R v Callaghan [2001] VSCA 209

R v Callaghan [2001] VSCA 209 - VSCA 2001 case summary — Zoe

[7]

The case was unusual in the sense that Brinks Security staff and police had been alerted to the prospect that a robbery of a bank or a security van was likely to occur. For some three months prior to the robbery, the police were aware of the fact that one or two men in a Mitsubishi Magna sedan, registered number DIX 357, had been following and taking an interest in the movements of the Brinks vehicles as they were making deliveries to branches of the National Australia Bank in the northern suburbs of Melbourne. This car was owned by and registered in the name of Karime Perinotto who was a friend of the applicant, and known to her as "Chris". In the latter part of 1998 she had lost her licence and she "loaned" the car to him. According to her, the applicant had the use of the car "sometimes for a few weeks at a time". As early as July 1998, a security guard delivering cash to the Coburg branch of the National Australia bank had noticed this car parked in the vicinity of the bank on successive Fridays as he made his deliveries. He noticed two men whom he believed to be associated with the car taking an "unhealthy interest" in his activities. He reported his suspicions to the police. Thereafter, on 30 September 1998, employees of Brinks Securities noticed that their vehicle was being followed by the same Magna sedan as they made "drop-offs" at various branches of the bank at Barkly Square Brunswick, Preston, Pascoe Vale and Glenroy. On the same day a member of the public, who had work experience in covert surveillance, had his suspicions aroused by the same vehicle whilst it was "reverse-parked" directly opposite the Barkly Square branch of the bank at about 11.30 in the morning. There were two men in the car watching the Brinks Security van making its drop-off to the bank. He informed Brinks Security of his observations. Although none of the witnesses making these observations was able to identify the occupants of the car, they gave descriptions of one of the occupants as a man of about 5 feet 10 inches, solid build, wearing a white singlet and with shoulder length dark hair - a description broadly fitting the applicant. At about 1 p.m. on 30 September 1998 two police officers saw the applicant, wearing a white singlet and shorts standing at the corner of Fletcher Street and Mt. Alexander Road, Essendon, looking across the road towards the Essendon branch of the National Australia Bank. They then watched as he walked to and entered the Magna sedan.

[8]

Although the observations, to which I have referred, alerted police to the unhealthy interest which the applicant was taking in the "drop-offs" being made by Brinks Security to various branches of the National Australia Bank, they were not to know whether the target was the van itself or one of the several branches of the bank serviced by Brinks. Nor, of course, did they have any knowledge of when or where the strike would be made. Some five minutes after the robbery on 7 October 1998 the members of the armed robbery squad were informed of its occurrence. They had been following the van. Within minutes of receiving the information, police attended the home of Ms. Perinotto and also took up a position near the home of the applicant in May Street, Preston. At about 12.20 in the afternoon of 7 October, the stolen "getaway" car - a red Holden Commodore EAN 526 - was found abandoned at the corner of Barkly Street and Sterling Street, Brunswick. The vehicle had suffered damage to its steering lock, door locks and boot lock, and on the front seat police found a pair of sun glasses which did not belong to the car's owner. Subsequent investigation revealed that the car had been stolen from a shopping centre in Maribyrnong on the preceding day, 6 October 1998. At about 12.55 in the afternoon of 7 October, about an hour after the robbery, surveillance police saw the applicant driving the Magna sedan at the intersection of Victoria Street and Brunswick Street. He was wearing blue overalls, a purple "bomber jacket" and a yellow baseball cap. He was seen to alight from the car and enter a public telephone box on the corner of the intersection. About half an hour later, police saw the Magna in a car park in Newry Street, North Fitzroy. Police observed the applicant reach into the rear door of the car and retrieve a green coloured plastic carry bag which he handed to a fair haired woman, subsequently identified as Mary Darcy, who lived in a Housing Commission flat nearby at 2 Coleman Street. Having handed the bag to Darcy, the applicant re-entered the Magna and drove away. About 10 minutes later the applicant was intercepted whilst driving the vehicle in St. Georges Road. He was arrested and taken to the police office in St. Kilda Road.

