JUDGMENT
(Application to exclude evidence of Christian Painter)
1 HIS HONOUR: On 7 April last a jury was empanelled following the arraignment of Mazin Mehajer and John Jacobs charged with murder. On the third day of the trial the Crown called Christian Painter, and Mr Pike of counsel, appearing for Mehajer, thereupon made application that the evidence of the witness ought be excluded. Mr Hoenig, who appears for the co-accused, did not join in that application.
2 It became apparent in the course of submissions thereafter made in the absence of the jury that the application would necessitate a lengthy voir dire involving a considerable number of witnesses and the jury was then discharged.
3 The hearing of the evidence relevant to the application made on behalf of Mehajer commenced on 14 April 2003.
4 The application for the exclusion of the evidence of this witness is based upon the provisions of s 138 of the Evidence Act 1995:
"(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."
5 The submission made is that the evidence obtained from Mr Painter was obtained improperly. Before considering that submission more closely, it is necessary to trace how the witness became involved in the investigations into the crime the subject of the indictment to which I have referred and also the circumstances in which he gave various accounts.
6 The prosecution case is that the crime of murder was committed on an industrial estate at Leumeah in a café there located. The deceased was assaulted in the course of a robbery at that café and died from injury sustained. The deceased was one of two victims present in the café at the time of the robbery and the other witness, although allegedly assaulted, survived, and, indeed, gave evidence at the trial before the jury was discharged. That witness was Shane Phillips.
7 There were two mobile phones stolen from the crime scene and one of these phones came into the hands of Mr Painter's girlfriend with whom Mr Painter was living at the time of execution of a search warrant. The seizure of that mobile phone by the police prompted the attendance of Mr Painter at the Blacktown Police Station on 14 June 2000 when Mr Painter gave the first account to the authorities. At that time he told the police he knew nothing about the murder and that he purchased the mobile phone from a stranger in a hotel. He said he then gave that phone to his girlfriend, Tennille Mitchell.
8 In evidence given on the voir dire the witness acknowledged that that account in that first statement was false.
9 Mr Painter was later summonsed to attend the Crime Commission in the course of its investigations concerning the alleged murder. He first gave evidence at the Crime Commission on 22 June 2000 when in sworn evidence he maintained the false version that had been given to the police earlier that month.
10 In his evidence on the voir dire Mr Painter acknowledged that he asked his brother Jason and a friend, Neil Kohler, to support his false account of the acquisition of the mobile phone by saying that they were at the hotel when he bought the phone, but, as Mr Painter also acknowledged in evidence, he became aware that these men did not support his story when they were summonsed to give evidence before the Commission.
11 Indeed, on 16 October 2000, Mr Painter was again summonsed to give evidence before the Commission and in the course of questioning was informed that Mr Kohler had told the Commission he was not with Mr Painter on any occasion when he purchased a mobile phone at a hotel. Nevertheless, in extensive questioning on 16 October 2000, Mr Painter did not retreat from his explanation as to how he obtained the mobile phone that was seized in the execution of the warrant.
12 On 16 October 2000 Mr Painter said he did not know the accused John Jacobs and he was asked these questions (pp 27-28 of transcript of evidence of 16 October 2000):
"Q You've already said that you don't know Mr John Jacobs. Well, I can tell you that Mr Jacobs is known to Mezz. It may not be of significance to you, but Police investigations have ascertained that Mr Jacobs rang Mezz at 11.35 on the day Mr Cole was assaulted. The 3rd of March. 11.35 he rang him. Now at 24 minutes past 1, Mezz rang you.