R v Spiteri-Ahern; R v Barber; R v Zraika

2014/00235123: Office of the Director Public Prosecutions (Crown) Macquarie Lawyers Burwood (Accused) File Number(s): 2014/00180060; 2014/00180279; 2014/00235123

Judgment

1. HIS HONOUR: The Court is currently hearing a Judge alone trial in which three persons are accused of offences and being tried together. Ms Louise Spiteri-Ahern is accused of murder on the basis of a joint criminal enterprise with the person who inflicted the fatal injuries; Ms April Barber, is accused of being an accessory before the fact; and Mr Amin Zraika is charged with the significantly lesser offence of concealing a serious indictable offence.
2. Mr Zraika was, at relevant times, the partner of Ms Barber. The evidence, which is the subject of dispute in these proceedings and with which these reasons deal, is evidence admissible against Mr Zraika and on which the Crown relies against Ms Barber. Counsel on behalf of Ms Barber objects to its use in the trial or case against her.
3. The evidence to which objection is taken is evidence obtained from listening devices and telephone intercepts of conversations between Mr Zraika and Ms Barber. The Crown submits that the evidence amounts to admissions (either implied or express) by Ms Barber. The basis of the objection to the use of the material against Ms Barber are the provisions of s 84 of the Evidence Act 1995 ("the Act").

Evidence Act

1. The commencement point for any analysis of an issue such as this, when dealing with the Act, are the provisions of ss 55 and 56 of the Act. Section 56 of the Act renders admissible in proceedings all material that is relevant, unless rendered ineligible by other provisions of the Act. Section 55 of the Act defines material that is relevant in a proceeding as material "that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding."
2. A fact in issue in the proceedings is not confined the ultimate issues and includes subsidiary facts. As the provisions of s 55(2) of the Act make clear, the fact, if it be the fact, that material relates only to credibility of a witness, the admissibility of other evidence or the failure to adduce evidence does not render the material irrelevant. The proposition that "a fact in issue" is not confined to the ultimate question may also be drawn from the use of the term "directly or indirectly" in the provisions of s 55(1) of the Act.
3. One of the exceptions to the admissibility of all relevant material is the exception provided by the terms of s 59 of the Act which renders hearsay evidence inadmissible. In that regard, the Act provides that evidence of the previous representation is not admissible to prove the existence of the fact that was represented (or can reasonably be supposed to have been represented) by the representation.
4. By the terms of s 81 of the Act, the hearsay rule (and the opinion rule) do not apply to evidence of an admission. In some respects, in the circumstances in these proceedings, the provision rendering the hearsay rule non-applicable to evidence of an admission may be superfluous.
5. Ordinarily, evidence of an admission is evidence that the statement was made and an admission may not be, even under the ordinary rules, hearsay evidence. Nevertheless, as a matter of abundant caution, and also because usually such evidence is adduced through another, that which can reasonably be supposed to be an assertion of fact is, notwithstanding the provisions of s 59 of the Act, admissible if it is an assertion of fact made by a person who is a party to a proceeding (plainly, including an accused) and adverse to that person's interest in the proceeding.
6. The Crown seeks to tender the material on the basis that it is capable of being used against Ms Barber as an admission by her of her involvement as an accessory in "setting up" the deceased and as an admission as to her movements and contacts on the day of the murder, which both indirectly renders the involvement as an accessory more probable and also renders her statements as to her movements and contact provided to the police as a lie and capable of being used as consciousness of guilt.
7. These reasons for judgement do not deal with whether the inconsistency, if any, between the version of movements given to the police and the version of movements expressly or implicitly provided in the listening device and telephone intercept material is capable of being used as a consciousness of guilt, in accordance with the rules associated with such use. It is sufficient, for present purposes, to remark that there is an inconsistency between the version given to the police and the version seemingly provided in the statements that have been recorded and are sought to be admitted into evidence.

