R v MacDonald, Parsons and Radman [2002] ACTSC 39 (6 March 2002)

Last Updated: 11 June 2002

THE QUEEN v PETER ADRIAN MACDONALD, DAVID LESLIE PARSONS

AND JOHN RADMAN [2002] ACTSC 39 (6 March 2002)

CATCHWORDS

CRIMINAL LAW & PROCEDURE - search and seizure - emergency search without warrant - meaning of concealment, loss or destruction of evidence - Drugs of Dependence Act 1989 (ACT) s 188, Crimes Act 1900 (ACT) s 209 and s 210.

CRIMINAL LAW - evidence - identification evidence - discretion to exclude for unfair prejudice to accused - informal roadside identification - Evidence Act 1995 (Cth) s 114, s 137.

CRIMINAL LAW & PROCEDURE - criminal investigation - official questioning - length of time taken to complete interview - Crimes Act 1914 (Cth) s 23C.

CRIMINAL LAW & PROCEDURE - criminal investigation - official questioning - caution given in relation to assault - questioning conducted relevant to armed robbery - whether misleading to accused - whether evidence obtained as a result improperly obtained.

CRIMINAL LAW & PROCEDURE - application for separate trials by co-accused - evidence admissible against one accused but not co-accused - evidence prejudicial to co-accused's case - risk of positive injustice to be met by appropriate directions.

Evidence Act 1995 (Cth), s 114, s 137, s 138

Crimes Act 1914 (Cth), s 23C

Drugs of Dependence Act 1989 (ACT), s 182, s 188

Crimes Act 1900 (ACT), s 209, s 210

R v Thomason (1999) 139 ACTR 21

Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170

R v Tugaga (1994) 74 A Crim R 190

R v Middis & Ors (unreported, Supreme Court of New South Wales Criminal Division, Hunt J, 27 March 1991)

R v Baartman (unreported, NSWCCA, Gleeson CJ, Powell JA and Smart J, 6 October 1994) R v Fernando [1999] NSWCCA 66

R v Georgiou [1999] NSWCCA 125

R v Patsahs and Spathis [1999] NSWSC 649; (1999) 107 A Crim R 432

R v Holden (1990) 52 A Crim R 32

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

No. SCC 90, 91 and 93 of 2000

Judge: Gray J

Supreme Court of the ACT

Date: 6 March 2002

IN THE SUPREME COURT OF THE )

) No. SCC 90, 91 and 93 of 2000

AUSTRALIAN CAPITAL TERRITORY )

)

CRIMINAL JURISDICTION )

THE QUEEN

against

PETER ADRIAN MACDONALD

DAVID LESLIE PARSONS

and

JOHN RADMAN

REASONS FOR RULING

Judge: Gray J

Date of ruling: 6 March 2002

Place: Canberra

THE COURT RULES THAT:

1. Evidence of the record of interview between the accused Peter Adrian MacDonald and Detective Constable Duffus on 3 November 1999 is admissible.

2. The search conducted by Detective Constable Shakeshaft on 2 November 1999 pursuant to section 188 of the Drugs of Dependence Act 1989 (ACT) of a vehicle bearing ACT registration YAS 54R was lawful.

3. Identification evidence provided by Kristie Lee Kale and Naomi Beth Travers is not admitted as its probative value is outweighed by the danger of unfair prejudice to the accused.

THE COURT ORDERS THAT:

1. The applications of David Leslie Parsons and John Radman for a separate trial from a trial of Peter Adrian MacDonald for the offences charged be refused.

1. Peter Adrian MacDonald, David Leslie Parsons and John Radman were arraigned on charges of armed robbery and assault.

2. The offences in question are alleged to have occurred on 2 November 1999 and to have involved a joint enterprise on the part of Mr Macdonald, Mr Parsons and Mr Radman to rob Luke Tanswell, Naomi Beth Travers, Kristie Lee Kale, Luke Rees Alchin and Morgan Lewer of $642.00, an electric bass guitar, a mobile telephone, a Sony Playstation, a set of electronic scales, a parsley chopper, jewellery and cannabis. At the time of the robbery it is alleged that the accused had with them offensive weapons, namely an extendable baton and a baseball bat.

