R v STAMATIS, Andrew [2017] NSWDC 212

District Court New South Wales

Medium Neutral Citation: R v STAMATIS, Andrew [2017] NSWDC 212 Hearing dates: 14 March 2017 Date of orders: 14 March 2017 Decision date: 14 March 2017 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Evidence admissible as 'context' evidence Catchwords: Criminal - Evidence - tendency evidence - admissibility of photographs taken of images on a mobile phone screen - accused not asked by police in recorded interview about the evidence sought to be tendered - context evidence compared with tendency evidence - procedural unfairness. Legislation Cited: Evidence Act 1995 Cases Cited: R v Lockyer (1996) 89 A Crim R 457 Hughes v R [2015] NSWCCA 330 Category: Sentence Parties: Regina Andrew Stamatis - Accused Representation: Counsel: Crown - Mr McColm Defendant - Mr Walsh File Number(s): 2015/356014

Judgment 1. HIS HONOUR: After the Crown had presented the indictment yesterday and the accused had been arraigned and the jury chosen, sworn and affirmed, in the absence of the jury following upon the Crown's opening address, which was very neutral and did not touch upon matters of prospective objection, a voir dire was conducted late yesterday afternoon. Related aspects arising from that voir dire were continued to be discussed during the day, particularly after the luncheon adjournment. 2. After arraignment, empanelment and Crown opening and I sent the jury away around about 3 o'clock for the legal discussion to continue, perhaps a little later, and we continued with the voir dire examination and relevant discussion until 4:45pm yesterday. 3. Today's proceedings commenced with the evidence-in-chief of the complainant. The legal issues I was required to consider were not to be decided at the commencement of her evidence. But the Crown wished, upon showing her certain photographs taken by a police officer of "screenshots" of a mobile phone said to belong to the accused, to tender those screenshots in the trial. The admissibility of those photographs very much came into sharp focus before Mr Walsh commenced his cross-examination, which commenced shortly after the luncheon break. The proceedings being interrupted somewhat by the opening of the new courthouse and the attendance of the Attorney General to perform that function. 4. The issues concerning admissibility of the relevant photographs taken by Senior Constable Payne on or about 4 December 2015 of a particular mobile phone that was said to belong to the accused initially arose in the context of the Crown indicating that it had served a Tendency Notice upon the accused's legal representatives seeking to adduce evidence of "tendency" of the accused to "have a sexual attraction towards Asian teenage girls and to act upon this attraction by engaging in behaviour or conduct of a sexual nature". 5. The final Tendency Notice was dated 24 February 2017, but I understand it was an amended notice, there had been an earlier notice issued last year. But the amendment was not, as sometimes happens, adding material claimed to be evidence of tendency, but, in fact, refined the initial Tendency Notice. No objection was taken by Mr Walsh to the question of adequate notice to the accused. 6. I introduce that aspect of the matter to point out that the final issue I had to determine, that is the admissibility of the photographs of screenshots, if that is the correct description of the photographs of the phone purporting to belong to the accused, was part of the material that the Crown relied upon to establish the relevant tendency particularised in the notice. 7. As it turned out, matters relating to the screen shots, the accused searching for particular pornography sites on the internet and the reliance on the Crown of proof of one count as evidence of tendency of the accused to prove other counts in the indictment fell away, as did the initial Notice to the defence that relevant "text messages... sent by Andrew Stamatis to Erela Llanos of a sexual nature" were evidence of tendency. 8. That having been said, from the evidence in the voir dire and the discussion had with the parties it became clear that even if the material contained within the photographs of "screenshots" of messages was not tendency evidence, it was evidence at the very least that was available as "context evidence". I will come back to the reason that that is so in a moment. 9. I point out in relation to this matter that the accused was yesterday arraigned on nine counts, two counts of sexual intercourse with a person above the age of ten years and under the age of 14 years, two counts of sexual intercourse with a person of the age of 14 years and under the age of 16 years, and five counts of the nine being allegations of indecent assault of a person under the age of 16 years. The relevant offending occurring on the Crown case between, as I understand the Crown case, somewhere in mid to late 2011 through to, in respect of count 9, a period between 13 July 2015 and 18 September 2015. 