Supreme Court of Tasmania|2001-12-19|Before: Evans JJ, Underwood J, Slicer J

Marlow and Kelly v R [2001] TASSC 146 (19 December 2001)

CITATION: Marlow and Kelly v R [2001] TASSC 146

HEARING DATES: 29 - 31 October, 1 November 2001

Criminal Law - Evidence - Relevance - Generally - Whether evidence of accused's out of court statement constituted an admission.

Pollitt v R [1992] HCA 35; (1992) 174 CLR 558, applied.

Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Joinder - Joint or separate trial - Effect of embarrassment or prejudice - Evidence inadmissible against only one of two accused.

R v Harbach (1973) 6 SASR 427; R v Collie, Kranz and Lovegrove [1991] SASC 2996; (1991) 56 SASR 302; Leaman v R 9/1987; R v Demirok [1976] VicRp 19; [1976] VR 244, followed.

R v Webb [1994] HCA 30; (1994) 122 ALR 41, applied.

Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Corroboration - Warning required or advisable - Other cases - Meaning of "prison informer".

Pollitt v R [1992] HCA 35; (1992) 174 CLR 558, applied.

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Objections and points not raised in court below - Improper admission or rejection of evidence - General principles - Counsel made tactical decision at trial not to seek exclusion on basis of discretion - Ordinarily accused is bound by decisions of counsel in conduct of trial.

R v Birks (1990) 19 NSWLR 677; R v Ignjatic (1993) 68 A Crim R 333, followed.

Statutes - Acts of Parliament - Rules of construction - Words to be given literal and grammatical meaning.

Judgment Number: [2001] TASSC 146

MICHAEL JOHN MARLOW and SHANE LESLIE KELLY v THE QUEEN

1 By an indictment dated 19 December 2000, the appellants Marlow and Kelly, and one Gary Williams, were jointly indicted for the murder of Tony Tanner on 23 November 1990. The trial commenced on 19 February 2001 and concluded on 12 April 2001. The jury returned a verdict of guilty against each of the appellants and a verdict of not guilty in the case of Williams.

2 The Crown case was that the three accused men and the deceased were associates. The Crown led evidence that the deceased was addicted to drugs and committed crimes of dishonesty to buy drugs. On 19 October 1987, the appellant Marlow and the deceased decided to investigate the possibility of stealing money from a woman who was employed at a Launceston supermarket and who regularly took money from the supermarket to a bank. To this end, the two men drove to a position near the bank in order to observe the woman's movements. The appellant Marlow called this "doing homework". Marlow remained in the car and the deceased got out, I infer, to observe the woman's movements more closely. Whilst out of the car, the deceased suddenly and unexpectedly decided to seize the bag that the woman was carrying. It contained $61,000. After he had grabbed the bag, the deceased ran back to the car and the two men drove off. Marlow did not know that the deceased was going to snatch the bag that day.

3 Shortly after the stealing, both the appellant Marlow and the deceased were arrested, charged with stealing and bailed. The deceased was interviewed by police. He not only admitted his involvement in the commission of the crime, but he also implicated Marlow. Whilst on bail, the deceased went to Melbourne where he was interviewed by Victorian police. In the course of questioning by them, he repeated his admissions and his implication of Marlow in the commission of this crime of stealing.

4 The appellant Marlow learned that the deceased had informed on him when he received the Crown papers before his trial. Those papers included the two interviews between the police and the deceased.

5 On 22 November 1988, the deceased pleaded guilty to stealing, but the appellant Marlow pleaded not guilty. The court heard an application by Crown counsel for an adjournment of Marlow's trial until after the deceased had been sentenced so that the deceased could be called as a witness against Marlow.

6 On 29 November 1988, the appellant Marlow changed his plea to one of guilty because, according to the Crown case, he believed that the deceased was going to give evidence against him. He was sentenced to a term of imprisonment. There followed some complications with respect to that plea and sentence. There was an appeal. The details of those complications and the outcome of the appeal and its consequences are not material for present purposes. It is sufficient to say that the legal proceedings against the appellant Marlow with respect to the stealing were not finalised until 26 February 1990 when he was sentenced to eight months' imprisonment, backdated to 19 October 1989, for being an accessory after the fact of stealing by the deceased.

7 The Crown case in this matter was that the appellant Marlow harboured a grudge against the deceased because he had informed police of his involvement in the stealing. It was also part of the Crown case that the other two accused believed that the deceased was a police informant.

8 At the trial, evidence was adduced that on the afternoon of 23 November 1990, after making an arrangement to meet the appellant Kelly at a local supermarket, the deceased disappeared and was not seen alive again. Evidence was adduced from a Mr Paget that the evening the deceased disappeared, he was present at a meeting between the three accused men. Paget said, in effect, that they agreed that the appellant Kelly would lure the deceased to a logging site where the appellant Kelly worked. Paget's evidence was that he heard this site was at Rosebery, but for reasons given in evidence, the Crown contended that his memory was in error and that he heard from the three accused men that the site was at Bellevue Tier in the Central Highlands. According to Paget's evidence the plan was for Marlow to murder the deceased when he got to the designated spot. Williams' job was to drive the deceased's car to the airport and leave it there so that it would appear that he had left the State.

9 The appellant Kelly worked for his father-in-law at the logging site. Kelly was an experienced excavator driver. Again, according to Paget's evidence, in the early hours of the morning after this meeting, the appellant Marlow said to him, "Tanner's gone" and he described how he shot Tanner with a shotgun because he had informed on him. Paget's evidence was that Marlow told him that the deceased was buried in a deep hole that Kelly had dug with an excavator.

10 The deceased's body remained undiscovered until March 2000 when it was exhumed from a hole four metres deep, dug in a log landing site where the appellant used to work. The evidence established that the hole could only have been dug by a skilled excavator operator. Found with the body was a considerable quantity of what is known as "builder's lime". A mineralogist told the jury that this lime would not have been a natural part of the soil in the area where the body was found.

11 According to the police evidence, in November 1999, after having been arrested on a charge of robbery, the appellant Kelly said that he and Marlow murdered the deceased. The appellant Kelly admitted that he had said that to the police, but claimed that it was not true. Kelly said that he made the false admission for reasons that he detailed in his evidence and to which I shall refer in some detail shortly. The appellant Marlow made no admissions to the police. The Crown called a number of witnesses whose evidence spanned the nine years that had passed between the disappearance of the deceased and the finding of his body, who said that the appellant Marlow had said things that could be construed as admissions that he had killed the deceased. Some of this evidence corroborated the evidence of Paget who was, of course, the principal witness for the Crown.

12 It was a long and complex trial. It required the learned trial judge to make a considerable number of rulings with respect to the admissibility of evidence. These rulings were made both before and after the jury was sworn in. Because it was a joint trial of three accused, and because many of the witnesses were persons of bad character, the learned trial judge was called upon to give the jury very careful and detailed directions with respect to the use that they could make of the different parts of the evidence.

13 The appellant Marlow's notice of appeal against convictions contains nine grounds. The last, which alleged that the verdict was unsafe or unsatisfactory, was abandoned at the hearing of the appeal.

