Supreme Court New South Wales Medium Neutral Citation: R v Martinez; R v Tortell (No. 5) [2019] NSWSC 1665 Hearing dates: 7 November 2019, 14 November 2019 Date of orders: 21 November 2019 Decision date: 28 November 2019 Jurisdiction: Common Law Before: Johnson J Decision: Reasons for ruling made on 21 November 2019 concerning Crown tender of parts of conversation between the Accused persons as evidence of consciousness of guilt Catchwords: CRIMINAL LAW – EVIDENCE – murder trial – accused persons alleged to be party to joint criminal enterprise – where Crown seeks to rely on lawfully recorded conversation between accused persons as evidence of consciousness of guilt – whether evidence relevant as consciousness of guilt – whether evidence ought be excluded because of competing inference or alternative explanation for parts of conversation – whether evidence "intractably neutral" and incapable of demonstrating consciousness of guilt – whether evidence ought be excluded because of its prejudicial effect – parts of conversation admissible as evidence of consciousness of guilt Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: BJS v R (2013) 231 A Crim R 537; [2013] NSWCCA 123 IMM v The Queen (2016) 257 CLR 300; [2016] HCA Martinez v R; Tortell v R [2019] NSWCCA 153 McKey v R (2012) 219 A Crim R 227; [2012] NSWCCA 1 Meakin v R [2018] NSWCCA 288 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Brooks [2017] NSWSC 188 R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 R v Cook [2004] NSWCCA 52 R v Fantakis; R v Woods [2018] NSWSC 1814 R v Sood [2007] NSWCCA 214 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40 Vickers v R (2006) 160 A Crim R 195; [2006] NSWCCA 60 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) Wade Martinez and Jake Tortell (Accused) Representation: Counsel: Mr M Barr (Crown) Mr C Watson (Accused Martinez) Mr J Trevallion (Accused Tortell) Solicitors: Director of Public Prosecutions (Crown) McGowan Lawyers (Accused Martinez) Alexanders Lawyers (Accused Tortell) File Number(s): 2015/251812 (Martinez)2015/251805 (Tortell) Publication restriction: --- Judgment 1. JOHNSON J: In advance of the trial of the Accused, Jake Tortell and Wade Martinez, pretrial issues arose for consideration concerning the admissibility of two pieces of evidence. Submissions were made on these issues on 7 and 14 November 2019. 2. Both Accused stood trial in 2017 for offences including the murder of Gewargis Garmo on 14 February 2015. Each Accused was convicted and sentenced to terms of imprisonment. The Court of Criminal Appeal allowed appeals against conviction on 10 July 2019 and made orders quashing the convictions and ordering a retrial of each Accused: Martinez v R; Tortell v R [2019] NSWCCA 153. 3. The retrial of each Accused was scheduled to commence on 11 November 2019, with the present trial commencing on 12 November 2019. The indictment charges each Accused with the murder of Mr Garmo and Mr Martinez with the reckless wounding of Mr Garmo. The Present Objections 1. The Crown sought to adduce evidence in two areas, to which objection was taken: 1. evidence of Kashlin Naidu as contained in a statement dated 12 January 2016 concerning a conversation which she had with Mr Garmo shortly before he died on 14 February 2015 - the Crown sought to rely upon a representation made by Mr Garmo under s.65 Evidence Act 1995 upon the basis that Mr Garmo is unavailable to give evidence; 2. evidence of a conversation between the Accused persons which was recorded by listening device on 24 August 2015 - the Crown sought to rely upon statements made by each Accused in that conversation as evidence of consciousness of guilt. 1. The Court has been informed that the Crown did not seek to tender these two pieces of evidence at the first trial in 2017. Accordingly, no ruling was made by the trial Judge (Mathews AJ) concerning these issues which could attract application of s.130A Criminal Procedure Act 1986. It appears that Ms Naidu was outside Australia (in Fiji) at the time of the first trial and that may explain why the first piece of evidence was not tendered at the first trial. No explanation has been provided to the Court as to why the second piece of evidence was not sought to be tendered at the first trial. 2. On 7 November 2019, I ruled that the evidence of Ms Naidu was admissible as I was satisfied that the requirements of s.65(2) Evidence Act 1995 had been met and I was also satisfied that the evidence ought not be excluded under s.137 Evidence Act 1995 (PT28.8-15). I indicated that I would publish my reasons for that ruling at a later time. 3. On 26 November 2019, the Crown indicated that Ms Naidu was no longer to be called by the Crown for medical reasons (MFI43). The Crown accepted that, in the absence of evidence from Ms Naidu, the statement of Ms Naidu could not be tendered given the decision in Vickers v R (2006) 160 A Crim R 195; [2006] NSWCCA 60, especially at [5]-[11], [49]-[65]. Accordingly, the Crown withdrew the tender of evidence from Ms Naidu including her statement (T762-763). In these circumstances, there is no need to give reasons for the decision made on 7 November 2019 which was premised upon the Crown calling Ms Naidu as a witness at the trial. 