The interpretation of Section 84 of the Evidence Act

1. The Crown submits that the provisions of s 84 of the Act are limited in application to the circumstances in which an admission is made as a result of conduct by a person which conduct is intended to obtain an admission. It is necessary to recite the provisions of the Act, which, relevantly, are in the following terms: "84 EXCLUSION OF ADMISSIONS INFLUENCED BY VIOLENCE AND CERTAIN OTHER CONDUCT (1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced."
2. Ms Barber, or counsel on her behalf, has raised the question and thereby satisfied the provisions of s 84(2) of the Act. One of the questions for the Court is whether the Crown submission as to the proper interpretation of s 84 of the Act should be accepted.
3. The interpretation of an instrument, in particular a statute, is determined by certain principles. In construing a statute, the Court should seek to achieve harmonious goals and avoid inconsistency. It is necessary to consider the context of the words, the consequences of a literal or grammatical construction, the purpose of the instrument and any special or technical meaning that applies: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. It is not always the grammatical and ordinary meaning of the words that is to be given effect, but the purpose and context of the words concentrates on the words themselves and not extraneous material. Similarly the achievement of harmonious goals refers to the harmonious goals achieved by the statute and the avoidance of inconsistency in the provisions of the statute.
4. The Crown relies upon the final and interim reports of the Australian Law Reform Commission to bolster its submission that the provisions of s 84 referred to interrogation and questioning. Further, the Crown relies upon the judgment of Refshauge J in R v JF [2009] ACTSC 104 at [33]. The passage upon which the Crown relies is in the following terms: "What is proscribed are unacceptable forms of conduct in the context of questioning and not questions of reliability or voluntariness, though these are likely to be put at risk by such conduct, which is part of the reason for rejecting such evidence."
5. In JF, Refshauge J was dealing with an admission made to relatives (after which there was an admission to an investigating officer) each of whom directly or indirectly engaged in violence or threatened it and each of whom was seeking to elicit a confession or a version of the events relating to an alleged sexual assault. In other words, before Refshauge J, there was no issue as to whether the intention of the perpetrator of the violence was one that sought to influence, at least, the making of the admission (or its content).
6. In those circumstances, while the comments of Refshauge J should be given proper weight, it cannot be said that his Honour was even considering the issue now raised by the Crown. The terms and wording of reasons for judgment ought not be parsed or construed in the same way as legislation. While proper consideration must be given to considered comments, a turn of phrase, dealing passingly with an issue not raised before a court, ought not be taken as a considered view as to the issue.
7. Next, the Crown relies upon the comments of the Australian Law Reform Commission ("ALRC"). The ALRC, in its report that led to the promulgation of the Act, made the following comments upon which the Crown relies: "764 Factors that affect the voluntariness of a confession are also likely to affect its truthfulness. If the tactics of interrogation which might induce the guilty to confess truthfully are the same as those which might induce the innocent to confess falsely, then the use of interrogation techniques will always be associated with some level of risk that false confessions will be obtained. ……… It is not proposed, however, to recommend retention of the voluntariness test It is unsatisfactory because. (A dot point list followed). 765 Techniques which are perceived as particularly likely to substantially impair the mental freedom of a suspect may be prohibited, and any evidence produced as a result of them excluded. If interrogators engage in acts of violence, threats of violence, torture or inhuman, degrading or oppressive conduct, then an admission made subsequent to such conduct may be untrue, regardless of the characteristics of the suspect being interrogated. 766. It is proposed, first, that there be an exclusionary rule excluding evidence of admissions where an interrogation has employed methods of extreme coercion like physical violence. (Emphasis added) … 959 Public Interests Supporting Exclusion. Nevertheless, despite these public interests which support admission of relevant evidence in criminal cases, there is a public interest in minimising the extent to which law enforcement agencies act outside the scope of their lawful authority. There is no doubt that abuses do occur. Royal Commissions and other judicial inquiries document individual improprieties. Reported appellate decisions refer to illegal or improper actions by law enforcement agencies in obtaining evidence; these decisions comprise a minute sample of criminal cases. The question is whether the courts, in adjudicating on the admissibility of evidence, should take into account the public interests that may be affected by misconduct of law enforcement agencies. Particular relevant concerns may be: • Discipline Police for Illegality or Impropriety. The courts are part of the criminal justice system and it may be argued that they