R v Spiteri-Ahern; R v Barber; R v Zraika (No 10)

1. [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. [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. [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. [4]

   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. [5]

   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. [6]

   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. [7]

   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. [8]

   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. [9]

   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. [10]

   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. [11]

   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:

2. [12]

   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. [13]

   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. [14]

   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:

5. [15]

   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. [16]

   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. [17]

   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:

8. [18]

   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. [19]

   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. [20]

    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. [21]

    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. [22]

    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. [23]

    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. [24]

    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. [25]

    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. [26]

    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. [27]

    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. [28]

    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. [29]

    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. [30]

    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. [31]

    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:

22. [32]

    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. [33]

    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. [34]

    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:

25. [35]

    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.

26. [36]

    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.

27. [37]

    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].

28. [38]

    “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.

29. [39]

    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.

30. [40]

    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.

31. [41]

    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.