[9]

At about 2.05 in the afternoon, members of the armed robbery squad attended the premises of Darcy at 2 Coleman Street. Darcy informed the police that the green bag, which she had shortly before received from the applicant, was in a cupboard under the stairs. She disclaimed knowing what was in it. The bag was a green plastic bag with a "Kingcraften" label on it. Inside the bag police found another orange plastic bag with a "casual guy" label. From the orange bag they retrieved an ivory handled Colt .357 revolver. In addition, they found in the green bag a black Luger pistol wrapped in a towel. This pistol contained a magazine in the butt carrying seven live rounds of ammunition. Also in the green bag were four balaclavas, two pairs of black gloves and a plastic re-sealable bag containing five bullets. From the bank surveillance video, Senior Detective Pringle - a firearms expert - expressed the opinion that the gun held by the offender at the door of the bank was of the same type as the ivory handle revolver found in the orange bag. He could express no view as to the type of weapon held by the robber in the tellers' section of the bank. On inspection of the Magna motor vehicle driven by the applicant, the police found on the front seat a white plastic bag containing a pair of royal blue "parachute type" tracksuit pants. Maria Polizzi, who was employed by the bank at the time of the robbery as its sales and service adviser, described the robber who went into the tellers' section as wearing a "parachute material tracksuit and runners" and that the tracksuit was "like a royal blue colour, not actually navy blue, or not actually light blue". Also, in the front seat of the Magna sedan police found a green and purple "bomber jacket" containing in a pocket $750 in cash stapled into four separate bundles of notes. The cash taken from the bank had not been "stapled" at the time of the robbery. The police sent the balaclavas and gloves to the Victoria Forensic Science Centre for D.N.A. analysis. Dr. Gutowski, who carried out the tests, found bodily fluid around the mouth area of one of the black balaclavas sufficient to provide a sample for D.N.A. analysis. The sample matched the D.N.A. profile of the applicant at eight different loci indicating a 34 million to one probability that the sample fluid was that of the applicant. A sample of lesser quality taken from one of the black gloves provided results at 2 loci indicating a match with the applicant's sample to a probability of sixty to one.

[13]

On 19 November 1998 - some six weeks after the robbery - the witnesses Skinner, Polizzi, Parke, Grogan and Rodden were asked to attend the police complex in St. Kilda Road. Each was asked by Detective Sergeant Peterson to listen to a tape which contained voices of 10 persons (of which the voice of the applicant was Number 3) and further asked whether they could recognize any of the voices as that of the robber who had been making the demands. They were also presented with an array of 12 guns, and asked whether they could recognize any as being similar to the guns carried by the robbers. Gun number 5 was the silver colt revolver taken from the bag seized by police from Mary Darcy, and gun number 6 was the black Luger pistol found in the same bag. Peterson said that these "identification procedures" were regularly carried out "these days" when victims were not in a position to visually identify offenders. They were conducted in accordance with rules designed "to be fair" and not "to suggest a particular suspect or item". The evidence was that Skinner had picked out gun number 6 as being similar to the one pointed at her. She said that "voice No.3" was similar to the robber making the demands and had asked that that voice be replayed to her. The voice, she claimed, caused her to shiver. She said "he had a deep voice like number 3". Polizzi said, in respect of voice, that she "thought" it was voice number 3 but "was not 100% sure" and, in respect of the gun, she thought it was number 6 which was carried by the robber behind the counter. She further said "possibly number 3, but more likely number 6". Polizzi, like Skinner, claimed to have suffered a "re-action" when "voice 3" was played. She also said that she had asked for the voice to be re-played to her "because that was the voice I heard that day". The witness Parke "thought" that it was voice number 9 and said it was not "number 3". Rodden thought it was gun number 8 which was held by the robber at the door of the bank but had "only got a fleeting glimpse"; in respect of "voice" he had said "No.5 or 9, similar". Grogan said that gun number 5 was "similar" - "revolving chamber and one was silver". As to the voices, she said none was the same and that she did not think that "number 3" was the one.

