Supreme Court New South Wales Medium Neutral Citation: R v Bloodsworth; R v Errington (No 2) [2017] NSWSC 1483 Hearing dates: 23 October 2017 Date of orders: 23 October 2017 Decision date: 23 October 2017 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: Evidence of recorded telephone conversations admitted. Catchwords: EVIDENCE – recorded telephone conversations – those conversations which were intercepted with the knowledge of parties not illegally obtained – those conversations which were intercepted without the knowledge of the accused Bloodsworth were illegally obtained – significant probative value in light of proximity of conversations to the acts which caused the death of the deceased – relevance of relationship between the two accused relevant to joint criminal enterprise – evidence admitted EVIDENCE – alleged danger of unfair prejudice to accused Bloodsworth arising from her request for "crack" – no appreciable prejudice in light of substantial evidence in trial of her drug addiction and the conduct of the accused Errington in supplying her with drugs STATUTORY INTERPRETATION - Telecommunications (Interception and Access) Act 1979 (Cth) covers the field of telephone interception – application within telephone which records telephone calls from that device constitutes an interception within meaning of Commonwealth Act – no room for operation of Surveillance Devices Act (NSW) Legislation Cited: Evidence Act 1995 (NSW), ss 137 and 138 Listening Devices Act 1969 (NSW) Surveillance Devices Act (NSW), s 7 Telecommunications (Interception and Access) Act 1979 (Cth), ss 6 and 7 Telephonic Communications (Interception) Act 1960 (Cth) Cases Cited: Clyne v Bowman (1987) 11 NSWLR 341 Miller v Miller (1978) 141 CLR 269 Category: Procedural and other rulings Parties: Regina Rhiannon Lisa Bloodsworth (Accused) Trent Errington (Accused) Representation: Counsel: M Hobart SC (Crown) D Price (Accused Bloodsworth) D Carroll (Accused Errington) Solicitors: File Number(s): 2015/255218; 2015/254857 Judgment Introduction 1. On 23 October 2017, the sixth day of the trial of the accused Bloodsworth and Errington, Mr Carroll, who appeared on behalf of the accused Errington, contended that the Crown should tender, in its case, recordings of various telephone calls made from an application within a mobile telephone used by Chris Barbara, one of the Crown witnesses. The two accused stand charged with the murder of Jay Cerin between 28 August 2015 and 30 August 2015 on an indictment presented on 16 October 2017. 2. The telephone calls were contained on a disk and comprised recordings of calls set out in the following table: Call Date Time Alleged Participants 7 30.8.15 1.29.56am The two accused 8 30.8.15 2am Chris Barbara and the accused Errington 17 30.8.15 3.08am Chris Barbara and the accused Errington 28 30.8.15 5.55am The two accused 29 30.8.15 6.01am Chris Barbara and the operator for Premier Cabs 30 30.8.15 6.04am Chris Barbara and the accused Errington 31 30.8.15 6.08am Chris Barbara and the accused Errington, with a female voice which may be the accused Bloodsworth in the background 32 30.8.15 6.37am Chris Barbara and the accused Errington 1. A transcript of the recorded calls was also prepared and marked for identification MFI 17. 2. At the conclusion of argument, I admitted the recording of the calls set out in the table above and indicated that I would provide my reasons for this ruling later. What follows are my reasons for admitting the recording. The parties' submissions 1. The Crown indicated that it did not intend to tender the disk containing the recordings in its case as it was illegally obtained evidence and of insufficient relevance, but said that it was in the hands of the Court as to whether it ought do so. 2. Mr Carroll contended that the disk which contained the recordings was important, relevant evidence because it was relatively contemporaneous in that the conversations occurred not long after the death of the deceased (which occurred late on the evening of Friday 28 August 2015 or early on the morning of Saturday 29 August 2015). He submitted that it was better evidence than the descriptions of those who had had contact with the two accused in the time between the death of the deceased and the arrest of the two accused at about 6.45am on Monday 31 August 2015. 3. Mr Price, who appeared for the accused Bloodsworth, contended that the evidence ought be rejected. He submitted that it was illegally obtained and that its slight relevance did not justify its admission. 