DPP v Dixon & Ors

1 The three accused, Mark Dixon ('Dixon'), Jack Harvey ('Harvey') and Stephen Tahaney ('Tahaney') are charged on indictment with the attempted murder of Said 'Sid' Morgan ('Morgan') at Point Cook on 21 February 2019. They are also charged, in the alternative, with intentionally, or alternatively recklessly, causing serious injury to Morgan in circumstances of gross violence.

2 The trial of the charges is due to commence before a jury next year. Two pre-trial issues have arisen, namely:

(1) The admissibility of the police record of interview conducted with Tahaney on 23 February 2019.

(2) The admissibility of tendency evidence concerning Morgan which the accused have given notice that they intend to adduce pursuant to s 97 of the Evidence Act 2008.

3 The incident, that gave rise to the charges, occurred in the context of a commercial dispute involving the accused men, Morgan and one Daniel Saddik ('Saddik'), which had its origins some two years previously.

4 In late 2017, Saddik and Tahaney formed a property maintenance business. Tahaney introduced an associate, Ciaran Murphy ('Murphy'), to the business. Subsequently, Murphy introduced Dixon to the business. Over the course of time, the business began to struggle financially. As a result, the relationship between Saddik on the one hand and Tahaney and Murphy on the other hand, deteriorated. In particular, Saddik was accused of taking money from the business.

5 For a period of several months leading to the incident, Saddik received a number of threatening telephone calls and messages from Dixon, Tahaney and Murphy. During that period, Saddik was in regular contact with Morgan. He told Morgan about the dispute which he was involved in concerning his business, and the threats he had been receiving.

6 In the period between 14 February 2019 and 16 February 2019, Tahaney and Murphy sent a number of strongly-worded text messages to Saddik. Saddik kept Morgan updated about the contents of those messages. On 16 February, he requested Morgan to come to Melbourne to assist him and protect his family, as he considered that his life was under threat. Morgan responded that Saddik should warn the person responsible that if he came near Saddik's home, 'he'll end up with a bullet in his head'.

7 On 18 February 2019, Morgan flew to Melbourne from Sydney and stayed overnight at Saddik's family home at 24 Spraypoint Drive, Point Cook. On that evening, Saddik and Morgan met with Tahaney to discuss the records of the business. On the following day, 19 February, Saddik, Morgan, Tahaney and Dixon, together with Tahaney and Dixon's business adviser, Murray Taylor ('Taylor'), met at a hotel in Thornbury to discuss the future of the business. On 20 February, Morgan flew home to Sydney in the morning, and then returned to Melbourne in the evening. On the next day (21 February), Morgan used Saddik's telephone to send a number of threatening messages to Dixon, including a message at 12:12 pm stating 'I've got a Glock now you fucking moron!!'.

8 Later that afternoon, Tahaney attended Saddik's home at 24 Spraypoint Drive. After he entered the house, Morgan became aggressive and chased Tahaney from the house and around parked cars in the street. Tahaney evaded him. Eventually, Tahaney's partner arrived and drove him away.

9 On the evening of 21 February, Tahaney, Dixon, Harvey and Tahaney's brother, Jason Tahaney, attended a hotel in Fairfield where they met with Taylor. During the evening, Morgan sent a number of abusive and threatening text messages to Tahaney (between 8:58 pm and 9:01 pm). At 9:30 pm, Tahaney, Dixon, Harvey and Jason Tahaney left the hotel and returned to Tahaney's home. Between 9:35 pm and 9:43 pm, further text messages were passed between Tahaney and Morgan in which they arranged to meet each other. In one of them, Morgan threatened Tahaney, stating that if he brought anyone with him, 'tell them to kiss their family goodbye.'

10 At 10:40 pm, the three accused left Tahaney's home and drove in Tahaney's Toyota Hilux motor vehicle to the home of Saddik at 24 Spraypoint Drive. As the vehicle approached the premises, Morgan walked towards it holding a duffel bag. The Hilux stopped, reversed, and then drove a few metres into the driveway of nearby premises at 27 Spraypoint Drive. Morgan followed the vehicle and moved towards the driver's side while holding out the duffel bag.

11 The accused then got out of the vehicle, and an altercation occurred in which one of the accused attacked Morgan with a hammer. Morgan knocked the hammer from his hand. Two of the accused then kicked and punched Morgan while he was on the ground. During the ensuing altercation, Tahaney took hold of a firearm in the rear of the Hilux. He fired a single shot at Morgan, which struck him in the top of the head. As a result, Morgan fell to the ground.

12 The three accused then left the scene in the Hilux. Later that evening, at 12:25 am, they met at a hotel in Brighton. At 7:37 am, they departed from the hotel. A few hours later, Tahaney and his partner drove, with their two children, to Nagambie where they stayed at the Waterfront Hotel. Dixon, Harvey and Jason Tahaney also arrived at the same premises. They all stayed that night at the hotel.

13 On the following day, 23 February 2019, Tahaney was arrested at 8:39 am in Nagambie and taken to the Seymour Police Station. He was then interviewed in circumstances which I shall shortly describe. After being interviewed, he was released.

14 On 27 February 2019, police arrested and interviewed Dixon and Harvey. They were each then released. Subsequently, Tahaney was arrested again on 10 March 2019 and a second interview was conducted with him. Following that interview, he was charged with the attempted murder of Morgan.

15 As a result of the bullet wound, Morgan suffered a significant brain injury. He was conveyed by ambulance to the Royal Melbourne Hospital. There he was found to have sustained heavily comminuted bilateral frontal bone fractures extending into the bilateral parietal lobes, multiple depressed bone fragments, and periorbital fractures, including through the orbital roof bilaterally. He was also found, on imaging, to have a right subdural collection. After an operation performed by a neurosurgeon with the assistance of a plastic surgeon, he made a progressive recovery, and he was ultimately discharged to the Royal North Shore Hospital in Sydney for rehabilitation.

16 In the defence responses filed by each accused to the summary of prosecution opening, it is common ground that it was Tahaney who fired the shot which wounded Morgan. In the defence response filed on behalf of Tahaney, it is stated that Tahaney acted in self-defence, because at the time at which he shot Morgan, he was being chased by Morgan. In the defence responses filed on their behalf, Dixon and Harvey each denied that they were complicit in the shooting of Morgan, and they contended that at all times they were acting in self-defence and in defence of their co-accused.

17 The prosecution has given to each accused notice, pursuant to s 19(1) of the Jury Directions Act 2015, that it proposes to rely on evidence of incriminating conduct. In particular, it intends to rely on evidence of the flight of the accused from the scene of the incident, the time that they spent together at the hotel in Brighton, and their flight to Nagambie as incriminating conduct. The prosecution also will rely on evidence of the disposal of the firearm used by Tahaney, and Tahaney's mobile telephone. In addition, the prosecution intends to rely, as incriminating conduct, on lies which it contends were told by Tahaney in both of his records of interview.

18 I shall consider, first, the application, made on behalf of Tahaney, for the exclusion of the first record of interview conducted by the informant, Detective Senior Constable Julio Salerno, with the accused at Seymour Police Station on 23 February 2019. The application was made pursuant to s 138 of the Evidence Act, or alternatively, pursuant to s 90 of the Act. It was submitted that the interview should be excluded for two reasons. First, it was contended, Tahaney was not lawfully arrested by the police because the arresting police officer did not have the requisite belief, on reasonable grounds, that he had committed an indictable offence. Secondly, it was contended that, at the commencement of the interview, Detective Senior Constable Salerno failed to comply with the requirements of s 464A(2)(a) of the Crimes Act 1958, in that he failed to inform Tahaney of the circumstances of the offence about which he was to be questioned.

19 In order to consider the application, it is necessary to set out, in a little detail, the circumstances in which he was arrested and interviewed.

20 As mentioned, in the afternoon of 22 February 2019, Tahaney, his partner and their children drove to Nagambie. While they were en route, Tahaney was intercepted by Senior Constable Andrew Rhead of the Seymour Highway Patrol. He issued Tahaney with a vehicle infringement notice, because the registration of his vehicle was out of date. On the following day, 23 February, Senior Constable Rhead noticed an email from Crime Command which referred to a non-fatal shooting in Point Cook, and contained an image of Tahaney. After recognising that image, Senior Constable Rhead contacted Detective Senior Constable Salerno of the Homicide Squad.

21 As a result, Constable Jamie Brown, of the Seymour Police Station Uniform Division, was directed by his sergeant to patrol the Nagambie area to locate the vehicle driven by Tahaney. At 8:15 am, Constable Brown sighted that vehicle pulling into the IGA car park in Nagambie. At 8:30 am, Constable Brown was given 'the all clear' to arrest Tahaney. After Tahaney exited the IGA store and was about to return to his vehicle, Constable Brown approached him. Constable Brown asked Tahaney his name, and then said to him, 'You know why we might be talking to you?' to which Tahaney responded, 'Yeah the thing in Point Cook'. After Constable Brown asked Tahaney where he lived, he said to Tahaney, 'You are under arrest as a person of interest involved in the Point Cook shooting'. Constable Brown then proceeded to inform Tahaney of his rights. Having done so, he transported Tahaney to Seymour Police Station.

