Regina v Leeanne Trevenna

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT - Admissibility of evidence of Tim MacIntosh 1 HIS HONOUR: The Crown seeks to lead evidence from a Mr Tim MacIntosh who is a trial advocate with the Office of the Director of Public Prosecutions. In that capacity he had responsibility for the conduct of the committal proceedings against the accused. 2 Since Mr Ramage QC took objection to the Crown leading evidence from Mr MacIntosh, I heard argument upon the matter before the jury was empanelled. 3 I have been provided with a copy of a statement prepared by Mr MacIntosh which is dated 19 August 2002. Paragraphs six and seven of that statement are in the following terms: On the morning of 21 June 2001 Ms White advised magistrate Barkell LCM and myself in chambers that she had fresh instructions that morning from the defendant. At that time she asked whether the DPP would accept a guilty plea to manslaughter in lieu of the murder charge her client was facing on the basis that she (Trevenna) had been involved in some sort of either a home invasion or robbery type offence which had gone wrong and during which someone other than her client had fired a shot which killed the deceased Terry O'Brien. As I believe I was obligated to take this "offer" up with the Director I sought a brief adjournment while I returned to the Directors Chambers. I spoke with Roy Ellis Deputy Director of Public Prosecutions. I returned to court and advised Ms White and Magistrate Barkell that the offer as conveyed to me without any further details would not be accepted. Thereafter Ms White indicated she could no longer appear in the matter and leave was granted to her by the magistrate to withdraw from the matter. The matter did not proceed any further at that time. 4 Subsequent to Ms White's withdrawal from the matter, another solicitor, Mr Neil-Smith appeared on behalf of the accused. Paragraphs nine and eleven of Mr MacIntosh's statement are in the following terms: On 26 November 2001 Mr Neil-Smith put certain matters to magistrate Barkell to the effect that his client had been in the company of the deceased, and left after having had an argument with him. At a later time she had returned to the deceased's home after having been to the home of Kevin Stokes and Nicole Ollerenshaw and saw that he (O'Brien) had been shot. I called a prosecution witness Vanessa Kendall on 6 March 2002. Ms Kendall was cross examined by Mr Neil-Smith on this day. It was suggested to her by Mr Neil-Smith that Trevenna had not in fact admitted to shooting the deceased but rather that she described seeing Terry O'Brien at a time when he had already been shot. At lines 50-55 of page 48 (transcript 6 March 2002) for example it was suggested to Kendall that "you had a conversation with Leanne in the car outside the Flower Hut she said words to the effect that "Terry's been shot. I need money. Can you give me $1000?" The question was rejected over objection although later asked again in essentially the same terms (lines 32 and following page 49 transcript 6 March 2002). There was further cross examination of Kendall about the defendant Trevenna having returned to the crime scene a second time to "clean the mobile phone of her prints." (Transcript page 50 lines 2-4 6 March 2002.) 5 I also heard evidence from Mr MacIntosh and was provided with what the Crown said were relevant pages from the committal transcript which involved exchanges between the magistrate and the accused's legal representatives. 6 I was also provided with and have had regard to, a copy of the Crown case statement which, I am informed, accurately encapsulates how the Crown will put its case against the accused. In essence the Crown alleges that the accused murdered the deceased (with whom she was well acquainted) by shooting him in the back of the head with a shotgun. The Crown alleges that she is a principal in the first degree. It relies, principally but not solely, upon the evidence of two women, with whom the accused was on apparently friendly terms. I am informed that they will relate conversations with the accused in which she (the accused) made admissions to having shot and killed the deceased. 7 In his sworn evidence Mr MacIntosh was asked to recall what Ms White had said during the conversation in the magistrate's chambers. He said: A As best I recall she said I received or I have got fresh instructions from my client and she wishes to know whether the Crown would accept a guilty plea to manslaughter in the circumstances or in the context of there having been either a home invasion or an armed robbery at the deceased's house.

