R v Krezic[2017] QCA 122

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the order proposed by Boddice J and with the reasons given by his Honour.
2. McMURDO JA:  I agree with Boddice J.
3. BODDICE J:  On 19 May 2015 a jury found the appellant and Ashley Huston guilty of murdering Brodie Smith on 13 June 2012.  The trial judge sentenced both to life imprisonment.  The appellant appeals that conviction.
4. The Notice of Appeal relied on three grounds.  First, an error by a pre-trial Judge in ruling that the appellant’s trial be heard at the same time as the co-accused Huston.  Second, an error by a pre-trial judge in ruling that evidence of conversations and acts between the appellant and covert officers in the watch house at Beenleigh on 13 June 2012 were admissible.  Third, that the verdict of the jury was unsafe and unsatisfactory having regard to the admissible evidence against the appellant at trial.
5. At the hearing of the appeal the appellant made no submissions on the first and third grounds.  The only ground advanced was the second ground, which was amended to read “the learned pre-trial judge erred in ruling that the evidence of the statement and acts of the appellant in the Beenleigh watch house could be admitted at trial”.
6. At issue on the amended ground two is whether the pre-trial judge erred in exercising his discretion to admit the evidence when the conversations and acts occurred in breach of the appellant’s right to silence and in breach of relevant legislative provisions.

Crown case

7. The deceased died as a consequence of multiple stab wounds.  Two wounds were identified as fatal wounds.  One was to the back, caused by a weapon about 15 centimetres in length.  It punctured a lung and the heart.  The second was a similar type of wound which penetrated a kidney.
8. The Crown case was that the deceased’s stab wounds were inflicted by the appellant after the appellant and Huston had formed a plan to rob the deceased of illicit drugs.  The deceased was known to be a supplier of illicit drugs and Huston had a friend, Angela Moutsatsos, arrange a meeting with the deceased.  Whilst the deceased was told the meeting was to purchase drugs, Huston proposed to steal those drugs and other items from the deceased.  Huston arranged for Krezic to join him in this plan.
9. The Crown case relied on liability on two alternative bases.  First, that the appellant was a principal offender pursuant to s 7 of the Criminal Code.  Alternatively, that the appellant was liable pursuant to s 8 of the Code on the basis that Huston and the appellant formed a common intention to prosecute an unlawful purpose, robbing the deceased; that the deceased’s murder was committed in the prosecution or carrying out of that unlawful purpose; and that the offence was of such a nature that its commission was a probable consequence of the prosecution of that unlawful purpose.