4. On 21 November 2019, I ruled that parts of the conversation between the Accused persons would be admitted as evidence of consciousness of guilt (T477-478). The parts to be admitted were highlighted on MFI27 (a copy of Exhibit PTB). I indicated that I would publish my reasons for that ruling at a later time. 5. This judgment contains my reasons for the ruling made on 21 November 2019. The Crown Case 1. The Crown case against each Accused is summarised in the Crown Case Statement dated 8 March 2017 (Exhibit PTC). 2. Put shortly, the Crown says that prior to 14 February 2015, there was animosity between Mr Garmo and Mr Martinez. The Court was informed that other evidence to be tendered at the trial suggests that Mr Garmo may have been responsible for a drive-by shooting at the premises of Mr Martinez. 3. On the evening of 14 February 2015, Mr Martinez and Mr Tortell, who were good friends, were visiting other friends in Dashmere Street, Bossley Park. 4. The Crown alleges that, on that night, Mr Martinez was angry with Mr Garmo because of a dispute between the two men. 5. It is alleged that, soon after 10.00 pm on 14 February 2015, Mr Martinez became aware that Mr Garmo was in the vicinity. Mr Garmo was walking in Dashmere Street with his girlfriend Nicole David, to McDonald's at Wetherill Park. Mr Martinez armed himself with a knife from the Dashmere Street premises and, during an altercation between the two men in the street, Mr Garmo was cut to the hand by Mr Martinez. Mr Garmo is said to have run from the scene, leaving a blood trail through various locations in or near Dashmere Street, Rimfire Close, Restwell Road and Mimosa Road, Bossley Park after his flight from Dashmere Street. 6. The Crown alleges that Mr Garmo got into a Toyota Camry in Rimfire Close. The Toyota Camry contained Nicole David, Jade and Krystal McVerry, and Cristian Younan. The Crown alleges that Mr Martinez and Mr Tortell then drove in Mr Tortell's black Lexus which followed the Toyota Camry. The Crown alleges that the Lexus cut off the Camry near the intersection of Mulligan and Barrington Streets, Bossley Park with the two Accused getting out of the vehicle and approaching the Camry. The Crown case is that Mr Garmo got out of the Camry and that (leaving a further blood trail) he ran down Mulligan Street and into Lofty Crescent, Bossley Park before climbing over a fence at the rear of 1 Lofty Crescent and into the rear yard of 8 Garnet Street, Bossley Park where he attempted to make his way through a gate at the side. Mr Garmo experienced difficulties in opening the gate and, when near the open gate, the Crown alleges that one or both of the Accused persons travelled on foot or in the black Lexus and caught up to Mr Garmo who was stabbed at least eight times causing fatal injuries. 7. The Crown alleges that both Accused were acting together as part of a joint criminal enterprise to seriously harm Mr Garmo after he was first wounded by Mr Martinez in Dashmere Street, with the result that one or both of them killed Mr Garmo. It is alleged that both Accused intended to either inflict grievous bodily harm to Mr Garmo or to kill him. 8. It is alleged that the aggressive behaviour of both Accused escalated during the events on this night, and particularly after Mr Garmo fled Dashmere Street with both Accused pursuing the Camry (which contained Mr Garmo) and then following Mr Garmo on foot after the Lexus had cut off and stopped the Camry in Mulligan Street. As both Accused persons are said to have been acting as part of a joint criminal enterprise, the Crown alleges that each is liable for the acts of the other Accused and that both are guilty of the murder of Mr Garmo. 9. The Crown alleges that the entire incident from the time Mr Martinez left the Dashmere Street premises armed with a knife to the time of Mr Garmo's death occupied only 12 or so minutes and that the course of conduct of the two Accused men over that period pointed strongly to their guilt of the murder of Mr Garmo. The Conversation Between the Accused Persons on 24 August 2015 1. The Crown tenders parts of a recorded conversation which took place between the two Accused persons when sitting in Mr Tortell's black Lexus motor vehicle on 24 August 2015. The parts tendered by the Crown were identified in a transcript of this conversation (Exhibit PTB). Certain parts relied upon by the Crown were summarised as follows in the Crown Case Statement (pages 10-11, Exhibit PTC): "56. On 24 August 2015 Mr Tortell and Mr Martinez met up in the black Lexus. Police lawfully recorded a conversation during which both accused discussed the police investigation. In doing so, Mr Martinez repeatedly told Mr Tortell not to talk to police (Page 8) telling him, in reference to the police investigation, 'It's because, I told you before theyre gunna sit, theyre gonna try and turn us against each other Jake. That's what Im trying to say like ..' (Page 8 Listening Device Transcript). Mr Martinez said, 'I look at you like my brother, cuz Jake. Honestly bro, to me you are my blood cuz. I don't know if you fuckin sit there are feel the same bro … cuz.' Mr Tortell replied, 'Yeah I know. Because how do you think I feel bro, you feel like that. Yeah, I'd fucken do anything for you too …' (Page 15 Listening Device Transcript). 