New South Wales Supreme Court CITATION : R v Armstrong [2010] NSWSC 801 HEARING DATE(S) : 31/03/2010 JUDGMENT DATE : 27 July 2010 JUDGMENT OF : Buddin J DECISION : Objection overruled. CATCHWORDS : CRIMINAL LAW - trial - murder - objection to evidence of a lawfully intercepted telephone conversation between accused whilst in custody and his father - whether capable of constituting an "admission" - whether evidence should be excluded LEGISLATION CITED : Criminal Procedure Act 1986 Evidence Act CATEGORY : Procedural and other rulings Louizos v The Queen (2009) 194 A Crim R 223 Meissner v The Queen (1995) 84 CLR 132 R v Blick (2000) 111 A Crim R 326 CASES CITED : R v Em [2003] NSWCCA 374 R v Le [2000] NSWCCA 49 R v Mundine (2008) 182 A Crim R 302 R v Suteski (2002) 56 NSWLR 182 R v SJRC [2007] NSWCCA 142 PARTIES : Regina Paul Darcey Armstrong FILE NUMBER(S) : SC 2009/63851 COUNSEL : M Cunneen SC (Crown) A Haesler SC (Accused) SOLICITORS : S Kavanagh (Solicitor for Public Prosecutions (Crown) Legal Aid Commission of NSW (Accused) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J TUESDAY 27 JULY 2010 2009/63851 – REGINA v PAUL DARCEY ARMSTRONG JUDGMENT – Admissibility of telephone conversation between accused and his father 1 HIS HONOUR: Objection is taken on behalf of the accused to the admissibility of a telephone call which was made by the accused to his father on 6 April 2009. The call was made from the gaol where the accused was being held awaiting trial. The call, which was the subject of a lawful intercept, is in the following terms: Accused The lawyer came out and saw me last Tuesday. Father Oh right Accused Monday or Tuesday I didn't know it was her all I was told it was legal. When I got out there I said to the female officer is it the lawyer or the police. Father Yeah. Accused Just to be on the safe side because you never know with the coppers. She said, Not it is you mother. I said, that's a bit strange my Mum has been gone for 5 years. She was trying to be a smart arse and it backfired. Father Yeah so you have to wait until the 19 th June Accused Yeah Father That's a long way away. Accused Yeah about 10 weeks. The prosecutors are trying to get all there (sic) shit together apparently my lawyer already has a Q.C. barrister lined up. Apparently there is a partial DNA on this persons shirt 1 in 180 thousand – then apparently fairly common. But under the fingernails is 1 in 580 thousand. Father Oh. Accused But they don't know what type. Father Oh. Accused and previously there was 2 other suspects and they are both since deceased. Father Two more. Accused Two other suspects they are both since deceased, passed on, dead. Father Oh so Accused According to my lawyer the only thing they have is the DNA so my lawyer is going to check out what type it is, the validity of it how it was stored for the last 17 to 18 years. Father Oh right, yeah they might had nothing on you then mater. Accused Yeah they probably want to strike up a bargain, like drop it from Murder down to Manslaughter. Father You are not having that are you. Accused Well we have not plead anything yet, because we do not know the strength of the DNA Father You wont plead guilty to nothing at the moment Accused No Father No Accused Because when Hungerford came out I told him hypothetically if I did this rada, rada, rada he wanted to put that down on video tape and I said not until I have spoken to my lawyer, that was Christmas Eve. He then went on and wrote it in his notebook after he left the jail and got his mate to sign the bottom of it to say I was cautioned and that did a hypothetical rada, rada, rada and that was a load of crap . 2 On 6 April 2010 I ruled on the objection. In essence, I upheld the objection to the last utterance of the accused which, for convenience, has been underlined in the extract. I overruled the objection to the balance of the conversation. These are my reasons for so ruling. 3 In order to put the present matter into some sort of context, it will be necessary to sketch some background details about the Crown case. The accused is charged with having murdered Felipe Flores on 2 September 1991. The attention of police did not focus upon the accused until sometime in 2008 when DNA material, located under the deceased's fingernails and on the shirt which he was wearing, was matched with the DNA of the accused. Mr Haesler SC, who appears on behalf of the accused, has indicated that there is no issue that the DNA which was located is in fact that of his client. He also indicated that in due course the accused will make a formal admission to that effect. 