3. Before the trial commenced, but after a jury was empanelled, I received evidence on the voir dire in relation to three applications made by counsel for the accused. The application by Mr Everson, counsel for the accused Parsons, supported by counsel for the other accused, was that evidence in relation to the search conducted by Detective Constable Shakeshaft on 2 November 1999 of the vehicle bearing ACT registration YAS 54R should be excluded on the grounds that the search was unlawful.

4. The application by Mr Arthur, counsel for the accused MacDonald, was for the evidence of a record of interview dated 3 November 1999 between Detective Constable Duffus and Mr MacDonald to be excluded pursuant to s 138 of the Evidence Act 1995 (Cth).

5. The application by Mr Pappas, counsel for the accused Radman, supported by counsel for the other accused, was that identification evidence provided by Kristie Lee Kale and Naomi Beth Travers should not be admitted as the danger of unfair prejudice to the accused outweighed the probative value of the evidence; or, in the alternative, that the evidence had been improperly obtained.

6. It is convenient to deal with these applications in the order that I have set out.

Identification Evidence

7. On the night of the robbery, there were seven people present in apartment 19 at 12 Wilkins Street, Mawson. They included the three residents of the apartment, Luke Tanswell, Kristie Lee Kale and Naomi Beth Travers and their visitors, Luke Rees Alchin, Morgan Lewer, Duncan Le Fleur and Zedric Le Fleur. At approximately 9.35 pm, there was a knock at the front door of the apartment, and as the persons seeking access identified themselves as police, Morgan Lewer allowed them into the premises.

8. The evidence of both Ms Kale and Ms Travers is that they saw two men enter the apartment. Ms Travers has indicated there may have been a third, however she did not "get a visual" of a third person:

"Two offenders came in, possibly a third, I didn't get a view of a third, I only saw two come in, one carrying a baseball bat and one carrying a baton."

9. The descriptions given by Ms Travers and Ms Kale of the men who entered the apartment and the order in which they entered are consistent. According to Ms Kale, the first man to enter the apartment was, "olive skinned, dark hair, about 6'2", 6'3" very solid". Ms Travers' evidence was that the first man to enter the apartment was "very solid, tall, probably mid twenties, early twenties. He would've been 6 foot, close to....tall and dark". Ms Kale and Ms Travers both witnessed this man assault Morgan Lewer.

10. The second man entering the apartment was, according to Ms Kale, "tall, maybe of the same height, 6'2" to 6'3", he had a thin build and he had sandy coloured hair with a baseball cap on". Ms Travers described the second man as being:

"... a bit older, sort of very tall and slimmish... He had a - was wearing a hat of some sort, a beanie or baseball cap, something to that extent because I couldn't catch the colour of his hair. He had a thick goatee."

This second man smashed a glass table in the loungeroom and shouted at those present in the apartment to lay down and avoid looking at his face. It appears that there was also an assault on Luke Alchin.

11. In keeping with the instructions to keep her face down, Ms Kale covered her face with a blanket and did not look at the intruders for the remainder of the time they were present in the apartment.

12. Ms Travers on the other hand, after seeing the intruders enter the apartment and realising they were not from the police, was able to exit the apartment through a back door in order to telephone the police. In her statement to the police dated 26 November 1999, she outlined the route she followed upon leaving the apartment:

"I started to walk up the walkway at the side of our block of units. As I walked up I saw a silver or grey car parked in between my block of flats and the block of flats on the right. ... The front passenger door was open and the interior light was on. The motor was running and I saw that there was someone in the driver's seat. I could only see the visor part of this person's cap and his hands on the steering wheel. I was probably about 3 or 4 metres from the car."

13. Ms Travers then entered a nearby block of flats and was admitted to a second floor apartment, apartment 12 of 12 Wilkins Street, and contacted the police. Standing on the balcony of this apartment she saw Ms Kale (who had by this time also been able to leave the scene of the robbery) and called to her to join her. From the vantage point of the balcony of apartment 12 they were able to see a silver Ford sedan approximately 15 metres away which had been stopped by police. There were a number of police vehicles and officers near the car. It appears that Ms Travers relied heavily on the identification from the balcony by Ms Kale of the car as containing the suspected occupants:

"I said, "Kristie, Kristie, come up here" and she got to the top and I said, "Is that them", and she said, "Yes", and we flew down the stairs then. It was Kristie that actually ID'd the car to me from the flat. I had my suspicions, Kristie said, "Yes, that's it."."