14 These grounds all relate to evidence given by a Mrs Kobylinski. In 1999, Mrs Kobylinski was the manageress of the Rossarden Club. The appellant Marlow lived at Rossarden and, according to Mrs Kobylinski, on 2 June 1999, he, a girl named Amanda and one Craig Alomes came into the club. Mrs Kobylinski said that the three of them had a drink, played 8-ball and turned on the juke box. Another man arrived and joined the group. Just after Craig Alomes had paid for some drinks with money taken from his wallet, he left the bar to investigate a noise outside the club. Mrs Kobylinski said that Alomes was only away for a very short time. When he returned, he asked the group where his wallet had gone.

15 Mrs Kobylinski said that everyone present denied any knowledge of the wallet. She said that Alomes became upset and pulled out a pocket knife. She said that he was waving the knife about and, whilst looking at Marlow, said "if the wallet is not there when I get back from the toilet I'll bury the knife up to its hilt".

16 Alomes then went to the toilet, leaving the knife on the bar. Mrs Kobylinski said that the appellant Marlow went over to meet Alomes as he emerged from the toilet and the two of them walked back to the bar talking to each other. There, Alomes folded the knife up, but shortly afterwards the argument about the missing wallet erupted again. Mrs Kobylinski's evidence was that in the course of the argument, the appellant Marlow said "you're a dead man, you're a dead man, you'll go down a mine shaft with a bag of lime like the last bastard".

17 In a submission made before the jury had been sworn in, Mr Hodgman QC, counsel for the appellant Marlow, objected to the admission of this evidence. The objection was overruled. Mr Coates, senior counsel for the Crown, submitted to the learned trial judge that the evidence was relevant and should have been admitted, upon the following bases:

(1) Because the body was found buried in a deep hole with builder's lime, the jury could conclude from Mrs Kobylinski's evidence that the appellant Marlow knew that and was therefore implicated in the murder of the deceased.

(2) In a video tape of an interview between the appellant Marlow and police on 2 May 2000, the appellant was asked if he was of the belief that lime assists in the decomposition of organic material. The appellant replied, "I have no, I have no idea, Colin". The submission was that the jury could infer from Mrs Kobylinski's evidence that this answer was a lie.

(3) Paget's evidence was that the appellant Marlow said that the killing was to take place at a logging site where the appellant Kelly worked. At that site, a body was found buried with lime in a deep hole. Therefore, Mrs Kobylinski's evidence corroborates Mr Paget's evidence.

18 During the course of argument about the admissibility of Mrs Kobylinskl's evidence before the jury had been sworn in, it was an agreed fact that in about 1996, a man named Byrne went missing and there were rumours abroad in the Rossarden community that he had been murdered and his body had been put in one of the many mineshafts in the area and never found. There was nothing to suggest that there was any connection between Byrne and the appellant Marlow. Nor was there anything to suggest that Byrne had been buried or dumped with lime.

19 Mr Hodgman QC submitted that Mrs Kobylinski's evidence was inadmissible because it was irrelevant. The submission, as I understand it, was that as the statement attributed to Marlow by Mrs Kobylinski was said to have been made in 1999, the jury could only infer that it was a reference to the death of Mr Byrne. The alleged statement referred to a mineshaft and the deceased was not placed in a mineshaft.

20 Ground 1 of the appellant Marlow's appeal asserts that the learned trial judge's ruling that the evidence was admissible was erroneous. Ground 2 asserts that if the evidence was admissible, the learned trial judge erred in not excluding it in the exercise of his discretion, and ground 3 claims that Marlow should have been discharged from the trial after the evidence had been admitted. Mr Hodgman QC conceded that ground 3 added nothing to grounds 1 and 2. The evidence should have been either admitted or rejected. On the appeal, the arguments put at trial for and against the admission of the evidence were repeated.

21 The evidence of Mrs Kobylinski is of a fact relevant to facts in issue. The facts in issue were whether the appellant Marlow did the acts and had the state of mind at the time he did those acts that constitute the crime of murder as enacted by the Code, s157(1).

22 In Pollitt v R [1992] HCA 35; (1992) 174 CLR 558, Brennan J said at 571:

"I respectfully agree with Lord Oliver of Aylmerton that 'relevant' cannot be better defined than by the definition in Art 1 of Stephen's Digest of the Law of Evidence:

'any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other'."

23 Clearly, the evidence of Mrs Kobylinski is relevant in that sense. If the jury accepted her evidence they might have inferred therefrom that the appellant Marlow knew that the deceased had been buried with lime and therefore was in some way implicated in his death. As the learned trial judge said when he ruled on this matter, the fact that the evidence is capable of being relevant to some other matter does not make it any less relevant on the critical matter. That was a question of weight for the jury. The evidence was plainly relevant and therefore admissible on all bases identified by the Crown.

24 With respect to its exclusion in the exercise of the judicial discretion, Mr Hodgman QC submitted that:

* the words attributed to the appellant Marlow constituted a threat to kill Alomes and therefore showed that Marlow was capable of committing such a crime; and

* the jury might think that it was an admission by the appellant Marlow that he had killed Mr Byrne.

25 The argument was that this was propensity evidence and its prejudicial value outweighed its probative value. The evidence of the circumstances in which the threat was made did not suggest that the appellant Marlow really intended to kill Alomes. In opening the Crown case to the jury, Mr Coates said that in making the threat, the appellant Marlow was merely "mouthing off". Even if there was a risk of prejudice by the jury taking the evidence as a threat to actually kill Alomes, this risk was firmly eliminated by the learned trial judge's clearest directions that the words Mrs Kobylinski attributed to the appellant Marlow, if accepted, amounted only to an idle threat and that the jury must not think that it "indicated violent propensities on Marlow's part".

26 As to the submission that the jury might construe the evidence of Mrs Kobylinski as evidence of an admission that the appellant Marlow was somehow implicated in the death of Byrne, I see no basis for it. There was no evidence to link Byrne to the appellant Marlow other than that they both lived in Rossarden for a period of time. Byrne's body had not been found. There was no suggestion that Byrne had been buried with lime. It was no more than a rumour that some person, or persons unknown, had put Byrne's body down a mineshaft. It is not reasonably open to suggest that the jury might have improperly used Mrs Kobylinski's evidence as evidence of propensity on the part of Marlow to commit a serious crime, not the subject of a charge, but at the same time, failed to use it in the way contended for by the Crown. The learned trial judge correctly labelled the suggestion as "unrealistic".

27 Any residual risk of prejudice was clearly eliminated by the learned trial judge directing the jury that there was "absolutely no suggestion that Marlow was in any way involved with the disappearance of Paul Byrne ...". His Honour told the jury that "the Crown merely puts it as an idle threat of a fate which Alomes, as a resident of Rossarden, might understand, that is to say, the fate rumoured to have been suffered by Byrne of being put down a mineshaft". His Honour then went on to explain to the jury that the Crown's point lay in the reference to lime, there being no suggestion by anybody that Byrne had been put down a mineshaft with lime. He said that it was a matter for them whether they thought that the appellant Marlow's remark to Alomes was a reference to the murder and burial of the deceased.

