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[2013] VSC 80
General information, not legal advice.
Supreme Court of Victoria
2013-02-28
T FORREST J
Original judgment source is linked above.
CRIMINAL LAW - Evidentiary rulings - Section 464H of the Crimes Act 1958 - When a person is a suspect or ought reasonably be a suspect - Sections 188 and 189 of the Evidence Act 2008 - Section 90 of the Evidence Act 2008.
1 At about 2.15pm on 18 August 2011, Omar Taha and Ahmed Mohamad were fatally shot at CBD Panels, a repair business located at 5 Florence Street, Brunswick. Ali Kassab and Khaled Moustafa are both now indicted on two counts of murder and were present when Taha and Mohamad were shot. Kassab received gunshot wounds to his left thigh and left upper arm. It is common ground that Moustafa drove Kassab to the Royal Melbourne Hospital in a silver Honda motor vehicle. They arrived at the hospital at approximately 2.40pm and attended at the Emergency Department. Kassab was taken away for treatment. Moustafa remained in the public waiting area. His car remained parked in the vicinity of the hospital.
2 Over the course of the next hour and a half, Moustafa spoke on three occasions to police officers:
(a) between about 3.00pm and 3.15pm to Sergeant Bell ('the Bell conversation');
(b) between about 3.35pm and 3.45pm to Detective Acting Sergeant Anderson and Detective Senior Constable Snart ('the Anderson conversation');
(c) between about 3.45pm and 4.27pm to Detective Senior Constable Snart (with Detective Anderson present at times), during which time a witness statement was taken from Moustafa, which he signed and acknowledged at 4.26pm ('the witness statement conversation').
3 In each conversation, according to the police evidence, Moustafa gave essentially the same account. He was at home in Coburg when he received a phone call from Kassab. Kassab asked him to pick him up because he (Kassab) had just been shot. He drove to a factory in Campbellfield in a silver Astra that he had borrowed from a friend, Carlo Fernandez. He picked up Kassab near Barry Road. Kassab appeared dazed, was bleeding, and did not tell him what had happened. He drove Kassab to the Royal Melbourne Hospital and waited there. Moustafa said he called a friend, 'Adam Ninetti'[1] who came and took his car away. He did not know the registration number of the vehicle. He said that Adam had taken all his property away with the vehicle.
4 There are minor variations between the three accounts that are irrelevant for present purposes.
5 It is uncontested that Moustafa's account is false. The prosecution seeks to rely on two lies articulated within that account as impacting upon the credit of Moustafa's answers in his subsequent record of interview and as post-offence conduct from which an implied admission of guilt to the crimes of murder can be inferred.[2] Those lies are:
(a) that at the time Kassab was shot, Moustafa was at home in Coburg watching television;
(b) that the vehicle used to transport Kassab to hospital (a Holden Astra) was no longer in the vicinity of the hospital.
6 Mr Meredith, who appears for Moustafa, submits that all three statements are inadmissible (s 464H Crimes Act 1958 ('the Crimes Act')) or that they ought to be excluded in the exercise of various 'discretions' granted me by the Evidence Act 2008 ('the Evidence Act') (ss 138 and 139; s 90). These submissions are opposed by Mr Gibson, who appears to prosecute. I shall briefly review the effect of these evidentiary provisions.
Section 464H Crimes Act
7 Section 464H(1) provides inter alia that evidence of a confession or admission made to an investigating official by a person who -
of having committed an offence is inadmissible unless one or more of various exceptions are made out. Those exceptions are to do with the recording of the confession or admission and the subsequent adoption of the substance of the confession or admission. It is not contended by the prosecution that any of those exceptions apply in this case.
8 It follows that evidence of an admission can be rendered inadmissible by s 464H(1) if the investigating official to whom the admission was made either suspected or ought reasonably to have suspected the maker of the admission of having committed an offence.
10 Section 464(2) unhelpfully defines the noun 'suspect' inter alia as a person above the age of 18 who is suspected of having committed an offence.
11 It can be seen that the section is directed at two circumstances. Where the investigating official subjectively has the relevant suspicion (s 464H(1)(a)) or where that official objectively ought reasonably to have had that suspicion (s 464H(1)(b)). In this latter context, the question is not whether the investigating officer might or could have suspected the person, it is whether, acting reasonably, he ought to have suspected the person.
