R v Tarantino

Supreme Court of NSW|2019-07-25|Before: Beech-Jones J

Judgment

On 25 July 2019, objection was taken by Senior Counsel for the accused, Ms Rigg SC, to the Crown Prosecutor adducing evidence of an assault and a threat allegedly committed by the accused a week after the disappearance of the deceased. At the conclusion of argument I indicated my ruling but stated that reasons would be provided later. This judgment constitutes those reasons.

Background

As noted in R v Tarantino [2019] NSWSC 939, on 27 July 1998, the deceased, Ms Quanne Diec disappeared sometime after leaving her home at Seventh Street at Granville and before arriving at her school. The Crown case is that the accused kidnapped Ms Diec that morning while driving a white van with the registration PAQ 205, took her to his father's home nearby and murdered her. The Crown alleges that that van was owned by the company Benelec Pty Ltd, which was a business associated with the Benchoam family. On the Crown case, the accused arranged to obtain that van via Daniel Soraurer who was a friend of Roger Benchoam, the son of the principal of the firm that owned the van. The accused does not dispute that he had access to that van on the morning of 27 July 1998.

Contentious Evidence

The relevant part of Mr Maurer's statement that is contentious concerns the events at a birthday party for Mr Roger Benchoam that he attended on or around 24 August 1998. The Crown Prosecutor wishes to adduce the following part of his statement in evidence: "[Mr Tarantino] must have known Roger [Benchoam] because when I went to the apartment for the second time for this little party [Mr Tarantino] was there. I know he was there because he king hit me … I don't think this was a formal party as such but it might have been for Daniel's birthday. Daniel and I share the same birthday August 24th. Not many people at this party, there was [Mr Tarantino], Daniel, Roger, me, Natasha and I think there was another girl there. I came around the corner inside the apartment and [Mr Tarantino] punched me from the side. If my girlfriend hadn't come and got in between [Mr Tarantino] and me I think he might have bashed me some more."
The Crown Prosecutor has sought to supplement the context in which this occurred by revealing the contents of what Mr Maurer disclosed to him at a recent conference. Mr Maurer stated that he had a conversation with Mr Soraurer, who indicated that he was having difficulty in recovering the van from Mr Tarantino. In relation to the occasion when he was hit by Mr Tarantino, Mr Maurer told the Crown Prosecutor: "When he [Mr Tarantino] turned up to the party it was fine but a couple of hours later I [Mr Maurer] walked past the kitchen and he [Mr Tarantino] king hit me. He [Mr Tarantino] was standing over me [Mr Maurer] and said 'You say anything, I'll fucking kill you'. Natasha [Consigli] ran in and separated [us]. We asked him to leave but he waited downstairs. He [Mr Tarantino] said 'You mention anything about this and I'll kill you'." (emphasis added)
The Crown also sought to adduce evidence that the accused struck Mr Benchoam at the party. There is no material to suggest it was accompanied by a similar statement to that just set out.

Submissions

The Crown Prosecutor explained that he sought to adduce the evidence of the assault and the accused's statement as demonstrating a "consciousness of guilt" on the part of the accused. In particular, he contended that the evidence is capable of demonstrating that the assault and the threat were undertaken to intimidate Mr Maurer not to advise anyone about the fact that the accused had had possession of the white van during the period in which Ms Diec had disappeared.
In R v Cook [2004] NSWCCA 52 ("Cook"), Simpson J noted that the "principles developed in relation to evidence of lies are readily adaptable to the circumstances where the Crown tenders evidence of flight said to be indicative of a consciousness of guilt" (at [25]). The same position applies in relation to evidence of threats. Adapting the preconditions stated by the cases as to when a lie can amount to corroboration of a person's guilt, a threat can do so where it is established that the threat is deliberate, that it relates to a material issue (which in this case is knowledge of the accused's possession of the relevant van) and where the motive for the threat is the realisation by the accused of his guilt of the crime for which he is charged and the fear of the truth (see Cook at [22]; Edwards v The Queen (1993) 178 CLR 193 at 211; R v Heyde (1990) 20 NSWLR 234 at 237, 242‑243 ("Heyde")).