10. It always has been the Crown case, I point out, that in relation to the nine counts the Crown was relying upon evidence of what I will describe as "context", a matter about which I have already given a preliminary warning to the jury. That is evidence of acts of a sexual nature that do not themselves constitute counts in the indictment, and which are not to be referred to as "uncharged" counts in accordance with many authorities of the Court of Criminal Appeal, a matter particularly commented upon by the former Chief Judge of the Common Law Division McClellan CJ CL. 11. In relation to this aspect of the matter, that is the context aspect, the complainant said in the interview conducted with her on 18 November 2015 that she had been "molested" by the accused who she named, that it had been happening "from about seven to eight years ago" until "two or three months ago", that it "would be like nearly every night". When she described being molested she said, "He would come into my room while I was asleep and he would just touch me, like near my boobs and in my vagina and would sometimes take my clothes off". She also said that he put his hand "near my vagina and my arse". She later said in the interview, and as I understand it none of this material was the subject of objection, that the accused would: "--talk dirty to me. Every time I asked what we were having for dinner he would be like, 'You're having dick for dinner', or whenever we'd get into a fight because I'm dating somebody he'd be like 'Oh, is Nathan like, Nathan sticking his dick in you now', or something like that or he would just run past and call me like, sometimes like a 'slut' or something with which with what I wore that day depending if it was like the weekend or the holidays or after school, and he would just say like, he would stare at my arse a lot whenever like I wore jeans and tights, and he would complement it like 'You have like cute little butt' or some shit like that." 1. It should be pointed out that in relation to the specific counts in the indictment the complainant alleges in respect of count 8, this is the count of sexual intercourse with the complainant, that the accused performed fellatio upon her and ejaculated and relevant evidence can be found about that aspect of the matter in question 251, questions 273-278 and elsewhere in the transcript of the recorded interview conducted with the complainant on 18 November 2015. That allegedly occurred in mid 2015. 2. Learned counsel for the accused in the voir dire examination late yesterday raised with the Court an issue of "continuity", as it was described, concerning the provenance, if that is the correct expression, of the mobile phone. That is said to be the electronic device which was photographed by Senior Constable Payne and provides the "screenshots" which ended up being the centre point of the objection. In fairness to learned counsel for the accused, who skilfully represented his client's position, there was a suggestion of impropriety or illegality arising from the circumstances in which a particular phone was seized by a police officer who no longer serves with the police and whose current situation is somewhat, for want of a better word, "suspect". 3. It is clear on the material available to the Court that the police had some form of consent from the complainant's father to search the premises at 238 Bourke Street, Wagga Wagga, where it is alleged that, as I understand the evidence, six of the nine offences were committed and many of the "contextual sexual events" occurred. I do not need to go into the detail of the evidence available to me because in respect of the circumstances of the arrest of the accused an outstanding objection taken by the accused counsel to the admissibility of evidence of the accused undertaking an act of self-harm of some significance, being taken to Gissing House, a psychiatric unit at the Wagga Base Hospital as it was once called, and then making certain statements of an equivocal nature whilst under medical care and immediately afterwards is not 'alive'. That objection fell away because the Crown did not press the evidence of "collateral conduct". But there was still an outstanding issue about the provenance of the phone, the accused not being present when the phone was taken into the custody of the police. 4. The phone in question was described as an item in the Exhibit Summary as a "mobile phone" and given a particular barcode or job number or security bag number "X0002762037". It became apparent in the evidence of Constable Payne that this same 'exhibit' number passed through a number of hands but eventually ended up in the possession of Constable Payne who took photographs of it Constable Payne describes the relevant item that was seized as "black Huawi mobile phone" with a particular IME number which I need not quote which would be unique for that particular handset. 5. Having regard to the evidence of Senior Constable Paine and the other statements that were tendered, no other evidence was sought to be adduced in oral form. At least at prima facie level, I am satisfied that the mobile phone that was seized was seized from a residence occupied by the accused and that there is available evidence, at least of a circumstantial nature if the accused is not going to make a relevant admission or agree to a particular fact, that could establish that the relevant handset, which was examined by Constable Payne and photographed by her, was in fact a mobile phone handset over which the accused relevantly had control. 