R v Mulhall & Mulhall [2011] NTSC 74

PARTIES:	The Queen

	v

	MULHALL, Patrick

	AND

	MULHALL, Shane

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	21104340, 21104341

DELIVERED:	27 SEPTEMBER 2011

HEARING DATES:	5 – 14 SEPTEMBER 2011

JUDGMENT OF:	RILEY CJ

REPRESENTATION:

Counsel:
	Crown:	E Armitage with D Jones
	Shane Mulhall:	H Blundell
    Patrick Mulhall:	I Rowbottam
	
Solicitors:
	Plaintiff:	Office of the Director of Public Prosecutions 
	Defendant:	Northern Territory Legal Aid Commission

Judgment category classification:	C
Judgment ID Number:	Ril1110	
Number of pages:	8
IN THE SUPREME COURT 
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Mulhall & Mulhall [2011] NTSC 74
Nos (21104340) (21104341)

	BETWEEN:

	THE QUEEN
	Prosecution

	AND:

	PATRICK MULHALL 

AND 

SHANE MULHALL
	Accused

CORAM:	RILEY CJ

REASONS FOR JUDGMENT

(Delivered 27 September 2011)

[1]	 Patrick Mulhall and Shane Mulhall are brothers.  They were charged with various offences arising out of an incident which occurred on 1 February 2011.  On that occasion two men were assaulted.
[2]	Patrick Mulhall pleaded guilty to having unlawfully assaulted Danny Strochnetter but not guilty to having unlawfully caused serious harm to Terry Trainor.  By his plea he acknowledged that he was present at the time of the incident.
[3]	Shane Mulhall pleaded not guilty to each of the offences alleged against him.  However, he acknowledged that he was at the scene. 
[4]	The Crown sought to rely upon recordings of telephone conversations made by Shane Mulhall from the Darwin Correctional Centre, where he was held on remand.  It was the contention of the Crown that the telephone conversations provided evidence that he was at the scene and took part in the alleged assaults.
[5]	Counsel for Shane Mulhall acknowledged that the calls were lawfully recorded but said they should have been excluded from the evidence in the exercise of my discretion.  I allowed the evidence to be admitted.  These are my reasons for doing so.
The gathering of the evidence
[6]	The Darwin Correctional Centre routinely records telephone conversations of inmates.  Those using the telephone system are warned that they have no expectation of privacy whilst placing private calls.  They are aware in advance that the calls will be monitored and recorded.  In addition, at the commencement of each call, a recorded message advises the parties to the call that it will be monitored and recorded.
[7]	At the time of the recording of the conversations with which I am concerned, Senior Constable Morgan was the police liaison officer working with Correctional Services.  He was involved in gathering intelligence including by the monitoring of phone calls.  
[8]	Senior Constable Morgan was requested by the investigating police officers to monitor the telephone calls of Shane Mulhall and Patrick Mulhall.  He did so and discovered information that he considered may be of interest to the investigating officers.  Pursuant to an information sharing agreement between Correctional Services and the Northern Territory Police, he then made a formal request to the Department of Correctional Services for the release of the information.  The Senior Constable subsequently provided the investigating officers with a disk containing the relevant recordings of the telephone calls.  The investigating officers listened to the recordings and formed the opinion that they had evidential value.
[9]	Thereafter, at the request of the officer in charge of the investigation, Constable Ward caused two warrants to be issued to obtain the recordings of the conversations.  According to Constable Ward the purpose of the warrants was to provide a chain of evidence and he also stated that they were issued from an abundance of caution.  It was not necessary for me to determine whether there was any need for a warrant to issue in the circumstances of this case.  
[10]	It was the intention of Constable Ward that one warrant be directed to the telephone conversations of Patrick Mulhall and the other to the telephone conversations of Shane Mulhall.  When he prepared the search warrants both were inadvertently directed to the telephone conversations of Patrick Mulhall alone.  The officer described this as an error on his part in "cut and paste".  The error was not picked up by the Justice of the Peace who issued the warrants.  It was not picked up by the officer at the Corrections Centre who provided copies of the telephone conversations relating to both brothers thinking that was what the warrants required.  There was no dispute that the intention of all concerned had been for separate warrants to issue and that all involved understood that the warrants had been correctly formulated in relation to the telephone conversations of both Shane Mulhall and Patrick Mulhall. Constable Ward collected the disks and delivered them to the investigating officers.  
[11]	The error in the warrant was subsequently discovered and a fresh warrant, correctly directed to the telephone conversations of Shane Mulhall, was issued and served.  The disks produced as a consequence of the issue of the warrant were the subject of this application for exclusion.
The submissions of Counsel