22 After they arrived at Seymour Police Station, Constable Brown commenced a recorded preliminary interview with Tahaney, at 9:43 am. Having asked Tahaney to confirm his full name and address, Constable Brown stated:

Okay. I intend to interview you today in relation to attempted murder.

23 Constable Brown again informed Tahaney of his rights. Having done so, he suspended the interview at 9:45 pm.

24 In the meantime, Detective Senior Constable Salerno travelled to the Seymour Police Station in company with Detective Senior Constable Scott Riley. At 10:58 am, they commenced a recorded interview with Tahaney. The interview continued, with some breaks, during the day and concluded at 7:56 pm. Tahaney was released without being charged, and he departed the police station at 8:30 pm. As mentioned, subsequently, on 10 March 2009, he was again arrested, and a second interview was conducted with him by Detective Senior Constable Salerno.

25 In order to address the issues raised by the present application, it is necessary to set out the format of the interview conducted with Tahaney on 23 February 2019 in some detail.

26 At the commencement of the interview, Detective Salerno stated to Tahaney:

I intend to interview you in relation to the assault of a Sid or Said Morgan that occurred on the 19th of February ... the 21st of February 2019 in Point Cook.

27 Detective Salerno then proceeded to advise Tahaney of his rights. Having done so, he said to Tahaney:

Stephen, now, you're - do you understand what I was - when I said I intend to interview you in relation to the assault on ... .

Tahaney responded: 'Yeah, yeah, yeah, yeah, yeah.' Salerno then asked, 'Do you know anything about that?' to which Tahaney responded, 'No, no.'

28 In the next part of the interview, that occupied some five hundred questions, Tahaney was asked about a number of background matters. They included the following:

• Tahaney's relationship with Saddik and the dispute with Saddik;
• the role of Morgan in the company, and his involvement in the dispute;
• the events leading up to 21 February, including Tahaney attending Saddik's house during that period; and
• threats made by Morgan to Tahaney that he was going to shoot people with a gun.

29 In that part of the interview, Tahaney stated that on the previous Thursday, 21 February, he had gone to Saddik's house to 'see what was going on'. He said that when he arrived there at about 2pm or 3pm, Morgan was 'delusional' and 'off his ... rocker'. Detective Salerno then said, 'let's start this so we get a good picture of what you're saying'. He asked Tahaney as to what occurred after he arrived at Saddik's house. Tahaney described how Morgan became aggressive towards him and threatened and chased him. His description of what occurred during that incident, in questions put to him by Salerno about it, occupied more than one hundred questions.

30 Tahaney then described how he went to discuss the business with Taylor, at a meeting at which Harvey and Dixon were also present. He said that after the meeting he 'went home', and that later that evening, he attended a hotel on the Old Geelong Road, and 'the others' arrived there. He said that at that time, he thought that his life was in danger and that that was 'the reason why I got out of that thing'. He said that he left Point Cook because of the threats to himself and his family and that he then was pulled over by the police when he was driving to Nagambie because there was no registration on his vehicle. Tahaney said that his plan was to stay in Nagambie, because he wanted avoid Morgan who he regarded as a 'psychopath'.

31 Detective Salerno then asked Tahaney, 'Why all of a sudden have you decided to move - go to Nagambie?', to which Tahaney responded that he did so because of the threats from Morgan.

32 Having asked Tahaney some further questions on that topic, Detective Salerno then put to Tahaney questions, about the incident. He said to Tahaney, 'Okay. And what do you know about what's happened to Sid?'. Tahaney responded, 'Well, I've seen it on the news, what happened, yeah'. Salerno asked Tahaney, '... what can ... you tell me about that?' to which Tahaney responded, 'Can't - nothin', don't know nothin' about it'. Detective Senior Constable Riley then asked Tahaney questions about his attendance at the hotel in Fawkner, where he had met earlier with the other accused and Taylor. Detective Riley also asked Tahaney questions about his mobile telephone. Following those questions, the interview was then suspended at 11:35 am.

33 The interview resumed at 12:58 pm. After he was reminded of his rights, Tahaney was asked about the incident in which Morgan had chased him earlier on 21 February. He was then asked about his movements after that incident. Tahaney responded that he had gone home. He was asked about his 'movements at home'. He was then asked, in some detail, about his movements during the evening of 21 February, his reasons for leaving Melbourne with his family, and the whereabouts of his telephone. At that point, Detective Senior Constable Riley asked Tahaney questions about some photographs of him with firearms that had been found during the execution of a search warrant of his home.

34 It was at that point that Detective Senior Constable Salerno stated to Tahaney: 'Now, are you aware how it is that this Sid bloke has - has been seriously injured?'. Tahaney responded that he was aware that Morgan had been injured. When asked if he knew how Morgan was injured and what sort of injury he had suffered, Tahaney responded 'No'. He was then asked: 'Would it come as a surprise to you to say that it's - it's an injury as a result of being shot?', to which Tahaney responded that he had heard that Morgan had been shot. Tahaney was then asked if there was any person who could account for his whereabouts after midnight, to which Tahaney responded 'No'. The interview was then suspended at 1:21 pm. On the resumption of the interview, at 3:45 pm, Tahaney was asked further questions about the meeting that he attended at Fawkner Hotel, his movements on the evening of 21 February, and his reason for travelling to Nagambie. He was asked why his telephone was found in a lake in a bag with two other mobile telephones.

35 At the conclusion of the interview, Detective Senior Constable Salerno requested Tahaney to provide his fingerprints. Before doing so Detective Salerno said to Tahaney, 'You are suspected of having committed the offence of intentionally cause serious injury or attempted murder'. He then requested Tahaney to undergo the usual forensic procedures, after which the interview came to an end at 7:56 pm.

Admissibility of record of interview - evidence

36 Senior Constable Brown and Detective Senior Constable Salerno each gave evidence on a voir dire in respect of the circumstances of Tahaney's arrest and interview.

37 Senior Constable Brown stated that his authorisation to arrest Tahaney was from Sergeant Wheelan of Seymour police, who he understood was communicating with the Homicide Squad at the time. Sergeant Wheelan did not specify the particular charge on which Tahaney was to be arrested. Senior Constable Brown agreed that when he effected the arrest, he told Tahaney that he was a 'person of interest involved in the Point Cook shooting', without specifying any charge. Subsequently, after he had arrested Tahaney, Sergeant Wheelan told him that Tahaney was to be interviewed in respect of a charge of attempted murder. At that time, he understood that Sergeant Wheelan was communicating with Senior Sergeant Furmeister of the Homicide Squad. Senior Constable Brown was instructed to conduct a preliminary interview, and then to suspend it, pending the arrival of detectives from the Homicide Squad. When Detective Salerno arrived at the police station, Senior Constable Brown told him that he had given Tahaney his caution and rights, and that Tahaney had indicated that he did not wish to exercise those rights.

38 On the voir dire, Detective Senior Constable Salerno was cross-examined, first, as to the basis upon which Tahaney was arrested. Detective Salerno stated that, at that time, the information that was available was derived from the statements taken from Daniel Saddik, his wife Meaghan Saddik and his son Tyler Saddik. Detective Salerno considered that it was relevant that Tahaney and other accused were not at home on the morning after the incident, which gave him grounds to believe that Tahaney (and the other accused) had been involved in the incident in which Morgan was shot. Detective Salerno also confirmed that on the morning of 23 February, he had received information from a member of the Highway Patrol that Tahaney had been located in the Seymour area.

39 Detective Salerno was cross-examined about his conduct of the interview. He agreed that when Tahaney was first arrested, a specific offence had not been nominated. He described the interview, conducted by Senior Constable Brown, as a preliminary interview, which, as a matter of practice, was conducted by a police member who might not be involved in the investigation. In such an interview, the police member informs the person arrested of his or her rights and then suspends the interview pending arrival of the Homicide Squad.

40 Detective Salerno was then asked about the manner in which he interviewed Tahaney. He was asked, in particular, why he had told Tahaney that he intended to interview Tahaney in relation to the 'assault' of Sid Morgan that had occurred on 21 February. Detective Salerno responded:

... it's an assault of a general term, assault, so I hadn't determined what type of offence that actually had been committed until I concluded this interview. So, at that point, it was just a general assault. And when I say 'general' it could be a range from intentionally cause serious injury or right up to attempted murder, I class those all as a - come under the umbrella of an assault.

41 Detective Salerno agreed that, at that time, Morgan had undergone major surgery in which bullet fragments had been removed from his head, and that he had sustained injuries that were still life-threatening. He said that, nevertheless, he had described the offence, in respect of which he was to conduct an interview, as a 'assault' because (he said):

'I don't jump to conclusions basically ... I'd wait until a conclusion of the interview to see what Mr Tahaney had to offer, then I'd make up my mind as to ... what charge, if any charge, is going to be placed on Mr Tahaney'.

Counsel for Tahaney then put to Detective Salerno that, by describing it as an assault, Salerno was seeking to 'downplay' the nature of the allegation, so that Tahaney would have a false sense of security about the matter in respect of which he was being questioned. Detective Salerno responded that he believed that Tahaney was fully aware of what had happened, because he had already made a comment to uniform members, 'Is this in relation to what had happened at Point Cook?'