Evidence

10. The Crown case against the appellant relied on evidence from Moutsatsos, who had initially been charged with murder but entered a plea of guilty to manslaughter which was accepted by the Crown in satisfaction of the indictment against Moutsatsos.  The Crown also relied on scientific, medical and other evidence linking the appellant to the deceased on the night in question, lies told by the appellant and admissions made by the appellant to covert operatives.
11. Moutsatsos gave evidence that on the night in question Huston asked her to arrange a meeting with the deceased.  The deceased was to be told that the purpose of the meeting was to purchase drugs.  However, Huston told Moutsatsos he was going to steal the drugs from the deceased.  Huston then made a telephone call to someone who Moutsatsos later found out to be the appellant.  She described the appellant as ten times bigger than the deceased.  Huston arranged for the appellant to come with him to the meeting with the deceased.
12. Moutsatsos said when Huston collected the appellant from his home, the appellant showed Huston a knife.  It was the only knife she saw that evening.  Huston told the appellant to leave the knife but the appellant replied “nah fuck him”.  Huston repeatedly told the appellant not to use the knife.  The appellant’s response was to laugh and say “yeah no”.  Moutsatsos said Huston and the appellant discussed what would happen at the meeting with the deceased.  They agreed the appellant would get into the boot of the vehicle and Huston, after meeting with the deceased, would use an excuse of needing to get his wallet in order to open the boot so that the appellant could exit at the scene.
13. Moutsatsos said when she left the vehicle near the prearranged meeting place, Moutsatsos observed the appellant get inside the boot and put an orange coloured shirt around his head like a balaclava.  The boot lid was then pulled down.  The vehicle drove off leaving Moutsatsos on the roadway.  About two or three minutes later, Moutsatsos heard a “long, loud scream”.  Shortly after that scream, the vehicle returned with both Huston and the appellant seated inside it.
14. Moutsatsos said when entered the back seat, the appellant left the vehicle and put something wrapped in an orange shirt into the boot.  The appellant spoke about stabbing the deceased when he returned to the vehicle.  He was chuckling and indicated stabbing the deceased in the chest area.  The appellant told Moutsatsos “if you open your mouth you’re next”.  Moutsatsos said the appellant had blood on his shirt.  When Huston dropped the appellant back at his house, the appellant went to the boot of the vehicle.  Moutsatsos saw his hand in the boot area.
15. Moutsatsos agreed she initially gave a version to police which did not include any involvement by the appellant in the deceased’s death.  She agreed she told police of the appellant’s involvement only after having heard Huston’s later version to police.  Moutsatsos told police she did not want to end up like the deceased and that the appellant had said he would come and get her.  She agreed she had promised to give evidence against the appellant and Huston in accordance with that later version to the police.
16. Moutsatsos agreed her version of the description the appellant gave of where he stabbed the deceased had changed from the left side of the chest to the right side of the chest.  She also agreed she had not previously described the colour of the shirt the appellant used to “bally up” his face.  She had also changed her version from not remembering whether the boot of the vehicle was opened when they returned to the appellant’s house to describing the appellant’s hand in the boot.
17. Evidence was led of telephone communications between the appellant and Huston on the night of the deceased’s death.  CCTV footage was shown depicting Huston’s car in the vicinity of the service station area when the deceased was found with stab wounds.  The boot was shown to be open at one point.
18. Evidence was also led that the appellant’s prints were located on the boot of that vehicle.  An orange shirt was found in the boot area consistent with the shirt referred to by Moutsatsos.  A medical examination revealed the appellant had injuries consistent with recently coming into contact with a sharp knife.  DNA evidence identified blood on the appellant’s clothing consistent with the deceased’s blood.  The deceased’s blood was also found in Huston’s motor vehicle.
19. Evidence was led that the appellant falsely denied seeing the deceased that night.  He gave police an account that he was with his girlfriend Donna Manoussakis on the night of the deceased’s death.  Manoussakis gave evidence that she initially supported that alibi when speaking to police but said in truth she was not with the appellant on that night.  She agreed it was her suggestion for the appellant to give that false version.  Manoussakis said the appellant was distressed after the incident.  He had texted he was scared of the police.  She told him to tell the police he was with her.  She described later seeing the appellant miming and mouthing words to his brother.  His actions at that time included fist movements to his chest and head.
20. Two undercover police officers gave evidence that they had been placed in a cell in the watch house with the appellant and Huston shortly after their arrest for the murder of the deceased.  One of the officers recorded the conversation in the cell.  The recording was indistinct in many parts.  However, the appellant was recorded as saying “Like Ashley stopped in the side on the road and it was pitch dark.  I was holding the boot open, I closed it … he pulls up … in the car.  I was (indistinct) walked down the right side of the car, no wrong side, walked down the left side of the car said give me your shit”.
21. Both officers gave evidence that at that point the appellant demonstrated a stabbing motion with his fist moving towards the chest.  One officer described the motion as “in and out”.  The second officer described the stabbing action by the appellant as using the fist on the front and to the side of his body in an arc.

Pre-trial hearing

22. Prior to trial the appellant brought an application seeking orders for the exclusion of the evidence of the undercover officers in the watch house.  The grounds relied upon for the exclusion of the undercover officers’ evidence were unfairness and public policy.
23. Evidence was given by both undercover officers in that application.  Their evidence established that police were aware prior to placing the undercover officers in the watch house cell that the appellant, through his solicitor, had exercised his right to silence.  Further, in order to allow the undercover officers time with the appellant, police had sought and obtained an extension of the appellant’s detention period without advising the appellant or his legal representative and without giving them an opportunity to make submissions in the relation to that extension.  The police, in making that application, had advised the Magistrate the appellant was “talking”, implying the appellant was making admissions.
24. In refusing the application to exclude that evidence, the pre-trial judge found the provisions of the Police Powers and Responsibilities Act 2000 (PPRA) were not complied with in obtaining the extension of the detention period.  Police did not advise the appellant, in accordance with s 405(5) of the PPRA, of the application to extend custody.  Consequently, s 406 of the PPRA was not complied with in that the Magistrate could not have been satisfied the appellant or his lawyer had been given the opportunity to make submissions about the application.
25. The pre-trial judge found, however, that the admissions made by the appellant were voluntary and were not made to someone who could be identified as a “person in authority”.  While the admissions were made at a time when the appellant had, through his solicitor, indicated he would not engage in an interview with police, that factor must be weighed in the balance against the desirability that people who are guilty of offences be convicted of those offences.
26. The pre-trial judge observed that the exercise of the discretion to exclude the evidence required the Court to consider two apparently conflicting principles.  First, the strong public interest in people who have allegedly committed serious crimes being convicted of those crimes.  Second, that a court should not give its approval to conduct by police which may be unlawful.
27. The pre-trial judge found the balance weighed in favour of admitting the evidence.  The use of a covert operative was an ordinary part of the armoury of the police when investigating serious offences.  The application to extend the detention period was not so defective as to overwhelm the desirability of allowing such conduct.  Further, the statement made by police to the Magistrate that the applicant was “talking”, when viewed in context, was not misleading.  The transcript revealed there was a conversation taking place between the covert police operatives and the appellant.  That might lead reasonably to a conclusion the appellant would make relevant admissions.