12 Insofar as the subjective circumstance is concerned, in R v Heaney and ors, the Appeal Division of this Court said:
The section is not concerned with a state of mind founded upon speculation or 'mere idle wondering' (Kitto J in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, at p 303), but is concerned with a state of mind arrived upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created. [4]
13 In Bina Raso, Ormiston J said (in a different context but adopting the reasoning in Heaney) that:
The word suspect requires a degree of conviction extending beyond speculation as to whether an offence has been committed and requiring that it be based on some factual foundation. [5]
14 In Alexander, the Appeal Division of this Court quoted the passage cited above from Heaney and then continued:
The words 'might possibly' in that passage do not operate so as to include within the principle there stated the mere advertance to the possibility of a person having committed an offence (as distinct from an apprehension created thereof). What is required is a positive apprehension. [6]
15 These passages make it clear, in my view, that what is required before a suspicion is held is a degree of satisfaction based in fact that a person may have committed an offence. It must be more than speculation and it is not sufficient to demonstrate that the investigating officer was merely considering the possibility that the person had committed an offence.[7]
Sections 138 and 139 Evidence Act
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained -
(a) improperly or in contravention of an Australian law; or
...
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.
...
(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
...
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
139 Cautioning of persons
(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if -
(a) the person was under arrest for an offence at the time; and
(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and
(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(2) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if -
(a) the questioning was conducted by an investigating official who did not have the power to arrest the person; and
(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and
(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
...
(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if -
(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or
(b) the official would not allow the person to leave if the person wished to do so; or
(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.
17 Section 138 of the Evidence Act requires that the court exclude improperly or illegally obtained evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting it given the manner by which the evidence was obtained. This section 'supplants and modifies the common law public policy exclusionary discretion described in Bunning v Cross'.[8] The policy behind the s 138 power to exclude evidence remains as stated in the joint judgment of Stephen and Aicken JJ in that case and the related common law principles enunciated in Ridgeway[9] are to be applied when considering the notion of impropriety:[10]
[T]he court must determine whether the evidence was not 'obtained at too high a price, such as to offend against a sense of fair play or immediately to arouse feelings of moral outrage'.[11]
18 Section 139 of the Evidence Act specifically relates to the failure by an investigating official to caution a person being questioned. Thus, s 139 provides a platform for the exercise of the s 138 'discretion'[12] to exclude improperly or illegally obtained evidence. Under the Evidence Act's dictionary, an investigating official is defined inter alia as a police officer.
19 Once an accused has demonstrated that a particular impropriety has occurred the burden of persuasion in a s 138 application rests with the prosecution.
20 This section imports the common law fairness discretion. A court may exclude prosecution evidence of an admission if, in the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. A court considering the exercise of this discretion will focus on the effect of the unfairness on the defendant as compared to the s 138 public policy discretion where the focus will be on the impropriety itself. The burden to demonstrate that the s 90 unfairness discretion is engaged and ought be exercised rests with the defendant. The probative value of an admission has no bearing on the exercise of this discretion.[13]
21 Sergeant Bell was attached to the North Melbourne Police Station, which is located within a short walk to the Royal Melbourne Hospital ('RMH'). At 2.55pm, she received information that a male had presented at RMH with gunshot wounds. She walked to the hospital, arriving there at approximately 3.00pm. She consulted hospital staff and was directed to a person (Moustafa) who had brought the gunshot victim in. She sat next to him in the public waiting area. Over the next 15 minutes she spoke to Moustafa in the terms set out in paragraph [3] of these reasons. In evidence, she accepted that some of what Moustafa said to her she regarded as possible lies. At that stage she had no knowledge of the Florence Street shootings. She accepted that she saw blood on Moustafa's hands and did not accede to his request to be permitted to wash them. She adopted as truthful evidence she gave at the committal that had Moustafa tried to leave the hospital she would have stopped him. In re-examination, the following exchange occurred:[14]
A: Ultimately, no. I did not have an arrest power but I was able to talk to him in a way and ask him questions which was able to in other words stall him...
