R (Cth) v Petroulias

R (Cth) v Petroulias - [2007] NSWSC 84 - NSWSC 2007 case summary — Zoe

[27]

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 7 The present objection contends that evidence obtained from Mr Morgan was obtained improperly, or in consequence of an impropriety, for the purposes of s.138(1)(a) or (b) of the Act. The Accused does not contend that evidence was illegally obtained for the purpose of that section. 8 It is clear that the Accused bears the onus of establishing impropriety on an objection under s.138: Robinson v Woolworths Limited (2005) 64 NSWLR 612 at 621 [33], 632 [106]. 9 The Evidence Act 1995 does not define the concept of "impropriety". The principles collected in Ridgeway v The Queen (1995) 184 CLR 19 remain pertinent and those principles ought to be applied when considering whether conduct constitutes "impropriety" in a particular case: Robinson v Woolworths Limited at 618-619 [22]-[24], 622-623 [36]-[37], 631-632 [102]. In Robinson v Woolworths Limited, Basten JA (Barr J agreeing) said at 618-619 [23]: "It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as 'the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement'. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be 'quite inconsistent with' or 'clearly inconsistent with' those standards. Thirdly, the concepts of 'harassment' and 'manipulation' suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced." 10 Basten JA (Barr J agreeing) made the following observations at 622-623 [36]-[37] concerning the minimum standards test: "In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety.

[68]

The present application does not focus, however, upon that vulnerability insofar as its existence might diminish Mr Morgan's credibility in the eyes of a jury at trial. It focuses, rather, on a proposition that the relevant police officers saw Mr Morgan, from the time they first began to look seriously at his position in the relevant scheme of things, as somebody who was on the outer rim, so to speak, of the criminal enterprise that they were investigating, and who, because of that fact, coupled with his perceived personal fragility, might be willing, if handled properly, to become a Crown witness. That proposition is then developed into a further proposition, namely, that the relevant police officers in effect deliberately manipulated and exploited the perceived vulnerability of Mr Morgan so as to set him up as an available, and very useful, Crown witness." 41 In the course of his judgment, Sully J adverted to observations of Stephen and Aickin JJ in Bunning v Cross (1979) 141 CLR 54 at 75: "There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry. It is not fair play that is called in question in such cases but rather society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired." 42 Although the decision in R v Ho provides no assistance to the Accused on the present application, I note the understandable recognition of Ireland J, at 42, of the importance "from the community's point of view of encouraging persons involved in criminal activity to afford assistance to authorities and to give evidence". 43 Sully J expressed the following conclusions on the application (pages 10-13): "1. The police were perfectly entitled to approach Mr Morgan and to endeavour to interview him.

[76]

Mr Morgan gave evidence on the voir dire, and there was every opportunity to test him as to any intimidation that is said to have been applied by the police. I am wholly unpersuaded by anything I heard from Mr Morgan that he has any such complaint. Such evidence as he gave on the point seems to me to tend to the contrary. In sum, then, I am wholly unpersuaded that the applicant has established any proper basis for my preventing the Crown from presenting Mr Morgan, warts and all, before the jury at trial as a willing Crown witness; and from seeking to persuade the jury that, notwithstanding the close and vigorous cross-examination to which it can forecast that he will be subjected, the jury ought to accept his evidence as credible, in whole or in some relevant part or parts." 44 Cross-examination of Mr Morgan and Federal Agents Wills and Dametto before me did not, in my view, provide the Accused with any assistance in support of this application. If anything, the evidence of Mr Morgan emphasised his ability to take independent and measured legal advice from his solicitor in the period between 24 March and 6 April 2000 which provided him with the opportunity to exercise his own free will, without pressure, concerning his decision whether to co-operate with the AFP investigators by providing an induced record of interview on 6 April 2000 (PT791-792, 2007). 45 I have incorporated substantial parts of the judgment of Sully J in this judgment. Given the manner in which the application was argued before me, this course seemed apt. Nevertheless, I have brought my own independent judgment to bear upon the evidence and arguments advanced in favour of and against the Accused's objection under s.138 to the entirety of the evidence of Mr Morgan. Like Sully J, and for similar reasons, I am entirely unpersuaded that a foundation has been established for a finding of impropriety for the purposes of s.138 Evidence Act 1995. 46 The approach adopted by AFP investigators to Mr Morgan does not give rise to a finding of impropriety. AFP investigators believed, on reasonable grounds, that Mr Morgan had been involved criminally in activities involving the Accused. To the extent that the acts and words of AFP investigators led Mr Morgan to believe that his position was serious and that he may be in jeopardy, that was an accurate understanding of Mr Morgan's position. No misrepresentation was made to Mr Morgan. 47 It is common, acceptable and expected practice that police investigators will, from time to time, speak to a suspect with a view to that suspect becoming a Crown witness. The process of taking an induced statement to be considered by relevant prosecuting authorities is not uncommon. It is for the Commonwealth Director of Public Prosecutions, and not police officers, to exercise the statutory power to determine whether an undertaking will be given under s.9 Director of Public Prosecutions Act 1983 (Cth). What occurred in this case, on the evidence, provides no foundation for a finding of impropriety on the part of AFP investigators. 48 I accept the submissions of the Crown that it was good practice to tape record the conversation which took place between AFP investigators and Mr Morgan on 6 April 2000. The tape recording has been retained and is available to the Crown and counsel for the Accused. This is desirable practice, but does not always occur. 49 The asking of a number of leading questions by investigators on 6 April 2000 has given rise to some controversy in this case. I do not detect any impropriety in the leading questions asked and observe that detailed responses were given by Mr Morgan. Generally speaking, it is preferable to avoid the use of leading questions in an interview with a potential witness, as opposed to a suspect. That said, the use of some leading questions in this case does not provide a foundation for a finding of impropriety under s.138 of the Act. 50 Insofar as complaint is made about continued conversation during breaks between the four tapes on 6 April 2000, it is appropriate to observe that AFP investigators, upon resumption of each tape, took steps to ensure that any matters raised during the break were placed on tape by Mr Morgan. Again, I detect no impropriety in the approach adopted by AFP investigators. 51 Other matters relied upon by the Accused, including the subsequent disposal by Mr Morgan of notes used by him during the 6 April 2000 interview (PT794, 2007), do not give rise to a finding of propriety. With respect to Mr Morgan's notes, I observe that he appears to have utilised them directly and expressly in the early part of the interview (Exhibit VR4, Tab 1, page 1). It appears that Mr Morgan repeated the contents of his notes, at least in that part of the interview.

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