57. At another point in that conversation Mr Tortell said, 'And I learnt so fucken much man …' And said, 'Like I just fucken wish I can start over. I just fucked up man, like I just want to fucken --- I just want to work, save bro, fucken, fuck man. It's just been going downhill bro' (Page 16 Listening Device Transcript). 58. Further in that conversation Mr Martinez said, 'This is all my fault bro at the end of the day its all my fault like, like fuck man Jake. I just want you to know like I fucken truly am so sorry bro I wish I could take back everything bro and we can both just do good, get married, do everything, you know what I mean ..' … 'But its not like that cuz, know what I mean we fucked up and that's it you know we gotta deal with the consequences, you know but..' (Page 21 Listening Device Transcript). 59. During that same conversation Mr Tortell told Mr Martinez that he had been going to see a counsellor and Martinez said 'Yeah but don't say nothing.' (Page 25 Listening Device Transcript)'." 1. The Crown submitted that the parts of the conversation relied upon constituted evidence of consciousness of guilt on the part of the two Accused concerning the murder of Mr Garmo. It was submitted that the evidence was admissible for this purpose. If some other explanation was suggested on behalf of either Accused person as to why the statements relied upon were being made, then that was a matter for the jury to consider and was not a bar to admissibility of the material itself. The Crown emphasised that the context of the conversation related to the knowledge of the Accused persons concerning the death of Mr Garmo and the police investigation of the Accused persons. 2. Mr Trevallion, counsel for Mr Tortell, submitted that the evidence ought not be admitted as evidence of consciousness of guilt. As that was the only basis upon which it was being tendered, it was submitted that it should not be admitted at all in the trial. Mr Trevallion submitted that the statements made by his client were intractably neutral and incapable of demonstrating his guilt of the charge of murder with other explanations being suggested as to what was being discussed. It was submitted that parts of the conversation sought to be relied upon could not be attributed to a sense of guilt of murder as opposed to manslaughter or (in the case of Mr Martinez) reckless wounding or simply guilt in respect to issues with his family: Meakin v R [2018] NSWCCA 288 at [136]-[137], [261]. 3. It was submitted that the statements by the Accused persons were expressed in general terms and that they were not relevant to issues in the trial and, even if relevant, ought not be admitted by operation of s.137 Evidence Act 1995. 4. Mr Watson adopted the submissions of Mr Trevallion and made separate submissions upon a similar basis by reference to those parts of the conversation in which his client was speaking. 5. At the conclusion of the pretrial hearing on 7 November 2019, I invited counsel to make further submissions on the objection if they wished to do so. On 11 November 2019, I requested that counsel consider the judgment of Wilson J in R v Fantakis; R v Woods [2018] NSWSC 1814, a decision with some similarities to the present objection, and further submissions were made by counsel on 14 November 2019 by reference to that case and other authorities (T91-103). Decision Concerning Listening Device Conversation 1. Several provisions of the Evidence Act 1995 have application to the tender of the conversation between the Accused persons recorded by listening device. Sections 55 and 56 Evidence Act 1995 state: "55 Relevant evidence (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. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible." 1. The test of relevance is a relatively undemanding one. The enquiry for the purpose of s.55 concerns how the evidence might affect findings of fact. The possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM v The Queen at [39]. 2. Evidence which is relevant according to s.55 and admissible under s.56 is, by definition, probative. But neither ss.55 nor 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM v The Queen at [40]. 