22 Sergeant Bell accepted that shortly after her arrival she made a decision to seize and bag Kassab's clothing to enable forensic examination.[15] She said that initially it did not occur to her to take the same steps with Moustafa, but after commencing to converse with Moustafa it entered her mind.[16] Sergeant Bell had previously been a Homicide Squad detective. She briefed officers from Moreland CIU after she completed her conversation. It should be noted that all questions and answers about Moustafa's status during this conversation were couched in hypothetical terms because Moustafa (a) did not attempt to leave and (b) had formed a positive intention to remain at the hospital and interact with police. At answer 622 of his subsequent record of interview with police, Moustafa is recorded as saying:
I could have just went and drove off. I didn't want to do that cos I knew youse were coming.
Section 464H Crimes Act
23 I consider it cannot be said from either Sergeant Bell's evidence or the surrounding circumstances of which she was aware that Moustafa either was a suspect or ought to have been a suspect in the commission of an offence. Sergeant Bell knew nothing of the events at Florence Street. The bare information she had when she commenced speaking to Moustafa was merely that he had accompanied a gun-shot victim to the hospital. No further information came to light during that conversation beyond what Moustafa himself was saying. It is true that Moustafa's account was implausible, but it was exculpatory and not, in my view, patently absurd. The presence of blood on Moustafa's hands was consistent with the account given by Moustafa, who had remained at the hospital while his friend was being treated.
24 In my view, the evidence discloses no more than that Sergeant Bell was curious to ascertain the circumstances surrounding the cause of Kassab's gunshot wounds. At the time that she held the conversation, on the evidence available to her, I consider that she could not have entertained any degree of satisfaction that Moustafa may have committed an offence. No doubt the possibility existed that Moustafa may have been involved in some way in the shooting of Kassab (remembering that that was the offence she was investigating) but to hypothesise further is to speculate. I consider that her actions in denying Moustafa's request to wash his hands and stalling any potential departure are no more than the actions of a prudent investigator and do not bespeak suspicion. For these reasons, I consider that Sergeant Bell did not suspect Moustafa of having committed an offence, nor ought she reasonably to have done so.
Sections 138 and 139 Evidence Act
25 I have set out the relevant parts of these sections in paragraph [16]. Section 139(5)(b) provides that a person is to be considered under arrest if 'the official would not allow the person to leave if the person wished to do so'. As I have said, Sergeant Bell accepted that she would not have allowed Moustafa to leave had he expressed a desire to do so. It follows that Moustafa was under arrest for the purposes of s 139(1). It is common ground that Sergeant Bell did not caution Moustafa prior to commencing the conversation. It further follows that for the purposes of s 138(1)(a) the evidence of the statement made to Sergeant Bell by Moustafa 'is taken to have been obtained improperly' (s 139(1)). The consequence of this is that s 138(1) is engaged. The evidence of a statement improperly obtained 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'. It will be recalled that the persuasive burden rests with the prosecution once the impropriety is established.
26 Whilst Sergeant Bell frankly conceded that she would have detained Moustafa had he tried to leave, I regard the failure to caution him prior to the impugned conversation as a relatively modest impropriety. As I have observed, Moustafa did not wish to leave and voluntarily remained at the hospital anticipating the police arrival. The conversation was short and apparently benign. It was directed not at Moustafa's guilt of any offence, but to the circumstances surrounding the offence apparently committed upon Kassab. As I have remarked earlier in these reasons, in reality there was no sensible basis to suspect Moustafa at that early stage. The requirement to caution arose purely as a result of her desire for him to remain at the hospital - in my view a reasonable aspiration so early in, to her knowledge, quite a serious investigation. Sergeant Bell was aware that she did not have reasonable grounds for Moustafa's arrest, and did not indicate to him that he was under arrest. Her conduct was, as she said, designed to 'stall him' until the picture became clearer. Similarly, her desire to prevent Moustafa washing his hands was, from an investigator's perspective, a reasonable one given the infancy of the investigation. In all the circumstances, I do not regard the impropriety as involving grave culpability.
27 I regard the probative value of the Bell statement as reasonably high. I set out in paragraph [5] how it is that the Crown proposed to rely upon the post-offence lies as implied admissions of guilt. Assuming that the Crown is permitted to go to the jury on an implied admission basis, the jury will receive a full Edwards direction. I have seen considerably more damning evidence of post-offence conduct than the lies within the Bell conversation, and I regard both their probative value and their importance within a circumstantial Crown case as reasonably high only. Obviously enough the trial concerns grave criminal offending.
