R v Olivieri; R v Norman [2006] NSWSC 882

New South Wales Supreme Court

CITATION : R v Olivieri; R v Norman [2006] NSWSC 882

HEARING DATE(S) : 04/08/2006; 07/08/2006; 08/08/2006

JUDGMENT DATE : 4 September 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Hidden J at 1

DECISION : Evidence admitted

CATCHWORDS : CRIMINAL LAW: - murder trial - controlled operation - misleading police media release - admissibility of telephone intercepts - whether recorded conversations capable of amounting to admissions - whether media release improper - whether admission of the evidence unfair to accused - whether public policy required rejection of the evidence

Law Enforcement (Controlled Operations) Act 1997 LEGISLATION CITED : Evidence Act 1995 Independent Commission Against Corruption Act 1988

CASES CITED : R v Hall & Ors [2001] NSWSC 827

Regina (Crown) PARTIES : Tony Olivieri (accused) Regina (Crown) Mark Edward Norman (accused)

FILE NUMBER(S) : SC 2005/2314; 2005/2315

M Austin with N Steel (accused - Olivieri) COUNSEL : B Niven (accused - Norman) M M Cunneen (Crown)

Legal Aid Commission (accused - Olivieri) SOLICITORS : O'Brien Lawyers (accused - Norman) Solicitor for Public Prosecutions (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL JURISDICTION