3. Consideration of relevance requires identification of the fact or facts in issue in the trial. Here, the principal issues in dispute are whether it was either of the Accused who inflicted the fatal injuries to Mr Garmo on 14 February 2015 and whether there was a joint criminal enterprise between the two men which would lead to the conviction of each of them for murder. There is no issue that Mr Martinez obtained a knife from the Dashmere Street premises and that he cut Mr Garmo's hand during an altercation in Dashmere Street, with Mr Martinez indicating (in his defence response under s.143 Criminal Procedure Act 1986) an intention to rely upon self-defence in that respect. This incident gives rise to the charge of reckless wounding against Mr Martinez which is contained in the indictment. 4. In circumstances where the Crown alleges that the two Accused pursued Mr Garmo by vehicle and on foot through various parts of Bossley Park, an issue in the trial concerns the identity of the person or persons who inflicted fatal wounds to Mr Garmo and (if it was one of the two Accused) whether a joint criminal enterprise existed to render the two men guilty of murder or manslaughter. As I understand it, the Crown will contend that the only reasonable inference available to the jury is that it was one or both of the Accused who stabbed Mr Garmo to death, with (if it is a single assailant) the other Accused being liable to conviction as well by application of the principles of joint criminal enterprise. 5. Section 137 Evidence Act 1995 provides as follows: "137 Exclusion of prejudicial evidence in criminal proceedings 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." 1. Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM v The Queen at [15]. Section 137 requires the "probative value" of the evidence to be weighed against the danger of unfair prejudice to the Accused persons. This requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue: IMM v The Queen at [47]. 2. The danger of "unfair prejudice" in s.137 Evidence Act 1995 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact (in this case, a jury) so that the jury may not comply with judicial directions as to its use: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]; R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494 at [163]-[165]; The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40 at [73]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: BJS v R (2013) 231 A Crim R 537; [2013] NSWCCA 123 at [51]. 3. The existence of competing inferences (or alternative interpretations), available to be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s.137: R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 at [196]. It is no part of the trial Judge's function, in assessing probative value under s.137 concerning material tendered as consciousness of guilt evidence, to have regard to competing explanations for the words or conduct of an accused person other than that relied upon by the Crown: R v Sood [2007] NSWCCA 214 at [39]-[40]. 4. It is common ground that the conversation was lawfully recorded and that the transcript may be regarded as accurate for the purpose of the tender. 5. The question of relevance requires consideration to be given to the purpose of the tender of this evidence. The Crown submits that the statements of each Accused are admissible as evidence of consciousness of guilt at the trial. The principles to be applied with respect to consciousness or guilt evidence are well known: R v Cook [2004] NSWCCA 52; McKey v R (2012) 219 A Crim R 227; [2012] NSWCCA 1 at [26]ff; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [72]-[77]; Meakin v R at [130]-[137], [149], [257]-[261]. 6. Evidence of post-offence conduct may be admissible in a criminal trial with the jury to be given directions as to the use of such evidence, with caution to be exercised as to other possible explanations for the accused person to have conducted himself or herself in the way revealed in the case. 7. It is helpful to set out principles stated by Wilson J in R v Fantakis; R v Woods at [55]-[59]: "55 Evidence which may establish that an accused person has a consciousness of guilt of a charged offence has long been recognised as relevant and admissible in support of the case called by the prosecution. It is circumstantial evidence of a collateral event capable of supporting the Crown case. 56 Such evidence is frequently seen as evidence of lies told by an accused (Edwards v The Queen (1993) 178 CLR 193), but there are other examples. An accused's flight or resisting arrest can be evidence of consciousness of guilt (R v Sutton (1986) 5 NSWLR 697; R v Egan, unreported decision of the NSWCCA of 7 July 1997), as can the failure of an accused to deny an allegation (R v MMJ [2006] VSCA 226), the destruction of evidence (R v Nguyen [2001] VSCA 1; DN v R [2016] NSWCCA 252), interference with a witness (R v Smit & Ors [2004] NSWCCA 409), or the disguising or altering of an accused's appearance. 