Appellant’s submissions

28. The appellant submits the aggregation of the clear undermining of the appellant’s exercise of his right to silence and the failure to comply with the legislative requirements in the PPRA was so egregious as to constitute a failure to protect the rights and privileges of an accused person.  Those rights are properly to be protected as the legislation expressly recognised an accused person’s right to have his or her lawyer make submissions in respect of an extension of the detention period.  Further, a Magistrate must be satisfied the accused person or his or her lawyer has had the chance to make such submissions before granting an extension of the detention period.

Respondent’s submissions

29. The respondent submits the appellant has not established an error of principle such as would justify the setting aside of an exercise of discretion.  The pre-trial judge had not acted upon a wrong principle or allowed extraneous or irrelevant matters to affect the determination.  There was no misstatement of facts.  The decision was properly one within the exercise of the judge’s discretion.
30. The respondent further submits that a number of considerations strongly supported the exercise of the discretion not to exclude the evidence.  The admissions were voluntary and not made to someone who could be identified as a person in authority.  The admissions were reliable and not made in circumstances where there was any interrogation of the appellant.  The admissions were but one piece of evidence to be considered by the jury in the context of direct evidence from Moutsatsos, text communications, CCTV footage, finger print evidence, DNA evidence and false assertions by the appellant as to his whereabouts at the time.  There was a strong interest in the appellant being convicted of the serious crime of murder.  The evidence did not expose the appellant to further disadvantage in the conduct of his defence.

Discussion

Ground 2

31. In R v Swaffield^[1] Toohey, Gaudron and Gummow JJ held that a breach of an accused person’s freedom to choose to speak to police enlivens a discretion to exclude evidence obtained in breach of that freedom.  The majority observed^[2]:

“Where the freedom has been impugned the court has a discretion to reject the evidence.  In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances.  Those circumstances may point to unfairness to the accused if the confession is admitted.  There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards.  This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.”

32. Swaffield concerned potential breaches of the Judges’ Rules.  The operation of those Rules to covert operations has been negated by s 396 of the PPRA, which provides that the powers and responsibilities of those conducting investigations and questioning for indictable offences “does not apply to functions of a police officer performed in a covert way.”^[3]
33. This Court has, however, considered the consequences of a breach of an accused freedom to choose to speak to the police in the context of the use of a covert police officer subsequent to the exercise of a right not to speak to police.  In R v Belford & Bound,^[4] Fraser JA (with whom White JA agreed) said:

“The effect of the High Court’s decision in Swaffield is that the use by police of a subterfuge which undermines an accused person’s freedom to choose not to speak to the police does not in all circumstances require a trial judge to reject evidence adverse to the accused person which results from the subterfuge. … The fact that there is such a subterfuge enlivens the discretion and, in my view, must be an important consideration in the exercise of the discretion, but the manner in which the discretion should be exercised depends upon the circumstances of the particular case.”