[14]

The police conducted a record of interview with the applicant at about 6 p.m. on the evening of the robbery. That record was tendered in evidence. Relevantly, he told police that he had had sole use of the Magna sedan, DIX 357, since 1 October 1998 and had borrowed it "from Karime" for various periods over the previous four months. He said that he had left his home at 10.30 in the morning of 7 October 1998 and had driven to Reservoir to visit a female friend whose name and address he refused to disclose. He said that he left Reservoir after 20 minutes but refused to state what he did thereafter "cos. it might get meself and me mate in a bit of bother". He said "I don't want to make a comment". Thereafter, so he said, he had gone home to May Street, Preston where he had arrived between noon and 12.30 to "have a bath and a shave". Because of the "gas crisis" he had to fill the bath tub with water boiled in a kettle. Before he had had his bath, he went out again to visit his friend in "nearby Fitzroy". He said "the friend" was Mary Darcy; that he had parked his car in Newry Street but "never went to Coleman Street". He denied having the green plastic bag in his car but admitted the ownership of the jacket and cash found in the Magna. In respect of the green plastic bag bearing the label "Kingcraft", he said "I don't recall that". He said that he had last been to the Barkly Square Shopping Centre when he bought a pie and a paper "about a month ago". He then said he could not recall lending the Magna to anyone else and that, if the Magna had been seen at Barkly Square on 30 September 1998, "that could be right, but I can't recall". He further said it was "possible" that he had been at Barkly Square between 11 a.m. and 12 noon "two Wednesdays ago but he "did not think it was true" that he had reversed the car into a parking bay and was watching the National Australia Bank. He agreed that, when arrested, he had "about $800" in his jacket pocket. He said that the money was his. Some of it was his "dole" money for payment of rent, and that the notes were "stapled" because he did not want to lose them. He agreed that he was a "left-handed" writer, but was not the man in the bank surveillance video with the gun in his left hand.

[15]

The answers given by the applicant in his record of interview became particularly significant in the light of the evidence which he gave in his own defence. He swore that, since July, he had been "sharing" his house in May Street with a man called Keith Williams, who had since died. On a number of occasions over the months before the robbery he had loaned the Magna to Williams. He said that he was not present at the bank on 3 July 1998 and that, in respect of 30 September 1998, he had spent the preceding night at a friend's home in Flemington and had arranged for Williams to drive out to pick him up at the Brickmaker's Arms Hotel in that suburb. He had met Williams at the hotel in the morning of the 30th and was told that the car was parked across the road. Williams told him he had to meet someone in the bar of the hotel; but asked the applicant to "hang around" and wait for a signal confirming whether he (Williams) wanted a lift. The applicant said he waited opposite the hotel and when Williams gave him "the nod", he had gone back to the car and driven back home at about mid-day. He said that on the day of the robbery - namely 7 October 1998 - he had got out of bed at about 10 a.m. and had started boiling water in a kettle to fill the bath. It was, he said, such a slow process that he "gave up" and went down to the local Safeway Supermarket in Preston where he made some purchases and got a receipt. He produced a receipt from that Supermarket which was dated 7 October and bore the time "10.51 a.m.". He had then gone to a café opposite the Preston Fire Station where he had read a newspaper and had a cup of tea for some 20 to 25 minutes. Thereafter he bought some bread rolls from a bakery and walked home. He did not have a watch, but said that he could not have got home before 11.30 to 12 noon. He had then recommenced to boil water for his bath. Some 20 minutes later Keith Williams came through the door, told him that he had "left something in the car across the road" and asked the applicant whether he could "take care of it". Williams had then collected some items in the house and left. The applicant said he continued with what he had been doing, had made a sandwich and a cup of tea. The bath had gone cold and he went to the car and saw the green bag which he had picked up. It felt heavy and he thought it might be "scales" of a type used for measuring drugs. He said that he had noticed a couple of sets of gloves in the bag and had also noticed a white garbage bag in the front seat. He thought there was material in it, which he proposed to throw out (this was the bag containing the blue "parachute type tracksuit pants"). He decided that he would give the green bag to someone he knew in Fitzroy to "look after for a couple of days" and had driven to a telephone box in Nicholson Street to ring "2 or 3 people". The second person he called was Mary Darcy. He then went to the vicinity of her house, parked the Magna in Newry Street and walked to her place in Coleman Street. He told her that he had a bag which he wanted her to "look after for a couple of days" and she had walked with him back to the car where he gave her the bag. He was arrested shortly after leaving and taken back to the Police Complex in St. Kilda Road where he was held, mostly in hand-cuffs, for eight or nine hours. The police said to him "how do you want to play it - the hard way or the soft way?" to which he had replied: "I'll just roll with the punches". Before being taken to the Custody Centre, the police told him they were going out to get "something to eat" and would leave him in the interview room hand-cuffed. During this time a number of police officers, other than those who had interviewed him, came in and said:

