The accused is charged with attempted murder of his father on 6-7 April 2014, inflicting grievous bodily harm with intent on his father's flat mate (Mr Manning) on the same day and with murdering his father on 13 June 2014. The brief facts are set out in other interlocutory judgments and rulings on evidence. [1] This judgment relates to evidence the Crown seeks to lead in proof of the April offences.
The accused objects to the Crown leading evidence of part of a telephone call between the accused and his wife ("Candace") recorded by police on 1 April 2015. [2] In that call Candace made reference to "that woman" and the accused said:
"But remember I had long hair and now it's short. She wouldn't know which, what I looked like. The police have all our bank records and all our phone records, they can't link us to her, so don't worry about that.
…
That that if anything goes in our favour. Um, but yeah look, the police really don't have anything of substantial, you know. All the things that they said to me, they showed me photos of the scene and everything and nothing of it is, you know, so it'll be interesting to see the brief. But don't worry about her or anything, 'cause I don't know if they've heard, but the word coming out of um, Grafton is ha, ha the son's going down for murder, so obviously she's opened her mouth. So, but um, yeah."
The Crown only presses the first paragraph set out above. The second paragraph was tendered on the voir dire to establish the identity of the person referred to as "her" and "that woman" in the conversation.
The accused acknowledges the reference to "that woman" and the accused's comments that follow relate to a co-accused Jessica Honey Fallon who was in custody charged with the attempted murder of the accused's father. Ms Fallon is to stand trial in the District Court next year. The accused has issued a subpoena requiring her to give evidence in his case in the present trial. She has indicated through her lawyers that she objects to giving evidence and will claim privilege against self-incrimination. The accused was also charged with the attempted murder, as well as with the murder of his father on 13 June 2014. There is no suggestion, at least on the Crown case as I understand it, that Ms Fallon was involved in the murder.
The accused submits that the evidence has a capacity to mislead or confuse the jury and that the probative value of the evidence is slight and is outweighed by its potential for unfair prejudice. Further, the accused submits that the Crown is attempting to change its case to one of joint criminal enterprise (between the accused and Ms Fallon) whereas its case has, to this point, been that the accused is liable as a principal present at the scene and directly responsible for the injuries to his father (and a second victim Mr Manning).
I am unable to accept either of these submissions. The evidence is admissible.
The accused tendered telephone intercepts between himself and his half-brother, Mitchell. [3] These occurred on 24 February 2015, shortly after Ms Fallon's arrest. The purpose of this tender was to show that the accused and other members of his family had an obvious, and innocent, interest in the arrest of one of the people that the police believed was responsible for the crimes committed against their father. This innocent interest reduced the probative value of the 'phone call on 1 April 2015. Accordingly, so the submission went, the things the accused said to his wife could not properly be put to the jury as an admission of guilt or as evidence suggesting that he had a consciousness of guilt.
While it was not articulated, it might also be said that the accused knew (or must have known) that the call was being recorded. The first words recorded in the telephone intercept was a warning or notification that the call would be recorded:
"You are about to receive a phone call from an inmate at Cessnock Correctional Centre. Your conversation will be recorded and may be monitored. If you do not wish to receive this call, please hang up now. Go ahead please."
In those circumstances, it might be thought to be unlikely that the accused would be foolish enough to say anything that might constitute an admission or demonstrate a consciousness of guilt. Rather, the more natural inference might be that the accused was merely discussing the evidence the police were gathering in an attempt to prove a false allegation against him.
The accused asserts an alibi in respect of the attempted murder of his father. He says that he was at home at Esk in Queensland at the time. He relies on a transaction at a service station in a town near Esk and has cross-examined various witnesses to the effect that he may have been visiting a work site in the early hours of the morning. He also cross-examined into evidence a great deal of material to establish that Ms Fallon was a participant in the attack along with others. He has established, or attempted to establish, that there were other people in the community (including bikies and drug dealers) who had a motive to bring harm to his father. The material he elicited in cross-examination includes extensive admissions by Ms Fallon in which she nominates herself and two others as being responsible for the attempted murder.
I accept that there are innocent inferences available to the jury and that the jury might find that the conversation with his wife was an entirely innocent one. However, what inferences should be drawn from the direct evidence of what the accused said to his wife is a matter for the tribunal of fact to determine. It is a not a matter that would ordinarily lead to the exclusion of the evidence.
In light of the manner in which the case is being run - that is, the accused is running a positive case that Ms Fallon and some of her associates committed the April attack - the evidence of the accused's conversation with his wife, particularly his reference to his change of appearance and the absence of any provable link between him and Ms Fallon, is capable of affecting the jury's assessment of a fact in issue. I can see no unfair prejudice in the admission of the evidence. Nor is the evidence is misleading or confusing. The jury will be directed that it can only draw a guilty inference if it is the only reasonable inference to draw in the circumstances.
There is no real substance to the submission that the prosecution is changing its case. Mr Wendler took me to a number of passages in the Crown's opening in order to substantiate this submission. It is clear that the Crown case was, and remains, that the accused was present at the scene and participated in the attack on his father and Mr Manning. The Crown in its opening, and in answer to a question from me in the course of the trial, has eschewed any reliance on joint criminal enterprise in respect of the attempt murder. [4] Unless it disproves the accused's alibi beyond reasonable doubt, the prosecution case must fail. Further, it must prove that the accused was present and participated in the attack. However, the Crown has never asserted that the accused acted alone and specifically referred to Ms Fallon as a person he may have enlisted to assist him. In his opening, the Crown Prosecutor said this: [5]
"…it may well be that in the end you come to the conclusion that there were other people involved. In that context you may hear reference to a young woman called Jessica Fallon. But in this trial, the Crown is setting out to prove beyond a reasonable doubt that this accused was involved in the attack. It may be in the end that you think that the accused enlisted others to help him, but, as I say, in this trial the Crown sets out to prove beyond a reasonable doubt that this accused was involved."
Contrary to the accused's submission, there is no unfairness in the prosecution attempting to lead this evidence arising from the way it has run its case to this point. Mr Wendler submitted:
"…it's never been, certainly not openly suggested that he had recruited and formed a plan with Jessica Fallon in relation to the activity on 7 April.
…
What my friend's seeking to do now is suggest that Fallon was one of those people actively involved, when that, I don't think, is the centrepiece of his case". [6]
Contrary to this submission, what the Crown is doing - and what it did in opening the case - is to leave open the possibility that Ms Fallon was involved and that the accused recruited her to be involved, without seeking to prove its case by means of a joint criminal enterprise between the two or by reference to accessorial liability. The Crown asserts, and the Crown must prove, that the accused was present and participated in the violent events of 7 April 2014. Whether somebody else was present, and whether that somebody else was Ms Fallon, is not something the Crown seeks to, or needs to, establish.
For those reasons, the evidence in the impugned passage of the telephone intercept of 1 April 2015 is admissible.
[2]
Endnotes
See, for example, R v Martin & Martin [2017] NSWSC 1106; R v Martin (No 4) [2017] NSWSC
1291; R v Martin (No 6) [2017] NSWSC 1344.
Ex VD-O.
Ex VD-Q and VD-R.
Transcript (T) 747-748.
T 61.
T 1035.
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Decision last updated: 27 October 2017