4. Counsel for the Crown and the two accused accepted that the recording was unlawfully obtained although none identified the specific provision which made the recordings unlawful. It was common ground that either the prohibition in s 7 of the Surveillance Devices Act (NSW) applied or ss 6 and 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act) applied. Consideration Whether the recordings were unlawfully obtained 1. Section 6(1) of the TIA provides: "6 Interception of a communication (1) For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication." [Emphasis added.] 1. Section 7(1) of the TIA Act relevantly provides: "7 Telecommunications not to be intercepted (1) A person shall not: (a) intercept; . . . a communication passing over a telecommunications system." 1. I note that it is well-established that a recording made through a microphone external to the telephone after the sound of the voice has left the telecommunications system is not an "interception" under the Act: Clyne v Bowman (1987) 11 NSWLR 341. However, since the application in the present case was internal to the phone itself, it would appear that the recording constituted an "interception" within the meaning of s 6(1) of the TIA unless the parties to the communication knew that the conversation was being recorded. 2. It can be assumed that Chris Barbara knew that the conversation was being recorded since he was using his own phone. There is sufficient evidence to establish that the accused Errington knew that his conversations with Mr Barbara on the latter's phone were being recorded. In his recorded interview the following exchanges occurred between the investigating police officer and the accused Errington: "Q665 Where are those text messages? A On his [Chris Barbara's] phone. Yeah. Q666 Are they still on the phone? A He's got, he's got a recorder on his phone. . . . So you can listen to everything that's said on his phone, yeah. Q669 O.K. Yeah. Is that recorder still on his phone? A It should be. He never deletes it. Q670 [10.44] O.K. Well, he's told us that you told him to delete it along with a number of text messages. A He, he would never delete that." 1. There is no evidence that the accused Bloodsworth realised that Mr Barbara's phone was either capable of recording, or actually, recorded calls that were made or received by it. She was apparently a party to calls 7, 28 and 31. Accordingly, I am satisfied that the recording of calls 7, 28 and 31 was unlawfully obtained as their recording constituted an unlawful interception within the meaning of the TIA. I am satisfied that that the recording of calls 8, 17, 29, 30 and 32 was not unlawful under the TIA. 2. In these circumstances it is not necessary to consider the Surveillance Devices Act. In Miller v Miller (1978) 141 CLR 269 the High Court held, with respect to the relevant statutory predecessors of the Surveillance Devices Act and the TIA (the Listening Devices Act 1969 (NSW) and of the Telephonic Communications (Interception) Act 1960 (Cth)), that the Commonwealth Act evinced a clear intention to be the whole law on the matter of telephonic interception, and to the extent to which the state law purported to proscribe a thing permitted under the Commonwealth law, it was invalid. Whether the evidence ought be admitted 1. Section 138 of the Evidence Act 1995 (NSW) relevantly provides: "138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. . . . (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 1. In order to assess the probative value of the evidence I listened to the recording in Court on the voir dire. Having regard to my conclusion that the recording of only calls 7, 28 and 31 was unlawful, it is necessary only to consider whether the recording of those calls ought be admitted. 2. The proceedings are the trial on indictment of the accused for murder. The Crown case is that there was a joint criminal enterprise between the two accused to cause grievous bodily harm to the deceased (the accused Errington's half-brother), which resulted in his death. The relationship between the two accused, before and after the death of the deceased, was material to the jury's determination whether there was a joint criminal enterprise between them at the time of the acts that resulted in the death. It was also part of the Crown case that the attempts by the two accused to leave the jurisdiction amounted to a consciousness of guilt. On Monday 31 August 2015, as they were trying to buy train tickets to Brisbane, the two accused were arrested at Central Station at 6.45am and charged with murder. They had tried to obtain identification documents from Chris Barbara and his partner, Leiah Munnings. 