[49]

(These views were accepted and followed by Crockett, J. in R. v. Liddicoat[8]).

Whether a voire dire should be held is ultimately a matter for the discretion of the trial judge, to be exercised after counsel has informed him why it is necessary. It will rarely be necessary where, as here, the witnesses have already been cross-examined at the committal proceeding, no doubt with a view to exposing the weaknesses in their evidence for the purpose of laying the foundation for the submission at trial that their evidence should be excluded. To have those witnesses further called for cross-examination before the trial judge renders redundant the purpose of the committal proceeding. Although we have not been favoured with the content of the committal depositions of the witnesses called on this voire dire, it is tolerably clear from the transcript that trial counsel's submissions to exclude the "identification evidence" of Ms. Skinner, Ms. Polizzi and Ms. Grogan proceeded on the basis of the statements which they had made, amplified by what they had said at the committal proceedings. Likewise, it seems to me that the application to exclude the evidence of the seizure of the green bag and its contents - an application which was, I think, doomed to fail - could have been determined on the assumed basis that counsel's instructions were correct, namely that the police officers had entered the premises of Ms. Darcy without her permission and had "man-handled" her in the process. If such a course had been followed, civilian witnesses would have been spared the time and trauma of cross-examination and the expense of nearly five days sitting time saved. Of course, counsel for the accused is entitled to submit, in the absence of the jury, that evidence which he contends is inadmissible, whether on the grounds of unfairness, public policy or otherwise, should be excluded in the exercise of the trial judge's discretion. But, as I have been at pains to point out, the need for calling evidence on the voire dire is something which should have been fully explored with the trial judge whose function it ultimately is to determine whether such a process is necessary. As Beach, J. said in Rowley's case (supra at pp.4-5 of his Honour's judgment:

[66]

This review of the authorities on the question of the admissibility of voice identification evidence leads me to conclude that courts in this State should continue to follow the principles which have been established by previous decisions of the Court of Criminal Appeal; namely that there is no rule of law which obliges the trial judge to exclude such evidence in the absence of evidence of prior familiarity or distinctiveness, although he may, in the exercise of his discretion, exclude it on grounds of prejudice or unfairness. As I have already stated, I am not persuaded that the judge in this case was in error in allowing the evidence to go before the jury upon the basis which he did. The factors which were ventilated both before him and this Court were all matters which went to the weight of the evidence, rather than its admissibility, and were matters which ultimately fell to be considered by the jury in the context of appropriate instructions by the judge. In my view, there is nothing in the point - strenuously argued before this Court - that unfairness arose because the witnesses Skinner and Polizzi felt a "shiver" or otherwise had some "re-action" to "Voice No.3". It frequently occurs that witnesses will say that they "froze" when confronted with a suspect whom they identify in a parade. Such reactions, so far as I am aware, have never led to the exclusion of evidence otherwise admissible. Furthermore, it seems to me that in this case, where the evidence has been admitted in the exercise of the judge's discretion as a "strand in a cable" in a case which was wholly circumstantial, the real question which arises for this Court is whether, having regard to the whole of the evidence, including the evidence of identification and its treatment at the trial, it would be unsafe to allow the conviction to stand. This, as it seems to me, must necessarily be so because this case did not (as in Smith (supra) and Brownlowe (supra)) stand or fall on the evidence of identification alone. It was merely part of what was otherwise a strong circumstantial case and it was inextricably bound up with the other evidence which the jury had to consider[21].