42 Counsel for Tahaney pointed out to Detective Salerno that although Tahaney made no admissions in the course of the interview, nevertheless, at the conclusion of the interview, Detective Salerno told Tahaney that he was suspected of having committed the offence of intentionally cause serious injury or attempted murder. When asked what had converted his state of mind from one where he referred to the incident as an assault, and subsequently as an attempted murder, Detective Salerno stated, 'I really can't explain that.' He again denied that he had used the term 'assault' at the commencement of the interview, in order to lull Tahaney into a false sense of comfort or security in which he might say more than he otherwise would have. Detective Salerno also stated that he did not consider that he needed to inform Tahaney, at the commencement of the interview, that he was going to be questioned about the shooting of Morgan.

Admissibility of record of interview - submissions

43 As mentioned, counsel for Tahaney submitted that the first interview, conducted on Tahaney, should be excluded pursuant to s 138 of the Evidence Act on the ground that that evidence was obtained either improperly or in contravention of the law. That submission was made on two bases. First, it was submitted that, at the time of the interview, Tahaney had not been validly arrested, because the police members, who were responsible for his arrest, did not have a reasonable ground for believing that he had committed that indictable offence, as required by s 459(1)(a) of the Crimes Act. Counsel noted that no evidence had been adduced from Senior Constable Brown that he had reasonable grounds for believing that Tahaney had committed an indictable offence. At the time at which Senior Constable Brown arrested Tahaney, he did not know the specific offence in respect of which he had been instructed to arrest Tahaney. Counsel submitted that, as Brown could not specify a particular offence in respect of which Tahaney was arrested, he had failed to comply with s 459(1)(a) of the Crimes Act in arresting Tahaney.

44 Counsel further submitted that the evidence of Detective Senior Constable Salerno was not sufficient to establish that he, or the other members of the Homicide Squad, had the requisite belief, on reasonable grounds, that Tahaney had committed an indictable offence at the time of his arrest. In particular, it was submitted, Salerno's information, at that time, was limited to the statements made by each of the three members of the Saddik family, none of whom had witnessed or observed the incident in which Morgan was shot. It was contended that the information, contained in those statements, was an insufficient basis for Salerno to hold a reasonable belief that Tahaney had committed an indictable offence in respect of the circumstances in which Morgan had been shot.

45 The second basis, upon which counsel for Tahaney sought exclusion of the interview under s 138 of the Evidence Act, was a failure by Detective Senior Constable Salerno to comply with the requirements of s 464A(2)(a) of the Crimes Act at the time at which he interviewed Tahaney. It was submitted that, by informing Tahaney at the commencement of the interview, that he intended to question him about the 'assault' of Sid Morgan, Detective Salerno failed to inform Tahaney adequately of the 'circumstances' of the offence in respect of which he was about to interview him, as required by s 464A(2)(a) of the Crimes Act. Counsel submitted that the lack of specificity, with which Detective Salerno described the offence at that point, was reflected by the manner in which the interview had then proceeded. In particular, counsel pointed out that at no stage in the interview did Detective Salerno question Tahaney directly about the incident in Spraypoint Drive in which Morgan was shot. Rather, it was submitted, Salerno 'skirted around the edges' of that incident, by asking Tahaney about a number of other topics, including: his relationship with Daniel Saddik; the role of Morgan in the business, the events that preceded 21 February; the incident earlier in the day on 21 February in which Morgan confronted Tahaney and chased him in the street; Tahaney's movements on the night in question; the whereabouts of his mobile telephone; and the reason why he had driven to Nagambie. It was submitted that throughout the interview, Detective Salerno chose not to directly address the specific incident in which Morgan was shot. That approach in the interview, it was submitted, reflected the imprecision with which Salerno, at the commencement of the interview, had specified the offence in respect of which he intended to interview Tahaney.

46 Counsel submitted that I should infer that Detective Salerno had deliberately chosen to question Tahaney in that way, and to understate the gravity of the offence, in order to lure Tahaney into a false sense of security in the interview, so that Tahaney would not be sufficiently conscious of his right not to incriminate himself. In any event, it was submitted, the failure of Salerno properly to specify the nature of the circumstances of the offence was a significant breach of the requirement in s 464A(2)(a) of the Crimes Act, so that it could not be concluded, pursuant to s 138 of the Evidence Act, that the desirability of admitting the interview outweighed the undesirability of admitting evidence that had been obtained in that way.

47 In response, counsel for the respondent submitted that, at the time at which Detective Salerno interviewed Tahaney, he had been validly arrested pursuant to s 459 of the Crimes Act. Counsel submitted that, for the purposes of the requirement in s 459(1)(a) of the Crimes Act, it was not necessary that Brown himself hold a belief that Tahaney had committed an indictable offence. Rather, it was contended, in performing the arrest, Brown was acting, in effect, as an 'agent' of the Homicide Squad. Counsel contended that the information, that was then possessed by the Homicide Squad, in particular by Detective Salerno, was sufficient to constitute reasonable grounds for a belief by Detective Salerno that Tahaney had committed an indictable offence in respect of the incident in which Morgan had been shot in Spraypoint Drive on the evening of 21 February.

48 In that respect, counsel referred to the contents of the statement of Daniel Saddik, which described the tense dispute that had arisen between Saddik and Tahaney and the other accused in the days leading to 21 February, and in which Morgan had become involved in that period. Counsel contended that the involvement of Tahaney in that dispute, and the fact that, on the morning after the shooting, he had decamped from his home, were a sufficient basis for Detective Salerno to believe, on reasonable grounds, that Tahaney had been implicated in the shooting of Morgan on the previous evening. Accordingly, it was submitted that the arrest of Tahaney was valid.

49 In respect of the interview conducted by Detective Salerno, counsel submitted that that interview was a continuation of the interview initially commenced by Senior Constable Brown, in which Tahaney had been informed (by Brown) that he was to be interviewed in relation to 'attempted murder'. Counsel further noted that at the time of his arrest, Tahaney had been told by Constable Brown that he was under arrest as a 'person of interest involved in the Point Cook shooting'. When the interview commenced, Detective Salerno described the incident, in respect of which he was to be interviewed, as an assault of Sid Morgan that occurred on 21 February 2019 in Point Cook. Counsel contended that those matters, of which Tahaney had been informed, were sufficient compliance with the requirement in s 464A(2)(a) of the Crimes Act that Tahaney be informed of 'the circumstances' of the offence about which he was to be questioned.

50 Counsel further submitted that if Detective Salerno did fail to comply with the requirement of s 464A(2)(a) of the Crimes Act, the interview should not be excluded pursuant to s 138 of the Evidence Act, because the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained as a result of such a contravention. In particular, it was submitted, by reference to the factors specified in s 138(3) of the Evidence Act: the evidence is of high probative value; the evidence is important to the prosecution case; the offence, with which Tahaney is charged, is a serious offence; the gravity of the alleged impropriety or contravention of s 464A(2)(a) of the Crimes Act was 'low'; and the contravention was not deliberate or reckless.

Admissibility of record of interview - analysis and conclusion

51 The first question, then, is whether Tahaney had been validly arrested at the time at which the first interview was conducted with him by Detective Salerno.

52 Section 459(1)(a) of the Crimes Act provides that in addition to exercising powers conferred by s 458 of the Act or by any other Act, a police officer may apprehend any person who '... he believes on reasonable grounds has committed an indictable offence in Victoria ...'.

53 It is clear on the evidence that, at the time at which Senior Constable Brown arrested Tahaney in Nagambie, Brown himself did not have the requisite belief specified in s 459(1)(a). Rather, Brown was acting on the direction and instruction of Sergeant Wheelan of Seymour police, who, himself, was receiving instructions from the Homicide Squad.

54 Section 458(1)(b) of the Crimes Act provides that a police officer may at any time without a warrant apprehend any person '... when instructed to do so by any police officer having power under this Act to apprehend that person.' Thus, the question is whether the person who instructed Senior Constable Brown - through Sergeant Wheelan - to arrest Tahaney, had power to apprehend Tahaney under the Crimes Act.

55 In order to have such a power, the relevant member of the Homicide Squad, who was responsible for giving the instruction which had been conveyed through Sergeant Wheelan to Brown, would need to have had a belief on reasonable grounds that Tahaney had committed an indictable offence, as required by s 459(1)(a). Thus, the question, whether the arrest of Tahaney was valid, would depend on whether Detective Senior Constable Salerno, at the time of his arrest, had reasonable grounds to believe that Tahaney had committed an indictable offence.

56 As I have noted, the principal evidence that was available to Detective Salerno, at that time, was contained in the statements of Daniel Saddik, Meaghan Saddik and Tyler Saddik. Although none of those three persons had directly witnessed the incident in which Morgan was shot, nevertheless I consider that the evidence contained in their statements constituted a sufficient basis upon which Salerno was entitled to believe, on reasonable grounds, that Tahaney had been criminally implicated in that shooting.

