Director of Public Prosecutions v Birchall
[2023] VSC 391
•5 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0198
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| DANIELLE LEE BIRCHALL | Accused |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF RULING: | 5 July 2023 |
DATE OF REASONS: | 6 July 2023 |
CASE MAY BE CITED AS: | DPP v Birchall |
MEDIUM NEUTRAL CITATION: | [2023] VSC 391 |
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MURDER – Evidence – Admissibility of footprint evidence – Whether impugned evidence obtained as a consequence of a contravention of Australian law, namely, breach of s 464K of the Crimes Act 1958 – Whether impugned evidence obtained improperly – Whether an independent third person should have participated in police interview with accused – Whether evidence should be excluded under s 138 of the Evidence Act 2008 – Impugned evidence admitted – Johnstone (a Pseudonym) v The King [2023] VSCA 49 – DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 355.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Porceddu with Ms R Champion | Office of Public Prosecutions |
| For the Accused | Mr C Pearson with Ms J Willard | The Law and Advocacy Centre for Women Ltd |
HIS HONOUR:
BACKGROUND
The accused, Danielle Birchall, is charged with the murder of her de facto father‑in‑law, Konstantinos Kritikos. He was seriously assaulted in his home on 11 November 2020 and died in hospital on 24 November 2020. The identity of his assailant is the central issue in the accused’s pending trial by jury.
This is a ruling regarding the admissibility and use of footprint evidence.
For the reasons given below, I rule that the footprint evidence is admissible. I also rule that the evidence may be used by the prosecution to ‘put’ the accused at the scene of the crime (that is, inside the deceased’s house) at the time of the crime (that is, the afternoon of 11 November 2020).
Prosecution case
The prosecution case includes the following allegations.
On the afternoon of 11 November 2020, the accused attended the deceased’s house at 224 Reynard Street, Coburg and inflicted multiple blunt force injuries. He died in hospital on 24 November 2020.
A next door neighbour, Jonathan Evans, heard thudding and groaning noises coming from the deceased’s house on the afternoon of 11 November 2020 and went to investigate. He went to the back door first but could not see or hear anyone. He went round to the front door and called out. He said that a female voice answered, which he recognised as the accused’s voice. She said that ‘everything was OK’ and that it was ‘just George’ (the accused’s partner) who was ‘upset’. The neighbour left. About 15 minutes later, the neighbour had a short conversation with the accused across the fence as she was leaving the deceased’s premises. It was a conversation about whether Evans’ wife had received a text from her about when the deceased’s wife would be coming home from hospital. Evans could not see the accused during that conversation.
On the night of 11 November 2020, the accused returned to the deceased’s house with her partner. They found the deceased on the hallway floor, slipping in and out of consciousness. According to George Kritikos, he asked his father who had done it and the deceased answered ‘her, her, her’ in Greek, a language the accused does not speak.
The accused called 000. Police and paramedics attended. So did crime scene examiners, who, amongst other things, observed bloodied footprints in George Kritikos’ bedroom. These bloodied footprints were ultimately found to match footprints taken from the accused by police. The prosecution allege that the accused deposited her footprints in the deceased’s blood on the afternoon of 11 November 2020 in the course of cleaning herself up and changing her clothing and footwear after fatally assaulting the deceased.
Defence case
The accused denies that she was the assailant. She admits she attended the deceased’s house on the afternoon of 11 November 2020 but in her police interviews denied that she entered the house. She told the police she was only at the house a short time and spoke to the deceased through the back door.
She re-attended with her partner George on the night of 11 November 2020 because, as they were driving past, they noticed that the deceased’s bedroom light was not on (contrary to his usual practice) and went to investigate. She was shocked by what they found.
The accused seeks the exclusion of the impugned footprint evidence under s 138 of the Evidence Act 2008, relying, firstly, on a contravention of s 464K of the Crimes Act 1958 by police on 13 November 2020 when they took a first set of reference footprints from the accused and, secondly, the failure of the police to have an independent third person participate in a recorded interview with the accused on 9 March 2021 after which the police took a second set of reference prints from the accused. It is the second set of reference prints on which the prosecution wishes to rely.
Statutory framework
The statutory framework for this ruling is as follows.
Crimes Act 1958
464Definitions
(2)In this Subdivision—
authorised person means a person appointed as an authorised person under subsection (3);
fingerprints includes finger, palm, toe and sole prints;
464KFingerprinting of adults and children aged 15 or above
(1)A police officer may take, or cause to be taken by an authorised person, the fingerprints of a person of or above the age of 15 years who—
(a)is believed on reasonable grounds to have committed; or
(b)has been charged with; or
(c)has been summonsed to answer to a charge for—
an indictable offence or a summary offence referred to in Schedule 7.