14. Ms Kale's evidence was:

"It is the case isn't it, that when you're up on the balcony you're only suspicious that it was the people in the car who were involved. You didn't clearly identify somebody up there? - - - Well, I could see a baseball bat - not a baseball bat, a baseball cap, and a very solid man in the front passenger side so I assumed that it was them. And when I got downstairs it was them."

15. The two women then proceeded downstairs and approached the vehicle in order to obtain a clearer view. Constable Seppings was one of the police officers present at the scene as Ms Kale and Ms Travers attempted to approach the vehicle. In his statement dated 7 December 1999, Constable Seppings gave evidence that he stopped one of the women approximately five metres from the car and asked if he could be of assistance. The woman replied with words to the effect of, "That's them, the one with the beard", and was then escorted back to her apartment by the police to provide a statement.

16. The evidence of Ms Travers is that as she and Ms Kale were approaching the car, there were three, possibly four police cars in the vicinity and "heaps of police officers" around the car. Her evidence is that when they were three metres away from the car, they were approached by police and asked what they were doing, but were then able to get as close as about a metre away from the passenger side of the car and stare into the car undisturbed for approximately two minutes:

"We mentioned - when we mentioned to the police that they were the offenders in the car we - that was when we were standing about three metres away ... And we got closer to get a definite look. We got to be about a metre away from the car."

17. It is not in dispute that at the time the silver Ford Fairlane was stopped by police and the roadside identifications took place, Mr MacDonald was sitting in the driver's seat with Mr Radman beside him in the front passenger seat. Mr Parsons was sitting in the driver's side rear passenger seat and, it would appear that it was Mr Petrovic, now deceased, who was sitting in the left rear seat.

18. There are inconsistencies in the evidence of Ms Travers regarding her roadside identification. In her statement to the police dated 26 November 1999 she indicated that she saw in the front passenger seat the first male who had entered the flat and in the rear passenger seat the second male who had entered the flat. However, her evidence at committal was that she identified the first man who had entered the flat in the rear passenger seat and the second man who had entered the flat in the front passenger seat.

19. There are also significant inconsistencies between the roadside identification evidence of Ms Travers and Ms Kale. Ms Travers' evidence at committal was that the first person to enter the flat was seated in the rear passenger seat of the car, and that the second person to enter the flat was seated in the front passenger seat of the car. Ms Kale's evidence at committal was:

"The guy in the front passenger side was the first one that entered and the guy that was driving behind the wheel, he was the second one that entered."

20. There is also some doubt as to the level of lighting available in the street at the time the roadside identifications were made. There is inconsistent evidence provided by Ms Travers regarding whether the internal car light of the Ford Fairlane was on at the time the roadside identifications were made. There may have been light available from other sources namely police vehicle lights and a streetlight, however this is unclear.

21. Finally, both Ms Kale and Ms Travers gave evidence at the committal hearing in relation to the fact that they had been smoking cannabis from approximately 1.00 pm to 5.00 pm on the afternoon of the robbery. Ms Travers in particular gave evidence that she had smoked as much as three grams during the course of that day. Her evidence was that this had affected her recollection of the events of the day by making the finer details of the day hazy, but that the relevant or important details of the day remained clear for her.

22. There were no other formal identification procedures conducted by the police, either in the form of an identification parade or identification from photographs.

23. Sub-section 114(2) of the Evidence Act provides:

"Visual identification evidence adduced by the prosecutor is not admissible unless:

(a) an identification parade that included the defendant was held before the identification was made; or

(b) it would not have been reasonable to have held such a parade; or

(c) the defendant refused to take part in such a parade;

and the identification was made without the person who made it having been intentionally influenced to identify the defendant."

24. Given the circumstances in which the purported identifications were made, I would have thought that it could be said that it would not have been reasonable to have held an identification parade (see R v Thomason (1999) 139 ACTR 21 at 22). It was the witnesses who approached the car and got close to it without police intervention or encouragement. I do not consider that this approach to the vehicle required that the police be alive to the possibility of preventing their approach so as to hold an identification parade at some later stage or that there was any impropriety in the police handling of the situation.