28 Mr Hodgman submitted that prejudice arose out of the fact that there was evidence that Byrne was a drug addict. It is true that Mr Hodgman cross-examined some police witnesses to try and elicit the fact that Byrne was, like Tanner, a drug addict. However, all of this was irrelevant to the proper exercise of the discretion not to exclude Mrs Kobylinski's evidence because such evidence as was elicited was elicited by Mr Hodgman after Mrs Kobylinski's evidence had been given and well after the ruling had been given by the learned trial judge. In any event, this evidence really amounted to nothing. In my opinion, grounds 1 - 3 inclusive, are not made out.

29 This ground alleges that error occurred in the admission of certain evidence from Sergeant Daniels and Mrs Marlene Jarvis. This evidence was admitted as evidence to rebut a suggestion that a Crown witness, Robert Jarvis, had recently invented some of his evidence.

30 Robert Jarvis was an associate of all three accused men. He told the jury that he was at Marlow's house on 7 October 1992. He said that Marlow referred to the stealing of the supermarket money in Launceston and produced the two statements that the deceased had made to the police which implicated Marlow in the commission of that crime. Jarvis said that after he had read the statements and handed them back to Marlow, the latter said, "what else could I do Robbie?" Jarvis said that Marlow then picked up a rifle that was in the room, walked out to the outside step and fired off a shot. He said that the appellant Marlow then returned inside, put the gun down and sat in a chair.

31 In cross-examination, Mr Hodgman asked Jarvis when he first told police about this event and Jarvis said it was in September 1993 when he was being interviewed "over the crimes I done". Over the next three questions, Mr Hodgman put to the witness that he did not mention the matter to a police officer until 1999.

32 In the Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, Dixon CJ said at 479:

"If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction."

33 The learned trial judge ruled that Mr Hodgman had put to the witness that he had recently invented the account he gave of the events at the appellant Marlow's house on 7 October 1992. Consequently, evidence by way of rebuttal of recent invention was given by:

* Robert Jarvis' mother who said that in 1993, her son told her of the events that occurred at the appellant Marlow's house in October 1992; and

* Detective Sergeant Daniels, who gave evidence that Robert Jarvis gave the same account to him when he interviewed him on 12 September 1993 with respect to other matters.

34 In argument upon the appeal, Mr Hodgman QC accepted that he had put to Robert Jarvis that he had recently invented his account and he conceded that accordingly the evidence of Detective Sergeant Daniels was rightly admitted. However, he argued that his cross-examination did not make admissible the evidence from Robert Jarvis' mother. Again, as I understand it, his argument was that as he raised recent invention by putting to Robert Jarvis that he did not tell police about the events in October 1992 until 1999, the only evidence admissible to rebut the suggestion of recent invention was evidence of him telling police at some earlier point in time. No authority was cited to support this submission. It is contrary to principle. If it is clearly put to a witness that some specific part or parts of his or her evidence has been recently invented, any evidence that tends to dispel or rebut that suggestion is admissible. At common law, such evidence is not admitted as proof of the facts stated, but to rebut the suggestion of conscious or unconscious fabrication after the relevant date. See Nominal Defendant v Clements (supra) at 493; Wentworth v Rogers (No 10) (1987) 8 NSWLR 398; Wojcic v Incorporated Nominal Defendant [1967] VicRp 30; [1967] VR 263. However, by virtue of the Evidence Act 1910, s81L, such rebuttal evidence is also admissible as evidence of the truth of the facts stated.

35 The learned trial judge gave the jury the clearest directions with respect to the proper use at common law of the evidence led in rebuttal. In my view, ground 4 is not established. I might add, even if the evidence in rebuttal given by Robert Jarvis' mother was wrongly admitted, no miscarriage of justice occurred because it did no more than add a little weight to the undisputedly properly admitted rebuttal evidence of Sergeant Daniels.

36 Ground 5, as amended, alleges that the learned trial judge erred in law and that there was a miscarriage of justice by his refusal to grant two applications for a separate trial made on behalf of the appellant Marlow.

37 With respect to this ground, there is only one issue on the appeal, namely, was there a miscarriage of justice because the appellant Marlow was tried jointly with one or both of his co-accused? In Webb v R [1994] HCA 30; (1994) 122 ALR 41, Toohey J said at 76:

"In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused."

38 There is no point in scrutinising the reasons given by a trial judge for refusing to exercise his or her discretion to grant an application for a separate trial, except insofar as such scrutiny may prove of assistance to an appellate court in determining whether the joint trial has caused a miscarriage of justice. See Unsworth v R [1986] TASSC 63; [1986] Tas R 173.

39 In order to understand the basis upon which this ground of appeal rests, it is necessary to recount some more of the evidence given at trial.

40 On 2 November 1999, the appellant Kelly was interviewed by Detectives Lopes and Pretyman about a robbery that occurred in 1991. Detective Lopes asked Detective Pretyman to go and look for the custody sergeant and while she was away, he and the appellant Kelly waited in an office at the police station. Detective Lopes said that the following transpired between him and the appellant Kelly:

"What did he say? ... He first said, he said 'What's going on with Tanner, did the fifty thousand shake anything loose?' and I responded and said that Marlow was going to be charged with murder and Kelly said 'Yeah' and I said to Shane, I said 'Listen, Shane, I know that you were involved in it, there's a chance that you're going to be charged as well' and Shane Kelly said 'And when's that going to happen' and I said 'Well you'll definitely know about it because we'll be in contact' and Shane Kelly said 'Well, that'll be a no comment from me' and I said 'Well I expected that to be the case.' There was a bit of a pause and Shane Kelly said 'You come into this world with nothing but if you go out with your dignity that's something' and I said to Shane Kelly I said 'Dignity is one thing but twenty-five years is a long time, have a think about it' and then he said 'Off the record just suppose someone was interested in it' and I said 'Interested in what?' and Shane Kelly said 'The indemnity'. At that stage Detective Allen said to Shane 'Listen Shane I'll give you a bit of advice. I don't care whether you take it or not. We don't believe that you killed Tanner as in pulling the trigger, so the indemnity may be on offer, if you're interested in it speak to your solicitor and we can make contact through him' and Shane responded by saying 'You're joking, they're worse than you blokes, the only one I trust is on your side now' and I said to Shane I said 'Well it's your choice Shane think about it'. And at that time Detective Pretyman ran to the office and Mr Kelly terminated that conversation."

[The reference to "fifty thousand" is a reference to a reward for information leading to the conviction of the person or persons who killed the deceased.]

41 I shall refer to that as the "first conversation". The appellant did not challenge this evidence of Detective Lopes, except in two respects which appear to be immaterial. Firstly, the appellant Kelly said that he was told that he was going to be charged and not that there was a chance he was going to be charged, and secondly, he claimed it was not him but a police officer who first raised the question of an indemnity. After Detective Pretyman returned, the appellant Kelly was charged with the 1991 robbery and remanded in custody.

42 By her arrangement, Detective Lopes met Kelly's wife in a carpark at New Town two days after the first conversation. As a result of what Mrs Kelly told him, Detective Lopes and Detective Pretyman visited the appellant Kelly in prison where he was being held on remand on the robbery charge. At Kelly's request, Detectives Lopes and Pretyman drove him to the Capita building, which I understand then contained some offices occupied by the police. Kelly was shown into an interview room but said he wanted to talk in the open air. Accordingly, he was taken to the roof of the Capita building by Detective Lopes. They were accompanied by Detective Pretyman and Inspector Little.