34. In order to succeed on this ground it is not enough for the appellant to establish that another Judge, in the position of the pre-trial Judge, would have taken a different course.  As was said in House v The King:^[5]

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

35. In the present case, the pre-trial Judge expressly recognised that the discretion to exclude the evidence obtained by the covert police officers was enlivened by the circumstances in which the covert operatives had been placed in the watch house cell with the appellant and Huston.  The pre-trial Judge properly identified those relevant circumstances, namely, that it occurred after the appellant had exercised his right not to speak to police and after police had obtained an extension of the detention period without notifying the appellant or his lawyers of that application so that the Magistrate could not have been satisfied that the requirements of the Act had been met in relation to that application.
36. Having identified those factors, the pre-trial Judge considered the three separate but overlapping inquiries to be undertaken in deciding whether evidence of an out of Court confession statement was admissible.  The pre-trial Judge considered those three separate but overlapping inquiries in the context of the circumstances of the particular case and concluded, in the exercise of his discretion, that the circumstances did not justify exclusion of the evidence obtained by the covert officers.
37. That conclusion was reasonably open on a consideration of whole of the circumstances.  As Gleeson CJ observed in Tofilau v The Queen:^[6]

“References were made in argument to the appellants’ ‘right to silence’, and to the effect on that right of the techniques adopted by the undercover police.  As Lord Mustill pointed out in R v Director of Serious Fraud Office; Ex parte Smith, that expression ‘refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute’.  It is not a single principle.  It is a convenient shorthand reference to a collection of principles and rules, some substantive and some procedural.  If it is said that there has been an infringement of a person’s right to silence, then it is usually necessary to identify the particular legal rule involved and to explain the nature of the infringement by reference to that rule.  The tendency in argument in the present case was to use the shorthand description to create an aura of inviolability around the appellants’ guilty secrets, and then to take the further step of characterising the tricking of the appellants into deciding to reveal those secrets as an overbearing of the will.

In answer to this line of reasoning it must again be observed that many forms of undercover police activity, and of covert surveillance, involve attempts to gain information from people who, if they were aware of what was going on, would remain inactive or silent.  There is a sense in which it can be said that intercepting a telephone conversation, or secretly recording an interview, always deprives a person of the opportunity to remain silent in circumstances where, if the person had realised that he or she was under observation, the person would have remained silent.  That does not mean that there has been an infringement of one of the legal rules which together make up the right to silence.  Nor does it mean that what is being said in the conversation is involuntary.  The argument seems to equate the right to silence with a right of privacy, and to treat as involuntary any statement that is made without a fully-informed appreciation of the possible consequence.  Neither step is consistent with legal principle.”

38. The material placed before the pre-trial Judge amply supported the pre-trial Judge’s conclusion that the appellant’s admissions were reliable and voluntary.  They were not, in the circumstances, made to someone who could be identified as a “person in authority”.  There was also, as the pre-trial Judge observed, an arguable basis for the assertion to the Magistrate that police believed the appellant would make relevant admissions.
39. Whilst police officers who disregard legislative requirements risk having the fruits of that conduct excluded from being led as evidence in subsequent criminal proceedings, the pre-trial Judge’s ruling constituted a sound exercise of the relevant discretion.  That exercise was not unreasonable or unjust on the facts as found by the pre-trial Judge.  There is no basis for a conclusion that the pre-trial Judge allowed extraneous or irrelevant matters to affect his determination or that the pre-trial Judge acted upon a wrong principle.
40. This ground fails.

Other grounds

41. Although the appellant made no submissions in respect of these grounds, they were not abandoned at the hearing.  It is therefore necessary to consider each ground.

Separate trials

42. At the pre-trial hearing, appellant had also applied for an order for a separate trial.  The ground for the separate trial application was that the appellant could not receive a fair trial if tried jointly with Huston.  The application for separate trial was based on prejudice being afforded to the appellant by the jury hearing evidence as to admissions made by Huston which were supported in material ways by Moutsatsos.  It was submitted that as Huston’s admissions were not admissible against the appellant, the appellant would not receive a fair trial in the absence of an order for separate trials.
43. There were strong reasons of principle and public policy why the appellant and Huston were properly to be tried jointly for the offence of murder.  The evidence against each was substantially the same in terms of eye witness accounts.  The medical and scientific evidence was also substantially the same.  Whilst Moutsatsos’ credibility was an issue in respect of her account as to the acts and conduct of each, there was a considerable body of evidence independent of Moutsatsos’ evidence supportive of the appellant’s guilt of murder beyond reasonable doubt.
44. The various versions given by Huston were not admissible against the appellant.  Whilst it was submitted at the hearing of the application for separate trials that there was a risk that the jury may impermissibly use those versions to bolster the credit of Moutsatsos, it was open to the pre-trial Judge to conclude that those risks could properly be addressed by appropriate directions as to the inadmissible use of those statements in the consideration of the case against the appellant.
45. The decision of the pre-trial Judge to dismiss the application for separate trials was based on a consideration of the relevant factors.  The conclusion that the credibility of Moutsatsos and the use of admissible evidence against Huston alone or Krezic alone could be cured by direction was plainly open.  As the pre-trial Judge properly observed, that evidence was readily able to be disentangled by a jury in consideration of each case in isolation.
46. There was no error of principle or misapplication of facts for relevant considerations in the pre-trial Judge’s conclusion that the application for separate trials should be dismissed.  There is no basis to find that the pre-trial Judge misused the exercise of his discretion in refusing the application for separate trials.  This ground fails.