57 Guilt may be inferred from an accused person's post-offence conduct by demonstrating the accused's awareness of his or her guilt. In Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 Latham J observed (at [6]): As I observed in McKey, the categories of post offence conduct that have been recognised as legitimate indicia of a consciousness of guilt are not closed, but before any post offence conduct can so qualify, it must bear a particular character. It must be capable of constituting an admission against interest. It must be capable of meeting the conditions analogous to those discussed in Edwards v The Queen (1993) 178 CLR 193 applying to lies. The relevant conduct must be precisely identified and proved by evidence, it must be concerned with some circumstance or event connected with the offence and it must be carried out in circumstances in which the explanation for the conduct is a realisation of guilt on the part of the accused. The type of conduct referred to in McKey, such as flight, destruction of evidence and attempts to influence witnesses, meet all of those conditions. 58 In considering the admissibility of the impugned evidence, it is necessary to conclude that it is capable of rationally supporting an inference of guilt of the charged offences, and be capable of constituting an implied admission to those offences. The test was discussed in Edwards, at 209: 'But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'.' (footnotes omitted) 59 In summary, for evidence of conduct to be admissible as evidence of consciousness of guilt, (1) The conduct must be deliberate; (2) It must relate to a material issue; and (3) It must be open to infer that the motivation for the conduct was comprehension of guilt of the charged offence." 1. Given the submissions made in this case, reference should be made to principles contained in other authorities. 2. Reference is made in some cases to evidence which is "intractably neutral" in the sense that it may indicate guilt of murder or a less serious offence. In Meakin v R, the Court considered that the consciousness of guilt evidence was intractably neutral concerning the guilt of the applicant of murder or culpable driving causing death. In those circumstances, the Court of Criminal Appeal held there was error in certain evidence being used as evidence of consciousness of guilt: Meakin v R at [138]-[137], [149], [257]. In my view, the decision in Meakin v R is clearly distinguishable on the facts from the present case. As will be seen, the admissibility of evidence of post-offence conduct will depend very much upon the facts of the particular case. 3. In The Queen v Baden-Clay at [74], French CJ, Kiefel, Bell, Keane and Gordon JJ noted that there "is no hard and fast rule that evidence of post-offence concealment and lies is always intractable neutral as between murder and manslaughter", and the result will always turn on the nature of the evidence in question and the relevance of evidence to the real issues in dispute in the trial. 4. In R v Brooks [2017] NSWSC 188, Hamill J (at [28]-[43]) undertook a helpful analysis of authorities concerning consciousness of guilt and the concept of intractable neutrality. His Honour concluded (at [42]) upon the facts of that case that, even if it was accepted that the evidence was "intractably neutral" when it came to distinguishing between the crime of murder and the crime of manslaughter, the evidence had both relevance and substantive probative force on the question whether or not the accused person acted unlawfully and knew that he acted unlawfully. 5. Returning to the present case, it should be kept in mind that the real issues in dispute include whether the Crown has proved that it was one or other or both of the two Accused who stabbed Mr Garmo to death at 8 Garnet Street, Bossley Park and, if so, whether the fatal attack was part of a joint criminal enterprise between Mr Martinez and Mr Tortell to kill or cause grievous bodily harm to Mr Garmo. It is to be kept in mind that the Crown says that it was Mr Martinez who had a grievance with Mr Garmo and that his friend, Mr Tortell, supported Mr Martinez during the incident which culminated in one or other or both of them stabbing Mr Garmo to death. 6. It is appropriate to consider different parts of the conversation upon which the Crown seeks to rely as evidence of consciousness of guilt. As occurred in R v Fantakis; R v Woods, parts of the conversation may be admissible for that purpose and other parts inadmissible. 7. I have kept in mind that the conversation here occurred some six months after the death of Mr Garmo on 14 February 2015. That said, it is clear from the conversation, which referred to the investigating officer in the Garmo case by name, that the Accused persons were discussing that investigation. A number of the comments made by each Accused are capable of being treated as evidence of consciousness of guilt although it will be a matter for the jury to determine whether that is the appropriate use to be made of it in the trial. 8. In the circumstances of this case, if part of the conversation made clear that the two men were discussing something unrelated to the death of Mr Garmo and that any words upon which the Crown seeks to rely were really linked to other matters, then the tender would be rejected upon the basis that it was not relevant to the issues in the trial and would not cross the threshold through the relevance gateway in ss.55 and 56 Evidence Act 1995. 