43 According to the evidence of the police officers, on the rooftop, Kelly told Detective Lopes to get rid of his mobile phone and then he "patted him down" to see if he was carrying any recording equipment. Inspector Little and Detective Pretyman stood to one side. Detective Lopes and Kelly were within their view, but not their hearing.

44 Detective Lopes said that the appellant Kelly asked him for a pen and after one was given him, he wrote on a piece of paper, "only Marlow and me". Kelly then showed this writing to Detective Lopes and having done so, screwed it up, put it in his mouth, and appeared to swallow it. Later he spat over the edge of the roof. Detective Lopes said that he then asked the appellant Kelly "what about Garbo?" (the nickname of the co-accused Williams) and Kelly told him that he was "out of it". Lopes said that the following exchange then occurred between him and the appellant Kelly.

"He had another cigarette and did you then say something to him? ... Yes, I said 'Are you telling me you were involved in Tanner's murder'? And he said 'Yeah' and he nodded his head. And I said 'And Marlow'? and he said 'Yeah' and nodded his head again. And I said 'What about Garbo'? and he shook his head and he said 'No, he's out of it.' Then did you say something? ... .And I said to him, I said 'Shane, if you're telling me that you were involved in the murder of Tanner then I have to caution you'. I told him that he wasn't obliged to say anything further and anything he did say would be recorded and may be given in evidence.

And what was his response to that? ... He said 'Yeah, I know. I know that. There's got to be something you can do for me'.

And did you say something in response to that? ... I said 'Are you willing to go on video in relation to this'? and he said 'I'm not doing any interview until I speak to Trudy'. And I said 'Do you want to tell me more about it'? He said 'Later. I want to speak to Trudy first'."

45 I shall refer to that as the "second conversation".

46 Meanwhile, the police had already made arrangements for Mrs Kelly to come to Hobart and Detective Lopes agreed that he and Kelly should wait on the roof until she arrived. While waiting, Detective Lopes said that the appellant Kelly took from his pocket a piece of paper which appeared to be an account of the recent sentencing of Mr Paget. Highlighted was a passage which referred to a letter being handed up to the sentencing judge. Later evidence established that this letter outlined the assistance that Paget had given the police with respect to this matter. Detective Lopes said that after he had looked at this piece of paper, he handed it back to the appellant Kelly, who then said to him:

"'I know what you can do, I want the indemnity too' and I said to Shane 'They don't just give indemnities away for nothing in murder cases', I said 'I can't make you any promises in the indemnity, okay?' Then he said to me 'Well I know you can fix something'."

47 I shall refer to this as the "third conversation".

48 Detective Lopes said that the appellant Kelly then said that he would also want bail on the robbery and Detective Lopes said that he would have to speak to his boss about that and thereupon they left the rooftop and went to an interview room. Shortly after, Kelly's wife arrived and the police returned to the rooftop and permitted the appellant Kelly and his wife to have a conversation out of the earshot of the police for about an hour.

49 At the end of this time, the appellant Kelly told Detective Lopes that he did not wish to take part in a video interview. However, he did agree to make a statement about the murder of the deceased. Accordingly, the police took the appellant Kelly and his wife to a motel room where Kelly wrote out a statement in his own hand. Before he wrote that statement, he was told by police, in effect, that it would not be used against him. Presumably its intended use was to provide information to the police that would enable them to gather sufficient evidence to convict the appellant Marlow.

50 Shortly stated, this written account ("the motel account") detailed that Kelly assisted Marlow by teaching him how to use the excavator, by telling him where the key to the machine was hidden and by facilitating his theft of a key to the boomgate which gave access to the site. The appellant Kelly wrote that shortly after, the appellant Marlow gave him back the key and said that "he'd knocked Tanner".

51 After the motel account had been completed, the appellant Kelly was returned to Risdon Prison.

52 On 16 December 1999, the appellant Kelly telephoned his wife from the Risdon Prison. The conversation was recorded ("the telephone conversation"). The appeal books contained the following transcript of that much of the conversation that was heard by the jury [some parts of the conversation were edited by mutual agreement prior to the evidence being tendered]. "TK" is a reference to Mrs Kelly and "SK" is a reference to the appellant Kelly:

TK And they don't believe your story about that other.

TK And they reckon charges will be laid in four to five weeks, I'll talk to you Sunday anyway.

TK They reckon that yous will end up with twenty five years.

TK Oh, I don't know If you'll get bail, I doubt it though, xxx no, you won't.

53 The audio tape of this telephone conversation, P77, commences with this audible warning:

"... [inaudible] is from an inmate of Risdon Prison. It may be subject to recording and monitoring. If you do not wish to accept this call, hang up now or continue."

54 Not all of the foregoing material is relevant to ground 5 of the appellant Marlow's appeal, but it is relevant to a ground in the appellant's Kelly's appeal, so it is convenient to set out in one piece the events that occurred about this time.

55 On 4 March 2000, the appellant Kelly was at liberty, having been granted bail on the robbery charge. That day he was arrested for the murder of the deceased and taken to Launceston where a video taped interview took place. Although, as I have mentioned, the appellant Kelly did not dispute in any material way the evidence of Detective Lopes concerning the first conversation, he claimed that after the first conversation and before he was charged with the robbery, there was another conversation between him and Detective Lopes. The appellant Kelly said on the video tape that during that conversation, Detective Lopes made it clear to him that if he did not give him information which would convict the appellant Marlow of the murder of the deceased, he, Lopes, would do his "darnedst to stitch [him] up". I take that to mean that Detective Lopes would falsely implicate the appellant Kelly in the robbery with which he had been charged and possibly the murder of the deceased. The appellant Kelly further claimed that during this conversation, Detective Lopes told him that he would stop his bail and that he would be "going for murder" unless he helped Detective Lopes.

56 With respect to the second and third conversations, there was no real dispute over the account given in evidence by Detective Lopes. The appellant Kelly disputed that he said that "Garbo was out of it" and that he disputed that he was cautioned at any stage. He also disputed that he wrote "Marlow and me" on the piece of paper. Otherwise, in substance, the appellant Kelly agreed with Detective Lopes' account of that conversation. Later in his video interview, he told Detective Lopes that he implicated himself in a murder charge because he wanted to get bail. He explained that he had heard that Robert Jarvis was about to be released from prison in three weeks' time and he was afraid that Jarvis would do harm to his family. He wanted to get bail in order to get out and protect them. He also claimed that the paper concerning Paget's sentencing was handed to Detective Lopes in the car on the way to the rooftop and not on the rooftop.

57 In his examination-in-chief, the appellant Kelly again agreed that Detective Lopes' account of the second conversation was correct, except in the two minor respects that I have mentioned. Interestingly, with respect to the claim that Detective Lopes did not say "there's a chance you are going to be charged", the appellant Kelly's evidence was:

"They said that Mick [Marlow] was going to be charged and when Mark Lopes says to me, he says to me, 'Oh it's possible you may be charg ...: he didn't, he said I will be charged, he did tell me I will be charged as well."