25. Section 137 of the Evidence Act requires me to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. There are a number of unsatisfactory factors affecting the proposed identification evidence to which I have referred. A very significant one is that relating to the preconceptions that were held by the two identifying witnesses in one of them identifying the car and confirming for the other an identification of it, which would then lead to a purported identification of the passengers who could be observed when they got close to the car. Such a circumstance very much affects the value and reliability of the purported identification (cf Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170 at 181).

26. There are also the significant matters which I have identified as going to the inconsistency of the identifications.

27. I think that this is an appropriate case where the test that commended itself to Hunt CJ at CL in R v Tugaga (1994) 74 A Crim R 190 might be applied. His Honour said:

"In R [1990] HCA 51; (1989) 18 NSWLR 74 at 79-80; 409-410, Gleeson CJ quoted extensively from the judgment of Wilson J in Mezzo [1986] 1 SCR 802 at 818, 820, in which her Ladyship convincingly made good the point that, in determining whether identification evidence should be left to the jury, the test is whether the quality of the evidence falls short of the point where its frailty or frailties cannot be cured by an appropriate caution to the jury. Although that is not the test applied in Australia as to whether there is a case to answer, it appears to me, with respect, to be an admirable one to be applied when considering whether identification evidence should - in the context of the evidence as a whole - be excluded from the evidence or withdrawn from the jury, and to be a test which is consistent with the well-known line of authority commencing with Turnbull [1977] QB 224. I would not put it forward as the only test; it is nevertheless a test which is appropriate to the circumstances of this present case. When considering this question, it must be kept in mind that the evidence should not be considered in isolation; what may appear to be poor in quality when taken by itself may gain strength when considered in the context of the evidence as a whole: cf Chamberlain (No. 2) [1984] HCA 7; (1984) 153 CLR 521 at 535."

28. I have great difficulty in seeing how a cautionary warning in this case overcomes the prejudice that would flow from the giving of this evidence which is open to very significant criticisms of its probative value. I rule that it is inadmissible.

Emergency Search and Seizure

29. Detective Constable Barnicoat and Detective Constable Shakeshaft of the Woden Crime Office were the officers responsible for authorising and conducting the search of the silver Ford Fairlane that the four accused were travelling in when apprehended.

30. On the night of the robbery, Detective Constable Barnicoat and Detective Constable Shakeshaft heard of the incident at Mawson via the police radio and decided to attend. They attended apartment 19 of 12 Wilkins Street, Mawson. Detective Constable Shakeshaft spoke with one of the occupants of the flat, Luke Tanswell, who informed him that cannabis had been stolen from the apartment. Detective Constable Shakeshaft also observed that there were re-sealable plastic bags and aluminium foil on a table in the apartment. He then had conversations with Constables Seppings and Martin who informed him that a vehicle had been stopped on Heard Street and that a witness had identified two persons in that vehicle as being the intruders who had broken into the apartment and taken their property.

31. As a result of his observations and conversations with Luke Tanswell and Constables Seppings and Martin, Detective Constable Shakeshaft formed the opinion that the people sitting in the vehicle stopped by police had cannabis in their possession:

"The items that were indicated to me from Mr Tanswell of the property that had been stolen during the aggravated burglary were cannabis and money. So I went out and had the belief that the property from that burglary consisting of cannabis was in that vehicle."

32. Detective Constable Barnicoat and Detective Constable Shakeshaft then left the apartment and walked to an area at the rear of the apartment which faces Heard Street. They observed a silver Ford Fairlane that had stopped on Heard Street and was surrounded by a number of police vehicles and police officers. When Detective Constable Shakeshaft and Detective Constable Barnicoat first approached the vehicle, there were four men sitting in the vehicle. The evidence of Detective Constable Shakeshaft is that after discussion with Detective Constable Barnicoat, he decided that the situation warranted an immediate search of the vehicle pursuant to the emergency search and seizure powers of s 188 Drugs of Dependence Act 1989 (ACT):

"My concern was with the security of whatever was stolen from the flat, whether it was still in the vehicle. I wanted to do the search of the vehicle while it was still in the situation so there could be no suggestion that it was put there after the event."

