T.337), not the police. 31 However, for a number of reasons, I prefer the account of Det McGillicuddy, and that of Const Kelly. There is significant contemporaneous documentary support for their accounts, which I have identified. Moreover, Mr Patsalis' recollection more than three years after the event was, in some respects, unreliable. For instance, he said this: (T.336) "Q. From the time that you wrote the notes at the Hilton Hotel until you handed them to the officer at the police station at Bankstown, had you had any sleep? A. No, I did not. But I didn't write those notes out in the Hilton Hotel. Q. I am sorry. Where were the notes written out? A. They were written in a taxi going to my solicitor's office, because I had lost the original notes that I had made at the Hilton Hotel." 32 However, when interviewed on 12 April 1996 by Det Hull, having identified the notes, he provided the following response to a question asked by Det Hull: "Q28. Can you tell me where and when you wrote that out? A. I, I wrote that out in my hotel room last night and this morning." 33 The appearance and length of the notes, suggests that they are not the product of a taxi journey. Other Arguments Advanced on Behalf of Mr Patsalis 34 Det McGillicuddy, at 5.50 pm, spoke to Det Const Cooke of the Major Crime Squad at Chatswood. He made a note of the conversation in his Duty Book at the end of the shift. The note was in these terms: "In 5.40. Receive phone call from Tony Cook of MCS North re address of 12B Restwell St, B'town." 35 Det McGillicuddy was familiar with the premises. He told Det Cooke that it was a gambling club. Det Cooke did not say why he was making the inquiry. There was no reference to either Mr Patsalis or Mr Spathis, or indeed, murder. 36 Counsel for Mr Patsalis sought, and was given access to, documents associated with the investigation of Mr Ludwig's death by the Major Crime Squad. He sought to explore the possibility of knowledge, on the part of Det McGillicuddy, of the murder investigation before Mr Pastalis presented at the Bankstown Police Station at 6.20 pm. Nothing emerged from this material, or the evidence concerning the investigation, which supported that suggestion. 37 The source of the direction to Det Cooke to make an inquiry in respect of the premises at Bankstown was Det Sgt Jacob. Det Jacob was in charge of the investigation. At approximately 5.30 pm (on Friday 12 April 1996) he was provided with a copy of Mr Ludwig's note. The note referred to the first names (but not the surnames) of the two accused ("Michael" and "Alex"). It also referred to the premises where Mr Ludwig met "Michael", namely 12B Restwell Street, Bankstown. Det Jacob directed Det Cooke to make discrete inquiries in respect of the note. The call from Det Cooke to Det McGillicuddy was made as a consequence of that direction. 38 I accept Det McGillicuddy's account. I therefore accept that it was not until some time after Det McGillicuddy came into possession of the notes (and later read them), that he made the link between Mr Patsalis and the call from Det Cooke. 39 Having come to the police station at 6.20 pm, Mr Patsalis was thereafter interviewed, and taken on a journey to the various locations which he identified in the course of that interview. He was thereafter charged. The time at which he was charged was recorded as 6.47 am on 13 April 1996. The informant was Det Snr Const Hull. The Charge Sheet was typed by Const Jeffreys. The information included in the sheet was provided by Det Hull. The time of arrest was recorded in these words: "Apprehended: 06:20 pm 12/04/96" 40 Counsel for Mr Patsalis submitted that this document provided powerful corroboration for Mr Patsalis' perception that he was under arrest virtually from the moment he presented at the police station (ie, 6.20 pm). 41 However, Det Hull did not arrive at the Bankstown Police Station until 8.30 pm. His knowledge of the time of apprehension was derived from conversations with others, or inference. For the reasons I have given, I believe that Mr Patsalis was "apprehended", or arrested, some time after 6.20 pm. It is not necessary to determine precisely when the police at Bankstown had sufficient information to establish Mr Patsalis had committed a crime, or was not free to leave. I am satisfied that it was some time after the notes had been provided to the police by Mr Patsalis. There was, accordingly, no occasion to warn Mr Patsalis. It follows that there was no impropriety. The Provisions of the Crimes Act 42 My attention has been drawn to s356B of the Crimes Act, which was introduced by Pt 10A, which came into force on 9 February 1998. Part 10A applies to a person under arrest by a police officer for an offence (s356). Mr Patsalis was not, at the relevant time (the time at which the notes were handed over) under arrest, or subject to the constraints envisaged by s139(5). 43 Mr Patsalis also relied upon s424A which renders an admission made by an accused inadmissible unless certain safeguards are observed (tape recording, videoing, etc). Section 424A(4) defines an admission in these terms: "(4) In this section: admission means an admission: (a) that was made by a defendant who, at the time when the admission was made, was, or ought reasonably to have been, suspected by an investigation official of having committed an offence, and …" 44 Assuming the document of Mr Patsalis is an admission for the purposes of the section, it was not an admission made at a time when the investigating police suspected Mr Patsalis of having committed an offence. For the reasons given, I do not believe that it is reasonable to suppose that the police at that time, on the information they had, ought reasonably to have suspected Mr Patsalis of having committed an offence. Determination 45 I therefore do not believe that Mr Patsalis has been able to point to any impropriety on the part of the police at the time the statement was handed over. There was no occasion for a warning. It is therefore unnecessary for me to undertake the balancing of competing interests contemplated by the concluding words of s138(1). Subject to the remaining argument (which will be dealt with in R v Patsalis & Spathis [No 4]), the document should be admitted. ********** Last Modified: 09/27/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.