57 The statements of each of the three witnesses described in some detail the dispute which had arisen between Saddik on the one hand, and Tahaney, Dixon and Ciaran Murphy on the other hand, and in which Morgan had become involved. The statements of Meaghan Saddik and Tyler Saddik described the escalating abuse and threats that emanated from Tahaney, Dixon and Murphy towards Saddik during that time. Further, in his statement, Tyler Saddik noted that there was tension between Morgan and Tahaney at a business meeting that was held at their home on 18 February 2019 in an attempt to resolve the dispute. Meaghan Saddik and Tyler Saddik also described the incident that occurred in the afternoon of 21 February, in which they observed Morgan chasing Tahaney around the front lawn of their home and around vehicles that were parked in the street. They stated that during that incident they heard Morgan and Tahaney verbally abusing each other.

58 In her statement, Meaghan Saddik also described how late on that day Morgan showed her text messages that he had sent to Tahaney or Dixon saying 'Come around, I'm sitting here waiting, whenever you're ready'. Morgan told Meaghan Saddik that when Dixon had asked him 'Have you got your 38', Morgan had responded to him 'No I've got my Glock'. Meaghan Saddik said that, at that time, she became so concerned as to what might occur if Tahaney, Dixon and Murphy came to their home, that she, together with Daniel, Tyler and their daughters, left the home whilst Morgan stayed there. She further related how, while they were absent from the home, Morgan forwarded her messages that appeared to be texts that he had sent to either Tahaney or Dixon. At the time of the shooting incident, Morgan was on the telephone to Meaghan Saddik, and she heard a male voice, with an Irish accent, stating 'shoot him Mark, shoot him'. She then heard a loud bang.

59 Putting that evidence together, at the time at which Tahaney was arrested, Detective Senior Constable Salerno therefore had information concerning: the heated dispute that had developed between Saddik on the one hand and Tahaney, Murphy and Dixon on the other hand; the fact that Morgan had become involved in that dispute; the fact that Morgan and Tahaney had been involved in the incident earlier in the afternoon; and the fact that Morgan had challenged Dixon and Tahaney to attend the home that evening, informing them that he (Morgan) would be in possession of a firearm when they attended. Clearly, the Saddik family regarded the threats, that had passed between Morgan on the one hand, and Tahaney, Murphy and Dixon on the other hand, to be so serious that they departed from their home due to their concerns as to what might occur when Dixon, Murphy and Tahaney attended there.

60 That evidence, together with the fact that, on the next morning, Tahaney had departed from his home, taking his family to Nagambie, formed a more than sufficient basis for Detective Salerno to have reasonable grounds to believe that Tahaney had been criminally involved in the shooting of Morgan. Accordingly, there was, in my view, an appropriate basis upon which an instruction was given to Brown to effect the arrest of Tahaney in Seymour. It follows that, at the time at which the first interview was conducted with Tahaney, he was lawfully under arrest.

61 The second basis, upon which it was submitted that the record of interview should be excluded, is that Detective Salerno failed to comply with s 464A(2)(a) of the Crimes Act, by failing, at the commencement of the interview, to inform Tahaney of the circumstances of the offence about which he was to be interviewed.

62 Section 464A(2) of the Crimes Act provides:

(2) If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1) -

(a) inform the person of the circumstances of that offence; and

(b) question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.

63 It is well established that, in order to comply with s 464A(2)(a), an investigating official is not required to inform an accused of the specific details of the offence, or to specify a particular offence, in respect of which the person is to be questioned. Rather, the investigating official is required to inform the accused person, in general and abbreviated terms, of the central factual features of the offence in question. In R v Lancaster,[1] Batt JA (with whom Winneke P agreed) stated:

The expression 'the circumstances of that offence', in my view, means the central factual feature or features, expressed in general and abbreviated terms, of the offence for which the person is in custody. What is required is sufficient information to enable the person both to understand what he is to be asked about or the investigations he is to participate in, and also to make an informed decision concerning the rights which the subdivision confers on him or preserves for him, such as the right of silence and the right to communicate with a friend, relative or lawyer. The amount and content of the information required will vary from case to case, but the expression does not require a statement of all the facts of the offending or all those then known to the official. Must less does it require a statement of the elements of the offence or its name, either of which might mean little to many persons taken into custody.[2]

64 In determining whether there was sufficient compliance with s 464A(2)(a), the first issue is whether the prosecution is entitled to rely on the brief preliminary interview that was conducted between Constable Brown and Tahaney before the arrival of Detectives Salerno and Riley at the Seymour Police Station. In essence, counsel for the prosecution submitted that the preliminary interview constituted the commencement of the interview that was taken over by Detectives Salerno and Riley after a one hour suspension of the interview. If that submission is correct, then the prosecution would be entitled to rely on the part of the interview conducted by Constable Brown, in which he told Tahaney that he intended to interview him in relation to 'attempted murder'.

65 Contrary to that submission, I do not consider that, in determining the question of compliance of s 464A(2)(a) of the Crimes Act, it is permissible to refer to and rely on the preliminary interview conducted by Constable Brown. Certainly, at the conclusion of that interview, Constable Brown stated that he was going to 'suspend' the interview. However, when Detective Salerno interviewed Tahaney one hour and thirteen minutes later, it is clear that that interview was undertaken as a discrete and separate interview to that which was conducted by Constable Brown.

66 The interview commenced with Detective Salerno stating, 'This is a recorded interview between Detective Senior Constable Salerno and Stephen Tahaney ...'. Detective Salerno then attended to the formalities that are required to be undertaken at the commencement of an interview. In particular, he asked Tahaney his name and address. He informed Tahaney of each of his rights. That form of introduction to the interview may be contrasted with the manner in which Detective Salerno later resumed the interview, on each occasion on which there had been a suspension of it during that day. On each resumption, Detective Salerno told Tahaney that they were going to continue with the interview, having briefly restated to Tahaney his rights.

67 Accordingly, in determining whether s 464A(2)(a) of the Crimes Act was complied with, I do not consider that it would be a valid approach to refer to or incorporate any aspect of the preliminary interview that was conducted by Constable Brown.

68 In considering that question, it is clear that the description by Detective Salerno of the offence, in respect of which Tahaney was to be interviewed, as an 'assault', was a monumental understatement of the nature of the offence which Detective Salerno had reasonable grounds to believe had been committed. At that time, Detective Salerno knew that Morgan had been shot in the head, that major surgery had been undertaken in which bullet fragments had been removed from his head, and that while Morgan had survived surgery, the injuries sustained by him were still life-threatening. On any view, the offence that was under investigation by Detective Salerno, who was (and is) a member of the Homicide Squad, could hardly be described as an 'assault'.

69 Detective Salerno did refer to the fact that the 'assault' was on Sid Morgan, and that it had occurred on 21 February 2019 in Point Cook. As the authorities, to which I have referred, make clear, it was not necessary for Detective Salerno to identify the precise offence which he was investigating. Nevertheless, the conclusion is irresistible that it was a gross misdescription, of the circumstances of the offence, to identify it as an 'assault'. Accordingly, I am persuaded that Detective Salerno did fail to adequately comply with the requirements of s 464A(2)(a) of the Crimes Act.

70 The question, then, is whether, as a consequence of the failure to comply with s 464A(2)(a) of the Crimes Act, the interview should be excluded under s 138(1) of the Evidence Act.

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.

72 It has been recognised, in a number of decisions, that the terms in which s 138 is expressed derive substantially from principles which applied to the common law discretion to exclude evidence that had been illegally or improperly obtained. In particular, the common law discretion was, and s 138 is, based on the recognition by the law that the admission of evidence, which has been obtained by unlawful or improper means, creates a tension between two significant, but competing, requirements of public policy, namely, first, the public interest in conviction of those persons who commit criminal offences, and, secondly, the undesirability of the law countenancing unlawful conduct and significant impropriety by those whose responsibility it is to uphold the law.

73 In Murray (a pseudonym) v The Queen,[3] the Court of Appeal stated:

It has been recognised that the terms in which s 138 is expressed, and the purpose which it is designed to serve, have been derived significantly from the principles which related to the common law discretion to exclude evidence that had been illegally or improperly obtained. These principles were developed in a series of decisions of the High Court including Bunning v Cross, Cleland v The Queen, R v Ireland and Ridgeway v The Queen. In essence, the common law discretion, and s 138, are based on the recognition by the law that the admission of evidence, which has been obtained by unlawful or improper means, creates a tension between two important, but competing, requirements of public policy, namely, on the one hand, the conviction of those who commit criminal offences, and, on the other hand, the undesirability of the court's countenancing unlawful conduct or significant impropriety by those whose responsibility it is to uphold the law. As Barwick CJ stated in R v Ireland:

Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence ... In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.[4]

74 While s 138 of the Evidence Act involves, essentially, the same balancing exercise as the common law discretion between the two competing aspects of public policy, there are two principal differences between the common law discretion and s 138. First, s 138 alters the burden of proof. The onus is on the accused to establish the relevant illegality or impropriety on the balance of probabilities. Once such an illegality or impropriety is established, the burden then shifts to the prosecution to establish that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained illegally or improperly. Secondly, s 138 is not expressed in terms of a discretion, but, rather, it is expressed in mandatory terms. If the desirability of admitting the evidence does not outweigh the undesirability of admitting evidence that has been derived through illegality or impropriety, then the evidence must be excluded.[5]

75 In order to determine whether the desirability of admitting the evidence outweighs the undesirability of admitting a record of interview that has been obtained in contravention of s 464A(2)(a) of the Crimes Act, it is necessary to take into account the matters specified in s 138(3). In the present case, in my view, once those matters are considered, it is plain that the desirability of admitting the evidence of the first interview substantially outweighs the undesirability of the Court countenancing the failure of Detective Salerno to comply sufficiently with the requirement of s 464A(2)(a) of the Crimes Act.