33. Detective Constable Shakeshaft left the vehicle in order to obtain a tape recorder, and when he returned to the vehicle he observed that all of the accused, apart from Mr Parsons, had already been placed in police vehicles. He informed Mr Parsons that it was his intention to conduct a search of the silver Ford Fairlane pursuant to the Drugs of Dependence Act "emergency powers" and asked Mr Parsons to assist him with the search of the vehicle:

"Mr Parsons, it is my intention to conduct a search of this vehicle under the Drugs of Dependence Act emergency powers as I have reasonable grounds to believe that there are drugs in this vehicle and that it has just left the premises at The Crest on Wilkins Street in Mawson where drugs were stolen."

34. As the search took place, Detective Constable Shakeshaft identified relevant items and showed them to Mr Parsons for comment. The taped record of the search places the commencement of the search at 10.13 pm. The items located during Detective Constable Shakeshaft's search were not seized at that time. There were further items identified by Detective Constable Duffus and Detective Constable Barnicoat when they went through the vehicle in detail after Detective Constable Shakeshaft's initial search. Detective Constable Duffus and Detective Constable Barnicoat also completed a property seizure record. The time of completion of the property seizure record was 11.30 pm.

35. Among the items of property found in the silver Ford Fairlane were a silver baseball bat, an electric guitar, a Sony Playstation, two mobile phones, a quantity of vegetable matter believed to be cannabis, and a quantity of Australian currency, $642.00 in notes and a bag of coins.

36. Detective Constable Shakeshaft has admitted that at the time the search of the vehicle took place, the police were in charge of the scene in that the accused or suspected offenders were in police custody. However, he maintains that he held a reasonable belief that in order to secure the available evidence an immediate search of the vehicle was required.

37. Constable Seppings was aware that emergency search warrants could be obtained by telephone, however he "did not see the requirement given that this fell - as far as I was concerned, fell within reasonable grounds to conduct a search without a warrant".

38. No challenge was made to the police stopping the vehicle. After receiving information, Senior Constable McIntosh, driving a mobile patrol vehicle, stopped the vehicle coming out from the vicinity of the flats at which the robbery had occurred. No search of the vehicle occurred at that time although it would appear that s 209 and s 210 of the Crimes Act 1900 (ACT) would have permitted such a search as it was presumably this power that authorised the stopping. It was shortly after the vehicle had been stopped that Detective Constable Shakeshaft came on the scene. The exercise of the power under s 209 and s 210 of the Crimes Act 1900 (ACT) is conditioned upon the same suspicion or belief on reasonable grounds that s 188 of the Drugs of Dependence Act 1989 (ACT) predicates for its operation (see s 209(1)(b) and (c) Crimes Act 1900 (ACT)).

39. Section 188 of the Drugs of Dependence Act 1989 (ACT) provides:

"188. Searches in emergencies

(1) A police officer may only exercise a power under this section if the police officer believes, on reasonable grounds -

(a) that it is necessary to do so in order to prevent the concealment, loss or destruction of any thing connected with an offence; and

(b) that the circumstances are of such seriousness and urgency as to require the immediate exercise of the power without the authority of a warrant issued under section 187 or of an order of a court.

(2) A police officer may -

(a) search a person or the clothing that is being worn by, and property in the apparent control of, a person suspected by the police officer to be carrying any thing connected with an offence; or

(b) enter any place at or in which the police officer believes on reasonable grounds that any thing connected with an offence is situated; and

(c) seize any such thing that he or she finds in the course of that search, or at or in the place.

(3) A police officer who believes on reasonable grounds that a person is, without lawful authority or reasonable excuse, carrying any thing connected with an offence may, for the purposes of this section, detain that person.

(4) A police officer who believes on reasonable grounds that any thing connected with an offence is upon or in a vehicle, vessel or aircraft may, for the purposes of this section, stop that vehicle, vessel or aircraft."

Section 182 of that Act provides that "place" includes vacant land, premises, a vehicle, a vessel or an aircraft.

40. The precondition for the exercise of this power is the belief, on reasonable grounds, of the necessity to do so for the purpose set out in s 188(1)(a) of the Drugs of Dependence Act 1989 (ACT), in circumstances of the seriousness and urgency set out in s 188(1)(b) of that Act. I do not consider that the existence of the preconditions for the exercise of the power to stop the vehicle that the Crimes Act requires are affected or removed by the fact that no search takes place immediately after the exercise of the power to stop.