[97]

It is against the background of those statements of what is required of a trial judge that the directions of the very experienced trial judge in this trial - and the criticisms now made of it - must be measured. When that is done, it can be seen that those criticisms have no substance. It can be assumed that experienced trial counsel (as this one was) are well aware of the obligations of trial judges to give appropriate cautions to juries in "identification" cases, and are sensitive to the need that those cautions meet the circumstances of the particular case. As I have said, the judge's directions in this case were challenged by trial counsel in two respects; and in one of those respects the judge's further directions appear to have satisfied counsel. Although it has been contended by counsel for the applicant in this Court that the further directions did not meet the criticism which trial counsel had made, nor fulfil "to the letter" what the trial judge said he would do, it is significant that those directions must have appeared to counsel, absorbed in the atmosphere of the trial, to have been sufficient; because no further exception was taken. The thrust of trial counsel's exception was that the judge had not told the jury that witnesses other than Skinner and Polizzi had "positively excluded" the applicant's voice, but that his Honour had only told the jury that the other witnesses "could not identify" that voice. This was the exception which, on my reading of the transcript, his Honour said he would rectify when he came to summarize the evidence. It is also clear from reading the transcript of his further directions that he did accurately record for the jury what these other witnesses had said and, although counsel queried whether he had, it would seem to me that he was content to leave the matter where it rested. Furthermore, I cannot accept Mr. Croucher's submission, advanced pursuant to ground 2(e), that his Honour told the jury that the fact that Skinner and Polizzi had selected gun No.6 as the weapon similar to that carried by the robber who went behind the tellers' counter bolstered the reliability of their "voice identification" evidence. What he did say seems to me to be no more than a comment to the jury pointing up the contrast which existed between their evidence and other customers who could not be as specific, or else disagreed. I agree with the submission made by counsel for the respondent that his Honour did not give the direction which is now suggested, but that it was a direction which, if given, would not have been inappropriate.

[111]

This ground relates to the material in the recorded telephone tapes which was inadvertently played to the jury, and to which I have referred in paragraph [15] of these reasons. As I have said the judge declined to discharge the jury, upon the application of trial counsel. He did so on the basis that, in the form presented, the material was both "fleeting" and difficult to comprehend, and that any potential prejudice could be avoided by a direction given by him (without repeating the "offending passage") that if any juror became aware that some material which they had previously heard was "no longer on the tape", they were to have no regard to that material in the course of their deliberations and that "it would be improper to let yourself be influenced in any way by" it. Such directions were given, the jury being further told that neither party relied on the passage. In my view this was an appropriate way for his Honour to have dealt with the matter, at a time when the Crown case had almost concluded. The circumstances, in my view, were such as to have entitled his Honour to come to the conclusion that there was no "high degree of necessity" to discharge the jury[27]. Mr. Croucher contended that the material was "devastating" in the sense that it had the capacity to reveal to the jury prior criminal or discreditable conduct on the part of the applicant. That seems to me to be putting the matter a bit "high", having regard to the nature of the defence which the applicant put forward, involving as it did, the proposition that his flat-mate was leaving with him "drug related" items for him to "take care of". In the long run, however, I am simply not persuaded that the judge, in the circumstances, was in error in exercising the discretion in the manner he did. In the event that the jury followed his instructions - and there is no reason to suspect that they did not - it seems to me that no substantial risk of prejudice flowed to the applicant.42 For these reasons the application for leave to appeal against conviction should be dismissed.

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Judgment (138 paragraphs)

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