76 In particular, by reference to the matters specified in sub-paragraphs (a) to (h) of s 138(3), the following considerations are relevant. The evidence, if admitted, would be of reasonably substantial probative value; the false denials contained in the interview would, at least arguably, weigh in favour of the prosecution case that, at the time at which Morgan was shot, the accused did not hold the requisite belief that that conduct was necessary in self-defence and in defence of the other accused. As such, the evidence would be of some importance in the case. The offence, with which Tahaney is charged, that of attempted murder, is clearly serious. On the other hand, in respect of the factor specified in s138(3)(d), I do not consider that the contravention by Detective Salerno of s 464A(2)(a) was particularly significant. Salerno did expressly refer to the incident, that was the subject of the investigation, by the correct date and place, and as involving Sid Morgan. Tahaney clearly understood what incident Detective Salerno was referring to.

77 Further, I am not persuaded that the contravention by Detective Salerno was either deliberate or reckless. While I do not accept that the explanation given by him, for describing the events as 'an assault', was a valid explanation, I accept that the explanation given by Salerno for using that description reflected his honest belief at the time at which he interviewed Tahaney. In other words, his honest, but misconceived, view at the time was that it was appropriate to describe the incident as an 'assault', rather than in more specific terms, until he completed the interview, and formed a more specific view about the nature of the offence.

78 Finally - in respect of the circumstance specified in s 138(3)(h) of the Evidence Act - it is abundantly clear that the contravention by Detective Salerno did not have a causative role in obtaining the evidence on which the prosecution seek to rely. The potential effect of the misdescription by Salerno, of the nature of the offence about which he was to question Tahaney, might have been to lull Tahaney into a false sense that he was not at risk if he gave candid - if incriminating - answers to the questions asked of him in the interview. Instead, it is clear that Tahaney was not at all affected by the misdescription by Salerno of the offence. Instead of giving a candid description of the incident in which Morgan was shot, Tahaney gave a false account in which he stated that he was not present at the time of the incident.

79 Counsel for Tahaney placed some emphasis on the manner in which the first interview proceeded. In particular, she submitted that the lack of specific questions, directed to the incident in which Morgan was shot, reflected the approach taken by Detective Salerno at the commencement of the interview, when he referred to the offence, about which the questions were to be asked, as involving an 'assault'.

80 I am not persuaded that the method by which Detective Salerno chose to question Tahaney was connected with, or reflected, the use by Detective Salerno of the term 'assault' at the commencement of the interview. It is well established that investigating police are permitted a substantial latitude as to the manner in which questions, in an interview, are structured and put to a suspect. In the present case, it might have been preferable if Detective Salerno had, at an earlier stage of the interview, directly asked Tahaney questions concerning the specific incident that was the subject of the interview. However, I am not persuaded that the approach taken by Detective Salerno, in structuring questions in the manner in which he did, constituted an attempt by him to mislead Tahaney, or to lull him into a false sense of security. As I have noted, at the outset of the interview, Detective Salerno did specify that the questions, that he intended to ask, concerned an incident on 21 February 2019 in Point Cook that involved Sid Morgan. The reference by Detective Salerno to those details is inconsistent with a conclusion that he had embarked on a process in the interview, commencing with a description of the incident as 'an assault', with the specific intention of misleading Tahaney or reducing the effectiveness of the caution that he had given to Tahaney at the commencement of the interview.

81 Taking those matters into account, it is clear that the desirability of admitting the record of interview in the case, which is relevant and of significance to the prosecution case, substantially outweighs the undesirability of admitting the interview in which there had been a failure to comply with s 464A(2)(a) of the Crimes Act. It follows that I am not persuaded that the interview should be excluded under s 138(1) of the Evidence Act.

82 In written and oral submissions, counsel for Tahaney also relied on s 90 of the Evidence Act, which provides the Court with a discretion to exclude evidence of an admission if, having regard to the circumstances in which the admission was made, it would be unfair to the accused to use that evidence. Counsel did not advance any separate submission in support of that basis of exclusion of the interview. In any event, in view of the matters which I have just discussed, I do not regard that, having regard to the circumstances in which the interview was conducted, it would be unfair to Tahaney to use the evidence of that interview in the trial.

83 For those reasons, I reject the application made on behalf of Tahaney for exclusion of the first record of interview.

84 By the notice served on the prosecution pursuant to s 97(1)(a) of the Evidence Act, the three accused have given notice that they intend to adduce evidence to establish a tendency of Morgan to resort to aggression and violence when angered, and to use firearms to settle personal grievances. The notice specified five particular incidents or circumstances, which, it is contended, evidence that tendency. The prosecution has objected to the admissibility of the first four of those incidents or circumstances, but does not object to the admissibility of the fifth one. The first two of them involve allegations made against Morgan at the time at which he was a member of the New South Wales police force.

85 The following is a brief summary of the five incidents or circumstances specified in the notice:

(1) Michael Spiteri ('Spiteri') lodged a complaint with the New South Wales Ombudsman, through the Legal Aid Commission, that on 17 October 1994 he was assaulted by Morgan when he was arrested by Morgan for armed robbery. It was alleged that Morgan assaulted Spiteri several times at his home address and again while he was in custody at the police station at Fairfield. The Ombudsman, having conducted an investigation, concluded that five of the complaints were made out, including: two findings that Morgan damaged property at Spiteri's home during a search; one finding that Morgan was abusive and aggressive towards the Spiteri family; and one finding that Morgan unlawfully assaulted James Spiteri by striking him on the head with a police hat during the search.

(2) On 12 December 1994, Morgan assaulted Patrick O'Sheehy ('O'Sheehy') while he was in custody at Fairfield police station having been arrested on drug charges. On the following day, after O'Sheehy was released from custody, his father observed that he was distressed with evident facial injuries, which O'Sheehy told his father had been inflicted by Morgan after his arrest.

(3) Between 1992 and 1995, Morgan threatened his brother-in-law, SM,[6] on a number of occasions after Morgan discovered that SM was having an extramarital affair.

(4) On 26 May 1995, Morgan shot at and fatally wounded SM. It was alleged that Morgan learnt that SM had been allegedly sexually assaulting Morgan's nieces. On 26 May 1995, Morgan gained access to the house where SM was staying after displaying his police identification to the residents at that house. Having entered the premises, Morgan shot SM at least six times including to the head with his police-issued firearm. As a result, SM died instantly. Morgan immediately telephoned the police and was arrested at the scene. He was charged with murder. On his trial, Morgan was acquitted by the jury.

(5) Text messages sent to or by Morgan, and conversations to which Morgan was a party, in the period of three weeks before the shooting on 21 February 2019, in which the use of violence, and of firearms, was discussed to resolve the dispute involving Saddik.

86 As mentioned, the prosecution has objected to the admissibility of the first four circumstances specified in the notice served on behalf of the accused.

87 In respect of the first circumstance - the assault on Spiteri in October 1994 - the prosecution has made two objections. First, it is submitted that it is likely that the only evidence available to the defence, in relation to that incident, is hearsay evidence which would be inadmissible. The allegations were never proven in court, and the police internal review found the allegations not sustained. Second, it was submitted, the allegations relating to Spiteri, in any event, would not have a significant probative value in the present case. The incident, involving Spiteri, was alleged to have occurred some 24 years before the incident in the present case. The allegations concerning it were quite different to the allegations in the present proceeding. They involved damage to property and an allegation that Morgan hit James Spiteri with a hat.

88 In respect of the second circumstance, counsel for the prosecution submitted, first, that the allegation relating to O'Sheehy was never proved or sustained. Any evidence relating to it would be hearsay and as such inadmissible. Further, it was submitted, the allegations made by O'Sheehy were of a very different character and occurred in significantly different circumstances than the present case, and accordingly the evidence concerning the incident would not have the requisite significant probative value in respect of any issue in the present case.

89 In respect of the third circumstance, counsel for the prosecution noted that the threats to SM were at a level of generality which impacts upon their probative value. Further, the circumstances of the threats were distinct from the present circumstances. In particular, it was submitted, threats were made by Morgan to SM in the context of a family issue in which Morgan was acting in a manner that was protective of his sister.

90 By contrast, it was submitted, in the present case, the threats made by Morgan to the accused were in the course of a business dispute between the accused and Morgan's friend, Saddik. They occurred in the context of attempts that had been made to resolve that dispute in a meeting, in which the parties had initially arrived at an agreement which subsequently broke down. Accordingly, it was submitted, the threats by Morgan to SM would not have significant probative value in respect of the issues in the present case. Counsel further noted that in the present case it was not in dispute that Morgan made a number of threats to the accused in the days that led up to the shooting. Those threats were contained in text messages some of which are referred to in the prosecution opening, and which will be available to be adduced in evidence in the trial. Accordingly, the threats that were made by Morgan to SM would not be relevant to prove any fact that will be in issue in the present case.