41. It was put that, given the number of police officers surrounding the vehicle and the placing of the occupants in a police vehicle, there were no grounds for a belief, on reasonable grounds, of the necessity to prevent the concealment, loss or destruction of anything connected with the offence. It is true that Detective Constable Shakeshaft was concerned to ensure that the police not be accused of "planting" anything in the vehicle but it is clear that his prime motivation was to ensure that he obtained and secured whatever evidence his search of the vehicle might yield.

42. I take the words "concealment, loss or destruction" as encompassing a search for the purpose of securing as evidence things reasonably believed to be connected with an offence. That necessity arose when the vehicle was stopped and continued despite the removal of the persons from the vehicle. Having regard to the circumstances deposed to by the police officers, I consider that there were reasonable grounds for their belief as to the necessity for doing what they did and that the circumstances which I have outlined above were of such seriousness and urgency, having regard to the information that the police had been given, further supplemented by the allegation of drugs having been stolen, so as to require the immediate exercise of the power that s 188 gave them.

43. It was also put that the police information was only that drugs had been stolen and that stealing was not an offence under the Drugs of Dependence Act 1989 (ACT). Possession of a drug is. I do not think that there is anything in this point. I rule that the search was lawful.

Record of Interview

44. Mr MacDonald and his co-accused were stopped by police (and effectively under arrest) from approximately 9.40 pm on 2 November 1999.

45. The evidence of Detective Constable Shakeshaft and Constable McIntosh is that they did not formally arrest or caution any of the accused at this time, and it is unclear whether any of the other police officers present at the scene performed these duties. When asked at the committal hearing whether Mr MacDonald in particular had been formally arrested or cautioned before being taken into police custody, Detective Constable Shakeshaft's response was:

"All I can say is that I never said to him he was under arrest. I can't answer for the other officers there."

Whilst it was put as a submission that Mr MacDonald was not properly arrested in that he was not informed of the offence for which he was being arrested, in the absence of evidence that he was not so informed, I cannot uphold the submission.

46. After being placed in a police vehicle, Mr Macdonald was conveyed to Woden Police Station for an interview. This interview was commenced at 1.10 am on 3 November 1999. Before the commencement of questioning, Detective Constable Duffus formally cautioned Mr MacDonald.

47. An allegation that he had been involved in the assault of Luke Alchin was put to Mr MacDonald by Constable Duffus:

"Peter, Detective Sinclair and I are making inquiries into an allegation that, at about nine thirty p.m., on Tuesday November the second, nineteen ninety nine, along with three other males, you attended unit nineteen of twelve Wilkins Street at Mawson. Along with one other male, you entered the flat and you did assault Luke Alchin."

48. Although an allegation of assault was put to Mr MacDonald at the commencement of the interview, Detective Constable Duffus proceeded to ask questions during the course of the interview that were pertinent to the armed robbery that had occurred at Unit 19 of 12 Wilkins Street, Mawson. Specifically, questions were asked of Mr MacDonald in relation to items of property that were found in his car and photographs of those items were shown to him.

49. It was submitted by Mr Arthur, counsel for Mr MacDonald, that cautioning in relation to an assault and then proceeding to questioning in relation to an armed robbery is misleading.

50. I cannot see that Mr MacDonald was in any way mislead, nor was I referred to any aspects of the questioning where it could be said that Mr MacDonald might or might not have given an answer because of some misapprehension on his part. Items were taken during the course of the assault. He was questioned about his knowledge of those items. I do not regard that questioning as unfair, or the answers given as resulting from being misled.

51. It was also put that if the search was unlawful, then the putting of photographs of the items found in the search during the course of the interview was unfair and those questions and answers should be excluded. I have ruled that the search was lawful and the point therefore does not arrive.

52. A further issue in relation to the record of interview is the length of time taken to complete the interview. Section 23C of the Crimes Act 1914 (Cth) imposes a four-hour time limit on an accused being held in custody for the purposes of an interview. Mr MacDonald was arrested at approximately 9.40 pm (or for all intents and purposes was under arrest at that time). His record of interview was not concluded until 2.06 am. However, the time that he arrived at Woden Police Station was recorded as 22.29 (10.29 pm) (cf s 27C(7)(a) of the Crimes Act). Given this, Mr Arthur did not press his submissions with respect to that issue.