58 In his examination-in-chief, the appellant Kelly went on to say, as he had in his video interview, that after the first conversation, he was alone downstairs with Detective Lopes for a while. He said that during this time Detective Lopes talked about the appellant Marlow. Kelly's evidence with respect to this was that Detective Lopes said:

"Mick killed Tony Tanner, they didn't really know if I knew - what part I'd played or if any, he didn't care about truth or innocence, he had a job to do and he was gonna do it, he was stopping me bail, he reminded me about what a nut case Jarvis was, said he was out soon, basically he just said 'look, you play ball or you are going for murder and that's it and I don't care' - and I said 'look, it's nothing to do with me, mate. He said 'I don't care, I got a job to do and I'm doin' it, innocence, guilt, truth or lies, I don't care'. And basically, he did."

59 The appellant Kelly went on to explain that Robert Jarvis bore him great animosity and he feared for his family when Jarvis was released from goal in the next few weeks. The appellant Kelly went on to explain that he felt he had to get out of prison on bail on the robbery charge at any price. He said that he had some listening device equipment and his plan was to have a conversation with Detective Lopes and in it, force him to refer to the threats he had made to Kelly about implicating Marlow. The appellant Kelly said he planned to record this conversation with one of his devices concealed about his person. Kelly explained that he got his wife to arrange a meeting between him and Detective Lopes. The plan was that she would bring the recording device to that meeting and pass it to her husband.

60 In evidence, the appellant Kelly agreed with the substance of the evidence that Detective Lopes gave with respect to the second conversation, but claimed that instead of writing "Marlow and me" on the piece of paper, he wrote "Mick Otley and Wayne Fogarty"; the names of two police officers whom the appellant Kelly claimed were corrupt. However, the appellant Kelly agreed that he told Detective Lopes during the second conversation that he and the appellant Marlow had killed the deceased. He then said in his evidence that although he did tell Detective Lopes that, it was not in fact true. Then followed this question and answer:

"Why did you give it? ... Like I said, when it had been confirmed to me about Robert Jarvis, I didn't care, I mean, it's nothing to do with 'loyalty, staunch, Miss Good guy, tough guy' - that man was gettin' out, mate and he's a maniac and I didn't want him near my family and I'd heard he was dirty on me."

61 The appellant Kelly confirmed that his wife arrived at the police offices, but said that she was not able to give him the recording equipment because they were never left alone.

62 In cross-examination, the appellant Kelly denied that he arranged the meeting at which the second conversation took place because he wanted to see if he could get an indemnity in return for implicating the appellant Marlow. He said that his purpose in arranging to speak to Detective Lopes was twofold. First, to get evidence that Lopes had corruptly invited Kelly to lie in order to implicate Marlow and secondly, to try and get bail on the robbery charge so he could get out of prison to defend his family against anticipated violence by Robert Jarvis.

63 It is a little hard to understand how the appellant Kelly thought he could have achieved either of those purposes, as is evidenced by this exchange in cross-examination:

"You did admit that you'd been involved in the murder didn't you on the roof? ... All I said was myself and Mick.

Yes, you admitted that you'd been involved in a murder? ... Yes, yes.

Right. So you've gone over there to catch this corrupt police officer but you've ended up admitting to murder, is that your position Mr Kelly? ... That's it, that's exactly it."

64 After that, I fear overly long excursion into the facts, I return to ground 5. Mr Hodgman submitted, quite correctly, that the second conversation was not admissible against the appellant Marlow. He also submitted, both at trial and on the appeal, that that evidence was so prejudicial to his client that it warranted an order being made for a separate trial. Further, he submitted that as the appellant Kelly and the co-accused Williams made no secret of the fact that they were criminals with a long list of previous convictions, his client would be "tarred with the same brush" and this, either alone or in conjunction with the evidence of the second conversation, called for an order for a separate trial. On the appeal, Mr Hodgman further contended that the admission of that material resulted in a miscarriage of justice.

65 There is a clearly established prima facie proposition that where two or more persons are jointly charged with committing a crime, they should be jointly tried unless there is good reason not to do so. See R v Harbach (1973) 6 SASR 427; R v Collie, Kranz and Lovegrove [1991] SASC 2996; (1991) 56 SASR 302; R v Webb (supra); Leaman v R 9/1987. In R v Demirok [1976] VicRp 19; [1976] VR 244, the Full Court of Victoria identified the following reasons for the prima facie proposition at 254:

"In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials."

66 In R v Webb (supra) Toohey J referred to those reasons with approval at 76 and added:

"There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused"

67 It is very common in joint trials for one accused to implicate another by evidence inadmissible against that other, and it is well accepted that in the ordinary case, the jury can understand and deal with the relevant evidentiary proposition. The appellants' trial was not unusual in this respect. Leaman v R (supra), a case relied upon by Mr Hodgman, was quite a different case as is apparent from the facts recounted in the judgments of the members of the court in that case.

68 The learned trial judge gave the members of the jury very careful and detailed directions with respect to each part of the evidence, and explained to them the principle which gave rise to the inadmissibility of the second conversation upon the trial of the appellant Marlow. When he referred to that evidence, he made it quite clear that it was not admissible upon a consideration of the guilt or innocence of the appellant Marlow. On the hearing of the appeal, no criticism was made with respect to the adequacy of these directions. In Leaman, Neasey J referred to what he called two guiding propositions at 7 in the following terms:

The first is that in a joint trial where evidence inadmissible against one accused is tendered against another, the law requires the trial judge to point out clearly and explicitly to the jury the inadmissible evidence, and how it may and may not be taken into account. Unless the trial judge performs that duty a miscarriage of justice is almost automatic. The other is that, provided the trial judge's instructions to put aside inadmissible evidence where necessary is reasonably capable of performance, a jury is to be trusted to carry out that obligation. If that were not so it would be a serious objection against the trustworthiness of the jury system as a whole."

69 There is no reason to think that in this case, the jury could not comply with the directions given them with respect to the use to which they could put the second conversation. The principle enunciated by Neasey J above applies, a fortiori, to the second basis upon which it was contended that there had been a miscarriage of justice. By the end of the trial there was evidence that the appellant Marlow's co-accused were of very bad character and that he too, had a conviction with respect to the stealing by Tanner in 1987. In addition, one of the witnesses said that she knew him "by reputation". The learned trial judge gave the jury the clearest directions, which did not receive a word of criticism upon the hearing of the appeal, with respect to the importance of not improperly acting upon evidence of bad character and/or "reputation" and the need to avoid propensity reasoning in reaching a verdict.

71 Ground 6 of the appeal alleges that the learned trial judge erred in refusing to give a "prison informer direction" with respect to the witness Allan Jones.

72 Mr Jones gave evidence that he spoke to the appellant Marlow in 1988 when they were both in the remand section of the Launceston lock-up. Marlow had then just been sentenced for stealing the money from the supermarket employee. Mr Jones recounted a conversation between him and the appellant Marlow from which the jury might infer that Marlow bore the deceased animosity because he had made a statement to the police implicating Marlow in the commission of that crime.

73 Mr Jones gave evidence of another conversation between him and the appellant Marlow. He said that this took place in 1999, 11 years after the first conversation. The evidence did not indicate where it took place. From it, the jury might infer that the appellant Marlow was closely involved in the death of the deceased.

