R v Smith [No 2] [2011] NSWSC 727

Supreme Court New South Wales

Medium Neutral Citation: R v Smith [No 2] [2011] NSWSC 727 Hearing dates: 20/06/2011, 22/06/2011 Decision date: 23 June 2011 Jurisdiction: Common Law - Criminal Before: BUDDIN J Decision: Objection to evidence upheld. Catchwords: Criminal law - admissibility of evidence - telephone calls between accused and friends - intercepted by police - whether utterances constituted consciousness of guilt Legislation Cited: Evidence Act Cases Cited: R v Cook [2004] NSWCCA 52 Category: Procedural and other rulings Parties: Regina Darren Paul Smith Representation: Counsel: C Everson (Crown) D Yehia SC (Accused) Solicitors: S Kavanagh (Solicitor) Director of Public Prosecutions Legal Aid Commission of NSW File Number(s): 2009/50517

Judgment 1The accused, Darren Paul Smith is charged with having murdered Russell Lyons on 3 June 1995. The deceased's body was located in a carpark at the end of a laneway which runs off Smart Street in Fairfield at about 8.40 am on 3 June 1995. According to Dr Ellis, who conducted the post-mortem, his death was caused by head injuries with alcohol toxicity said to have been a contributing factor. The deceased was fully clothed but his shoes and wallet were missing. Despite a lengthy police investigation, it was not until 7 June 2009 that the accused was arrested. Indeed, he only came to the attention of investigating police when a DNA profile matching his profile connected him to the crime scene. His DNA profile was only entered on the national database in 2008 following his apprehension in Queensland on a trivial matter. Following analysis, a match was made between his profile and DNA material that was located inside each shoe of a pair of Adidas running shoes. The shoes themselves were located on 5 June 1995 a short distance from where the deceased's body was found. Also found on the shoes was blood staining which matched the deceased's DNA profile. A DNA profile matching that of the accused was also located in the area of the rear right pocket of the jeans which the deceased was wearing when his body was discovered. The Crown case is that the accused killed the deceased during the course of robbing him of his shoes and wallet. The Crown also asserts that the Adidas shoes had been worn by the accused but had then been discarded when the accused realised that the deceased's blood has found its way onto them as a result of the fatal attack. 2The Crown alleges that some hours prior to the discovery of the deceased's body, the accused had attempted to steal the deceased's wallet during an altercation which had occurred on The Crescent, Fairfield at about 3.30 am. That incident was witnessed by the deceased's friends and drinking companions, John Byrne and Ian Cross. Their evidence was to the effect that they had been out at various drinking establishments that evening in the company of the deceased and that they were making their way home at the time that the incident occurred. The uncontradicted evidence is that each of them was extremely intoxicated at the time. Both gave evidence that the deceased had crossed The Crescent when they heard him call out words to the effect of "He's got my wallet". Their evidence is that they then ran across the road in order to assist the deceased. His assailant was described by them as being an Australian with a goatee beard. Shortly thereafter three males described as being of "Islander" appearance joined in the altercation. The Crown case is that the deceased eventually ran from the scene of the altercation whereupon he turned into Smart Street. From there he ended up in the carpark to which I referred earlier. It was at that location, the Crown asserts, that the deceased received the fatal injuries having been pursued there by the accused. 3The Crown seeks to lead evidence of three telephone conversations in which the accused participated on 6 June 2009, which it may be observed is the day before his arrest. Objection is taken to the admissibility of the conversations. The participants in the first conversation, which took place at 16:01:28, are identified as being the accused (V1), Paul Shephard (V2) and Wayne (V3). The relevant parts of the conversation are set out below: V2: Yeah. I've just had the coppers here looking for you. V1: You what? V2: Had the coppers here looking for you. V1: For me? V2: Yeah. V1: What for? V2: Something to do with a serious incident in Fairfield in nineteen ninety five. V1: Fair dinkum. V2: Something to do with a pub . V1: Yeah ? V2: Yep. V1: Had 'em at your place? V2: Yep. V1: Oh well, don't know where I am . V2: Well I told 'em that. They had, they've got your mobile - they had your mobile number . V1: Yeah. Oh well... V2: And they got, they got my name because you (sic) an accident years ago and you had the old man's box trailer on your car . V1: Oh okay, yep, yep . V2: I'm just sort of giving