[12]	Counsel for Shane Mulhall acknowledged that the conversations were lawfully recorded, but submitted that the Court should exclude the evidence on the basis of the exercise of a public policy discretion.  It was submitted that the purpose of the Prisons (Correctional Services) Act was to provide for the control and conduct of prisons and prisoners, and for related purposes, and that it did not allow for disclosure of information obtained from the monitoring or recording of prisoners’ telephone calls.  It was submitted that if disclosure was permitted, such disclosure should be limited to the purpose of maintaining the security and good order of the prison or to prevent a breach of the law.  It was further submitted that to admit the evidence would be to encourage prison authorities to act outside the legislative role of ensuring the good order and security of prisons and prisoners.
[13]	Finally, it was submitted that the evidence should be excluded on the basis that it was more prejudicial than probative in that it disclosed that the accused was in prison at the time the phone calls were made and that its probative value was “minimal”.
The recording of telephone conversations. 
[14]	The telephone calls of prisoners are legally recorded under the regime established by the Director pursuant to s 50 of the Prisons (Correctional Services) Act.  This section permits the Director to allow a prisoner to make and receive telephone calls on such terms and conditions as the Director thinks fit.  There is no legislative restriction on the terms and conditions that may be imposed.  
[15]	The Director has published Northern Territory Correctional Services Directive number 2.15.2 and Darwin Correctional Centre Standing Operating Procedure number 16.1 which together, for present purposes, set out the terms and conditions imposed by the Director on prisoner telephone calls. 
[16]	The Directive expressly provides that such telephone calls may be monitored to detect any matters that may constitute a breach of a law of the Territory, the Commonwealth, a State or another Territory of the Commonwealth. 
[17]	Section 51 of the Prisons (Correctional Services) Act provides for circumstances in which information obtained from supervision, monitoring or recording may not be disclosed.  However the prohibition on disclosure is limited to such information obtained during visits between a prisoner and a visitor, or from the censorship of any letter or parcel dispatched by a prisoner.  In those cases information may only be released if disclosure is necessary to maintain the security and good order of the prison, to prevent a breach of the law in force in the Territory or to obtain medical treatment for a prisoner. 
[18]	It is significant that there is no legislative restriction placed upon the disclosure of information obtained from the monitoring of telephone calls.  In my opinion the regime reflected in the directives of the Director is authorised by the legislation and is consistent with the broad objectives of the Act.  I see no reason why, as a matter of public policy, information regarding criminal activity gathered should not be disclosed to law enforcement authorities.  The participants in the telephone calls were warned in advance that the conversations would be monitored and were again warned at the commencement of the conversation.  It was a transparent process.
[19]	The Information Act permits the sharing of information of this kind between agencies where, inter alia, it is necessary for the function of the agency in investigating the commission of an offence.  There is an information sharing agreement between the Correctional Centre and the Northern Territory Police.  Information is shared on the basis that it will be used in the performance of law enforcement functions.  Included within the agreement are procedures for the obtaining of information.  The procedures require the submission of a particular form.  In this case the procedures were followed correctly.
[20]	Some criticism was levelled at the investigating officers for the mishap regarding the issue of the warrants.  Whilst the mistakes were regrettable, it was readily apparent that they were genuine mistakes.  They did not lead to any prejudice to the accused.  The mistakes do not give rise to any basis for excluding the evidence.
[21]	I did not accept the submission that the material should have been excluded on the basis that it is more prejudicial than probative.  The evidence was capable of having significant probative value.  It placed Shane Mulhall at the scene and included admissions made by him that he was personally and physically involved in the altercation.  In the recorded conversations he said that he acted in self defence or at least defence of his brother.  On the other hand the only prejudice which was identified was that the telephone calls may reveal that Mr Shane Mulhall was in custody at the time.  Any prejudice arising from knowledge of that fact could have been met by appropriate directions to the jury.  In the event the fact that the calls occurred whilst Mr Shane Mulhall was in custody was not revealed to the jury.
[22]	The evidence to be obtained from the recordings included admissions as to the presence of Shane Mulhall at the time of the incident.  Although the presence was admitted subsequently in the trial, it was not admitted at the time of the application.  Further, comments made in the course of the recorded conversations provided evidence upon which the jury may have relied as to the involvement of Shane Mulhall in the incident.  I do not accept that the probative value of the evidence was outweighed by any prejudice caused to Shane Mulhall.
[23]	In all the circumstances I declined to exercise my discretion to exclude the evidence.