In cross-examination he gave the following evidence: Q Yesterday when I asked you what had been said or what you thought had been said, you said that Miss White had said she had either fresh information or fresh instructions? A Yes. Q You couldn't say which? A No I couldn't. Q That she wanted to raise with you in circumstances whether the Crown would accept a plea in circumstances where either an armed robbery or a home invasion had gone awry? A Yes. Q Words to that effect? A Yes, "gone awry" is my words but yes. Q When I asked you precisely whether Miss White said she had those instructions you said to me yesterday she didn't actually say she had those instructions I assumed they were the instructions because they were so proximate? A They were so proximate to her having referred to having received fresh instructions, yes that is true. Q She didn't ever actually say those were her instructions? A No, not in chambers, no. Before we went into chambers I mentioned at the end of my evidence in chief Miss White had referred to having received fresh instructions that day. Q I appreciate that but didn't say what they were? A No. Q And the phrase, the phrase she used was, you cannot be certain, it was either "I am instructed" or "I would like to know"? A In relation to what I call the offer? Q Yes. A I believe she, Miss White, used a phrase such as "Would the Crown" or "Would the prosecution consider accepting a plea" or "take a plea to manslaughter" in circumstances that I have described. Q When I asked you yesterday did you not say to me that Miss White never used the word "offer"? A No I can't say if she used the word "offer". It might be a similar phrase like "consider" or "accept". I can't precisely say what word was used, no. Q You said, I suggest, yesterday it may have been "I would like to know what the Crown attitude would be"? A She may have used that phrase as well as others, that is certainly the impression I got from the words she used. Q At no stage did she say, did she provide you with any detail of any particular, is that correct? A Of the circumstances, no, very thinly sketched. Q Certainly at no stage in even the thin sketch you got did she say that her client was present or asserted she was present at the time of any incident taking place? A That is correct, she didn't. 8 It is understandable that Mr MacIntosh had some difficulty in recollecting precisely what Ms White had said on 21 June 2001. He made no contemporaneous note of what had occurred and was first asked to recollect what had been said about two months prior to 19 August 2002, that is about twelve months after the incident itself. 9 The Crown seeks to lead evidence of the communication from Ms White to Mr MacIntosh, in the presence of the magistrate, as constituting an "admission" on the part of the accused. Furthermore it is said to constitute an admission made with the requisite authority within the meaning of s 87 of the Evidence Act and accordingly, by reason of s 81 of the Act, it is submitted that the hearsay rule does not apply.

10 The Crown also submits that the communication by Ms White is admissible because client legal privilege has been lost. Client legal privilege is preserved by ss 118 and 119 of the Evidence Act. The privilege exists in relation to confidential communications made, and confidential documents prepared for, the dominant purpose of a lawyer providing legal advice. Section 122 of the Act deals with the loss of client legal privilege and is in the following terms: 122 Loss of client legal privilege: consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made: (a) in the course of making a confidential communication or preparing a confidential document, or

c) under compulsion of law, or (d) if the client or party is a body established by, or a person holding an office under, an Australian law to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.

(3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a client or party or of a lawyer unless the employee or agent was authorised to make the disclosure.

(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than: (a) a lawyer acting for the client or party, or

(b) if the client or party is a body established by, or a person holding an office under, an Australian law the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.

(5) Subsections (2) and (4) do not apply to: (a) a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or

(b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence by police officers).