74 There is no fixed rule of law or practice which requires a trial judge to give a jury a warning simply because evidence is given by a "prison informer". However, a trial judge has a general duty to warn juries of the danger of convicting on evidence that is potentially unreliable unless that evidence is corroborated. Generally speaking, evidence from "prison informers" will fall into this category. The reasons why that is so are expounded in Pollitt v R (supra). Deane J said, at 586:

"One such reason is that such evidence is easily concocted. Another is that, where such evidence is concocted, an accused will ordinarily be denied the possibility of corroboration of his denial of it. Another reason is that it is likely that a 'prison informer' will be of bad character. Another is the likelihood that a prison informer may be motivated to fabricate such evidence either by a perception that he will derive some benefit in terms of sentence, treatment or release on parole or by reason of any of a variety of pressures of a type which may easily arise in a prison environment and which may not be apparent to a jury."

"But, independently of the circumstances concerning any particular prison informant, evidence from prison informers is potentially unreliable. The evidence of a prison informer may in fact be true. But, with the exception of some remand prisoners, the source is always tainted. All accounts of traditional prisons agree that beneath the veneer of law and order imposed by the rules of prison discipline lies a brutal world of fear and sudden, and often irrational, violence where conventional standards of conduct and values such as truth and respect for the rights of others have little relevance. It is not surprising, therefore, that, exposed to such an environment, some prisoners will become so indifferent to the rights and feelings of others that they will not hesitate to make false accusations of criminal conduct against other persons if acceptance of the accusations will advance their own interests. Many years of experience in hearing prisoners give evidence for and against accused persons has alerted the judiciary to the unreliability of the evidence of serving prisoners. But it is by no means certain that every juror fully appreciates that unreliability which arises not so much because the prisoner has been convicted of serious crime but because the character of that person has been altered for the worse by exposure to the values and culture of prison society."

See also Clough v R (1992) 28 NSWLR 396; Herring v R (1994) 74 A Crim R 72.

76 It will be apparent from the foregoing passages taken from Pollitt, that the potential for unreliability arises from the fact that the witness is in prison at the time he or she gives his or her evidence, or perhaps, at the time a statement in the same terms as the evidence is given to the police or a person in authority. Mr Jones' evidence was not potentially unreliable upon that basis. There was nothing to suggest that at the time he gave his evidence that he was in prison. He said that he resided in Hobart. Between the occurrence of the first and second conversation that he said he had with the appellant Marlow, and the giving of his evidence, 13 and two years, respectively, had passed. No evidence was adduced from Mr Jones with respect to when he first told the police or a person in authority of either of the two conversations which he recounted in evidence.

77 The learned trial judge gave the jury a long and detailed direction to the effect that it was dangerous to convict on the evidence of prison informers unless it was corroborated. He even read part of the passage from the judgment of McHugh J in Pollitt that I have just set out. In giving those directions, he neither included nor excluded Jones from that warning although, his view, expressed to counsel during submissions made before the summing up began, was that no "prison informer direction" was called for in the case of the witness Jones. In my respectful view that approach was perfectly correct for the foregoing reasons and ground 6 also fails.

"THAT the Learned Trial Judge in his summing-up which commenced on the 9th of April 2001 and concluded on the 10th of April 2001, failed to fairly put the defence of the Appellant, and in summing-up a seven-week Trial the Learned Trial Judge dealt with the evidence of the Appellant, Michael John Marlow in six minutes."

79 The whole of the appellant Marlow's examination-in-chief would have occupied considerably less than six minutes. Questions and answers together amounted just over 200 words. In his evidence, the appellant Marlow denied that he knew anything about the deceased's death and he denied that he had made any of the incriminating statements that the various Crown witnesses had attributed to him.

80 Although Mr Hodgman did not abandon this ground upon the hearing of the appeal, he conceded that it was not one that he could argue strenuously. In this respect he was quite right for the learned trial judge dealt with the appellant Marlow's case, by outlining his denials given in examination-in-chief and in cross-examination, and by referring to some points made by Mr Hodgman in his closing address. More importantly, throughout the summing-up, when referring to the evidence of the Crown witnesses, the learned trial judge referred to defence criticism of, and perceived weaknesses in, each part of that evidence. This was conceded by Mr Hodgman on the hearing of the appeal. Ground 7 is not made out.

81 Ground 8 is a complaint that a miscarriage of justice occurred by the learned trial judge declining to give the jury any direction which would have alerted them to the fact that the jury could be discharged if the situation was reached where any one or more of them were unable to honestly agree with the conclusions of the others.

82 The jury commenced their deliberations at 2.37pm on Tuesday 10 April 2001. At 6.15pm that day, they were brought back to Court and sent to a hotel for the night. The jury resumed its deliberations at 9am the next day and, apart from a short break for exercise, continued until 6pm when they were brought back by the learned trial judge. His Honour told the jury that he could now accept a majority verdict of not guilty of murder, but there remained the need for unanimity in the case of a guilty verdict. His Honour then inquired if the jury might reach a verdict that evening or whether they wished to return to the hotel. The jury retired to discuss this. Whilst retired, counsel for the appellant Kelly and counsel for the accused Williams asked the learned trial judge to explain to the jury what would happen in the event of them being unable to reach a verdict. The jury were recalled at 6.20pm and the foreman ask if they could continue deliberation until 7pm. His Honour told the jury that there was no rush. The jury resumed deliberations until 7.25pm when they advised the learned trial judge that they would need more time, and that they would like to go to the hotel now as they did not wish to deliberate further that day. The jury returned to Court at 9am on Thursday 12 April, the day before Good Friday. Mid-morning on that day, counsel saw the learned trial judge in chambers and asked him to give the jury a "Black direction". His Honour refused, but said that he would bring the jury back after lunch to see how they were getting on. Lunch was served, and at 2pm that day, the jury returned their verdicts.

83 The submission in support of this ground was that there was a grave risk that a miscarriage of justice occurred by reason of the fact that the closeness of the Easter holiday break created a pressure which may have resulted in one of more jurors agreeing to a guilty verdict or verdicts in order to ensure that the jury was not still in deliberation on Good Friday. The submission was that a direction that in the event of an inability to agree, the jury could be discharged, would have relieved that pressure.

84 I can see absolutely no merit in this proposition at all. The trial had lasted over two months. The addresses of counsel and the summing-up took five days. There were quite a number of video taped interviews, as well as numerous other exhibits. The jury had to consider the case against each accused separately and grapple with the complex directions that the learned trial judge had given them with respect to the admissibility of evidence in each case. They were in deliberation for just over 18 hours and in the circumstances of this case, that was by no means an unreasonable length of time. Had the verdicts not been returned until very late in the evening of Thursday 12 April, there might have been something in the submissions put in support of this ground. This was not the case. The verdicts were returned straight after lunch on the day before Good Friday. Further, although the learned trial judge did not tell the jury that in the event of them being unable to reach a unanimous verdict he could discharge them, the last thing he told them before they commenced their deliberations was:

"If you are unable of course, to reach a conclusion, then I will certainly give you further directions before concluding the trial, but I don't want anybody to feel that they are under an obligation to go with the flow, as it were - go with the majority view. It is a matter for you to make your own individual decisions, of course and the jury, collectively, can take as long a time as they wish in order to do that, but it sometimes happens that people conscientiously having regard to their oaths, cannot reach a conclusion which is the same as everybody else's or as the majority."