4 Detectives Hungerford and Hyde from the NSW Police Force interviewed the accused on 4 December 2008 at the police station in Launceston, Tasmania that being where the accused was then living. At the time of the fatal incident he had been living in Sydney. During the course of the interview the accused was shown a photograph of the deceased but told police that he had no recollection of ever having met him. He was then asked to explain the presence of his DNA upon the deceased. He said, in effect, that at the time he had been living a promiscuous life style as a gay male and intimated that he was unable to recall some of his sexual partners from that time. The implication, as I understand it, is that he may have had a sexual encounter with the deceased although he had no memory of having done so. 5 The body of the deceased, who was also a sexually active gay man, was located just off Lincoln Crescent in Woolloomooloo at about 3.30 am on 2 September 1991. It was discovered by a security officer named Robert Small. The deceased, who had been brutally bashed and had last been seen by friends at about 3 am at the Exchange Hotel on Oxford Street. He had been seen by a friend to be in the company of a man, who it is common ground, was the accused. The evidence indicates that the pair were conducting themselves in a fashion which suggested that they were about to engage in a sexual encounter. Apart from that body of evidence, the Crown relies upon the observations of Mr Small, who was patrolling the vicinity of Lincoln Crescent on the night in question. He gave evidence that he saw a man getting into a vehicle at a point which was close to where the deceased's body was located. The Crown case is that that person was the deceased's killer. It seeks to establish that that man is the accused by reason of the fact that at the time the accused was the owner of a vehicle which, it is asserted, matches the description of the vehicle observed by Mr Small. The Crown also relies upon the evidence of Ms Jacinta Webber, who was the accused's live-in male partner during 1991. Since then she has become a woman. She gave evidence that during the relevant time period she saw the accused arrive home one evening covered in blood and with scratch marks on his face and body. She also gave evidence that during the relevant time period the accused made admissions to her that he had attacked the deceased on the night in question. It may be noted that Ms Webber first spoke to police in September 2009 and so her evidence did not form part of the Crown case at the time of the conversation. 6 At the outset, Mr Haesler contended that the conversation was not accurately transcribed in one important respect. He submitted that the word "plead" that appears in bold in the extract should read "planned". In my opinion, however, the word sounds as "plead" or "pled" (which is presumably intended to be the past tense of the word "plead"). 7 Putting that matter to one side, the principal submission made on behalf of the accused is that what is contained in the conversation could not constitute an admission and that it therefore lacks probative value. Indeed, it was suggested that the evidence did not satisfy the test of relevance within the meaning of s 55 of the Evidence Act. It was submitted that what was said was equivocal or ambiguous. Furthermore, it was contended that taken at its highest, there existed an innocent explanation for the conversation in that "all that is being said is a report on what the lawyer has said…[and] that no decision has been made as to what plea is to be entered". 8 It was also submitted that a defence lawyer is duty bound to raise with a client the prospect of a plea. It was then submitted that it followed that the accused was entitled to weigh and assess the evidence to be led against him and to then consider the options which were available to him. Moreover, it was submitted that the accused was not under any obligation to "vociferously protest [his innocence] at every opportunity". Those last three propositions are, I would have thought, unassailable but that does not mean that they are decisive considerations in determining the present objection. 9 It is submitted, in all those circumstances, that it would be unfair to admit the evidence by reason of s 90 of the Evidence Act or alternatively that it should be excluded pursuant to s 137 of the Act upon the basis that its probative value is outweighed by the danger of unfair prejudice to the accused. The risk of unfair prejudice which was identified was that although the evidence was not capable of constituting an admission, there remained a real risk that the jury would impermissibly treat it as such. 10 It is convenient to set out the various provisions upon which Mr Haesler relied. 11 S 55(1) is in the following terms: (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. 12 "Probative value" is defined in the Dictionary to the Act and means "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". 