New South Wales Supreme Court CITATION : REGINA v. CRAWT [2003] NSWSC 880 HEARING DATE(S) : Monday 22 September 2003; Tuesday 23 September 2003 JUDGMENT DATE : 23 September 2003 JURISDICTION: Criminal JUDGMENT OF : Greg James J at 1 DECISION : Subject to individual passages noted on the transcript of the conversations between the acused, Exhibit 1, the material is relevant and admissible and not to be excluded. CATCHWORDS : Criminal law - pending murder trial - pre-trial ruling as to matreial objected to as irrelevant or to be excluded on basis prejudicial effect outweighs probative value LEGISLATION CITED : Evidence Act 1995 PARTIES : REGINA v. CRAWT, John William FILE NUMBER(S) : SC No. 70015 of 2003 COUNSEL : Crown: B. Newport, QC. Accused: S. Ocampo SOLICITORS : Crown: S.E. O'Connor Accused: Burston, Cole & Co. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION GREG JAMES, J. TUESDAY 23 SEPTEMBER 2003 REGINA v. JOHN WILLIAM CRAWT JUDGMENT (On admissibility of evidence – see p.94 of the transcript) 1 HIS HONOUR: This is a pretrial determination of certain issues which it is said, should the trial proceed, will fall for determination at the trial. 2 I was reluctant to embark upon this exercise initially as what was raised by Ms. Ocampo, who appears on behalf of the accused Crawt, not only included arguments concerning the relevance of certain material the Crown wished to tender but also whether such material might be hearsay, and therefore excluded, and in particular whether the prejudicial value of that material might be such that by application of s.137 of the Evidence Act 1995 the material might have to be excluded and the other evidence at the trial would affect the determination of that matter. However, I determined it was appropriate for me to proceed for the reasons I will give in this judgment. 3 Section 137 of course provides that the court must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the defendant. 4 The relevant material is almost entirely contained in the product of listening device monitoring of conversations between the accused Crawt and the co-accused, Leith Marchant, who had at the commencement of this week pleaded guilty to the charge that he did murder Nathan Treganna, that being the charge that Mr. Crawt now faces. 5 It should be clear that there are a number of other potential charges of offences arising out of the material that I have been taken to in the transcript of the intercepted conversations but it is not the intent of the Crown that they be brought forward for trial before me for hearing with the murder charge, although it is contended that the facts of those offences are admissible in the murder trial. 6 Generally the Crown case is that Treganna was interested in buying or selling stolen jewellery and had, through others, made contact with the accused, who were apparently persons likely to have stolen jewellery for sale. It is the Crown case that prior to his death the deceased told friends he was going to buy stolen jewellery from people he was going to meet that night and in particular referred to "Leif and his mates at North Ryde". He also made reference to Lane Cove. He also mentioned a person, Malcolm Appleby, in connection with this sale or purchase of jewellery. 7 He had made these statements on the Monday 5 August 2002. At 7.40 am the following day his body was found in the Lane Cove National Park near a kiosk adjacent to the Lane Cove River only a short distance from Ryde. He had been shot twice to the head. There was a gunshot abrasion to the right neck and a bullet had passed through his right hand. Three fired cartridge cases were found near the body. His property with the exception of his mobile phone had been stolen, although his motorcycle helmet was found near his body. About 400 metres away his motorcycle was found. The deceased was robbed of his wallet, bum bag, backpack and possibly other things. 8 It appears that, utilising his conversations with his friends, the last time they had seen him and his mobile phone records, the shooting occurred between 7.47 pm and 8.14 pm on the Monday evening. 9 The accused that Monday was in company with Malcolm Appleby and Kate Shanks at various places. Kate Shanks will give evidence that she heard both of the accused talk about robbing the deceased. Malcolm Appleby tried to talk them out of it. It is possible to establish whether by direct evidence or by inference that Appleby was involved in the original arrangement for the meeting between Treganna and the accused. 10 On the evening of Monday 5 August 2002 Miss Shanks noticed that Crawt and Marchant had left her house and in particular had taken a car which Appleby and Crawt usually drove. Kate Shanks and Alison Renton will, apparently, give evidence of Malcolm Appleby's presence in their presence that evening. Appleby's presence with Renton obtaining videos at one stage during the evening is also attested to by ATM records and the video shop records. 11 Crawt and Marchant returned together to Shanks' house. Shortly thereafter Shanks and Marchant drove Crawt home in Appleby's car. Subsequently when Marchant returned to her house Marchant told Shanks that he had "done something tonight which he was not proud of". It is not clear to me as to whether that conversation will be tendered in evidence against Crawt. If it is to be so tendered against Crawt, I take it that it will be tendered for the purpose of establishing some knowledge in Shanks that Marchant had asserted he had done something of which he was not proud. This becomes important when one comes to turn to that area of the evidence to which objection is taken and what I will refer to as the plan. 12 Marchant stayed at Shanks' home that night for a portion of the time. Appleby and Renton returned home. Shanks and Marchant were leaving the house at about that time so that Marchant could telephone his mother, and after the phone call Shanks and Marchant returned to the house. Appleby did not want Marchant to stay. Shanks and Appleby drove Marchant to his mother's home at Londonderry. Shanks and Appleby then returned to Shanks' house. 