3. Call 7 was recorded about 24 hours after the death of the deceased at 1.29am on the morning of 30 August 2015. The conversation was as follows: "BLOODSWORTH - Where are we going? ERRINGTON - Huh? BLOODSWORTH - Are we going, are we going from there? Or what the fuck are we doing? ERRINGTON - Yeah do you want to? Are you ready? BLOODSWORTH -Yeah, yeah... ERRINGTON - ...Yeah I'm down at the park. BLOODSWORTH - How are we getting there? ERRINGTON - Well do you want to fly or train? BLOODSWORTH - Are you swear you can do it without fucking ID? ERRINGTON -Yeah BLOODSWORTH - So if you... ERRINGTON - ...I don't even have mine on me. BLOODSWORTH - Alright well I have got a fucking mmm ERRINGTON - Do you want me to meet you there or what? BLOODSWORTH - Yeah meet me here. I can't carry all of my shit. Oi can you sell my Sony Ericson Experia? The new one? It's worth 15 hundred bucks. ERRINGTON - I don't know I'll ask him. BLOODSWORTH - I want crack. ERRINGTON - Yeah alright I will see you in a minute. BLOODSWORTH - Alright bye. ERRINGTON - Bye." 1. Call 7 is relevant to the continuing co-operation between the two accused and the proposal that they travel together by plane or train and obtain identification documents for that purpose and also to the accused Bloodsworth's drug addiction and her association with the accused Errington. Other evidence was to the effect that he supplied her with ice. 2. Call 28 was recorded at 5.55am on the morning of Sunday 31 August 2015 as follows: "BLOODSWORTH - Come on let's go. ERRINGTON - Where are ya? BLOODSWORTH - Come on let's say goodbye to me dad. ERRINGTON - Ha? BLOODSWORTH - I said I told me Dad to go leave me daughter on my birthday and I said, 'I love him', and he, he is like 'Rhiannon you're a fucking idiot' and I go 'I love you', he is like 'Yeah alright'. ERRINGTON - Where are you? BLOODSWORTH - Let's go, lets fucking go, I'm on the highway, come on let's go. ERRINGTON - Yeah meet me at the grass area. BLOODSWORTH - Just fucking walk out and let's go you will see me, let's go. ERRINGTON -Alright I'm coming BLOODSWORTH - Aren't you getting into a cab? ERRINGTON-Yeah BLOODSWORTH - And who is paying for it? ERRINGTON - Ha? Me why you want to walk? BLOODSWORTH - Where's your money? ERRINGTON - You want to walk? BLOODSWORTH - Where's your money? ERRINGTON - You walk around alright. Do whatever you want to do. BLOODSWORTH - Alright, alright I will meet you at your fucking grass area alright. Dead set? I will pay for it cause I have got money in me bra." 1. Conversation 28 is relevant to the continuing co-operation between the two accused shortly before a taxi is ordered for them to travel together from Meacher Street, Mt Druitt (where the accused Errington went to see Mr Barbara and confess that he had killed his half-brother). The reference by the accused Bloodsworth to farewelling her father is relevant to the Crown's submission that the two intended to flee the jurisdiction indefinitely to avoid detection and prosecution. I admitted evidence taken from a CCTV camera in the taxi which the accused caught together and which depicted how they interacted at about this time. Conversation 28 is probative because of the tone used between them. 2. Conversation 31 was largely between the accused Errington and Mr Barbara. However, towards the end of the conversation, a female voice was heard. It was open to the jury to find that the voice was that of the accused Bloodsworth. The part of the conversation to which the female is a party recorded the following exchanges: "FEMALE -Tell him about the ID... CHRIS BARBARA - Can I use that ID tomorrow so she can fly on (female in background) a plane tonight FEMALE - Na today, tell we want it fucking today. CHRIS BARBARA - Yeah I will talk to Leah now about it bro ERRINGTON - He is you dickhead! BLOODSWORTH - Five grand for that man, tell him to fucking do his best and give me the fucking ID or we ain't going through ERRINGTON - He said yes,. Male Voice in the background is indistinct. ERRINGTON - No, yes. Are you there? CHRIS BARBARA -Yeah ERRINGTON - Yeah I will be at Rooty Hill, can you drop that out at um Doonside? FEMALE - Indistinct ERRINGTON - Well get out then. At Doonside." 