Admissibility

The issue that arises at this point is whether the assault and threat are capable of establishing a consciousness of guilt on the part of the accused (Heyde at 242F (Clarke JA)). Ms Rigg submitted that there is either no evidence or insufficient evidence to enable it to be concluded that if such an assault occurred and such a threat was made that it was related to the accused's possession of the van during the relevant period. Ms Rigg pointed to an absence of evidence that the accused knew that Mr Maurer was aware that the accused had used the van obtained by Mr Soraurer from Mr Benchoam. However, in circumstances where the evidence is capable of establishing a reasonably close relationship between Mr Maurer and Mr Soraurer, that Mr Soraurer had contacted Mr Maurer advising of his difficulties in recovering the van from the accused and that all of them had attended a birthday party for Mr Soraurer at Mr Benchoam's apartment, then it follows that the evidence is capable of demonstrating that the assault and the threat related to the accused's possession of the van. There is nothing in the material to suggest that there was anything else that the accused wanted Mr Maurer not to disclose. In those circumstances and where, on the Crown case, the assault and the threat occurred within a matter of weeks after Ms Diec's disappearance, I accept that the evidence is capable of establishing a consciousness of guilt. The only suggested topic that the threat could appear to relate to was the accused's use of the van and there is nothing other than the accused's possible use of the van in some illegal act, alleged by the Crown to be the disappearance of Ms Diec, that it could be said to relate to.

Section 137

Ms Rigg also submitted that the evidence of the assault and the threat should be excluded pursuant to s 137 of the Evidence Act 1995. Section 137 obliges the Court to refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. Ms Rigg submitted that the evidence had relatively low probative value in circumstances where the balance of the evidence in both Mr Maurer's statement and otherwise read on the voir dire indicated that at times the accused would engage in random acts of violence. Thus, in part of Mr Maurer's statement, which is not intended to be read at trial, Mr Maurer referred to an occasion where the accused had ingested a type of horse tranquiliser and was sitting on the floor swinging around a samurai sword. Elsewhere, Mr Maurer referred to the accused having a "violent side", consuming steroids and heroin, being paranoid and throwing knives at doors. Ms Rigg submitted that, in light of this evidence, the probative effect of evidence that, on a particular occasion, the accused assaulted Mr Maurer is likely to be weak, insofar as the Crown seeks to tie the assault to a consciousness of guilt based upon the accused's use of the van during the relevant period.
The difficulty with Ms Rigg's contention is that Mr Maurer also states that the accused said to him at the time of the assault "You say anything I'll fucking kill you". This is not suggestive of the accused undertaking some random act of violence, but instead suggests he engaged in a deliberate act designed to achieve a particular outcome.
Ms Rigg submitted that the prejudice that would arise in the admission of the evidence was substantial. In particular, she contended that the admission of this evidence placed the accused in the position of having to adduce evidence of his own random violent acts as explicable of the alleged assault he is said to have committed against Mr Maurer.
Ms Rigg placed particular emphasis on the judgment of Simpson J in Cook where her Honour stated (at [37]): "The balancing exercise required by s 137 cannot, however, be undertaken without an appreciation of any explanation an accused might seek to advance in order to nullify the adverse inferences that would, absent explanation, arise."
In Cook, Simpson J addressed evidence of flight by the appellant (the accused) from the police in the immediate days after the commission of the alleged offence. According to the accused, his absconding was capable of being explained by reference to his concern about being apprehended for other offences and that to address it he would have to "necessarily disclose to the jury a prior history of violence towards a female, disregard of the law and contravention of a restraining order serious enough to warrant his incarceration" (at [37]). Her Honour found that the appellant in the case was faced with a dilemma of not responding to the evidence of flight or attempting to explain it, which necessarily involved revealing prior criminality of a related kind (id). Her Honour accepted the prejudicial effect of giving that explanation was "what s 137 required to be balanced against the probative value the Crown evidence would otherwise have had" (id). Her Honour concluded that the prejudicial effect of the evidence that he would have to adduce in order to meet the evidence of flight, was "unfair" and that this effect outweighed the probative value of the Crown evidence (at [48]).
In this case, Ms Rigg submitted that the same position pertains, namely, that to meet the evidence said to demonstrate a consciousness of guilt, the accused would be placed in a dilemma of either saying nothing, or adducing evidence of his own instability and random acts of violence. It was submitted that this would be particularly prejudicial in the context of the Crown case, which at least in part suggests that he may have murdered Ms Diec as a panic response to the possibility that he might be found to have kidnapped her.
It follows from the above that I consider that the evidence of the statements alleged to have been made by the accused to Mr Maurer noted at [6], is capable of having significant probative value. However, at the hearing of the application I expressed concern about the prejudice to the accused in responding to the evidence that he assaulted Mr Maurer and possibly Mr Benchoam. In that regard, Ms Rigg advanced an alternative submission, namely, that the Court should refuse to admit the evidence of the assault upon Mr Maurer (and Mr Benchoam), but instead allow the evidence of the threat. I accept that contention. Although there is some degree of artificiality in separating the threat from the assault, the truly prejudicial effect of the evidence the Crown seeks to adduce is, as I have said, the difficulty that he is confronted with in having to respond to evidence that he assaulted Mr Maurer by adducing evidence of other random acts of violence he committed. Once that aspect of the evidence is rejected, the identified prejudice falls away. However, the remaining evidence of the statement by the accused to Mr Maurer, which has significant probative value, can still be adduced.

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: 28 November 2019

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