28 The s 138 discretion has its genesis in public policy. The balancing exercise required by the section ultimately requires an evaluation of the culpability of the unlawful or improper conduct and the public interest in disapproving of such conduct on the one hand, and the public interest in the detection and successful prosecution of those guilty of criminal offences on the other.
29 In my view, the prosecution has discharged its persuasive burden. I am satisfied that the public interest in admitting this evidence outweighs any undesirability that attaches to the way in which the evidence was obtained. I have reached that view for these reasons:
30 I am not persuaded that I ought refuse to admit the impugned Bell evidence on an unfairness basis. The accused waited at the hospital for the police to arrive. He provided an exculpatory account of events and at no stage during the Bell conversation did he attempt to leave. There is nothing about Sergeant Bell's conduct that could have affected the reliability of Moustafa's responses. Her approach to questioning was benign and fact-seeking. I am entirely unpersuaded that had a caution been administered Moustafa would have exercised his right of silence. In his interview some hours later after caution, he sought to explain his earlier statements and give an account of events at 5 Florence Street (see particularly Q 619ff). 'Unfairness' is a nebulous concept that defies exhaustive description.[17] I am not satisfied that Sergeant Bell engaged in a wilful misconduct or anything even approaching that regarded as permissible by the majority in Em.[18]
31 It follows from the above that I regard Sergeant Bell's evidence of her conversation with Moustafa as admissible.
32 Three police members from Moreland CIU arrived at RMH at about 3.30pm. They were originally to attend at 5 Florence Street Brunswick, but were re-directed to RMH. It is clear that the three detectives, Bentley, Anderson and Snart, knew that there had been a shooting at the Brunswick address, that people were injured, and that there were two possible deceased. Fixed with that knowledge, and whilst en route to Brunswick, they received further information that a person had presented at RMH with gunshot injuries. At about 3.30pm, Detective Bentley spoke to Sergeant Bell, who had just concluded her conversation with Moustafa. Although there is some divergence in this evidence, I am satisfied that Sergeant Bell, by reference to her notes, provided the three Moreland CIU detectives with the account Moustafa had recently provided to her.[19]
33 Detectives Anderson and Snart then spoke to Moustafa shortly after 3.30pm. This occurred in the public waiting area of the Emergency Department at RMH. Moustafa was not cautioned, nor was this conversation recorded by audio or audio-visual means. Moustafa repeated the substance of his earlier conversation with Sergeant Bell.
Section 464H Crimes Act
34 By the commencement of the Anderson conversation, Detectives Anderson and Snart were in possession of the following information:
(a) there had been a serious shooting at Florence Street, Brunswick involving potentially two fatalities;
(b) a short time after the shooting, a third person had presented at RMH suffering from a gunshot injury or injuries;
(c) the RMH is within a few kilometres of Florence Street;
(d) Moustafa had arrived with this third person and had remained at the hospital;
(e) Moustafa's account, which was implausible, but not patently absurd. These implausibilities included:
(i) that on his account, he drove a gunshot victim in need of urgent medical attention to a distant hospital, bypassing the Northern Hospital in Campbellfield;
(ii) to their knowledge, there had been no other reports of a shooting in Campbellfield; and
(iii) that Moustafa had engaged the services of 'Ninetti' to remove his car and belongings from the RMH.
35 In my view, the temporal and geographic proximity of the Florence Street shooting to Kassab's presentation at the RMH was certainly sufficient for Kassab to be considered a suspect in offences committed at Florence Street. I have set out the applicable principles relating to the term suspect as used in s 464H in paragraphs [10] -[15] of these reasons. In my view, Detectives Anderson and Snart were entitled to have a positive apprehension that Kassab was involved in offending at Florence Street. Put another way, the officers were entitled to have a degree of satisfaction that Kassab may have committed an offence.
36 What then of Moustafa? He presented with Kassab and admitted driving him to the hospital. He provided an account to Sergeant Bell that was implausible in the way that I have explained. During cross-examination, Detective Snart was asked about her state of mind prior to the Anderson conversation:
Q: Did you think that may not have been the truth, indicating a shooting up in Barry Road, Campbellfield, given that there'd been nothing that had come over the police radio, yet you knew there'd been a shooting at a Florence Street?
A: Do I believe that Mr Moustafa was telling the truth at that stage?
Q: Did you think he may not have been?
A: I believed he said what - he was telling us the story that Mr Kassab had told him.
