178 CLR 193
R v Burton [2013] NSWCCA 335237 A Crim R 238
R v Lane [2011] NSWCCA 157Mr DT Scully (Crown)
Mr MJ Ierace SCMr RJ Wilson (Accused)
Judgment (2 paragraphs)
[1]
JUDGMENT
JOHNSON J: Objection is taken on behalf of the Accused, Amirah Droudis, to the tender by the Crown of evidence of conversations involving the Accused and Man Monis, which took place in October 2013. The tendered conversations were recorded pursuant to surveillance device warrants.
In the course of argument yesterday, two categories of evidence were addressed. Firstly, there are conversations between the Accused and Monis, recorded by surveillance device on 31 October 2013, where discussion relates to possible circumstances in which the Accused's hair and blood may have been deposited at the Werrington apartment block where the murder occurred. These discussions took place against the background of the service on the Accused, earlier on 31 October 2013, of a Summons to attend Court on 21 November 2013 for the purpose of a police application to obtain forensic samples from her under the Crimes (Forensic Procedures) Act 2000 (MFIs 39, 40 and 41).
The second category that was discussed yesterday involved conversations between the Accused and Monis recorded by surveillance device on 29 July 2013 and 31 October 2013, and a telephone intercept conversation on 29 July 2013 between the Accused and Anastasia (Sue) Droudis in which discussion takes place as to alibis for Monis and the Accused at the time of the murder of the deceased at Werrington on 21 April 2013 (MFIs 42, 43, 44, 45 and 46). The Accused has given notice of intention to rely on alibi by notice served on the Crown on 20 June 2016.
R v Droudis [2016] NSWSC 1319 | Case summary | Zoe
I pause at this stage to note that it has been made clear this morning that it is the joint position of the parties that the second category of material (the alibi material) may be received as evidence in the trial with the question of the use to be made of it, and any directions which ought be given with respect to it, to be considered when all the evidence is in at the trial, including all evidence which bears on alibi.
In those circumstances, it is not necessary for the Court to give a ruling on that category. I observe, however, that the conclusion that I have reached was that the material should be received, but with the use of it to be considered at a later time. Accordingly, the view of the Court coincides with the view of the parties on that issue.
The live issue then, on the present objection, concerns the first category of material (the hair and blood material).
The starting point involves the test of relevance in s.55 Evidence Act 1995 for the purpose of admission of evidence. That section provides that evidence is relevant when, if it were accepted, it could rationally affect, directly or indirectly, the assessment of the probability of a fact in issue in the proceedings.
The appropriate enquiry, for the purpose of determining relevance under s.55, focuses upon the capability of the evidence to affect the determination or conclusions of the tribunal of fact: R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at 270 [145]-[146]. It does not direct attention to what a tribunal of fact is likely to conclude. For the purposes of assessing this capability, it is assumed that the evidence would be accepted by the tribunal of fact and it is taken at its highest: R v Sood [2007] NSWCCA 214 at [38].
Section 55 speaks of a rational effect that is brought about directly or indirectly. This is very broad language and suggests a wide rather than a narrow focus to the enquiry, whether a proffered piece of evidence has the rational potential which s.55 requires: R v Le [2000] NSWCCA 49 at [19]; R v Pham [2005] NSWCCA 9 at [95].
With respect to the hair and blood category, the Crown contends that it is capable of incriminating the Accused of the crime of murder. In the course of argument, submissions have been made as to whether the tendered evidence is capable of satisfying the requirements of so-called consciousness of guilt evidence in the form of lies in accordance with the principles in Edwards v R [1993] HCA 63; 178 CLR 193.
As Simpson J observed in R v Lane [2011] NSWCCA 157; 221 A Crim R 309 at 325 [60], the decision in Edwards v R was primarily concerned with the directions to be given to the jury once the evidence has been admitted and permitted to be used for the purpose of showing consciousness of guilt.
Simpson J continued at 325 [61]:
"The task of the trial Judge, in determining whether the evidence may be used in this way, is to determine whether it would be capable of meeting those tests [identified in Edwards v R with respect to lies] - that is, whether it would be open to the jury to find affirmatively that it did."
This trial is a Judge-alone trial. There is no jury. I am asked to determine at this point whether the evidence is capable of being used as evidence of consciousness of guilt so that, if admitted, the Court acting as the tribunal of fact can then utilise it at the fact-finding stage.
Post-offence conduct may be capable of constituting evidence of consciousness of guilt in different ways. This goes beyond lies, including, for example, flight, destruction of evidence or creation of a false account. Further examples of post-offence conduct were mentioned by the High Court of Australia in The Queen v Baden-Clay [2016] HCA 35 at [72] and following.
To view the present objection through the more narrow filter of the lies principle in Edwards v R may not be entirely apt, but I am prepared to do so for the purpose of this ruling.
With respect to the hair and blood discussions between the Accused and Monis, competing submissions have been made. The Crown submits that the Accused and Monis are discussing the possibility of the Accused's blood or hair being at the crime scene in a manner that is damaging to the Accused, indicating a desire to think of an explanation in case forensic evidence is located at the crime scene which pointed to the Accused.
Senior counsel for the Accused submits that the conversations were understandable following the service, earlier that day, of the Summons and that what was said may be explained in other ways as being innocent, thereby not pointing to consciousness of guilt.
The submissions on behalf of the Accused have included the provision of photographs taken of the Accused the next day, 22 April 2013 (MFI47), which do not appear to disclose any injuries to the hands or those parts of the arms which are visible.
It is clear that a discussion between Monis and the Accused about the presence of hair and blood, and whether it may have been left at the crime scene, has a direct link to the crime for which the Accused is on trial. The present question is whether the statements of the Accused contained in these recorded conversations are capable of meeting the requirements for this evidence to be considered by the tribunal of fact as part of its fact-finding process, as evidence of consciousness of guilt.
There are competing arguments from the parties as to the use of the evidence. An example of this, for present purposes, is the Crown argument that in MFI41 (pages 5 and 6), Monis is raising with the Accused the question whether she had bled during a particular incident. The Crown notes that although the Accused said initially, "I didn't bleed, I bruised" after Monis said, "A little bit it did", the Accused said, "Oh, yeah, yeah, yeah, yeah, yeah, caused a graze". And Monis says, "Even your blood might have been there".
Competing arguments have been put on behalf of the Crown and the Accused as to whether Monis and the Accused were aware at this time (the evening of 31 October 2013) that their conversations were being recorded, and whether that factor played a part in what was being said.
It was submitted for the Accused that, as the photographs (MFI47) seem to indicate, there were no visible injuries (insofar as the photographs reveal), so that the Accused did not seem to have suffered any injury that might have bled when observed by police the day after the killing.
It seems to me that the very existence of the competing arguments which have been put demonstrates the capacity of this material to be relied upon as evidence of consciousness of guilt - not whether it should be, but whether it could be. In my view, the arguments which have been put relate to the use of the evidence once admitted, and not its capacity as a threshold question. They address what use a tribunal of fact may make of the evidence.
I am satisfied that the evidence is relevant to issues in the trial and that the relatively low threshold of capacity to be used as evidence of consciousness of guilt has been met.
It will be a separate question, to be considered with all of the evidence, as to whether the evidence should (rather than could) be used in this way. This is a matter for the tribunal of fact to consider by reference to all the evidence, in the manner referred to by the High Court of Australia in The Queen v Baden-Clay at [73]-[77].
Accordingly, I propose to admit into evidence MFIs 39, 40 and 41.
For reasons I have explained, it is not necessary to make any ruling on the alibi material.
[2]
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Decision last updated: 20 April 2018