53. I am satisfied that the evidence relating to the interview is admissible and no circumstance has been made out which would call for the exercise of a discretion to exclude it.

Separate Trial applications

54. After I made certain rulings on the voir dire as to the lawfulness of the police search of the vehicle and the admissibility of the record of interview between the accused Peter Adrian MacDonald and Detective Constable Duffus on 3 November 1999, applications for separate trials were made by the accused David Leslie Parsons and the accused John Radman. Mr Everson, for Mr Parsons, and Mr Pappas, for Mr Radman, both sought that those accused be tried separately from Mr MacDonald but made no application that they be tried separately from each other.

55. A number of cases were cited to me concerning the principles that I should apply in determining this application. It is sufficient if I indicate that I have regard to the principles applied by Hunt J (as he then was) in R v Middis & Ors (unreported, Supreme Court of New South Wales Criminal Division, 27 March 1991). That was a case where, as here, it was claimed by the applicants for separate trials that statements made by the other accused to the investigating police were not admissible against those applicants but were highly prejudicial to the applicants' case. His Honour said:

"The principles upon which separate trials will be ordered in those circumstances were laid down by the Supreme Court of Canada in Guimond v The Queen (1979) 44 CC (2d) 481, and approved by the High Court of Australia in Darby v The Queen [1982] HCA 32; (1982) 148 CLR 668 at 678. See also the decision of the Court of Criminal Appeal in Regina v Oliver (1984) 57 ALR 543 at 547. I have discussed those principles in a number of cases, principally Regina v Domican and Thurgar (1989) 43 A Crim R 24 and Regina v Farrell and Cotton (1990) 48 A Crim R 311.

Briefly, the relevant principles are that: (1) where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and (2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and (3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial."

Later, his Honour said:

"In my opinion, an applicant for a separate trial must demonstrate that there is a real risk (as opposed to a remote possibility) that there will arise in a joint trial prejudice of the type which - if it arises would result in positive injustice to him."

56. The first statement that I have cited was approved by the NSW Court of Criminal Appeal comprised of Gleeson CJ, Powell JA and Smart J in R v Baartman (unreported, 6 October 1994) (see too R v Fernando [1999] NSWCCA 66; R v Georgiou [1999] NSWCCA 125; R v Patsahs and Spathis [1999] NSWSC 649; (1999) 107 A Crim R 432). In the context of the principles upon which separate trials will be ordered, however, is also the principle that the interests of justice are served by there being a joint trial when the accused are charged, as here, with the joint commission of the crime. That brings into play the important consideration of the likely effectiveness of the usual warnings given when accused are jointly tried (R v Holden (1990) 52 A Crim R 32 at 44 per Perry J). That consideration led Gleeson CJ to remark in Baartman's case:

"It is argued on behalf of the applicant that this case goes far beyond the not uncommon case where there is a joint trial and some evidence, such as evidence in the form of a record of interview, is admissible against one accused but not a co-accused. That commonly occurs and the problem is handled by appropriate directions by the trial judge."

57. The prosecution intends to lead as evidence against all of the accused, the following:

* Evidence of the victims as to the attendance of two people at Unit 19 "The Crest" at Mawson at about 9.30pm on 2 November 1999, and what occurred after those persons entered the premises and related forensic evidence.

* Evidence that one of those persons who entered the flat was carrying an extendable baton, and the other person who entered the flat was carrying a baseball bat.

* Evidence that a number of items were taken from the flat, ie money, cannabis, an electric bass guitar, a mobile telephone, a Sony Playstation and jewellery.

* Evidence that each of the accused were together in a silver Ford Fairlane motor vehicle at about 9.40pm on 2 November 1999 when that vehicle was stopped by the police in Heard Street, Mawson, which is a street near "The Crest" Units.

* Evidence by police that when the vehicle was stopped, Mr MacDonald was the driver, Mr Radman was in the front passenger seat, Mr Parsons was in the rear driver's side passenger seat and the late Mr Petrovic was in the rear passenger seat.

* Evidence by police that a search of the vehicle was conducted and an extendable baton and some money was located under the front passenger seat, and items of property which were identified as having been taken from the flat, ie electric bass guitar, cannabis, money, mobile telephone etc were also located in the vehicle.