91 In respect of the fourth circumstance specified in the notice, counsel for the prosecution noted that Morgan was acquitted by the jury on his trial. He had argued to the jury that he had killed SM in defence of others, namely, the complainants who had alleged that SM had sexually abused them. Counsel for the prosecution relied on the principle, applied by the High Court in Garrett v The Queen,[7] that an acquittal may not be called in question by evidence in any subsequent trial. It was further submitted that the evidence should be excluded pursuant to s 135 of the Evidence Act, because to delve into the facts of Morgan's trial in 1997 would be unfairly prejudicial to the prosecution, would be misleading or confusing, and would cause or result in an undue waste of time. Additionally, it was submitted, the context of the circumstances in which Morgan shot SM were quite different, and they occurred 25 years ago. As mentioned, that incident occurred in the context of a family issue in which Morgan acted to protect his nieces. By contrast, the circumstances in which Tahaney shot Morgan in the present case arose out of a business dispute in which they were embroiled with Saddik, and in which Morgan had become involved. Accordingly, the evidence relating to that incident would not have significant probative value in the present case.

92 On behalf of the accused, it was submitted that the principal issue to be determined is whether the tendency evidence, the subject of the notice, satisfies the tests specified in s 97(1) of the Evidence Act. It was submitted that if the evidence is admissible as tendency evidence, the defence would liaise with the prosecution as to the most appropriate manner in which to adduce the evidence relating to the first two circumstances before the jury.

93 Counsel for the accused submitted that the evidence of the conduct of Morgan, as outlined in the notice, is relevant to the issue whether, at the time at which Morgan was shot by Tahaney, Morgan was behaving in a violent, aggressive and threatening manner towards the accused, and, in doing so, was understood by the accused to be threatening to use a firearm against them.

94 Counsel noted that it is the prosecution which bears the onus of proving that, when Tahaney shot Morgan, the particular accused was not acting in defence of himself or the other accused. Thus, it was submitted, in determining whether the tendency evidence is admissible under s 97(1) of the Act, it is sufficient that the evidence has significant probative value to establish a reasonable doubt concerning that issue. In that respect, it was contended, the evidence, as to the previous threats and acts of violence, by Morgan, directed in anger towards others, would be of significant probative value in respect of the issue whether there was a reasonable possibility that the actions of Tahaney, in shooting Morgan, were performed in self-defence or in defence of others.

95 Counsel further submitted that the argument by the prosecution, that the evidence of the shooting death of SM by Morgan is inadmissible, is misconceived. It is the objective and unchallenged facts that Morgan resorted to extreme violence, in the form of shooting his brother-in-law at close range, that are relevant, not the question whether his actions in doing so were lawful. It was submitted that those circumstances would have a significant probative value in respect of the facts that are in issue in the present case, namely, the conduct of Morgan in the moments before Tahaney shot him, and, secondly, the state of mind of each of the accused concerning the threat posed by Morgan to them at that time. In that connection, counsel submitted there are relevant similarities between the circumstances in which Morgan shot SM, and the present case. In particular, counsel referred to a text message sent by Morgan to Taylor in which Morgan described his close relationship with Saddik and his family, and who Morgan regarded as part of his own family. Accordingly, it was submitted that the evidence relating to the shooting death of SM by Morgan would be of significant probative value in the present case.

96 Counsel further submitted that if the evidence, specified in the tendency notice, is not admissible as tendency evidence, it would be relevant to the belief by the accused, or his awareness, that Morgan was a person who had and used firearms, and who would act on his threat to use firearms.

97 Section 97(1) of the Evidence Act relevantly provides that evidence is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless (inter alia) the Court thinks that the evidence would, either by itself, or having regard to other evidence adduced, or to be adduced, by the party seeking to rely on the tendency evidence, have 'significant probative value'.

98 Tendency evidence is a form of circumstantial evidence. In essence, a party, relying on such evidence, seeks to establish that, because a person has or had a tendency to act in a particular way, or to have a particular state of mind, it might be inferred that that person acted in the same way, or had the same state of mind, on the occasion of the offence with which an accused person is charged.[8]

99 In RWC v The Queen,[9] Simpson J described the reasoning process, involved with tendency evidence, as follows:

Evidence that is tendered as tendency evidence is tendered as relevant to the guilt of the accused: as showing a tendency on his/her part to act in a particular way, or to have a particular state of mind: from this, the prosecution will seek to have the jury draw an inference that, on the occasion or occasions in question, the accused acted in a particular way or had a particular state of mind. Tendency evidence provides the foundation for an inference of guilt of the conduct alleged on the occasion or occasions the subject of the charge or charges.[10]

100 In the present case, in order to determine the admissibility of the tendency evidence sought to be adduced on behalf of the accused, it is necessary to address three questions, namely:

(1) Whether the evidence, that is sought to be adduced, supports a conclusion that Morgan had the particular tendency specified in the notice, namely, a tendency to resort to aggression and violence when angered, and to use firearms to settle personal grievances.

(2) Whether that particular tendency itself would have probative value in the case; that is, whether such a tendency of Morgan, if established, would be capable of rationally affecting the assessment by the jury of the probability that Morgan acted in the manner contended for on behalf of the accused, namely, that he acted in an aggressive and violent manner in which he threatened to use, or was reasonably apprehended to threaten to use, a firearm.[11]

(3) Whether, as such, the tendency evidence would have significant probative value in respect of that fact.

101 Following the decision of the High Court in Hughes,[12] it is now established that, in order to be admissible as tendency evidence under s 97, it is not necessary that that evidence must reveal or contain similar features as the evidence in issue in the particular case. Thus, the plurality stated:

Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.[13]

102 In the present case, the third question - whether the tendency evidence, specified in the notice, has significant probative value - was the principal focus of the submissions made on behalf of the prosecution. In Hughes, the High Court stated:

Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of the fact in issue to a significant extent.[14]

103 In similar terms, in R v Lockyer,[15] Hunt J stated:

In its context ... 'significant' probative value must mean something more than mere relevance but something less than a 'substantial' degree of relevance. ... One of the primary meaning of the adjective 'significant' is 'important' or 'of consequence'. In my opinion, that is the sense in which it is used in s 97.[16]

104 Ordinarily - but not necessarily - the greater the degree of generality which a tendency is formulated, the less likely it is that evidence of the tendency will have significant probative value in relation to the particular fact in issue in the case.[17]

105 In R v White (No 3),[18] the accused White was charged with murder, and the co-accused Serone and Birkensleigh were charged with being accessories after the fact to the murder. The defence advanced on behalf of Serone was that he was acting under duress when he performed the acts that the prosecution alleged gave rise to his accessorial liability. In support of that defence, counsel for Serone sought to cross-examine a principal prosecution witness concerning a number of previous incidents in which White had made threats or acted in a violent or threatening manner in the past, in proof of a tendency by White to secure the compliance of friends and colleagues to do his bidding by threats of physical violence. Having analysed the evidence as to those instances, Hulme J held that that evidence would not have significant probative value in relation to the issue, whether there was a reasonable possibility that White had threatened Serone with death or really serious bodily injury if he did not assist in the manner alleged by the prosecution. His Honour held:

I have had regard to each item referred to in the notice ... both individually and in their collective force. On a generous view, the evidence could be said to be relevant. But it is, in many respects, imprecise, general, and/or completely unrelated to the situation the accused Serone claims to have experienced. Indeed, there is very little that concerns White making threats of violence when enlisting the support of friends and/colleagues to do his bidding.[19]

106 In the present case, it is the accused who seek to adduce the tendency evidence contained in the notice. The accused do not bear any legal onus of proof in the trial. Accordingly, the question whether the evidence is admissible will depend on whether it has significant probative value in raising an inference, as a reasonable possibility, that is consistent with the innocence of the accused.

107 In Director of Public Prosecutions v Campbell (Ruling No 1),[20] having reviewed the authorities, I expressed the relevant test as follows:

The approach to the question of admissibility of tendency evidence, sought to be adduced on behalf of the accused, must, of necessity, be different to the approach taken by the court to tendency evidence which is sought to be adduced on behalf of the prosecution. In a criminal trial, the accused does not bear any legal onus of proof. Rather, on particular issues, the accused may bear an evidentiary onus of adducing evidence, from which an inference arises that a reasonable possibility, consistent with innocence, exists. Thus, in determining whether tendency evidence, sought to be adduced by an accused, is admissible under s 97(1), it must be borne in mind that that evidence must have significant probative value to the establishment of a particular reasonable possibility of a state of facts consistent with the innocence of the accused person.[21]

108 It is contended on behalf of the accused that the evidence, specified in the tendency notice, is relevant to the issue whether, at the time Tahaney discharged the firearm and shot Morgan, the particular accused was or were acting in self-defence or defence of another. Thus, in order to be admissible under s 97(1) of the Evidence Act, that evidence must have significant probative value in respect of the issue whether there is a reasonable possibility that when Tahaney discharged the firearm, he, and the other accused, was or were acting in self-defence or defence of another.