6. The screenshots relate to the contents of a mobile phone that the Crown would seek to prove belonged to the accused or was in his control at relevant times, the screenshots are concerned with the period of time between 26 August up until mid‑November, in fact immediately before the complainant made complaint about the accused on 17 November 2015. It was pointed out by counsel for the accused "there's not quite clear evidence" that the relevant messages were in fact sent on dates shown in the screenshots that were within the period of 2015. In relation to this aspect but my understanding is the evidence has proceeded upon the assumption that these dates are 2015 dates and I will assume that that would be particularly clarified if needs be through Constable Payne. It certainly was not asked of the complainant one way or the other as to whether that was so or not. 7. This brings us then back to the main objection of Mr Walsh. As that was formulated it was submitted that given Crown seeks to adduce the evidence to establish the "context" of the relationship between the complainant and the accused or as evidence to illustrate the relationship of the complainant and the accused at relevant times, I ought reject the material pursuant to s 137 Evidence Act 1995, if the evidence was not relevant pursuant to s 55 of that Act. 8. As we all know s 55 is the section that defines "relevant evidence". It states inter alia, "That evidence that is relevant in proceedings 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". 9. Having regard to the evidence of the complainant of the continuous character of the "sexual relationship" and the assertion made by the complainant in the interview she gave, not objected to, of a relationship that included the accused "talking dirty" and making sexual comments to her it appears to me that the contents of the particular screenshots that I am permitting to be admitted are relevant. Not all those that the Crown pressed are to be admitted and that is made clear from the transcript of earlier proceedings which I do not obviously have at the moment. 10. This judgment then must turn to the claim of Mr Walsh that I ought not admit the evidence, even if it is relevant, because of the terms of s 137. Section 137 provides, "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 accused". 11. The particular "unfair prejudice" identified by counsel for the accused was that he had no opportunity to comment upon the "screenshots" to police out of the Court. 12. The complaint about unfairness is that the accused was interviewed by the police in a recorded interview which was conducted by the authorities on 3 December 2015, the photographs the subject of the objection taken on 4 December 2015, he was not asked a single questions about the mobile phone and its contents. The relevant messages the Crown seeks to tender were not messages that were sent by text message but being messages on a social media site or facility known as Facebook. I think as I understand the evidence it is understood that the messages I am concerned with are not "text messages" in the sense that they are SMS messages, but messages on a "messaging system" provided through the Facebook facility. 13. It is submitted on behalf of the accused the unfairness to the accused is he was not asked a question about these matters and if he was to explain them to the jury he would have to forfeit his right to silence and be "forced" into the witness box. 14. I accept as a general proposition that procedural unfairness where it is exhibited is a relevant matter to take into account in determining whether there is any "unfair prejudice" to a particular accused. For what is worth, not that my thoughts matter, I wrote an article about this published in the Judicial Review in 2001 or 2002 citing judgments, for example, by President Mason on this very matter. The concept of "unfair prejudice" has been discussed in a range of authorities. 15. Hunt J initially, the first leading Judge to take up the cudgels of trying to interpret the legislation, referred in cases such as Locke and Lockyer to consideration of what "unfair prejudice" involved and most recently the Court of Criminal Appeal in 2015 in the decision of Hughes v The Queen currently subject of an appeal to the High Court at the moment, the High Court being reserved but not on this point, discussed the use of the expression. I do not think there is any controversy at least as to what the words, "unfair prejudice", mean. 16. I do not accept that the matters identified by Mr Walsh of themselves constitute "procedural unfairness" or created "unfair prejudice". It is true, as it transpired on the voir dire, I was completely astonished to learn that the investigating police officer or investigating police didn't bother to ask the accused whether in fact the hand set that had been seized from the house was in fact his hand set. But the fact that they did not ask him questions about the contents of the messaging facility under Facebook recorded in the handset or shown in the handset does not of itself constitute "procedural unfairness." There is no evidence police as at 3 December