85 In my view, this ground is not made out. I would dismiss the appellant Marlow's appeal.

86 By his notice of appeal, the appellant Kelly sought to rely upon nine grounds. However, five of those grounds were abandoned on the hearing of the appeal, and one was substantially amended. In result, I can summarise the appellant Kelly's case on the appeal as follows:

(1) The telephone conversation (between Kelly and his wife from the prison) should not have been admitted into evidence because:

(a) its admission was contrary to the provisions of the Listening Devices Act 1991, s14(1);

(2) The admission of evidence from Detective Lopes that the appellant Kelly made an admission after the completion of a video taped interview and whilst he was being taken to the hospital for samples to be taken, was contrary to the Criminal Law (Detention and Interrogation) Act 1995, s8(2).

87 The appellant Kelly also relied upon the same ground as did the appellant Marlow with respect to a claimed miscarriage of justice by reason of the jury not being told that in the event of a failure to reach an agreement, they could be discharged. There is no need to further deal with this ground. For the reasons already given, I would dismiss this ground of appeal.

88 The Listening Devices Act 1991, s14(1), provides:

"14 - (1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5 -

(b) evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person -

may not be given by that person in any proceedings before any court or person authorized to receive evidence."

89 Section 5 makes it an offence to (inter alia) record a private conversation. The expression "private conversation" is defined by s3(1) to mean:

"any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only -

(b) by themselves and by some other person who has the consent, express or implied, of all those persons to do so;"

90 Mr Procter SC, counsel for the appellant Kelly on the appeal, conceded that, by virtue of an admission in his video taped interview with police, the appellant Kelly knew that it was likely that the telephone conversation was being monitored and/or recorded but, as Mrs Kelly did not give evidence, there was no reason to suppose that she was aware of this. In making these submissions, Mr Procter relied upon the transcript of the telephone conversation that was placed in the appeal book and probably formed part of the Crown papers. At the top of that transcript, the following appears:

MADE FROM AN INMATE AT RISDON PRISON, MADE TO DISCUSS IT, THE RECORDING AND MONITORING, IF YOU DO NOT WISH TO ACCEPT THIS CALL HANG UP NOW OR CONTINUE"

91 That transcription is corrupt. The words that are audible to a listener of the tape recording are those set out earlier in these reasons for judgment. The transcript did not go to the jury. The exhibit was the tape. Prima facie, the warning that appears in the transcript is difficult to understand and might well support Mr Proctor's submission that from it, Mrs Kelly might not have understood that the conversation she had with her husband might be recorded and/or monitored. However, the audible warning makes it quite clear that this is the case and I am well satisfied that the telephone conversation between the appellant Kelly and his wife was not a private conversation within the meaning of the Listening Devices Act, s3(1). Consequently, its admission into evidence was not prohibited by s14(1). I turn to the question of relevance.

92 The Crown submission was that in part of the telephone conversation, the appellant Kelly referred to the second conversation. If so, the telephone conversation or, at least, the part or parts that refer to the second conversation, was clearly admissible for it was evidence that:

* contrary to statements made in his video interview and in his evidence, the appellant Kelly spoke the truth when he told Detective Lopes that he and Marlow murdered Tanner, for he was then seeking an indemnity in return for giving evidence against Marlow;

* the appellant Kelly's claim that he arranged for the second conversation to occur in order to obtain a covert recording of Detective Lopes acting corruptly and in order to try and get out of prison on bail so he could protect his family from violence at the hands of Robert Jarvis was not true.

93 For the appellant Kelly it was submitted that the telephone conversation referred only to the motel account and as that was not in evidence, the telephone conversation was wholly inadmissible on the ground of relevance. Alternatively, it was submitted that if it was reasonably open for the jury to infer that in part, the telephone conversation referred to the second conversation, the learned trial judge erred in failing to exercise his discretion to exclude it on the ground of fairness.

94 There are two observations that must be made about the transcript of the telephone conversation as it appears in the appeal book and as it is set out earlier in these reasons for judgment. The first is that in some respects, the transcript is erroneous and the second is that the impression given by listening to the tape is quite different from that gained from reading the transcript.

95 At the beginning, Mrs Kelly told her husband that "They don't believe your story about that other". It seems to me that "that other" can only be a reference to the motel account. The tone of voice used by the appellant Kelly in response to that news is one of quiet acceptance. The conversation then turned to some domestic matters until the appellant Kelly asked, "Oh, so they won't wear that other?" and his wife replied, "No".

96 Mr Procter contended that as Mrs Kelly was the first to use the word "other", and that when she did so she was undoubtedly referring to the motel account, the appellant Kelly was also referring to the motel account when he, too, used the word "other".

97 On the face of it, that is an attractive argument, but the appellant's tone and cadence when he asked "Oh, so they won't wear that other?" is such that the jury could well think that he is referring to something different from the motel account of which his wife spoke at the beginning of the conversation. That possibility is reinforced by the conversation that followed.

98 Mrs Kelly said, "No" in response to the appellant's question, "Oh, so they won't wear that other?" and he then said in a resigned tone, "Oh well".

99 Mrs Kelly then volunteered "Reckon you and Mick had concocted it". The appellant then said "Eh?" (indicating that he did not hear her) and Mrs Kelly repeated "Reckon you and Mick had concocted it". The transcript is corrupt at this point. It should read as follows:

100 It seems to me reasonably open for the jury to have concluded that with respect to the foregoing part of the conversation, the appellant and his wife may have been at cross purposes. She might have been referring to the motel account when she offered the suggestion that the reason the police would not believe the appellant's account was because they thought he had made up the story to make his part appear to be less incriminating. On the other hand, the jury might well think that the appellant was referring to the second conversation when he said "How can you lighten it?" for there was nothing in the second conversation that reduced the appellant Kelly's culpability, but plenty in the motel account to do just that.

101 In my view, the learned trial judge was quite right in his conclusion that the reference by the appellant Kelly to "Oh, so they won't wear that other?" could be understood by the jury to be a reference to his request for an indemnity. It is true that the jury might possibly have thought that it was a reference to the motel account, but the existence of that second possibility does not make the evidence inadmissible.

102 The next question is whether the evidence should have been excluded in the exercise of the trial judge's discretion on the basis of fairness or prejudicial value exceeding probative value. During the course of his cross-examination of the appellant Kelly, Mr Coates asked him why he showed no anger in the telephone conversation if he believed that Detective Lopes was corrupt in the manner he claimed in his video interview and in his evidence. Mr Coates asked the appellant what he meant when he said in the telephone conversation, "Oh, so they won't wear that other?" The appellant responded, "You know what that was about that's not admissible". The jury were forthwith sent to their room and there followed a discussion between counsel and the learned trial judge. In the end, Mr Coates agreed to not pursue the matter other than to ask the appellant Kelly about his general demeanour during the course of the telephone conversation.

103 In his submissions on the appeal, Mr Procter submitted that the foregoing exchange showed precisely why it was unfair or prejudicial to the appellant Kelly to admit the telephone conversation. It was put to him that there was an incriminating admission and he was deprived of an opportunity to explain it away because the motel account was not in evidence. No other basis for excluding the evidence in the exercise of the discretion was put forward on the appeal.