13 In R v Le [2000] NSWCCA 49, Sully J observed: In considering whether [the] evidence was admissible in terms of s.55 of the Evidence Act , it is in my opinion important to keep clearly in mind a distinction between the question whether a particular piece of evidence is probative, and therefore admissible at all; and the very different question of the weight fairly to be given to that evidence after it has been admitted properly. It is to be observed that s.55 speaks of a rational effect that is brought about "directly or indirectly" . This is very broad language, and it suggests, in my opinion, a wide rather than a narrow focus to the inquiry whether a proffered piece of evidence has the rational potential which s.55 requires. [at paras 18-19] 14 "Admission" is also defined in the Dictionary to the Act and: means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding. 15 Section 90 is in the following terms: In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. 16 Section 137 is in the following terms: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 17 It is convenient to briefly refer to some of the relevant authorities which concern the application of s 137. 18 In R v Em [2003] NSWCCA 374 Howie J, with the concurrence of the other members of the court, said: Generally speaking, the issue as to whether a statement made by an accused amounts to an admission or not is a question of fact. It is a matter for the jury to consider arguments, of the nature of those contained in the written submission quoted above, and to determine for themselves whether they are satisfied beyond reasonable doubt that the accused made an admission and, if so, whether it is sufficiently reliable for the jury to act upon it to convict the accused of the offence to which the admission relates. Whether they should act upon the evidence is a matter for them and not for the trial judge. There is no power under s 137 to reject evidence of an admission simply because the trial judge believes that the jury should not find that the admission was made: R v Singh-Bal (1997) 92 A Crim R 397. [at para 119] 19 In R v SJRC [2007] NSWCCA 142, James J, with the concurrence of other members of the court, observed: It not infrequently happens that evidence sought to be relied on by the Crown in a criminal trial is open to more than one interpretation or is capable of giving rise to more than one inference. However, provided that the evidence is capable of bearing the interpretation or of giving rise to the interference (sic) contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice. It is part of the function of the jury as the judges of the facts to determine what interpretation should be given to evidence they accept and to determine what inferences should be drawn from evidence they accept. It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn. [at paras 38-9] 20 For a useful recent analysis of issues of a similar nature to those raised in the present case see Louizos v The Queen (2009) 194 A Crim R 223 [at paras 30-36]. Consideration 21 It is axiomatic that the Crown must establish the guilt of the accused beyond reasonable doubt. In the present case, the parties have identified the critical question which the jury must determine as being whether the Crown can establish that the accused caused the death of Felipe Flores. The accused denies that he did so and does not accept any responsibility for having done so. Accordingly, the ultimate fact in issue is whether the accused killed the deceased. The identification of that issue is the "first step in the evaluation of the probative value of any item of evidence": R v Mundine (2008) 182 A Crim R 302 [at 34]. If the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, then it must be rejected: R v Blick (2000) 111 A Crim R 326. See also R v Suteski (2002) 56 NSWLR 182 at 199. 22 It is important to put what the accused said in some sort of context. At one stage of the conversation the accused said, in relation to the DNA evidence, that "they don't know what type" it is and a little later said "my lawyer is going to check out what type it is". Given the way in which the evidence in the case has unfolded, it is clear that those comments could be understood as being references to the source of the accused's DNA that was located upon the body and clothing of the deceased. That is, that part of the conversation may be interpreted as the accused telling his father that the evidence does not establish what the source of his DNA is. More particularly, it can be inferred that he is indicating that it is not known whether it is from his blood, semen, saliva or even from skin cells. 