knew of the "messages" the subject of objection. The objected photographs were taken on 4 December. They were examined after the accused was interviewed. As it turned out, and as was anticipated, the complainant has given evidence that these were messages either received and read or received by her from the accused. There is direct evidence of that, although some of the messages she did not read, she received them. 17. The issue of the accused having to forfeit his right to silence is to my mind something of a furphy. The accused may or may not give evidence. He has every right to remain silent and he would get the appropriate warning or he can stride to the witness box, 15 metres from where he now sits and give evidence and take the risk of cross‑examination. In my view the issue of him being forced to "waive his right to silence" to meet a matter in the Crown case that arose after he was interviewed, or was not raised in his interview, is not a matter that could seriously to be said to arise given that the accused does have choices which, in their respective ways, are protected by warnings that I would be required and will give to the Court. 18. The issue of prejudice to the accused identified by Mr Walsh in my view is not "unfair prejudice". It is not necessarily "procedural unfairness" not to ask questions on a particular subject matter of a suspect nor to recall the suspect for a second interview. Such prejudice as he identifies is to my mind a matter that can be met by appropriate direction. Bearing in mind as I understand the matter there is evidence of the fact that these were messages sent by the accused and circumstantial evidence of the fact that he was the person in control of the handset that had access to the relevant Facebook facility for sending the messages. The accused's counsel can cross-examine police to establish that the accused was not given opportunity to comment or to challenge the conclusion that the mobile photographed was his or under his control. Thus, I have concluded that such prejudice as identified by Mr Walsh can be met by appropriate direction. But even if I was wrong in relation to the question of the analysis of the "prejudice" to identify it as not "unfair prejudice", if it could be categorised as "unfair prejudice" in my view the probative value of the evidence outweighs the risk of unfair prejudice or the actuality of unfair prejudice with appropriate warnings. 19. It should be pointed out that it would seem at about the time of, or shortly after, the accused having performed fellatio on the complainant there is prima facie evidence of the accused sending a message to the complainant which read inter alia, "What did Erella(sic) say when she got to the ball? Nothing...she just gagged a little". That is to my mind capable of being seen as a clear reference to a performance of oral sex, a matter about which the complainant, I hasten to say said occurred on about five occasions. Not all those occasions are the subjects of counts in the indictment. 20. Likewise, although it is two or three months after the last count is said to have arisen, and I have taken into account the probative effect of the material that arises months after the event, the accused, on the evidence available to me, sent a text message to the complainant that read, "Get up dick muncher". That was on 15 November at 11.20am. These representations are representations coming from the accused to be seen, if I could use the expression again, in the context of what the complainant alleged against the accused. The probative value of that material, at least for the minimum purpose of establishing the character of the relationship between the complainant and the accused with an appropriate warning that it cannot be used to establish tendency on the part of the accused, is self‑evidently there to behold. The other two screen shots I admit are relevant and admissible. 21. Thus, in those circumstances I was prepared to admit the evidence. There were "screen shots" that I excluded. The accused is alleged to have sent a message through this messaging system, it clearly has a Facebook connotation given its format, which gives a demonstration in a figurative way of how to put a condom on a penis. This is, of course, highly suggestive and I would imagine very damaging to the accused. But in my view it lacked the probative value of the other material because it referred to conduct which is not alleged against the accused. That is requiring the complainant to place a condom upon his penis. In my view its probative value was outweighed by the risk of unfair prejudice because on that particular material I did not believe that appropriate direction would minimise the balance in favour of the unfair prejudice. Thus, the material I identified earlier is admitted into evidence, at least at this stage as evidence of context. 22. I have raised the question of whether any of these representations of the accused, particularly that at exhibit A67 and A125, constitute admissions on the part of the accused, at this stage I have not concluded on that matter and I will reserve on that until later in the trial. 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. Decision last updated: 15 August 2017