1. Conversation 31 was relevant because it showed, as with the previous calls, the continuing co-operation between the accused and the urgency associated with obtaining identification documents so that they can leave as soon as possible. The tone of the speakers was also important because it shows that the female (said to be the accused Bloodsworth) was assertive with the accused Errington and that she felt both able and entitled to make demands on him. This evidence had substantial probative value in circumstances where the Crown case is that the two accused were both parties to a joint illegal enterprise. The Crown was obliged to exclude the hypothesis consistent with innocence that the accused Bloodsworth, though present in the unit at the time the deceased was hogtied (which resulted in his death) was not a participant in his killing. 2. The contravention by Mr Barbara was only deliberate in the sense that he had an application in his phone which recorded calls but, as his conversations were with the accused Errington, whom he had told about the recording, it could not be said that the contravention was, in the circumstances, particularly grave. It could not reasonably be inferred that the recording of these particular conversations was deliberate; their recording was the inevitable consequence of the application on his phone. In these circumstances, it is not possible to predict whether any action would be taken against Mr Barbara. As to the difficulty of obtaining the evidence (s 138(3)(h) of the Evidence Act), this factor is not of great significance in the present circumstances, where the contravention did not occur in order to obtain the evidence, but rather as an unintended consequence of the application having been activated in Mr Barbara's telephone. As it had already been activated prior to Mr Barbara having any apprehension that his phone would record calls of this nature, there can be no suggestion that he recorded the calls with any foreknowledge or specific deliberation. 3. Although the Crown was diffident about tendering the recordings and contended that they were of limited relevance, I am persuaded that they have substantial probative value. They provide an unparalleled insight into the relationship between the two accused at a time proximate to the acts which resulted in the deceased's death. They tend to show how confused and inept the accused Errington was (which could be regarded as consistent with his grief and regret at having killed his brother when he had not even, on his case, intended to cause him serious harm) and how assertive the accused Bloodsworth was (which would tend to assist the Crown case that she was party to the joint criminal enterprise, rather than an unwilling witness to the acts of the accused Errington). The illegality is relatively insignificant and is not to be compared with, for example, an investigating authority which has deliberately failed to comply with applicable laws in order to obtain evidence of guilt. 4. I was satisfied, as a result of considering the matters listed in s 138(3) of the Evidence Act, that the desirability of admitting the evidence of the recording of conversations 7, 28 and 31 outweighs the undesirability of admitting evidence that was obtained in this way. 5. I note that call 7 provides some indication that the accused Bloodsworth was a drug addict ("I want crack"). Mr Price contended that the admission of this evidence was unfairly prejudicial to the accused Bloodsworth. I understood his objection on this basis to be based on s 137 of the Evidence Act which requires a court to refuse to admit evidence adduced by the prosecutor in criminal proceedings if its probative value is outweighed by the danger of unfair prejudice to the accused. It is difficult to accept that any additional prejudice could be caused by the admission of the recording on that basis as the evidence adduced was redolent with references to the accused Bloodsworth using ice on a regular basis. Moreover, the evidence of the accused Bloodsworth's drug addiction and the conduct of the accused Errington in supplying her with ice tended to assist the accused Bloodsworth to prove that her desire to remain with the accused Errington and travel with him to Queensland was motivated, at least in part, by her need for a supply of ice, rather than exhibiting any consciousness of guilt by flight. I do not consider there to be any appreciable danger of unfair prejudice to the accused Bloodsworth of the admission of this evidence, which, for the reasons given above, I consider to have substantial probative value. 6. For these reasons I admitted the disk which contained the recorded conversations set out above. ********** 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: 27 October 2017