109 The 'defence' of self-defence is now defined in s 322K of the Crimes Act, which provides:

322K Self-defence

(1) A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if -

(a) the person believes that the conduct is necessary in self-defence; and

(b) the conduct is a reasonable response in the circumstances as the person perceives them.

(3) This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury.[22]

110 Plainly, as a first step, it must be determined whether the previous conduct of Morgan, and the tendency which is sought to be proven by that conduct, is relevant to the issue whether there is a reasonable possibility that the accused believed that the discharge of the firearm by Tahaney was necessary to defend themselves or another person from the infliction of death or really serious injury by Morgan, and whether the conduct of Tahaney in discharging the firearm was a reasonable response to that belief. In determining that question, it is necessary to identify, with some precision, the particular fact or circumstance to which the tendency evidence would be directed.[23]

111 In the present case, there is evidence that the accused had some knowledge of Morgan's previous history, and in particular of the fact that he had shot and killed another person. In his first record of interview, Tahaney stated that Morgan had told him that he had 'put six bullets in a fellow's head before and ... he's not afraid to do it again'. On the morning of the shooting in the present case, at 11:24 am, Morgan sent a text to Tahaney stating, 'It's like anything ... it's [sic] get easier second time around! ... I'm waiting at Dan's!' A short time after sending that text, Morgan sent two texts to Dixon, at 11:37 am, and then at 11:38 am, stating, 'You're a dead man walking' and 'The next time your family will see you will be in a body bag'.

112 In those circumstances, there is evidence that not only were the accused aware of the fact that Morgan had previously shot and killed another person, but also that Morgan had sought to exploit that knowledge in order to put the accused in fear for their safety.

113 That evidence, and other evidence, which would demonstrate that the accused knew of the past violent history of Morgan, and, in particular, that he had previously killed another man, is not of itself tendency evidence. Rather, it would be relevant and admissible, in any event, to the issue whether, at the time of the alleged offences in this case, the accused believed that their conduct was necessary in self-defence, and as to whether that conduct was a reasonable response in the circumstances as the accused then perceived them.

114 As I have noted, the accused seek to rely on the five circumstances, specified in the tendency notice, to establish a tendency of Morgan, first, to resort to aggression and violence when angered, and, secondly, to use firearms to settle personal grievances.

115 In the course of submissions, senior counsel for the prosecution informed me there is no evidence that at the time of the incident in this case, Morgan had with him a firearm. It is not, therefore, clear whether that fact will be an issue in the present trial, although it is unlikely to be so. If that is correct, then the second tendency relied on by the accused - the tendency of Morgan to use firearms (as distinct from the accused's knowledge or belief that he had such a tendency) - would not be relevant to a fact in issue in the present case.

116 The question, then, is whether it would be relevant for the accused to establish the first tendency specified in the notice, namely, a tendency by Morgan to resort to aggression and violence when angered.

117 In order to determine that question, it is necessary to consider more closely some of the evidence which might reflect on the issue of self-defence. In that respect, it would seem, the defence will focus on two points in particular. First, there is evidence that Morgan was fuelled by anger when he confronted the accused men in Spraypoint Drive on the evening of 21 February 2019 when they arrived there in the Hilux vehicle. Secondly, there is evidence that, while in that state, Morgan approached the accused men and acted in an aggressive and threatening manner towards them.

118 In respect of the first point, there is evidence, to which I have been referred, that Morgan was in a particularly angry frame of mind in the period leading up to and including the time of the incident. A number of the text messages that he sent to the accused, during that period, were quite intemperate. Of particular relevance is a text message sent by Morgan to Taylor on the morning of 18 February 2019, in which Morgan described the reason why he had a 'beef' with the accused, stating the following:

These boys ... have ABSOLUTELY no idea, who they are NOW fucking with!!

To have a go at a man & assault him is one thing ... but to threaten his family ... MY FAMILY is another!!!!!!!

IT'S UNFORGIVABLE!!!

I WILL NOT ACCEPT THAT!!!!!!!!!!!!!!!

I HONESTLY CAN'T RECALL THE LAST TIME I WAS SO UPSET!!!!

ON SECOND THOUGHTS ... I CAN!

IT WAS WHEN I FOUND OUT MY BROTHER-IN-LAW SEXUALLY ABUSED HIS CHILDREN!!!!!!!

MY CHILDREN, MY FAMILY!!!!!!!!!!

This is how it's going to go down!

119 In respect of the second point - the conduct and actions of Morgan in the moments before Tahaney shot him - the principal evidence is that of a neighbour, William Turk, who observed most of the incident from his home which overlooked Spraypoint Drive. In his statement, Mr Turk stated that he saw three males running around a vehicle. One had a hammer and was trying to hit another male (who, I interpolate, would have been Morgan). The second male was able to knock the hammer out of the first male's hand, and he then started to give the first male 'a flogging' with his hands and feet. A third male was trying to pull the second male off. Another male got out of the Hilux vehicle to assist. Then the first male got into the rear driver's side of the vehicle and closed the door. As he did so, the second male, who had given him a 'flogging' (Morgan), went to the back passenger side and opened the door. Mr Turk then saw the barrel of a firearm come out of the rear passenger window and he heard a shot.

120 In the committal proceeding, Mr Turk agreed, in cross-examination, that when the second male opened the rear passenger door of the vehicle, he was holding a bag in his hand. It seemed clear to Turk that he wanted to get into the car 'to get at' the first male. It was in the moment that he opened the door that he was shot.

121 In that context, a critical factual issue in the case will concern the actions and movements of Morgan at the time at which he approached the rear passenger door of the vehicle and commenced to open it. The conclusion by the jury, as to that issue, will relevantly inform its consideration of whether there was a reasonable possibility that, at that moment, Tahaney believed that it was necessary to shoot Morgan in self-defence, and whether his conduct in doing so was a reasonable response in the circumstances as Tahaney perceived them. In respect of that issue, evidence that Morgan had a tendency to resort to aggression and violence, and particularly violence of an excessive kind, when angered, would be relevant. It would be capable of supporting the probability of the position contended for on behalf of the accused, namely, that at the time at which Morgan was shot, he was then acting in a violent and aggressive manner, driven by anger, in circumstances in which he was threatening, or understood to be threatening, to kill or cause really serious injury to the accused.

122 The question, then, is whether the particular circumstances, specified in the tendency notice, would have significant probative value as tendency evidence in that respect.

123 The first circumstance, specified in the notice, concerns a complaint made by Spiteri in relation to the actions of Morgan to him and members of his family in October 1994. It does not appear that Spiteri or any other member of his family had made any statement. The circumstances of the complaint are not set out in detail in any material. At most, they are contained in findings by the New South Wales Ombudsman concerning the complaint.

124 Two of the findings of the Ombudsman were that Morgan damaged a bathroom door, and damaged other property belonging to a member of Spiteri's family, while conducting a search of the Spiteri residence. That evidence of itself would not demonstrate a tendency to resort to aggression and violence when angered. Certainly, it would fall well short of having any significant probative value in respect of an issue in the present case. A third finding by the Ombudsman was that Morgan was 'unnecessarily abusive and aggressive' towards members of the Spiteri family. No details are given as to the degree of abuse, or the kind of aggression, engaged in by Morgan. On the face of it, that circumstance would not have probative value, and certainly it would not have significant probative value, of any issue in the present case.

125 The final finding by the Ombudsman was that Morgan unlawfully assaulted James Spiteri 'by striking him on the head with a police hat' while searching the family home. Taking that finding at its highest, it falls well short of having significant probative value of a tendency by Morgan to resort to aggression and violence when angered. The circumstances, of that incident, were far removed from the circumstances in which Morgan was shot in the present case, and which are the subject of the charges against the accused.

126 For those reasons, I am not persuaded that, even assuming that the matters, described as the first circumstance in the tendency notice, were susceptible of admissible proof, they would be admissible pursuant to s 97(1)(a) of the Evidence Act as tendency evidence.

127 I am of the same view in relation to the second circumstance, namely, the allegation that Morgan assaulted Patrick O'Sheehy while he was in custody in December 1994. There is very little evidence concerning the circumstances of that incident. O'Sheehy refused to provide a statement in relation to it. His father, Raymond O'Sheehy, who made the complaint, made a statement that, after his son Patrick was arrested, and released from custody, he observed facial injuries on his son and that Patrick informed him that he had injuries on the upper part of his body that stated were inflicted by Morgan after his arrest. There is no evidence of the circumstances in which those injuries were sustained. There is other material which suggests that O'Sheehy, after his arrest, was aggressive to the police, and that he head-butted the inside of the caged police vehicle in which he was transported to Fairfield police station. On any view, the circumstances, in which O'Sheehy sustained his injuries, were far removed from the circumstances of the present case. In the absence of any details as to how O'Sheehy sustained his injuries, it could not be concluded that the incident relating to O'Sheehy would be probative of the tendency relied on in this case, namely, a tendency to resort to aggression and violence when angered.

128 The third circumstance, specified in the notice of tendency evidence, consists of previous threats made by Morgan to his brother-in-law SM between 1992 and early 1995. As SM is deceased, the evidence of those threats, if admissible, would be through AH, with whom SM had an extramarital relationship during that period of time.