23 Although as I have said the accused does not recall having ever met the deceased, his case is that his DNA must have found its way onto the deceased during the course of a casual sexual encounter between them at around 3 am which as I understand it, took place somewhere inside the Exchange Hotel. Of course, were the source of his DNA to be blood, then that would seriously undermine his explanation for the presence of his DNA upon the deceased and would, in turn, strongly point to him as being the killer. Furthermore, the reference to the Crown "probably [wanting] to strike up a bargain, like drop it from murder down to manslaughter" coupled with the references to his not having plead "anything yet" or "at the moment" for the reason that "we do not know the strength of the DNA", in my view sheds further light upon the accused's state of mind concerning his belief as to his guilt or innocence of this offence. When read in its entirety, it appears to me that the conversation is well-open to the inference that the accused has not yet settled on what plea he will enter, and will delay doing so, until such time as he is in a position to completely assess the strength and nature of the DNA evidence. It is not immediately easy to reconcile that state of mind with his case that he was not the killer. Accordingly, the conversation is well capable, in my view, of being construed as an admission, that is as being adverse to his interests, and thus capable of "rationally affect[ing] the assessment of the probability of the existence of a fact in issue". 24 It may be readily accepted that the conversation could not be construed as indicating a clear, unequivocal acceptance by the accused of his guilt. I also accept, as Dawson J said in Meissner v The Queen (1995) 84 CLR 132 that "a person may plead guilty [to an offence] upon grounds which extend beyond that person's belief in his guilt" (at 157). I also accept that the accused may be able to provide an entirely innocent explanation for what is contained in the conversation. However, on the other hand the conversation cannot reasonably be described, as things presently stand, as a conversation in which there was merely a discussion about the state of the evidence in the Crown case. On the contrary, it may reasonably be inferred that this was a conversation in which the accused was apparently revealing, in unguarded remarks made to a person whom he no doubt trusted, the state of his thinking about the possible impact that the strength of the Crown case, and particularly the DNA evidence, may have upon his decision as to how he would plead to the charge which was brought against him. It is the conjunction of those two considerations which is of particular importance in the present context. 25 Once the conversation is capable of constituting an admission, then it cannot give rise to a risk of unfair prejudice in the sense in which that expression is understood in the authorities. Of course it will be for the jury to weigh and ultimately determine the probative value of what is contained in the conversation along with the rest of the evidence called in the case. That determination or assessment will also need to take into account any explanation which the accused may choose to give in the event that he enters the witness box. I will also, of course, fashion directions to the jury as to how they may use this evidence. 26 For all those reasons, I concluded that the conversation should not be excluded pursuant to s 137. Given that essentially the same matters were raised in respect of s 90, I reached a similar conclusion with respect to the argument propounded about it. Indeed, the circumstances in which the remarks were made and the person to whom they were addressed, rather suggest that there was no relevant unfairness. Moreover, it is common ground that there exists at the gaol a sign warning inmates that their telephone calls may be monitored. 27 For completeness, I should record one further submission which was made by Mr Haesler. He referred to s 88 of the Evidence Act which is in the following terms: For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission. 28 Mr Haesler submitted that "[w]hilst s 88 has a relatively low threshold it requires that before what is said to be an admission can be admitted into evidence it must be 'reasonably open' that the accused made the admission". It follows from what I have already said that I am of the view that it is "reasonably open" to so find. 29 Mr Haesler also took objection to the final words uttered by the accused which, as I have said, are underlined in the extract. The evidence reveals that Detective Hungerford went to see the accused on only the one occasion. It is therefore common ground that, in the impugned conversation, the accused is referring to that earlier conversation which occurred at Parklea Gaol on 24 December 2008. I have already upheld an objection made on behalf of the accused to that conversation upon the basis that it contravened the requirements of s 281 of the Criminal Procedure Act 1986. To now allow only the accused's version of the conversation to be given, would not only deprive the entire conversation of its context but would inevitably lead the jury to speculate as to what Detective Hungerford could say about it. That being so, this part of the conversation, should consistently with that earlier ruling, also be excluded. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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