9. Alternative explanations as to what the Accused persons were discussing would be for the jury to consider in light of the evidence and submissions made. The availability of an alternative explanation is not a basis for exclusion under s.137 Evidence Act 1995 (see [33] above). 10. I have kept in mind that a number of the comments made by the two men are expressed in very general terms. They are not direct and express references to the death of Mr Garmo. Of course, if they were direct references to the death of Mr Garmo expressed in an incriminating fashion, then the statements of the particular Accused may be admissible as an admission of the crime itself. The Crown is not contending that the words attributed to either Accused in this conversation constituted a direct admission of guilt with respect to the killing of Mr Garmo. Rather, the Crown relies upon this as post-offence conduct with comments being made which demonstrate consciousness of guilt in the sense described by Wilson J in R v Fantakis; R v Woods (at [37] above). 11. It is noteworthy, as well, that neither Accused denies in the conversation that it was one or other of them who killed Mr Garmo. There is no assertion or statement of belief that a third party inflicted the fatal stab wounds upon Mr Garmo. 12. It is appropriate to refer directly to the parts of the conversation which I will admit as evidence of consciousness of guilt. Parts of the Conversation to Be Admitted Into Evidence 1. The first part to be admitted appears at page 8 of MFI27. It is the part referred to at [19] above (paragraph 56 of the Crown Case Statement, Exhibit PTC). This part of the conversation is admissible as evidence of consciousness of guilt with Mr Martinez urging Mr Tortell not to talk to investigating police about the death of Mr Garmo, including the statement by Mr Martinez that "they're gunna try and turn us against each other Jake'. Given the issues in this trial, this evidence is capable of demonstrating consciousness of guilt on the part of the two men by reference to the fatal attack on Mr Garmo on the evening of 14 February 2015. 2. The second part to be admitted appears at page 15 of MFI27. It is also referred to at [19] above (paragraph 56 of Exhibit PTC). In the course of an exchange where Mr Martinez says to Mr Tortell "I look at you like my brother, cuz Jake" and "to me you are my blood cuz", Mr Tortell responds "Yeah, I know. Because how do you think I feel bro, you feel like that. Yeah, I'd fucken do anything for you too". This part is admissible as evidence of consciousness of guilt given the issues in the trial including the closeness of the relationship between the two men and the willingness of Mr Tortell to commit acts in support of Mr Martinez given the Crown contention that the two men were acting in furtherance of a joint criminal enterprise which culminated in the killing of Mr Garmo on 14 February 2015. This conversation is especially probative because on the Crown case, it was only Mr Martinez (see [13] above) who was angry with Mr Garmo, and not Mr Tortell. This aspect of the conversation would squarely relate to Mr Tortell's motive for committing the alleged offence, and implicate Mr Martinez in the joint criminal enterprise. 3. The third part to be admitted appears at page 16 of MFI27. It is referred to at [19] above (paragraph 57 of Exhibit PTC). Mr Tortell says to Mr Martinez that "I just fucken wish I can start over" and "I just fucked up man". It would be open to the jury to conclude that Mr Tortell was saying that he had "fucked up' on the evening of 14 February 2015 and that he wished he could "start over", with Mr Martinez understanding, as well, what Mr Tortell was speaking about. 4. The fourth part to be admitted appears at pages 18-19 of MFI27. Mr Martinez says to Mr Tortell "Like it's all my fault bro like, it kills me man" in the context of Mr Martinez telling Mr Tortell that he (Martinez) was calling Mr Tortell all the time. Again, it would be open to the jury to conclude that Mr Martinez is saying that involving Mr Tortell in the killing of Mr Garmo on 14 February 2015 was the fault of Mr Martinez. 5. The fifth part to be admitted appears at page 21 of MFI27. It is referred to at [19] above (paragraph 58 of Exhibit PTC). Here, Mr Martinez says "this is all my fault bro at the end of the day it's all my fault like, like fuck man Jake, I just want you to know like I fucken truly am so sorry bro and I wish that I could take back everything bro and we can just do good, get married, do everything, you know what I mean". Mr Tortell responds "That's what I want bro fuck like, you have a mrs, have a mrs this that, we work cuz … and can go out together, you know". 