R v Franklin [1998] VSC 217

Supreme Court of Victoria|1998-07-23|Before: VINCENT, J.

Objection has been taken to the introduction into the trial of evidence of the fact and substance of a conversation which the Crown asserts was conducted between the accused man and an undercover police member at the Melbourne Custody Centre on 16 January 1997. Mr Brustman, counsel who appears on behalf of the accused, has, in support of his contention that the evidence should be excluded, relied on a number of propositions, some of which have been considered by the courts in such cases as the Queen v. Swaffield, Pavic v. The Queen [1998] HCA 1; (1998) 72 ALJR 339; The Queen v. Lowe (1997) 2 VR 465, and, quite recently, The Queen v. Lewis (unreported) Teague, J., 5 May 1998.

It was further contended that the nature of and language employed in the conversation, which could be appropriately described as of a gaolhouse variety, was capable of creating very serious prejudice against the accused, such that any probative value which the evidence of the conversation might possess would be substantially outweighed in the circumstances by prejudicial impact.

I have had the opportunity of perusing, first, what might be described as an unexpurgated version of a transcript, which I should indicate I had considerable difficulty in following; and, subsequently, the transcript of a number of extracts which omit considerable braggadocio and irrelevant material generally punctuated by Anglo Saxon expressions employed as nouns, verbs, adverbs and, on occasions, commas.

It appears to be quite clear that no question as to the voluntariness of the statements made by the accused arises and I do not understand Mr Brustman's argument to be based on that foundation. Essentially, he has contended that the evidence, which he accepts possesses some probative value, albeit of a limited extent, should be excluded in the exercise of discretion.

First, as I have earlier mentioned, he has relied upon the principles considered by the courts in the cases to which I have referred, arguing that there has been, in effect, either a deliberate or reckless disregard of the rights of a person in custody and that, on the basis of well settled principles, the court should exclude the evidence.

Mindful of the kinds of questions which can arise in such circumstances, in the course of discussion I inquired as to the reason that the course of intruding an undercover police member into a cell with the accused was adopted. I have been informed, and I understand that it is accepted by the defence, that at that time the whereabouts of the deceased was unknown and, whilst grave suspicions may have existed that he was dead and the accused man was responsible, endeavours were still being made to address the possibility that he was alive and possibly in need of assistance.

For my part, I consider that the course which was adopted was entirely appropriate in the circumstances. Indeed, it would perhaps have been remarkable if some serious endeavours were not being made to find the missing lad.

In that important feature, the case differs dramatically from that which sometimes comes before the court where, for forensic or other purposes, investigating police choose to adopt techniques which deny effectively to individuals their rights under the law. In other words, there is nothing to suggest in this material any deliberate or reckless disregard of those rights.

There is, in the conversation, itself, nothing in the nature of trickery save that which is involved in the concealment of the identity of the person engaged in it with the accused which may be perceived as inherently unfair or likely, in the context in which the conversation occurred, to create the possibility that the accused may, in order to impress a person with whom he was speaking, make claims or exaggerated statements which may not properly reflect the situation.

In making this comment I have in mind the cautionary note sounded by Kirby, J. in his judgment in The Queen and Swaffield. He there drew attention to the nature of prison communications and the possibility that, for a wide variety of reasons, individuals in that context may wish to make themselves appear "larger" than in reality they are.

I invited Mr Brustman to draw to my attention any other features of the conversation which he considered could be advanced as militating in favour of the exclusion of the evidence as unfair. Ultimately, as I understand it, he relied with very large measure upon the language in which the conversation was conducted and the presence of a sense of callous disregard for the young person who had been seriously injured and the fate of the missing young person.

Whilst I accept that there is some force in his argument on this basis, I am satisfied that the evidence of the conversation in the reduced form which has now been provided to me is sufficiently important in the trial that it cannot be said that its probative value is outweighed by its prejudicial impact. Naturally it will be incumbent upon me to ensure that the jury is properly instructed with respect to the potential prejudice, and I will endeavour to ensure that the matter is properly dealt with at that level. I am relatively confident that an adequate instruction can be given which will address the various issues.

In the circumstances, I do not consider that it would be proper to exercise judicial discretion to exclude the evidence of this conversation on any of the bases to which I have directed attention, namely that it would be unfair for the accused's words to be used against him in the circumstances; that the probative value of the evidence is outweighed by its potential prejudicial impact, or that, as a matter of public policy, the evidence should be excluded as representing a deliberate or reckless departure from appropriate standards by those conducting the investigation.

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