Unreasonable verdict

47. In determining whether the jury’s verdict was unreasonable, this Court must independently consider the evidence as a whole.  The test is whether it was open to the jury, on the evidence as a whole, to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of murder.^[7]
48. In undertaking that task, due regard must be given to the fact the jury is the body entrusted with primary responsibility for determining guilt.  As was observed in R v Baden-Clay^[8]:

“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact.  Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.  Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury.  Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

49. A consideration of the evidence admissible against the appellant, as a whole, amply supports the conclusion that it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant’s guilt of murder.
50. Moutsatsos gave direct evidence of the appellant’s possession of a knife prior to meeting with the deceased and of the appellant’s admissions immediately after that meeting that he had stabbed the deceased.  She also gave evidence of the appellant demonstrating a stabbing like motion to the chest.  Whilst Moutsatsos had reason to maintain her ultimate account to police, whether it was true or not, it was open to the jury to accept the reliability of that account.  Differences in her accounts were properly matters for the jury to weigh in determining whether it did accept the reliability of her evidence.
51. Significantly, Moutsatsos’ account was independently supported by other evidence.  There was evidence of telecommunications between the appellant and Huston on the evening of the deceased’s death.  There was fingerprint evidence linking the appellant to the motor vehicle used by Huston.  CCTV footage showed that vehicle in the vicinity of where the deceased was found on the roadway.  The boot of that motor vehicle was shown to be ajar at a service station, consistent with Moutsatsos’ account.  Items found in the boot of that vehicle included a shirt consistent with the shirt described by Moutsatsos as having been used by the appellant as a form of balaclava.
52. There was also medical and scientific evidence supporting a finding beyond reasonable doubt that the deceased was stabbed by the appellant.  The deceased had a number of wounds consistent with being stabbed by a knife.  The deceased’s DNA profile was found on jeans worn by the appellant.  The appellant had injuries to his hand consistent with being caused by a knife or other sharp instrument.
53. There were also lies told by the appellant about not having had recent contact with the deceased and of being in the company of Manoussakis that evening.  Manoussakis gave evidence that the appellant’s purported alibi was a lie.  Her description of his interaction with his brother included motioning actions consistent with stabbing to the chest area.  Whilst her reliability and credibility was in dispute, the differences in accounts previously provided by her were properly matters for the jury.  They did not render her evidence completely untrustworthy.
54. Finally, there was the evidence of the undercover operatives.  That evidence included that the appellant had made admissions to being present with the deceased, to having demanded drugs from the deceased and demonstrating a stabbing motion towards the chest region.  Those admissions were recorded and the jury had the opportunity to listen to that recording.  It was plainly open to the jury to find the admissions reliable and credible in the circumstances.
55. The jury’s finding beyond reasonable doubt that the appellant was guilty of murder was not solely dependent upon an acceptance of Moutsatsos’ evidence or Manoussakis’ evidence.  Other evidence independently supported in a material way the reliability and credibility of the accounts given at the trial by each of those witnesses.
56. This ground also fails.

Conclusions

57. There was no error in the pre-trial Judge’s exercise of the discretion to refuse the appellant’s application for a separate trial.  There was also no error by the pre-trial Judge in exercising the discretion not to exclude the evidence of the covert operatives.
58. The verdict of the jury was not unreasonable.  A consideration of the evidence admissible against the appellant amply supports a conclusion that it was open to the jury to be satisfied beyond reasonable doubt of all of the elements necessary to establish the appellant’s guilt of the offence of murder.

Order

59. I would dismiss the appeal.