6. Shortly after, and significantly, Mr Martinez said "But its not like that cuz, know what I mean we fucked up and that's it you know, we gotta deal with the consequences …". A little later, Mr Martinez said "Just, I just want you to remember cuz, like bro, don't let anyone ever tell you that I'm not there for you Jake, or anything bro". Mr Martinez continued and said a short time later "You're my only mate cuz. To me you're my only fucken brother". 7. In circumstances of the alleged involvement of the two Accused acting together over a short period of time on the evening of 14 February 2015 and culminating in the fatal attack on Mr Garmo, it would be open to the jury to conclude that Mr Martinez was here apologising to Mr Tortell for getting him involved in the course of events which led to the killing of Mr Garmo and with Mr Tortell agreeing that this was a life-changing event with consequences for each of them. 8. The sixth part to be admitted appears at page 25 of MFI27. It is referred to at [19] above (paragraph 59 of Exhibit PTC). Mr Tortell tells Mr Martinez that he (Tortell) is seeing a counsellor. Mr Martinez said "Don't say nothing". Mr Tortell said soon after "I can't really talk to my family about that shit" and Mr Martinez replied "Yeah, I know. Yeah exactly'. Mr Tortell replied "… like I don't talk to someone I don't know like its full better they're gunna keep it like secret and shit". 9. It would be open to the jury to conclude that Mr Martinez was telling Mr Tortell not to say anything to a counsellor concerning the events involving the killing of Mr Garmo, with Mr Tortell acknowledging that this approach was appropriate. Once again, this evidence is admissible as evidence of consciousness of guilt with respect to the two Accused. 10. I am satisfied that each of the six pieces of evidence is relevant to issues in the trial. It will be for the jury, properly directed, to utilise this evidence as it considers appropriate in the trial. 11. Each part of this conversation, and the six parts taken together, is capable of demonstrating criminal involvement of each Accused in the death of Mr Garmo in circumstances which would lead to convictions for murder. To the extent that there may be alternative explanations suggested as to why Mr Martinez and Mr Tortell said these things in the conversation on 24 August 2015, it will be a matter for the jury to consider any submissions made by reference to the totality of the evidence, not viewed in a piecemeal fashion: The Queen v Baden-Clay at [77]. 12. Having applied relevant principles concerning s.137 Evidence Act 1995 (see [31]-[33] above), I am satisfied that each of these parts ought not be excluded. To the extent there may be possible competing explanations concerning the issues being discussed, that is not a basis for exclusion under s.137. The evidence to be admitted has significant probative value. I am not persuaded that the probative value of the evidence is outweighed by the danger of unfair prejudice to the Accused persons (or either of them). 13. As noted on 21 November 2019, I consider that the parts of the conversation to be admitted will be admissible against both Mr Martinez and Mr Tortell. However, I will hear counsel further on that aspect if they wish, as limited submissions were made on that topic on 7 and 14 November 2019. 14. I note that Mr Trevallion submitted that, if parts of the conversation relied upon by the Crown were to be admitted, then it may be sought to have other parts or the entirety of the conversation admitted in evidence. I will allow counsel for each Accused an opportunity to consider their position in this respect. Parts of the Conversation Which Will Not be Admitted into Evidence 1. I have declined to admit the other parts of Exhibit PTC pressed by the Crown on the basis that the threshold question of relevance under s.55 Evidence Act 1995 had not been met, or on the basis that it cannot legitimately support an inference of consciousness of guilt (see R v Fantakis; R v Woods at [37] above). 2. Pages 6-8 of MFI 27 (ending with the line "I don't want to talk to them") is not admissible as evidence of consciousness of guilt. The relevant portion of the transcript commences with a reference to the police attending the house of Mr Tortell, and asking his sister questions about Mr Martinez "parking down [Mr Tortell's] street". Mr Tortell then refers to the police "raid[ing]" his house, and the house of his girlfriend, in an attempt to find "Jimmy Johnson". It is common ground that Mr Tortell's telephone was registered in the name of "Jimmy Johnson" so that this aspect was not capable of being evidence of consciousness of guilt with respect to the subject offences. 3. Mr Tortell then confirms that the police have asked his sister to "write a statement against [Mr Martinez]". The passage concludes with Mr Tortell complaining about the nature of the police investigation and expressing his concern for his various family members. 