129 As I have already mentioned, it is not in dispute that, in the period leading to the shooting in the present case, Morgan made a number of threats to the accused, including threats that he would kill them. The content of those threats were contained in a number of text messages sent by Morgan to the accused, and which will be tendered in evidence. Thus, the threats to SM would not be relevant to any fact that will be in issue in the case. Further, it is not clear, from the statement by AH, what the nature of the threats were. They were not made by Morgan in respect of the alleged conduct by SM to his nieces; rather, were made in the context of marital issues between SM and his wife, who is Morgan's sister. In those circumstances, it could not be concluded that the threats by Morgan to SM would be of significant probative value in the present case.

130 In respect of the fourth circumstance, I do not accept the submission, made by the prosecution, that the principle, that a verdict of the jury acquitting an accused person may not be controverted in a subsequent case, would preclude the admissibility of evidence, in the present case, as to the circumstances in which Morgan shot and killed SM.

131 In essence, the effect of the principle is that in a subsequent proceeding, a previous verdict of acquittal may not be called into question, and an accused person must be given the full benefit of his or her acquittal on a charge in a previous proceeding.[24] However, I have not been referred to any authority in which that principle has been applied to prohibit the admissibility of evidence of previous conduct of a person, who is not a party to the proceeding, on the ground that that conduct had previously been the basis of a criminal charge on which the person had been acquitted.

132 Further, and in any event, the principle would not preclude, in an appropriate case, the proof of the facts and circumstances, which were the basis of a charge against an accused person on which that accused person was acquitted.[25] The circumstances, in which Morgan shot and killed SM, were not in dispute. In fact, they were admitted by Morgan to the police who attended the scene. At the time of the shooting, Morgan, who was then a member of the New South Wales police force, was on annual leave. He attended Fairfield police station and obtained his issued firearm. He then drove to a house at Oakhurst where SM lived. Having entered the house, he fired six shots at SM and killed him. He claimed that he killed SM to protect his nieces, who he believed were being subjected to very serious sexual assaults by SM. That belief was the basis of the defence, advanced by Morgan, and which led to his acquittal. Thus, the proof of the basic facts in that case would not controvert the verdict of the jury, acquitting Morgan, even if the principle, to which I referred, were applicable in the present case.

133 The bare facts surrounding the killing by Morgan of SM demonstrate that, on that occasion, he was prepared to resort to lethal violence in order to protect a close family member. That circumstance is relevantly similar to the circumstances in the present case. Morgan came to Melbourne at Saddik's request in order to assist Saddik, it would seem, by protecting him from the accused, who were threatening him. It is clear, from the text message sent by Morgan to Taylor on 18 February, to which I have referred, that Morgan was infuriated by the threats made to Saddik, and that Morgan regarded Saddik as 'family'. In that text message, Morgan specifically equated the present situation to his feelings and reactions when he had ascertained that his brother-in-law had sexually abused his children.

134 The fact that the incident, in which Morgan shot and killed SM, occurred 25 years ago, is relevant to an assessment whether that circumstance, and evidence in proof of it, would have significant probative value in the present case. However, it is a quite extraordinary matter for a man, and in particular a police officer, to take the law into his own hands, and to resort to lethal violence to protect a close family member in the manner in which Morgan did when he killed SM. The very nature of the actions of Morgan, and the similarity between them and his conduct in the present case, would, in my view, have significant probative value in demonstrating that Morgan was a person who, when driven by anger, was prepared to resort to particularly extreme forms of violence to vindicate the rights of people who are close to him.

135 As I have earlier discussed, an important, if not critical, issue in the case will concern the precise actions and movements of Morgan when he followed Tahaney to the rear of the Hilux vehicle and sought to enter it, at the time at which Tahaney shot him. His conduct at that time will be centrally relevant to the issue whether, at that moment, the accused believed that it was necessary to shoot Morgan in self-defence, and to the issue whether that conduct was a reasonable response in the circumstances as the accused perceived them. Evidence that Morgan had a tendency to resort to aggression and violence of an extreme kind, when angered, would be capable of rationally affecting the assessment by the jury of the probability that Morgan, at that critical time, acted in the manner contended for on behalf of the accused. Given the common features, between the circumstances in which Morgan killed SM and the circumstances in which the incident in the present case occurred, the evidence as to the former incident would, as tendency evidence, have significant probative value in the case. Accordingly, the evidence of the circumstances in which Morgan shot and killed SM is relevant and admissible as tendency evidence under s 97(1) of the Evidence Act.

136 Senior counsel for the prosecution also objected to the admission of that evidence under s 135 of the Evidence Act, on the basis that it would lead to a 'trial within a trial', which would be unfairly prejudicial to the prosecution, and would result or call in or cause an undue waste of time.

137 I do not consider that the admission of that evidence, in the trial, would be unfairly prejudicial to the prosecution, or that it would result in an unnecessary waste of time. As I have already discussed, the evidence, concerning the circumstances in which Morgan killed SM, would be susceptible of rather simple proof, particularly if the prosecution in the present case, in conformity with its duty as a minister of justice, were to cooperate with the defence in adducing the relevant proofs. I would anticipate that in that way the evidence concerning that previous incident would be quite confined. The relevance of the evidence would be explained to the jury by the judge, and by the prosecutor. It would not, in my view, result in unfair prejudice to the prosecution.

138 For the foregoing reasons, therefore, I conclude as follows in respect of the circumstances listed in the notice of tendency evidence:

(a) the first three circumstances specified in the notice of tendency evidence - the Spiteri complaint, the alleged assault on O'Sheehy and the threats by Morgan to SM - are not admissible as tendency evidence;

(b) the fourth circumstance - the incident in which, on 26 May 1995, Morgan shot at and fatally wounded SM, is admissible as tendency evidence.

139 As earlier mentioned, the prosecution does not object to the admissibility of the fifth circumstance specified in the notice, namely, the text messages sent to or by Morgan, and conversations to which Morgan was a party, in the period of three weeks before the incident on 21 February 2019.

[1] [1998] 4 VR 550.

[2] Ibid 557; see also 555-6 (Tadgell JA); R v Lo Presti [2005] VSCA 259; (2005) 158 A Crim R 54, 64 [28] (Buchanan JA); R v Kerr (Ruling No 1) [2015] VSC 64, [54], [105] (T Forrest J).

[3] [2017] VSCA 236.

[4] Ibid [45] (Priest, Beach and Kaye JJA) (citations omitted).

[5] Ibid [46] (Priest, Beach and Kaye JJA); DPP v Hicks (Ruling No 1) (2014) 240 A Crim R 171, 185 [59]-[60] (Kaye J).

[6] An order was made by the New South Wales Supreme Court prohibiting publication of SM's name to protect the identities of the victims of his alleged offending.

[7] [1977] HCA 67; (1977) 139 CLR 437 ('Garrett').

[8] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338, 348-9 [16] (Kiefel CJ, Bell, Keane and Edelman JJ ('Hughes').

[9] [2010] NSWCCA 332.

[10] Ibid [123]. See also Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206, 278 [359]-[360] (Bathurst CJ, Hoeben CJ at CL and Simpson J).

[11] Evidence Act 2008, s 55.

[12] [2017] HCA 20; (2017) 263 CLR 338.

[13] Ibid 355-6 [39] (Kiefel CJ, Bell, Keane and Edelman JJ).

[14] Ibid 348 [16] (Kiefel CJ, Bell, Keane and Edelman JJ) (citations omitted).

[15] (1996) 89 A Crim R 457.

[16] Ibid 459. See also R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75, 88 [66] (Beazley JA); Semaan v The Queen [2013] VSCA 134; (2013) 39 VR 503, 511 [38] (Priest JA).

[17] GBF v The Queen [2010] VSCA 135, [31] (Nettle and Harper JJA and Hansen AJA); Hughes [2017] HCA 20; (2017) 263 CLR 338, 363 [64] (Gageler J).

[18] [2012] NSWSC 467.

[20] [2013] VSC 665.

[21] Ibid [41]. See also R v Lockyer (1996) 89 A Crim R 457, 459-60 (Hunt CJ at CL); R v Cakovski [2004] NSWCCA 280; (2004) 149 A Crim R 21; R v White (No 3) [2012] NSWSC 467, [58] (Hulme J).

[22] The notes to this division have been omitted.

[23] Elias v The Queen [2006] NSWCCA 365, [18]-[20] (Simpson J); Spruill v The Queen [2008] NSWCCA 39, [43] (Hodgson JA).

[24] Sambasivam v The Queen [1950] AC 458, 479 (Lord MacDermott); Garrett [1977] HCA 67; (1977) 139 CLR 437, 445 (Barwick CJ); R v Carroll [2002] HCA 55; (2002) 213 CLR 635, 648 [37], 650 [45] (Gleeson CJ and Hayne J), 663 [93] (Gaudron and Gummow JJ); DPP v Jacobs (a pseudonym) [2020] VSCA 266, [55] (Kaye, Niall and Weinberg JJA).

[25] See, eg, R v Storey [1978] HCA 39; (1978) 140 CLR 364.