13 Nathan Treganna's mobile phone showed a number of calls during the afternoon and early evening of Monday 5 August between Crawt's phone and that of Appleby, between Crawt's phone and that of Treganna and between Treganna and Appleby. 14 Records of calls made on Crawt's phone not only show four calls made to Treganna but also show two calls made in the Ryde cell area, one was to Leith Marchant's mother's house where Leith Marchant was living and it is the Crown case that these calls were made when Crawt and Marchant were on their way to meet Treganna or were waiting for him. 15 It is the Crown case that Treganna was murdered by the two accused, whether by way of a prior agreement to kill him or as incident to a robbery in which they were to the knowledge of both of them armed with a dangerous weapon. 16 The Crown does not assert that it is capable of proving beyond reasonable doubt that the accused Crawt fired the shot or shots which killed Nathan Treganna. 17 The Crown contends, however, that the accused Crawt is liable either at least as an accessory or because of complicity in what is sometimes referred to as felony or constructive murder, as provided for by s.18 of the Crimes Act, 1900. 18 It is the Crown case that both accused were in each other's company from the time they left Kate Shanks' house until the time they returned to Kate Shanks' house. Subsequently on Saturday 10 August, it is said that Crawt and Marchant were involved in an attempted armed robbery of a store at Londonderry. 19 Crawt was armed with a black hand gun, and attempted to rob the owner of the business. Marchant was waiting in a stolen black Magna motor vehicle nearby. Crawt was driven off by Marchant in the Magna when the robbery failed. 20 Descriptions of the car and the persons involved were obtained. A member of the public followed the black Magna reporting its journey to the police. When the vehicle stopped two men alighted, one crossed to the opposite side of the road but police arrived and arrested both men. They were Crawt and Marchant. Marchant denied any knowledge of the Magna, denied that Crawt was his mate and asserted he was just walking along the road. 21 As to that statement to the police, I am not at all clear whether it is to be tendered against Crawt, but I doubt it. 22 When arrested, Crawt was found in possession of a black .32 Browning pistol loaded with five rounds. Both accused exercised their right to silence concerning the robbery when taken to the Penrith Police Station but Crawt, when asked about possession of the pistol, asserted he had found it on a train. The intercepted conversations and the evidence of the theft of that gun from Marchant's uncle show that to be a clear lie. 23 On 11 August search warrants were executed at their homes. At each home police found property which had been stolen from the Nike shop at Neutral Bay on 7 August, the day prior to the Londonderry robbery. 24 The black .32 calibre Browning pistol was by ballistics examination identified as the murder weapon. 25 There will be evidence that it is one of three handguns that was stolen sometime in July 2002 from Leith Marchant's uncle's safe. 26 Leith Marchant's uncle lived with Leith Marchant's mother at Londonderry where Leith Marchant was also living. Relevantly to the matters that appear in the transcript of the intercepted conversations, the other two guns kept in that safe and which were stolen were a .22 Smith & Wesson and a .45 Springfield armoury. In the intercepted conversations, the accused made reference to just such guns. 27 Marchant and Crawt were detained in custody together and their conversations were recorded by reason of lawfully authorised listening devices. The conversations are sometimes in clear speech, sometimes in a primitive code in which syllables might be reversed and the syllable 'ay' or 'ayed' included as a suffix to the resultant word. 28 In the light of that as the Crown case, during the past two days I have embarked on, with counsel, an exhaustive analysis of the particular passages, to which individual objection has been taken, in the transcripts of so much of those conversations as the Crown proposes to tender in evidence. I have undertaken this task to ascertain the relevance of that material to the issues at the trial, its probative value and its prejudice, and have made individual preliminary intimations of the rulings I would give at trial should the case and the evidence remain as I have been told by both counsel it will. In respect of each objection as noted on the transcript annexed to Ms. Ocampo's written submissions which is marked Exhibit 1 on the voir dire, I have noted in black where the material should be rejected or, noted in black not pressed, where the objection to material has not been pressed. Each objection is marked up with coloured highlighter. No note has been made where I consider the material objected to should be admitted. That exhibit will remain on file. 29 I have, for the time being, reserved consideration of some four passages which I have marked for the moment using Post-It slips attached to the top of the A4 sheets in question. 