4. In my view, this portion of the transcript is not relevant to any of the issues in the trial. Instead, the conversation is directed towards Mr Tortell's frustration concerning the impact of the police investigation on his family and girlfriend. It is also plain that Mr Martinez's reference to Mr Tortell's girlfriend writing a "statement" is not a reference to a statement about the events of 14 February 2015. Rather, it concerns a statement being made about Mr Martinez being parked down Mr Tortell's street (which he does not deny). Accordingly, it cannot be said that it is relevant to the issues in the trial, and probative of the guilt of either Accused with respect to the charged offences. 5. Similarly, page 12 of MFI 27 is not admissible as consciousness of guilt evidence. This portion refers to the investigation being "red-hot". Mr Martinez asks Mr Tortell to "text … once a week at least", but Mr Tortell responds that he wanted to change his number because of the investigation. Again, in my view, it cannot be said that this relates to a material issue in the trial. 6. Page 24 of MFI27 is also not admissible as evidence of consciousness of guilt. In this passage, Mr Martinez states that he loves Mr Tortell and Mr Tortell's girlfriend. Mr Martinez continued: "… if she ever fucken dogs you cuz, I promise you brother, I'm gunna fuck, I will kill her brother … I'll fucken, literally brother, I'll go there, I'll fucken kill her." 7. It is important to view this passage in context. Immediately preceding the passage, Mr Martinez refers to the incident where he was driving past Mr Tortell's house, and Mr Martinez expressed his concern that Mr Tortell has, amongst other things, not returned his calls (MFI27, page 23). The theme is then continued in the passage sought to be relied on by the Crown, where Mr Martinez explains: "I just got upset that day cuz, because I tried to call you. I texted you earlier that day cuz, please bro, I need to talk to you bro'. I was up, I was full upset bro', you know what I mean". This is immediately followed by (in a passage not sought to be relied on by the Crown): "Can you please call me bro'. Then I drove past cuz. I've seen your missus there, what your [sic] talking to her but you can call whos [sic] meant to be your brother and say yo, how you doing mate" (MFI27, page 24). The reference to Mr Martinez seeing Mr Tortell's girlfriend's car outside his (Mr Tortell's) house is mentioned in the transcript (MFI27, pages 8 – 9). 8. I accept that the words "dogs you cuz (my emphasis)" could be taken to mean that if Mr Tortell's girlfriend ever turned on him (Mr Tortell) by implicating him in the crime, Mr Martinez would harm her (this is in contrast to Mr Tortell's sister writing a statement against Mr Martinez). However, earlier in the passage, Mr Tortell states: "You don't have nothing against my missus but …". Mr Tortell's girlfriend does not appear to know anything inculpatory about the events on 14 February 2015, but Mr Martinez is, by raising a hypothetical (assuming that Mr Tortell would be "dogged" by his girlfriend), stating that he would act in a particular way towards her to demonstrate his friendship, in an attempt to get Mr Tortell to speak to him again. In my view, this can be contrasted to the second part to be admitted at page 15 of MFI 27 (see [51] above) where it was Mr Tortell who said to Mr Martinez that he would "… fucken do anything for you too". This excluded portion is not of the same character. 9. In any event, at its highest, this does not betray a consciousness of guilt of the offence, but instead, shows that Mr Martinez is concerned about the investigation and a hypothetical situation that may, but has not in fact, arisen. In short, it is not about the offences the subject of the charges, but shows Mr Martinez trying to get Mr Tortell to speak to him. It cannot be said that this relates to a material issue in the proceedings, nor is it capable of supporting an inference of guilt. 10. Fundamentally, this passage, which flows from the earlier passage (at [65]-[67] above), suffers from similar defects, and accordingly is not admissible as evidence of consciousness of guilt. 11. Further, the reference to killing (see [69] above) is highly prejudicial, especially in the context of a murder trial. Even if this evidence was relevant and capable of supporting, albeit tangentially, an inference of guilt, in my view, its probative value is outweighed by the danger of unfair prejudice to the Accused persons, and I would have excluded it under s.137 Evidence Act 1995. 12. I am satisfied, however, that the parts to be admitted are in a clearly different category to the parts of the conversation of 24 August 2015 which I will not admit into evidence. Conclusion 1. It was for these reasons that I allowed the Crown to adduce evidence of the identified parts of the conversation between Mr Martinez and Mr Tortell on 24 August 2015 as highlighted on MFI27. ********** Amendments 19 December 2019 - Amendment to cover page. 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: 19 December 2019