HIDDEN J

Monday 4th September 2006

2314/2005 Regina v Tony Olivieri 2315/2005 Regina v Mark Edward Norman

JUDGMENT: On admissibility of telephone intercepts (see p 437 of transcript) 1 HIS HONOUR: The accused were tried before me for the murder of a solicitor at his office in Petersham on 6 April 2004. The accused Olivieri was alleged to have shot the deceased that evening. The accused Norman was charged as an accessory before the fact to the murder. 2 Mr Austin, for the accused Olivieri, objected to the evidence of a number of intercepted mobile phone conversations to which his client had been a party. I allowed the evidence, and the recordings of the relevant conversations were admitted as calls D, E, F, H, I, J, K, L, N, O, P and Q of exhibit CC. These are the reasons for that ruling. 3 All the calls were made after the publication of an article about the shooting of the deceased in the Sydney Daily Telegraph on 10 June 2004. That article followed a press release by the police, together with the release of an image said to be that of a man seen acting suspiciously in the area near the deceased's home at the relevant time. The clear implication of the press release, and of the article, was that that man was suspected to have been the gunman. I received the press release, the article, and an article to the same effect in the Sydney Morning Herald of 11 June 2004, as exhibit G on the voir dire. 4 After the shooting the deceased's widow had helped police compile a COMFIT image and a FACE image of the gunman, whom she had seen running from the office where her husband had been shot. The image released by the police for publication on 10 June was neither of those. It was a photograph of Mr Olivieri, modified to give the appearance of a computer generated image. What the newspaper articles conveyed to the reader was that that image had been able to be compiled by a witness or witnesses who had seen such a man in the area at the time of the shooting. 5 This was false, to the knowledge of the investigating police. It was a subterfuge for which they sought and obtained authority under s8 of the Law Enforcement (Controlled Operations) Act 1997. I received a copy of that authority as exhibit F on the voir dire. Telephone intercepts on the mobile phones of Mr Olivieri and his co-accused, Mr Norman, were in place before the issue of the press release. The purpose of the subterfuge, no doubt, was to engender phone conversations in which the accused made statements implicating themselves in the murder. 6 On 10 June Mr Olivieri, then in Queensland, had two telephone conversations with a friend, Ray Johnson, in Sydney: calls D and E of exhibit CC. Mr Johnson told him about the Telegraph article and, in particular, of the publication of an image bearing a startling resemblance to him. Mr Olivieri expressed concern a number of times about this development, even saying (in call E) that he thought that he was "gone". Later that same day there was a call between the two accused (call F), in which the matter was discussed and Mr Olivieri said that he would "have to go away for a while …". 7 The remaining calls were made over the period of about two weeks thereafter. There is no need to refer to each of them. They contain further references to the newspaper article and disclose a continuing interest in the development of the investigation into the murder. Mr Olivieri on several occasions asserted that he was in Queensland at the time of the shooting, and he and Mr Norman discussed witnesses who might have given evidence to that effect. However, he also expressed concern that police who searched the property in Queensland where he had been living might find items from a motel in Sydney at which he had been staying at the time of the shooting. 8 Put briefly, the Crown Prosecutor relied on the calls as evidence of knowledge on the part of Mr Olivieri of the murder such as to suggest that he was involved in it, and a concern about the newspaper article and the continuing police investigation born of a fear that his involvement might be detected. She proposed to put to the jury that his apparent protestations of innocence on the basis that he was in Queensland at the time were in fact part of a process of concocting with his co-accused a false account to be given to the police. 9 Some of the calls contain discussions between the two accused about the payment of money by Mr Norman to Mr Olivieri. Mr Austin did not object to that material, accepting that it was admissible as evidence of their continuing relationship. Otherwise, the first basis of his objection was that the calls were irrelevant because they contained no statement by Mr Olivieri which could constitute an admission of involvement in the murder. He relied upon s88 of the Evidence Act, and I accept that that section extends to the question whether a representation is capable of constituting an admission. I would respectfully adopt the view of Greg James J in R v Hall & Ors [2001] NSWSC 827 at [27] – [29]. 10 True it is that no explicit admission of involvement in the murder is to be found in any of the calls. Indeed, as already referred to, some of Mr Olivieri's statements amounted on their face to protestations of innocence. Otherwise, Mr Austin argued, what was said was at most ambiguous and was consistent with the state of mind of a man wrongly suspected of a serious crime. However, I took the view that the significance of the calls was a matter for the jury and that they were fairly open to the interpretation for which the Crown Prosecutor had contended. That being so, they could be said to contain admissions, being representations adverse to the accused's interest in the outcome of the proceeding: see the definition of "admission" in Part 1 of the Dictionary to the Evidence Act. In any event, however they might be classified, I considered that the calls were relevant as part of the Crown's circumstantial case. 11 Mr Austin's second and alternative argument was that, if the calls did contain admissions, they should be rejected upon the basis that to admit them would be unfair to the accused, within the meaning of s90 of the Evidence Act, or for reasons of public policy under s138. Thirdly, he argued that, even if the evidence were found to be admissible otherwise than as admissions, it should still be rejected under s138. 12 He submitted that the situation was analogous to that of police making a false or misleading representation to a suspect in the course of an interview, in the hope of inducing an admission: cf. s138(2)(b) of the Evidence Act. It was said that the evidence should not be allowed as admissions because it would be unfair to the accused to do so and because, in any event, the balancing act required by s138(1) should lead to its rejection. Mr Austin emphasised that the argument was only by way of analogy, acknowledging that the evidence was not the product of a police interview (or of "official questioning", as that expression is used in Part 3.4 of the Evidence Act). 13 The arguments are related, and both require consideration of the fact that the misleading article in the Telegraph was published pursuant to an authority under the Law Enforcement (Controlled Operations) Act. This is not the occasion to consider the rationale and legislative history of that Act, or to examine its provisions in any detail. Section 16 provides that an activity engaged in under an authority under s8 "is not unlawful, and does not constitute an offence or corrupt conduct, so long as it is authorised by, and is engaged in in accordance with, the authority for the operation". "Corrupt conduct" is defined as bearing the meaning it has in the Independent Commission Against Corruption Act 1988. 14 Whether the issue of the misleading press release in the present case was "unlawful", or could constitute "an offence or corrupt conduct", is far from clear. No basis on which it might be considered to be unlawful or to amount to corrupt conduct was articulated in argument. The question remains whether it might amount to an "impropriety" within the meaning of s138 of the Evidence Act and, if so, whether an authority under the Law Enforcement (Controlled Operations) Act is effective to deprive it of that character. 15 Another provision of the Law Enforcement (Controlled Operations) Act which might have a bearing in the present case is s3A, relevant parts of which are as follows: 3A Act not to affect certain matters (1) This Act does not affect, and is taken never to have affected, the existence or exercise of any discretions (including any administrative or judicial discretions) that, apart from this Act, may lawfully be exercised in relation to the commencement, conduct or conclusion of legal proceedings. (2) Without limiting subsection (1), the discretions referred to in that subsection include the following: (a)… (b) any discretion as to whether or not evidence should be admitted in legal proceedings, (c)… ……… 16 The ambit of s3A and s16 was raised, but not developed, in argument. The matter was not the subject of research and full argument, and it would be inappropriate for me to express any concluded view about it. I took the view that the evidence should not be rejected under s90 or s138 even if it were assumed, without deciding, that the publication was improper and that it was not validated by its authority as a controlled operation. 17 The view I took of the balancing exercise under s138 was the same, whether or not the evidence was relevant as a series of admissions or otherwise as part of the Crown's circumstantial case. Having regard to the matters set out in s138(3), I assessed the evidence as important and as having substantial probative value. I did not consider any impropriety to be grave, noting that it was neither deliberate nor reckless. Indeed, there was nothing to suggest other than that the investigating police, and the senior authorising officer, saw the issue of the press release as a legitimate investigative tool, appropriately authorised as a controlled operation. 18 As to s90, I saw no relevant unfairness to the accused. There is no true analogy with a misrepresentation by police to a suspect under interrogation. Certainly, the evidence might be seen as the product of a subterfuge but, like it or not, subterfuge is an accepted part of police investigation, particularly of serious crime. It is, for example, an inherent part of every undercover operation. To the extent that it led to relevant and significant evidence in the present case, it was not unfair to use it against Mr Olivieri. 19 Mr Austin also relied upon s137 of the Evidence Act but, for the reasons I have already given, it could not be said that the probative value of the evidence was outweighed by the risk of unfair prejudice to his client. I should add that that argument was directed primarily to a particular matter which, in the event, was not pressed because Mr Austin decided not to adduce evidence on the voir dire about it. **********