58. The evidence additional to that identified by the prosecutor is the taped record of interview between Mr MacDonald and the investigating police officers. The prejudice identified by counsel for Mr Radman and Mr Parsons included what might be disbelieved as to the driving of the vehicle. It was put:

"On the 3^rd November 1999 the co-accused Peter Adrian MacDonald was interviewed by police. In the course of that Record of Interview the co-accused told a number of lies which the Prosecution can show to be Edward's lies and which will be admissible in the case against MacDonald but not admissible in the cases against the applicant Radman or his co-accused Parsons. In particular at Question and Answer 64 MacDonald told the police that he was just driving around and that he and Radman, Parsons and the deceased Tony Petrovic had merely driven into a block of flats to turn around. At Question 70 he told police that they had not stopped their motor vehicle and at Question 72 that nobody had gotten out of the motor vehicle. At Question 143 he was unable to explain adequately to police why the vehicle had driven into the block of flats in order to do a U-turn. At Questions 158 - 170 MacDonald indicated not only had he not stopped the vehicle and that nobody had gotten out of the vehicle but that he was able to account "for all four people" in his vehicle."

59. In addition, it was said that the following questions and answers were highly prejudicial:

"Q.203 Did you see that (a Sony Playstation) in the car when you first entered the car this evening?

A. No. There could've been a bloody half a body under the - all the clothes in the car.

When shown some Polaroid photographs containing what the police described as "green vegetable matter" and asked whether he knew anything about it MacDonald said

Q.206 A. I know what it is. That's an interesting way of describing but um ...

Q.207 A. Pot, dope, yeah. Um, should I take it that that was in there too?

Q.208 In your - in your motor vehicle.

A. As I said about the rest of it, no idea I wish I did know it was there.

Further in relation to cannabis MacDonald was asked

Q.215 Did you notice any implements used for smoking cannabis in the car?

A. No.

Q.216 Are you aware if there any in there?

A. Oh, there might be a cone involved here and there but ...

Q.217 How about one of these? ...

A. Mullamatic?

Q.218 Yeah.

A. Um, there might be. There could be, I don't know. I don't know whether I got it out of the car or whether you threw it out, if you cleaned the car, the rest of them."

60. In relation to those questions and answers and other answers to which I was referred involving the word "we", I make the observation that it was, on Mr MacDonald's statement to the police, the late Mr Petrovic to whom he had lent the vehicle "for ages" prior to this night.

61. I agree that some of the material is prejudicial in its effect on the cases of Mr Radman and Mr Parsons but less so than if Mr MacDonald had directly implicated them. I doubt that the prosecution can pitch its case on the basis that Mr MacDonald's statement about his driving the car or that his "smart" or evasive answers were lies told with consciousness of guilt so as to constitute additional evidence by way of implied admissions (see Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193). I consider that any real risk of a positive injustice to the accused can be met by appropriate directions. I will hear counsel, but as presently advised I would propose, at least, giving the following direction:

"You might think that Mr MacDonald is giving convenient answers to ensure that he is not linked with the evidence of what took place at the flat. Whatever you think about that, what he says is not evidence in the case against Mr Parsons or Mr Radman. It is what he says in his own case. It is an assertion that cannot be tested. It is just not evidence in the cases you are considering with respect to Mr Parsons and Mr Radman. You do not need to consider what Mr MacDonald said in his record of interview at all when giving the separate consideration that you must give to their cases."

62. I refuse the applications of David Leslie Parsons and John Radman for a trial separate from a trial of Peter Adrian MacDonald for the offences charged.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 20 May 2002

Counsel for the Prosecution: Mr C Todd

Solicitor for the Prosecution: Director of Public Prosecutions (ACT)

Counsel for the Accused MacDonald: Mr W Arthur

Solicitor for the Accused MacDonald: Michael Bartlett, Solicitor

Counsel for the Accused Parsons: Mr C Everson

Solicitor for the Accused Parsons: Saunders & Co

Counsel for the Accused Radman: Mr J Pappas

Solicitor for the Accused Radman: pappas j - attorney

Dates of hearing: 4, 5, 6, 8 March 2002

Date of ruling: 6 March 2002