should act to punish or discipline law enforcement officers who break the law or act in some improper way. If evidence is obtained illegally or improperly, one mechanism of 'discipline' available is the exclusion of the evidence. . . . • Deter Future Illegality. An extension of the previous argument is that improperly obtained evidence should be excluded from trial in order to deter police misconduct generally. The rationale is that potential exclusion of any evidence produced by such means will eliminate the incentive to such conduct. Supporters of this argument point to two distinct types of deterrence additional to any disciplinary effect of the exclusion on the particular officer who acted improperly referred to in the previous paragraph: - general deterrence - the effect of that exclusion on other officers; and - systemic deterrence - the effect on individual officers of an agency's institutional compliance with judicially articulated standards. They emphasise the dissuasive or long-term preventative effect on improper practices by law enforcement agencies. . . . • Protection of Individual Rights. The legal system should act to protect and vindicate a citizen's rights. In addition, the judicial system should vindicate the rights of other citizens by emphasising that infringement of a citizen's rights will not be ignored. It is arguable that a suspect whose rights have been infringed should not thereby be placed at any disadvantage he should be placed in the same position he would have been in if the misconduct had not occurred. To achieve this objective evidence obtained improperly should be excluded. . . . 965 Interrogatory tactics may, for the purposes of defining misconduct, be divided into two overlapping classes - coercion and deception. Both tactics are permitted to some extent under existing law, despite the fact that both are generally regarded, in other contexts, as unethical. This reflects the social reality that normative constraints vary from situation to situation. The level of constraint will depend on the balance of public interest (the public interest in obtaining statements from suspects balanced against the public interest in protecting the privacy and dignity of the suspect) and the availability of practical alternatives. On the one side, the public interest in obtaining statements from suspects (in order to solve a crime) supports some compromise with ideal procedures. Permitting coercion and deception to some extent also reflects the fact that they can be of a trifling nature. On the other hand, sacrificing the rights of individuals to the interests of law enforcement agencies is a step along the path to the police state. Limits are justified by the philosophy that a free society depends on a substantial degree of immunity from state interference. In formulating controls it is necessary to consider the type of coercion and deception that should be controlled. • Coercion - Issues. It is clear that, under existing law, law enforcement officers are not permitted to adopt extreme forms of physical coercion, like acts of violence, threats of violence, torture or inhuman or degrading conduct. This is not simply because of the dangers that the confession may be untrue, but also for reasons of public interest. Even if a confession obtained by such methods were proved to be true, it would still be excluded - the public interest in accurate fact determination and convicting the guilty would clearly be outweighed by the infringement of human rights and the need to deter such official misconduct. • Coercion - Proposal. There should be some causal connection between the impropriety and the evidence to justify its exclusion - a connection between the misconduct and the decision of the suspect to make the admission. Causal connection, in the confession context, is necessarily intertwined with the question of the mental freedom of the suspect. It can hardly be misconduct, however, for the interrogating officer to ignore a characteristic of the suspect of which he was unaware, or of which a reasonable person would have been unaware. The test should therefore take into account the characteristics of the accused of which the interrogating officer was aware or a reasonable observer would have been aware." [Emphasis in original.]
8. While the foregoing comments are consistent with the proposition of the Crown that conduct of an investigating officer and others in seeking an admission is to be impugned or is or should be the target of legislation, the comments are not inconsistent with the proposition that conduct that influences the making or content of an admission, when obtained otherwise than in the course of conduct intended to obtain such admission, is or should be impermissible. Indeed, the ALRC report makes clear that conduct that influences the making or content of an admission is likely to affect its truthfulness.
9. A comparison between the terms of s 84 and s 85 of the Act is informative. First, s 85 of the Act requires a relationship between the person making an admission and the person seeking the admission: see s 85(1) of the Act and focuses on the truth of the admission being adversely affected: s 85(2) of the Act.
10. The provisions of s 84 of the Act expressly focus upon the state of mind of the person making the admission. The verb used is in the passive voice and relates to the effect on the admission, not the purpose of the conduct to which paragraph (a) and (b) refer.