30 I have undertaken this course since, although the High Court has drawn attention recently to the necessity for the discretion to be exercised in the context of what evidence has been admitted at trial, this material appears to be crucial to what might occur at the trial and that although it is apparent that the Crown would, if the material were rejected, retain a powerful circumstantial case based on the evidence that would otherwise be called, much of the material contained in the transcripts would seem to amount to direct admissions by the co-accused Crawt or indirect admissions of guilt in the conversations by the proposing, participating in and development of a scheme or schemes to kill the witnesses and to shift any guilt entirely to Marchant. This course is envisaged as enabling Crawt to evade responsibility and obtain liberty, whereupon he would use guns, attempting by one means or another, to liberate Marchant. The evidence of the conversations thus has considerable significance. It will be apparent that admissibility of this material has the potential to gravely affect the Crown opening, to affect the length of the trial estimated to take in the vicinity of five weeks and to present considerable dangers of a discharge unless considered in advance of any tender. Further, I have been asked by counsel to take this course since I am assured the evidence and the Crown case will not change significantly and that the accused wishes to consider his position in the light of my determination. 31 There is a deal more important material to be found when one turns to the detail of what is contained in the trial material. That detail also includes reference to the various robberies, including the obtaining of the black Magna to which I have referred which was car jacked on Wednesday 7 August from an employee of Lander Mitsubishi at Blacktown by offenders who answered the description of the accused, one of whom was armed with a black handgun, these persons speaking in some code ending in "ay". 32 Later that day the accused, so the Crown case is put, committed an armed robbery at the Nike clothing store at Neutral Bay, Crawt again been armed with a black handle gun and Marchant with an axe. The property stolen on this occasions, as I have said, was found at their homes and once again descriptions were given which were consistent with the appearance of the two accused. 33 Thus, there will be evidence of the commission of these robberies in these circumstances and there will be in the recorded conversations discussion of the relevant robberies capable of admitting the perpetration of them and the circumstances of that perpetration. 34 The Crown does not rely on evidence of the commission of these robberies or, indeed, the accused's other crimes as tendency or coincidence evidence, but does rely on the material proving them to show an association shortly after the event between the two persons and in particular, with the murder weapon to prove the accused's complicity in the murder. 35 Most notably, the Crown relies upon those matters against the accused Crawt who is seen to have the murder weapon and to be using it on not only one but a number of occasions. The Crown also relies on the robberies because, in the intercepted conversations, both of the offenders evince a deal of concern to misdirect the investigators as to the robberies, in circumstances that the Crown says are only explicable as seeking to hide what information can be gained in respect of their commission of the robberies, particularly from Appleby and Shanks, so as to hide the involvement of the accused in the commission of the murder. 36 Indeed, the material seems to go so far as to suggest that the accused, having committed the murder, committed the robberies out of a consciousness, as it were, of guilt that, having so far involved themselves with the criminal law, they may as well go further, or at least this is what it seems to me is the effect of some of what they talk about in some passages in the intercepted conversations. 37 It is argued that the whole of this material is so prejudicial as to be inadmissible. It is very powerful material relevant and directly probative of the involvement of both of the accused. It includes admissions in a context where the accused are shown to have had the opportunity and motive to commit the crime and proves they had the means to commit the crime and were in association at the very time of its commission. 38 It is submitted that those things can be proved in other ways. The reply to that, of course, is that that is no reason why this way would not be open in addition to other ways. 39 It is appropriate that if the evidence is to be admitted, a strong direction be given to the jurors that they are not to use the evidence simply by away of concluding that these were men of bad character or violent disposition and, therefore, guilty, or even that these were men, who were minded to commit robberies together with the gun and, therefore, were guilty. 40 Because of that matter, it has been submitted that, nonetheless, the prejudicial value of the evidence is extraordinarily high precisely because they used the weapon to commit numerous robberies; so high, indeed, that no direction, no matter how strong, could avoid the jury reasoning in the way that s.95 proscribes. 41 In my view, however, this evidence is of extraordinarily high probative effect, particularly when taken in conjunction with the evidence of the plan to which I will turn in a moment. 42 The evidence, in my view, will call for a strong direction, but is not such as to so far suffer from prejudice when compared to its probative value as would warrant being excluded applying s.137. In my view the probative value well outweighs such prejudice as might be occasioned and the danger of unfair prejudice to the extent, that it should be admitted. In my view an appropriate direction would ensure that the jury would not treat the evidence in the forbidden way, even considering how prejudicial the various statements might be said to be even in dealing with the topic of the plan, if I turn to the other area of evidence that it is sought be excluded. 