104 The trouble is that at trial, then counsel for the appellant Kelly made it perfectly clear that he did not seek the exclusion of the evidence in the exercise of the trial judge's discretion. Consequently no argument about unfairness or prejudice was put to the learned trial judge although his Honour did say in the course of ruling on admissibility that he could see no prejudice in admitting the evidence. Not only did counsel not seek to invoke the exercise of the discretion, but he expressly eschewed it. He asked the learned trial judge to admit all of the telephone conversation, including those parts that referred to the motel account, if the ruling was that the evidence was admissible as a matter of law. Counsel said:

"It's my application that that be excluded, if that application is not successful then it is my submission that the entire passage goes in."

A little later (after pressing inadmissibility on the ground of relevance) on counsel said:

"... all I want to say is, I would urge either they get the lot of it in that they want or none of it and we don't start...[His Honour suggested the word 'tinkering']

105 In these circumstances it is not appropriate to entertain a submission made on appeal that the discretion should have been invoked to exclude the admissible evidence of the telephone conversation on grounds that were not raised, not argued and disavowed. It was not contended, nor could it have been contended, that the decision of counsel at trial not to invoke the exercise of the discretion was inappropriate. In R v Birks (1990) 19 NSWLR 677 Gleeson CJ said at 685:

"As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence."

106 Hunt CJ at CL in R v Ignjatic (1993) 68 A Crim R 333 said, at 336:

"Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions nor even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Court will intervene."

107 In Crampton v R (2000) 176 ALR 369 Gleeson CJ expanded upon his reasons for the view expressed in Birks that as a general rule, an appellate court will not entertain a point not taken at trial at 373:

"First, there is what was referred to by L'Heureux-Dubé J in the Supreme Court of Canada as 'the overarching societal interest in the finality of litigation in criminal matters' in R v Brown [1993] 2 SCR 918 at 923-4 when she said:

'Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases.'

Secondly, it is common for appellants in criminal appeals to retain counsel different from the counsel who (by hypothesis, unsuccessfully) conducted the trial. This increases the tendency to look for a new approach to the case, and carries the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges.

Thirdly, it is usually difficult, and frequently impossible, for a court of appeal to know why trial counsel did, or failed to do, something in the conduct of the case. Decisions as to the conduct of a trial are often based upon confidential information, and an appreciation of tactical considerations, that may never be available to an appellate court. The material upon which a judge, either at trial or on appeal, may form an opinion as to the wisdom of a course taken by counsel can be dangerously inadequate, and, when it is, the judge may have no way of knowing that. Ordinarily, a barrister knows more about the strengths and weaknesses of his or her client's position than will appear to a judge, whose knowledge of the case is largely confined to the evidence.

Fourthly, as a general rule, litigants are bound by the conduct of their counsel Rondel v Worlsey [1969]1 AC 191 at 241 per Lord Morris of Borth-y-Gest; R v Birks (1990) 19 NSWLR 677 at 683 - 4; Halsbury's Laws of England 4th ed, vol3(1), para518. This principle, which is an aspect of the adversarial system, forms part of the practical content of the idea of justice as applied to the outcome of a particular case. For that reason, courts have been cautious in expounding the circumstances in which an appellant will be permitted to blame trial counsel for what is said to be a miscarriage of justice R v Birks (1990) 19 NSWLR 677.

Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice."

108 See also R v Rossiter [1984] 1 Qd R 477 at 479; R v Gay [1976] VicRp 59; [1976] VR 577 at 584; R v Harm (1975) 13 SASR 84 at 88.

The evidence of an admission made after the video taped interview

109 As already stated in these reasons for judgment, the appellant Kelly alleged in the course of his video taped interview with Detective Lopes, that the latter had corruptly threatened to "stitch up" Kelly if he failed to implicate Marlow in the murder of the deceased. The appellant Kelly also claimed in that interview that Detective Lopes said to him that he would stop Kelly getting bail and that he did not care if Kelly's statements against Marlow were true or false.

110 At the conclusion of that video interview, Detective Lopes took the appellant Kelly to the charge room where he was "processed". I infer that to mean that he was formally charged with the crime of murder and that certain details and particulars were taken down by an officer in the charge room. At the conclusion of the processing, Detectives Lopes and Pretyman took the appellant Kelly to the hospital for the purpose of taking blood and other samples.

111 Detective Lopes said that on the way from the charge room to the carpark, the appellant Kelly said to him "Sorry about the interview - no hard feelings. I'm just playing the game". Detective Lopes said that the appellant Kelly went on, "Suppose I shouldn't have said that, you'll make notes of that too". This was not said in response to any questions. Neither Detective Lopes nor Detective Pretyman asked the appellant Kelly any questions at all between the time they left the video interview room and the time the appellant Kelly made the observations just recounted.

112 The submission at trial and on the appeal was that that evidence was inadmissible because it was an admission obtained in breach of the provisions of the Criminal Law (Detention and Interrogation) Act 1995, s8(2). That subsection relevantly provides that evidence of any confession or admission by an accused person is not admissible unless there is available to the Court, a videotape of an interview with the accused person, in the course of which the confession or admission is made. The subsection enacts exceptions to that rule which are not material for present purposes.

113 The submission made by the Crown, both at trial and on the appeal, was that there was no confession or admission within the meaning of those words as defined by s8(1) which provides:

'confession or admission' means a confession or an admission -

(a) that was made by an accused person who, at the time when the confession or admission was made, was or ought reasonably to have been suspected by a police officer of having committed an offence; and

(b) that was made in the course of official questioning;

'official questioning' means questioning by a police officer in connection with the investigation of the commission or the possible commission of an offence;

114 The Crown's submission was upheld by the learned trial judge and the submission on the appeal was that in so ruling, and in permitting the subsequent admission of the impugned admission, the learned trial judge fell into error. The learned trial judge's ruling was based upon the proposition that at the time the confession was made, it was not made in the course of "official questioning".

115 Mr Procter conceded that the impugned admission was not made in response to any question or questions asked by a police officer, and that it was made after the questioning recorded on video tape had concluded. Notwithstanding this, Mr Procter submitted that the impugned admission was made in the course of official questioning when regard was had to:

* the close temporal relationship between the formal video tape interview and the impugned admission;

* the fact that the impugned admission concerned or qualified in a substantial way, the statements made by the appellant Kelly in the formal interview and recorded on video tape; and

* the fact that the parties to the impugned admission were the same parties involved in the formal video taped interview.

116 The submission was that by reason of those matters "the course of official questioning" had not come to an end at the time the impugned admission was made.

117 It is, of course, beyond doubt that the relevant provisions of the Criminal Law (Detention and Interrogation) Act were enacted to overcome the problem of "police verbals" as referred to by the High Court in McKinney v R [1991] HCA 6; (1991) 171 CLR 468. Further, there is no doubt that the impugned admission is not recorded in any way, and this circumstance draws attention to the dangers of acting on that evidence for the reasons enunciated by Deane J in Carr v R [1988] HCA 47; (1988) 165 CLR 314 at 339:

Marlow and Kelly v R [2001] TASSC 146

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (305 paragraphs)

Marlow and Kelly v R [2001] TASSC 146 (19 December 2001)

Parties

Legislation Cited (1)

Cases Cited (20)