11. Further, s 84 of the Act does not refer or require a particular person or class of persons to influence the admission or its making. The improper influence to which paragraphs (a) and (b) refer is not limited to people in authority.
12. Nor is the reach of s 84 of the Act limited to people who are questioning for the purpose of obtaining an admission: R v Douglas [2000] NSWCCA 275, per Mason P, Sully and Sperling JJ agreeing.
13. The illustration (or a variation of it) utilised during the course of discussion with counsel best illustrates the issue. Assume, for present purposes, that a person ('X') makes an admission in the following circumstances: X is a shopkeeper and persons 'A' and 'B' are engaged in stand-over tactics. A and B demand that X pay 10% of turnover or earnings each week. To that demand X responds: "This has been tried before. I am President of the Shopkeepers Outlaw Motorcycle Gang and I've killed D, E, and F who tried similar tactics. Go away!"
14. Plainly, the "admission" was influenced by the threat of violence of A and B. Secondly, its content was probably influenced by the conduct of A and B and the conduct fits the description of improper conduct in s 84 of the Act.
15. The fact, if it be the fact, that neither A nor B was interrogating X does not render the making or content of the admission any less influenced by the improper conduct. Nevertheless, the improper conduct (and the admission made in reaction to it) does significantly affect the truthfulness or probability of truthfulness of the admission.
16. More importantly, the conduct of A and B, in the foregoing example, significantly affects X's right to silence. Section 84 of the Act is one of the provisions that relates to the right of a person to silence and not to have improper conduct utilised to obtain an admission or to affect (or influence) its content.
17. The submission of the Crown is rejected. The provisions of s 84 of the Act are not limited to admissions made (or the content of admissions obtained) by the improper conduct of a person seeking to obtain an admission.
18. As a consequence of the foregoing construction of s 84 of the Act, it is necessary for the Court to deal with the factual circumstances, namely, whether the admissions said to have been made "were influenced by" improper conduct or the contents of them influenced by improper conduct. It is for the Crown to prove that the admissions were not made or the content of them influenced by the improper conduct.
19. Previously, in these reasons for judgment, the Court has referred to "improper conduct". Improper conduct is a generic term utilised by the Court previously to refer to the conduct described in s 84(1)(a) and s 84(1)(b) of the Act, recited above. Some attention has been paid during the course of the submissions as to what amounts to "oppressive" conduct. No attention has been paid to "inhuman or degrading conduct".
20. The conduct in question, on its face, was violent. Domestic violence was perpetrated by Mr Zraika on Ms Barber and that violence is evident in the recordings already tendered before the Court. That which the Crown suggests is an admission (either expressly or impliedly) emanates from one conversation in which violence was being perpetrated (or had just been perpetrated or was about to be perpetrated) and other conversations in which no such violence was being perpetrated.
21. As just stated, the term "oppressive" in s 84 was given some attention. In the context of the use of the term "oppressive, unreasonable or unjust", the term "oppressive" was defined by Deane J in Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129 in which his Honour (then a member of the Full Court of the Federal Court of Australia) said: "Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful (see, for example, Scottish Co-operative Wholesale Society v. Meyer; Re Jermyn Street Turkish Baths Ltd.; Allen v. Townsend). To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play (see, for example, Re Kempthorne Prosser & Co.'s New Zealand Drug Co. Ltd.)." (Citations omitted.)
22. In circumstances where there is a continuing relationship of violence or the threat of violence, the fact that on one particular occasion no violence was perpetrated does not mean that the admission, if made on that occasion, was not "influenced by" violence or its threat.
23. Last, in a circumstance where domestic violence is being perpetrated, the continuing threat of violence towards the victim in such a relationship may constitute a threat of violence and fall within the terms of s 84 of the Act.
24. It is appropriate to set out some of the passages to which the Crown refers and on which they rely for the alleged admissions. Necessarily, these excerpts are out of context, but include the following: V1 = Zraika V2 = Barber V1 I'll be sittin upstairs V2 Yeah. Right. Is that what you're gonna do? V1 Yep, beats sitting next to you V2 Yeah alright. You'll be sitting in a cell soon V1 Yeah cause you're nothing but a dog V2 Yeah a dog V1 I fuckin hate you ya dog V2 Yeah you're doin' ten years mate don't worry. Ten years. V1 It's alright. Cause guess what? Steve rang me today .... V2 That's alright (inaudible) you fuckin dog V1 .... and told me they subpoenaed him to court so that he can tell the judge that it was his V2 Yeah V1 But that's alright cause I told him what you're doing with your mouth V2 (Inaudible) V1 So when I get locked up he'll be coming out and he'll be looking after me don't you worry …. V2 I'm sure he will V1 …. You'll be fuckin getting locked up too. V2 Yeah that's right. What you gonna get me knocked too?