you a heads up, that's why I'm ringing you on Wayne's phone, 'cause they wanted all my phone numbers and shit. V1: Oh okay, yeah, yeah. When, when was that? V2: Hey? V1: When did they turn up? V2: They left about five minutes ago. Vi: Fair dinkum? V2: Yeah . V1: Okay, what, are they just looking for me ? V2: Yeah. They said they wouldn't ... V1: What for ? V2: ... tell me, wouldn't tell me what for . V1: Yeah . V2: They wanted to know if you were a violent person. If you drank. If you were on drugs. V1: Don't even smoke any more. V2: Wanted to know what sort of people you hung out with ... Vi: Yeah . V2: ... in ninety five . ... V1: Oh okay, fair enough. No worries. Ninety five? Where was I in ninety five ? V2: I have no idea. They said it's something to so with a, supposed to be something to do with a pub in Fairfield . V1: (Unintelligible) V2: It's something serious. V1: Yeah, don't know. Don't know, you've got me worried now. (Laughs). ... V3: Oh well you got me number now too hey. V1: Yeah, yeah. I'm probably in WA am I? V3: Oh I don't know, I thought, I thought you were fuckin' overseas somewhere. V1: Yeah, somewhere there. V3: Yeah. V1: Yeah. The only thing is I've got a car registered up here to . V3: Ah, change that real quick. Sell it . V1: No I can't mate. No they'll find me real quick now. Yeah. If it's important, they'll find me pretty quick . (emphasis added) 4The second conversation commenced at 16:35:32. The participants in it are identified as being the accused (V1) and Dot Sheehan (V2). The relevant parts of this conversation are set out below: V2: Listen, I just had the homicide squad here . V1: Oh, fair dinkum . V2: Um, looking, they want to ask Wayne some questions about you in ninety-five. V1: Okay. Yeah, yep. V2: Did you have an accident or something in ninety-five ? V1: Yeah, me car accident, I, I think was back them days . V2: Yeah? V1: Yeah, yeah. V2: Yeah? V1: Yeah, yeah. V2: No, well they want to interview Wayne. V1: Interview Wayne, okay. V2: But that's about fourteen years ago. V1: Yeah, yeah, yeah. True. V2: Are you going for a claim or... V1: No, no I'm not. Nah. I don't know, I don't know what it'd be. V2: Well, they're from the homicide squad. V1: Oh, okay. Yeah, yeah. Fair enough. V2: At Parramatta, yeah. V1: Okay, fair enough. V2: What it says is, "Unsolved Homicide Team ." V1: Oh okay. Yep, yep, yeah . V2: So... V1: Oh what, what you got paperwork there or something ? V2: No he left his card and what it was about. He wants um, Wayne to get in contact with him . V1: Oh, okay. Yeah, yep, yep. Where's where's Wayne? V2: Um, Mittagong at the moment. V1: Mittagong. V2: He'll be back tomorrow. V1: Oh, okay. Yeah, yep. No worries. Okay, yeah . V2: So, so what was it, you had an accident or something ? V1: No. I had an accident back in, back in nineteen ninety something . ... V2: That's okay. I'll get, when Wayne talks to them I'll get him to find you what it's about. V1: Yeah, yeah, yeah. Not a problem. 5The final conversation commenced at 16:41:39. Once again the participants are Dot Sheehan (V1) and the accused (V2). The relevant parts of this conversation are set out below: V2: You don't know where I am do you ? V1: No . V2; Okay, good. (Laughs) Just in case mate, that's all... V1: I, oh I wouldn't say anything mate. V2: Yeah, yeah, not a problem. V1: No, no. V2: I knew that, I was just (Untranscribed background conversation) V1: I don't know where you are, all I know you're up north. ... V1: Oh no I wouldn't, I, even Wayne wouldn't say - I mean Wayne should ring 'em up and find exactly what it's about . V2: Oh let them come to him mate . 6The Crown in its submissions relied, in particular, upon what the accused said when he rang and spoke to Ms Dot Sheehan in the last of the calls. Attention was drawn to that part of the call in which he suggested to her, by implication, that she should not tell the police where he was in the event that she was asked questions about him. 7The Crown submitted that, when considered in the context of the totality of the conversations, that utterance revealed a consciousness of guilt on the part of the accused. It was further submitted that sufficient detail was provided to the accused to enable him to determine the precise offence about which the investigating police wished to question him. The only rational interference to be drawn from the conversations, so it was submitted, was his realisation that he was guilty of the offence with which he is charged. 8It is axiomatic that the Crown may, in appropriate cases, rely on lies or on the provision of false information or on other post offence conduct, such as flight, as giving rise to consciousness of guilt on the part of an accused person. Clearly the impugned evidence does not fall into any of those categories. Nevertheless I have found it instructive to have regard to the principles that were identified in R v Cook [2004] NSWCCA 52 insofar as they pertain to the admissibility of that kind of evidence. Although it was not characterised in this way by the Crown, the impugned conversations were effectively sought to be relied upon as constituting "implied admissions". 