11 The Crown submits that there has been a knowing and voluntary disclosure of a "confidential communication" within the meaning of s 122(2) of the Act and that accordingly the privilege has been lost. Alternatively it may be assumed that the Crown relies upon s 122(4) insofar as it is suggested that the disclosure was made with the express or implied consent of the accused. 12 However the argument is put, it is clear that it depends upon acceptance of the proposition that Ms White had the authority of her then client to make the statements which she did to Mr MacIntosh and to the magistrate. The Crown accepts that he must demonstrate that Ms White was authorised to disclose what would otherwise be a "confidential communication." 13 The Crown acknowledges that there is no direct evidence upon the question. The Crown did not call evidence from Ms White who presumably would have been in a position to shed light upon the issue. In fact only she and the accused are capable of giving such evidence in the absence of any documentary material which may have been brought into existence. 14 The Crown asked me nonetheless to infer, from everything which occurred on 21 June 2001 that Ms White had the requisite authority. In doing so I was asked to apply the test to be found in s 87 of the Act. The Crown's submissions were made notwithstanding the uncertainty surrounding Mr MacIntosh's recollection of the critical conversation. 15 It is clear that the law jealously protects confidential communications. It ought not therefore to be lightly inferred that the privilege has been lost. Notwithstanding everything that has been urged upon me I would not be prepared to infer that it had been in the circumstances of this case. That of itself would be sufficient reason to reject the evidence but in deference to the submissions which were advanced I shall consider one further aspect of the matter. 16 Considerable debate focussed upon the evidentiary significance (if any) of the information which Ms White communicated to Mr MacIntosh. I might observe that the Crown readily conceded that he was not aware of any other case in which the Crown had sought to lead evidence of discussions about a possible plea in circumstances such as the present. Nevertheless the Crown submits that it ought to be inferred that not only was Ms White purporting to communicate the effect of her instructions but that they contained an "admission". Furthermore it is submitted that the "admission" is, in turn, indicative of the fact that the accused has changed her instructions. 17 There are a number of observations to be made about those submissions. First, experience reveals that "plea negotiations" are usually conducted on a "without prejudice" basis. Sometimes a possible hypothetical factual scenario may be put forward to see what response it might elicit from the Crown. In those circumstances and given the uncertainty surrounding Mr MacIntosh's recollection of the conversation with Ms White (and notwithstanding what impression he may now have about it) I could not be totally confident that Ms White was in fact purporting to communicate her instructions. 18 Secondly, (assuming that Ms White was in fact communicating and was intending to communicate the effect of her instructions) it is not easy to discern precisely what it is that is said to constitute the "admission". Putting it another way, given the paucity of information provided, it is difficult to know precisely what it is said was being "admitted". In the light of Mr MacIntosh's concession in cross-examination, it could not even be safely inferred that the accused was "admitting" to being present at the time of the fatal incident. 19 Thirdly, the so-called "admission", however it is to be construed, does not provide direct support for the Crown case, which as I have indicated, is that the accused is a principal in the first degree. 20 Fourthly, as I have said, the Crown submits that the communication demonstrates that the accused has changed her instructions. Strictly speaking it is not possible to determine whether the accused has, or more correctly can be inferred to have, changed her instructions because at this stage of proceedings no evidence has been heard and neither the Crown nor I can anticipate what course the accused is going to take notwithstanding what may have been said from the Bar Table. 21 It would be perhaps more accurate to characterise this aspect of the Crown submission as amounting to a contention that the accused was, through the communication from Ms White to Mr MacIntosh, putting forward a version of events that was at odds with what she had earlier told police. I am informed that she told police that she had no involvement whatsoever in the death of Mr O'Brien. As I understand what was being submitted, this would entitle the Crown to lead evidence of what is said to be an inconsistent version for the purpose of casting doubt upon her credibility and perhaps as demonstrating some form of consciousness of guilt on her part. Such a line of reasoning, were it to be pursued, may well be fraught with danger. 22 Fifthly, although it is clear that in some circumstances evidence of a change of instructions on the part of an accused person may be led by the Crown (and indeed I was taken to several examples which appear in the authorities which support that proposition) it is equally clear that recent pronouncements from the Court of Criminal Appeal indicate that particular care must be taken before drawing inferences about the state of an accused person's instructions from the conduct of proceedings by their legal representatives. 23 In R v Abdallah [2001] NSWCCA 506 an inconsistency arose between statements made by counsel for the appellant at trial during his opening address to the jury and evidence subsequently given by the appellant. Both the Crown Prosecutor and the trial judge suggested to the jury that it might accordingly conclude that the appellant had changed his story. Sheller JA, with whom Dowd and Kirby JJ, agreed allowed the appeal. His Honour said: Counsel for the appellant submitted that the situation in the present case is analogous to that in R v Birks (1990) 19 NSWLR 677. The appellant in that case had been convicted on charges of maliciously inflicting bodily harm with intent to have sexual intercourse, assault occasioning bodily harm and sexual offences. Counsel for the accused had failed to put to the complainant matters important to the defence case during cross examination. Both the prosecution and the trial Judge addressed the jury on the possible inferences to be drawn from this. At 691, Gleeson CJ adopted the views expressed by King CJ in R v Manunta (1989) 54 SASR 17 at 23: It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Gleeson CJ added his own caution at 691-692: I would add that one particular matter which makes it difficult to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles....relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of 'mouthpiece' for the client, conducting the case in close conformity with the client's directions. For reasons that have already been explained, this is far from the truth. Counsel for the appellant submitted that in this case, no sufficient caution or circumspection was exercised by the trial Judge in his summing up. To the contrary, his Honour suggested that the only reasonable explanation for the inconsistency was that the appellant could not get his story straight in relation to his knowledge and involvement with the package. But King CJ suggested explanations which did not reflect upon the credibility of the accused. Counsel may have misunderstood his instructions, forensic pressures may have resulted in looseness or inexactitude in the opening remarks. The Crown submitted that the present case was distinguishable in a number of ways from Birks . First, it was said that the comments made in Birks related to the rule in Browne v Dunn (1893) 6 R 67, and not to a decision not to call evidence to correct a misapprehension.