V2 You know what, Amin? Today you should have said to me, "God, you look beautiful walking out the door, not "Are you wearing that?" V1 Oi. Your lover died mate. V2 Oh yeah, that's right. V1 Your lover died, mate. I'm not your lover. V2 Which one is it, my lover, or the person I killed? Like (inaudible) say it was my fault anyway. V1 (Inaudible) telling you, stop talking …. V2 Like, you fuckwit. (Sounds like) I hope the police have tapped my phone, cause, yeah, I set it up. You fucking idiot.

"Go for it man. Fucking look at the shit you say to me, I hope you get raped in there. Fuck off. You fuckin' piece of shit. Yeah. I don't wanna take any of your shit bro. Fuckin' want none of it. Go. What are you going to do Amin? Go for it man. Go for it. Fuck off. Yeah, I try to open up to ya and you don't care. Whatever man. I don't care. Do you think I need you? Oh, get over it. Fuckin' hurt yourself did ya? Suck shit. Good Amin. I really don't care." V1 = Barber V3 = Zraika V3 Four weeks you'll be in gaol mate V1 Good Amin. I really don't care. V3 Your [sic] going down for fuckin murder and your (inaudible) you dumb cunt V1 Yeah. Of course I am because you run your mouth V3 Good … V1 You fucking dumb cunt. You've never stopped talking since day one and that's why they came after me because of you and your fucking mouth V3 Shouldn't have been there, you dumb cunt V1 No, I shouldn't have known not to trust you, you piece of shit. You're a dog V3 You knocked him. You knocked him. V1 How? V3 You got him knocked. V1 Thanks mate.

. . . V1 Go for it, go for it. V3 …… Man, the truth is going to come out. The truth is out there mate. V1 Yeah, of course it is. V3 When she grows up, she will know the truth too V1 So will Jasmine V3 She will know the day you picked her up, ten minutes later he got knocked V1 Try an hour later V3 She'll know you set him up. She'll never forgive ya V1 Hey Nat come on. Amin wants to tell you now.

1. There can be no doubt that violence was perpetrated. The ultimate question must be whether that violence (or the threat of it) influenced the making or content of the admission.
2. The Court should clarify that these reasons for judgment do not conclude that the conversations between Mr Zraika and Ms Barber are admissions by Ms Barber (or Mr Zraika). All that is necessary for a statement to be admitted into evidence is that it is reasonably open to find that the statements are an admission: s 88 of the Act.
3. It is for determination in the final proceedings as to whether the statements made are an admission. Nevertheless, the statements, in full, are such that it is reasonably open to find that the admission was made. It is still for the ultimate tribunal of fact as to whether the admission (or any admission) was made and if so its content: see R v Lodhi (2006) 199 FLR 342 at 347, [23]; [2006] NSWSC 648; Australian Competition and Consumer Commission v Pratt (No 3) [2009] FCA 407 at [69].
4. "Influence" is a broad term, which requires that the impugned is a cause for making (or the content of) the admission. The conduct needs to be a factor that is not wholly ephemeral, but need not be the major factor and other factors may also be causative.
5. The Court will not recite all of the conversations that are in evidence as a result of the telephone intercepts and listening device material. As a result of listening to that evidence (including the particular evidence associated with the statements made during the violent exchange between Ms Barber and Mr Zraika), the Court accepts that the admissions, if any, were not made as a result of influence of improper conduct and the content of the statements were not made as a result of improper conduct.
6. Ultimately, that is a question of fact in which the Crown bears the onus. It is the view of the Court that the Crown has satisfied that onus as a result of listening to the conversations that have been adduced in evidence.
7. As a consequence of the foregoing finding of fact, the evidence is admissible against Ms Barber. I reiterate that the ultimate question as to whether it amounts to an admission, and if so the extent of any such admission, is a question for the ultimate tribunal of fact. The circumstance that this is a judge alone trial does not allow the Court to elide that process.

Amendments 13 April 2023 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 April 2023