9The first matter that needs to be addressed is the Crown's contention that the accused was informed of the precise details of Russell Lyons' death. In my view, the information which was conveyed to the accused in the conversations is at odds with the objective evidence that has been led concerning the circumstances that surrounded the death of Russell Lyons. For example, although there may be some uncertainty as to the exact circumstances in which the deceased met his fate, it is no part of the Crown case that any of the events which culminated in the death of Russell Lyons occurred in a hotel. Nor, is it any part of the Crown case that the accused was involved in some form of accident. 10Secondly, a number of the accused's utterances do not, in my view, support the Crown's contention. For example, towards the end of the first conversation when the person identified as Wayne suggested to the accused that he should change the registration of his car, the accused replied "No, I can't mate. They'll find me real quick now. If it's important, they'll find me pretty quick." That is hardly indicative of an intention on the part of the accused to take steps to avoid the police. Nor of course did he in fact attempt to take flight. Moreover, the accused was made aware that the police had his mobile phone number. 11Thirdly, as I have said, the Crown limited its submissions to a focus upon the accused's remark in the last telephone call when he said to Ms Sheehan "You don't know where I am, do you?" At its highest that would appear to amount to a request that she not disclose his whereabouts to the police. Moreover, his initial response, having been told at the beginning of the first conversation that the police interest in him concerned "a serious incident in Fairfield in 1995" and was "something to do with a pub", was to say "oh well don't know where I am". There had been no suggestion at that stage that their inquiries concerned an unsolved homicide. 12I should record that I have had the benefit of listening to each of the impugned conversations. That has assisted my understanding of the manner and tone of the accused's utterances which, in turn, has served to confirm the view that I should reach about the matter. 13I have concluded that the evidence falls well short of being capable of being used in support of the Crown case as an "implied admission". In a sense, it could not do so unless one was to first assume that the accused was indeed guilty of the offence. That, as can be readily seen, involves a circularity of reasoning. 14Were it necessary to consider the issue further, I would also exclude the evidence pursuant to s 137 of the Evidence Act . I have already expressed a view about the probative value of the evidence. On the other hand, the risk of unfair prejudice is high since, were the evidence to be admitted, the accused would no doubt, in endeavouring to innocently explain his remarks, be obliged to make reference, however veiled, to the fact that he is known unfavourably by the police. 15In respect of that issue the evidence before me reveals that the accused, who was born on 28 February 1966, has a number of convictions both in this State and in Queensland. His NSW record commenced in 1982 and he was thereafter regularly before the courts in this State until 1988. However, apart from a minor drug matter in 2003, he has not come to attention since then. His Queensland record commenced in 1985 and a number of convictions are recorded against him between then and 1993. Since 1993 he has twice appeared in a Magistrate's Court in that State (in 1999 and in 2007) but on both occasions the penalties imposed suggest that the offences were of a very minor nature. [I observe that none of the matters of which he has been convicted come near to approaching the seriousness of the present charge]. 16The accused's criminal record reveals that although he has had only limited contact with the courts in the last 15-20 years he had, prior to that time, been in fairly frequent trouble with the police. He is unlikely, in view of his record, to be a person who would wish to speak to police if he could avoid doing so, and particularly in relation to a matter which is said to have occurred many years ago. 17Moreover, there is in my view, an additional risk of unfair prejudice in that a jury may well misuse the impugned evidence as providing a basis upon which to infer that the accused is guilty notwithstanding the quantum leap that such a line of reasoning would entail. Order 18I uphold the objection to the admissibility of the three telephone calls upon which the Crown seeks to rely. The evidence is, accordingly, excluded.