Q: He's telling you that he physically went up to Barry Road, Broadmeadows?
A: He told us at that stage that, upon the request of Mr Kassab - that Mr Kassab had been shot in Campbellfield.
Q: Let's put it another way. Did you want to investigate that account?
A: We wanted a more in depth story, yes.
Q: Why would you want a more in depth story?
A: A serious incident had taken place that Mr Moustafa may have more knowledge to.
Q: And you wanted to investigate the extent of his knowledge, didn't you?
A: That's correct.
Q: You wanted to investigate whether or not what he was telling you was true or not, didn't you?
A: That's correct.
Q: You wanted to investigate whether or not he had a link to Florence Street, didn't you?
A: Yes.
In my view, both Detectives Anderson and Snart either actually suspected Moustafa of having committed an offence, or ought to have so suspected him. I consider that, by that stage, both detectives were entitled to consider Moustafa as a possible participant in events at Florence Street and that on the then available evidence, this would have been no idle speculation.
37 If I am correct in this analysis, s 464H(1) of the Crimes Act operates to render the Anderson conversation inadmissible. None of the exceptions contained within sub-para (c) to (f) are engaged. In particular, sub-para (e) is not engaged. Moustafa did not subsequently confirm (in a recorded interview in which he was cautioned) the substance of the confession or admission. In fact, he disavowed it.
38 It follows that I consider the Anderson conversation to be inadmissible.
39 It is unnecessary to consider the discretionary arguments mounted under ss 138, 139 and 90 of the Evidence Act as they relate to the Anderson statement.
40 At some time between 3.35pm and 3.45pm Detective Snart commenced to take a witness statement from Moustafa. By this stage, she had heard from Bell Moustafa's implausible account and she was present during the Anderson conversation when that account was repeated. In other words, she was fixed with at least the same information that both she and Anderson had before the Anderson conversation. For the reasons that I have explained in paragraphs [29] to [36], I consider that at this earlier point, Detective Snart either suspected Moustafa or ought to have suspected him of committing an offence. It follows, in the absence of any exculpatory information coming to her attention after the Anderson conversation, that Detective Snart continued to suspect Moustafa or ought to have done so. I should add that at 4.03pm further information was received by Detective Bentley that a witness had observed an injured man being assisted by another man into a blue car at the Florence Street address at the time of the shooting. I have already concluded that Moustafa either was suspected or ought to have been suspected prior to this information becoming available. It is therefore unnecessary to analyse the receipt and dissemination of this information any further.
41 I consider that s 464H(1) of the Crimes Act operates to render the witness statement conversation inadmissible. None of the exceptions contained within sub-paragraphs (c) to (f) are engaged.
42 It is unnecessary to consider the discretionary arguments mounted under ss 138, 139 and 90 of the Evidence Act as they relate to the witness statement conversation.
43 I therefore consider the Bell conversation to be admissible, but the Anderson and witness statement conversations to be inadmissible.
[1] Which I presume to be a reference to Adam Leonetti, who is a witness in the case.
[2] The case is put on a joint criminal enterprise basis.
[3] R v Hazim (1993) 69 A Crim R 371.
[4] [1992] VicRp 85; [1992] 2 VR 531, 548 ('Heaney').
[5] (1993) 68 A Crim R 495, 527.
[6] [1994] VicRp 58; [1994] 2 VR 249, 255-6 ('Alexander').
[7] See also R v Szitovszky [2007] VSC 69.
[8] The New Law of Evidence 2nd edition, Anderson, Williams SC and Clegg at p 633; Bunning v Cross [1978] HCA 22; [1978] 141 CLR 54.
[9] Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19.
[10] Robinson v Woolworths Limited [2005] NSWCCA 426; (2005) 64 NSWLR 612.
[11] New Law of Evidence 2nd edition above n 8 citing a passage from R v Salem (1997) 96 A Crim R 421, 430 per Hidden J.
[13] R v Em [2003] NSWCCA 374 , [110].
[17] Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, [109] per Gummow and Hayne JJ.
[19] Sergeant Bell, T 280; Detective Bentley, T 180ff; c/f Detective Snart T 208ff; Detective Anderson T 321ff.
The Queen
Moustafa [2013] VSC 80
(1966) 115 CLR 266
(1995) 184 CLR 19
(2005) 64 NSWLR 612
(2007) 232 CLR 67