In my view this is not a relevant point of distinction. Whether the inconsistency arose because counsel for the accused failed to cross examine the complainant on aspects of the defence case, or because of statements made by counsel in his opening address, the effect is the same. In both situations, a question arises as to whether the conduct of counsel accords with the instructions given by the accused. And in both situations, the discrepancy between what is said or done by counsel for the accused, and the accused himself, may be due to one of several possibilities. The accused may have changed his story since giving instructions to counsel. Counsel may have misunderstood the instructions given to him, or the solicitor may not have correctly conveyed instructions to counsel. Counsel may simply have forgotten a particular part of the instructions, or become confused between the dates of the 8 and 11 January 1999. The point made in Birks and Manunta is that in such a situation, it is necessary for the trial Judge to draw the attention of the jury to other possible causes of such an inconsistency. Otherwise there is a real danger that the jury, lacking any detailed knowledge of the process of trial preparation, may assume that the cause of the inconsistency must be that the accused has changed his or her story. 24 Although this case is not on all fours with either Abdallah or Birks it appears to me that the line of reasoning relied upon in those cases is equally applicable to the present case. For a further example of the dangers associated with drawing inferences adverse to the accused from the conduct of counsel at committal proceedings see R v Blacktopp (1988) 94 FLR 273. 25 In all those circumstances I would not be prepared to accept the Crown submissions in relation to the inferences it says should be drawn from Ms White's communication to Mr MacIntosh even allowing for what the transcript reveals preceded the communication and indeed what followed it. Accordingly I am of the view that the Crown should not be permitted to lead the proposed evidence from Mr MacIntosh upon that issue. 26 As I have indicated, the Crown also seeks to rely upon what it says are inferences to be drawn about the state of the accused's instructions from the way in which Mr Neil-Smith conducted the committal hearing on her behalf. At one stage the transcript records Mr Neil-Smith as saying that there has been a "change in instructions." No further detail is provided and so it is impossible to know in what respect the instructions had changed. At another stage Mr Neil-Smith is recorded as indicating what his instructions were. That indication, broadly speaking, was consistent with what I understand the accused to have said to the police although it may well be that it contains one or two additional details. It is apparent however that his instructions were that his client was not responsible for the murder and nor was she present when it occurred. Mr MacIntosh refers in his statement to cross-examination by Mr Neil-Smith of a witness named Vanessa Kendall which may have suggested that the state of his instructions were to the effect that the accused had returned to the premises of the deceased to remove her fingerprints from his mobile phone. As I understand it there will be direct evidence upon that subject from Ms Kendall and perhaps from other sources as well. It might be noted that I have not been provided with an extract of that part of the transcript and accordingly I am not in a position to assess for myself exactly how the questions were put. 27 In any event, in all the circumstances and in view of the matters to which I have earlier referred, I am not disposed to permit the Crown to lead the material which arises from Mr Neil-Smith's conduct of the committal proceedings. 28 Had it been necessary to consider the application of ss 135 and 137 of the Evidence Act I would have excluded the evidence pursuant to those provisions. Apart from the question of the probative value of the evidence being outweighed by its prejudicial effect, the decision of the court in Abdallah indicates the way in which the reception of the evidence could be "misleading or confusing" for the jury. Furthermore permitting the Crown to lead the evidence would be likely to result in an "undue waste of time" on an essentially collateral issue. 29 In view of the conclusions at which I have arrived, and given that I was not favoured with any considered submissions or provided with any authorities concerning the construction of ss 87 and 122 of the Evidence Act, it does not appear to me to be necessary to embark upon such an exercise in the present case.

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