43 To consider the admissibility of all the material, and particularly the plan, I was provided with a summary by the Crown of its case by consent. I have already referred to the general outline of the Crown case taken from that summary. Paragraph 22 of that summary reads as follows:- "A very brief summary of some of the matters they discuss is as follows. John Crawt and Leith Marchant conspired to mislead the police as to who was responsible for the murder by John Crawt volunteering to police that Leith Marchant took him to the murder scene after the killing, showed him the body, and telling him he had shot the deceased. Their purpose was that John Crawt not be charged with the murder, that he do a deal with police so that he would be released and when released, would try to effect the release of Leith Marchant. They speak about John Crawt getting firearms (.45 and a M1 carbine), hijacking a truck (prison truck), and overpowering a police officer and stealing his/her gun. The deal with police involved John Crawt obtaining bail on the Londonderry attempted armed robbery and carjacking charges or receiving a short sentence, provided John Crawt told police that Leith Marchant was the killer. They refer to the attempted armed robbery and carjacking charges." 44 In addition to the matters there raised, also discussed was the silencing of the witnesses Appleby and Shanks in order to prevent information being given firstly as to their knowledge that the two accused had committed the murder and secondly as to their involvement in the subsequent robberies. This in general terms was the plan to which I have referred 45 On 16 August 2002 Crawt was interviewed and advanced the fabricated story of Leith Marchant showing him the body and admitting the murder. The Crown contends that that story was a fabrication. The Crown refers also to the assertion that Crawt found the gun on a train. There is substantial material in the recorded conversations to support the proposition that both accounts were fabricated. 46 During subsequent days, the plan, summarised in paragraph 22, developed and the various developments, as the plan from time to time changed, were discussed by the accused. 47 The plan included elements allowing for Crawt to assist the flight of Marchant, the suborning or silencing of witnesses, the propounding between the two of a scheme of some complexity designed to divert the investigators and a jury or a judge from the truth. All of these are matters capable of being taken into account by a jury as explicable only upon the basis that the accused, and both of them, certainly in the absence of any other explanation, were conscious of their guilt, that is, the guilt of each of them, of the crime charged. 48 Part of the plot involved Leith Marchant seeking to protect Crawt and accepting the guilt notwithstanding the involvement of Crawt on the night and being present at the crime. 49 The discussions concerning the suspicions of each of the two that Appleby and Shanks had provided information, plainly reveals that they were contemplating that Appleby and Shanks had provided truthful information which implicated them both. 50 It has been put that the material should be rejected, on the basis of a possible explanation that Crawt was conscious of Marchant's guilt but not of his own, or was merely helping, protecting or comforting Marchant, who was his cell mate and friend. Alternatively, that it was explicable on the basis of Crawt being in fear of Marchant, who reveals himself in the taped conversations to be a dangerous and violent man, and Crawt going along with what Marchant suggested in a placatory manner since, after all, he had to live with him in the cell. These explanations may or may not be advanced. For my own part I am unable to see that any of them have any substance in the light of what I have seen in the transcript of these conversations when considering the individual rulings. 51 But, if any such explanation is to be advanced, the question of whether a jury might regard it as a rational, possible or reasonably possible explanation, might have to be examined in due course, particularly in the light of the other evidence as to Crawt's motive, opportunity, and possession of the means to commit the crime. 52 It is in this regard particularly that the fact that it was Crawt that had the black handgun subsequently, assumes a real and dramatic importance. 53 I am unable to see that there is any basis upon which s.137 would mandate the exclusion of the evidence of the plan or the evidence of the robberies. 54 I, therefore, conclude, subject to dealing with the individual passages, as I have done, and on which, as I understand it, neither party seeks any additional reasons than that given in the oral discussion and argument recorded on the transcript, that on the evidence as it has been before me if it is at trial, in the form in which it has been indicated to me it will be, that this material is to the extent I have determined relevant and admissible and not to be excluded. 55 From time to time during this process I have indicated particular passages to the parties on which, if the matter is to proceed, I consider there will have to be particular directions and I will seek their assistance as to that. 56 From time to time in this judgment I have referred to particular circumstances which will require particular directions and I remind the parties of that, because I will be seeking their assistance, when and if the matter proceeds at the appropriate time, with those matters. 57 Equally there will have to be some effective form of general direction concerning the use of the transcript and the listening of the jury to the recorded conversations. There will have to be a direction concerning the code and there will have to be a direction concerning the general use the jury can make of the plan and of the robberies. 58 If there is no further matter to which either counsel wishes to draw my attention, this is what I would say to this point which will assist the parties to consider their position in relation to the case and in particular to enable the Crown to consider the form of his opening. ********** Last Modified: 09/26/2003 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.