(2)A police officer intending to fingerprint a person under this section must inform the person in language likely to be understood by him or her—
(a)of the purpose for which the fingerprints are required; and
(b)of the offence which the person is believed to have committed or with which the person has been charged or for which the person has been summonsed to answer to a charge; and
(c)that the fingerprints may be used in evidence in court; and
(d)that if the person refuses to give his or her fingerprints voluntarily, a police officer may use reasonable force to obtain them; and
(e)that if the person is not charged with a relevant offence within 6 months or is so charged but the charge is not proceeded with or the person is not found guilty of the offence or any other relevant offence before the end of that period, the fingerprints will be destroyed.
(3)Subject to subsection (4), the police officer who informs a person of the matters in subsection (2) must—
(a)record (whether by audio recording or audiovisual recording); or
(b)record in writing signed by the person—
the giving of that information and the person’s responses, if any.
(4)If a person is in custody within the meaning of this Subdivision in relation to an indictable offence, the giving of the information under subsection (2) and the person's responses, if any, must be recorded by audio recording or audiovisual recording.
(5)If information and a person’s responses are recorded by audio recording or audiovisual recording in accordance with this section, the police officer giving the information must give or send by post to the person or his or her legal practitioner without charge—
(a)the recording (whether audio recording or audiovisual recording) or a copy of it within 7 days; and
(b)if a transcript of the recording is prepared, a copy of the transcript as soon as practicable.
(6)If information and a person’s responses are recorded in writing in accordance with this section, the police officer requesting the person’s fingerprints must give to the person, or cause the person to be given, a copy of the signed record forthwith.
(7)A police officer may use reasonable force to take the fingerprints of a person referred to in subsection (1) who refuses to give them voluntarily if the use of reasonable force is authorised by a police officer in charge of a police station at the time of the request or a police officer of or above the rank of sergeant.
(8)If the person from whom fingerprints are required is a child aged 15, 16 or 17 years—
(a)a parent or guardian of the child or, if a parent or guardian cannot be located, an independent person must be present during the request for the fingerprints, the giving of the information referred to in subsection (2) and the taking of the fingerprints; and
(b)if the use of reasonable force has been authorised in accordance with subsection (7), the taking of the fingerprints must be recorded by audiovisual recording, if practicable, or by audio recording.
464NTaking of fingerprints
(1)Fingerprints may be taken by means of a device to obtain a record of the fingerprints (a fingerscan) or by any other means.
(2)If—
(a)fingerprints are to be taken in accordance with a court order; or
(b)reasonable force is to be used to take fingerprints—
a person of the same sex as the person to be fingerprinted must, if practicable, take the fingerprints and a police officer involved in investigating the offence for which the fingerprints are required must not, if practicable, take the fingerprints.
464QEvidence of fingerprints
(1)Evidence in respect of fingerprints taken from a person is inadmissible as part of the prosecution case in proceedings against that person for an offence if—
(a)the requirements of sections 464K to 464N have not been complied with; or
(b)the fingerprints or any record, copy or photograph of them should have been but have not been destroyed as required by section 464O or 464P.
(2)A court may admit evidence in respect of fingerprints otherwise inadmissible by reason of subsection (1)(a) if—
(a)the prosecution satisfies the court on the balance of probabilities that the circumstances are exceptional and justify the reception of the evidence; or
(b)the accused consents to the reception of the evidence.
(3)For the purposes of subsection (2)(a), the probative value of the fingerprints is not to be regarded as an exceptional circumstance.
Evidence Act 2008
138 Exclusion of improperly or illegally obtained evidence
(1)Evidence that was obtained—
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law—
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note
The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.
142Admissibility of evidence—standard of proof
(1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding—
(a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or
(b) any other question arising under this Act—
have been proved if it is satisfied that they have been proved on the balance of probabilities.
(2) In determining whether it is so satisfied, the matters that the court must take into account include—
(a) the importance of the evidence in the proceeding; and
(b) the gravity of the matters alleged in relation to the question.
Victoria Police Manual and Intranet[1]
[1]Exhibit B on the voir dire.
The chapter of the Victoria Police Manual headed ‘Interviews and Statements’ regulates the conduct of police interviews with persons who have a cognitive impairment. An ITP is an independent third person.
The Manual says this at 8.1 of the relevant chapter:
Cognitive impairment is a term used to cover a range of conditions which adversely affect a person’s ability to understand and process information. It includes intellectual disability, acquired brain injury, mental illness and neurological disorders.
The Manual says this at 8.7 of the relevant chapter:
An ITP must be present during the interview of any person with a cognitive impairment who is fit to be interviewed or have a statement taken as a suspect, an accused, an offender, a victim or a witness.
The Manual says this at 8.8 of the relevant chapter:
Ensure that the person being interviewed understands the purpose of the interview and clearly understands their caution and rights prior to the interview proceeding. Ask the suspect to explain in their own words what the caution means and what their rights are. Advise the ITP if you have any concerns about the suspects understanding of the caution and rights.
The police intranet also contains the following under the heading ‘Independent Third Persons (ITPs) for people with a cognitive impairment’:
An Independent Third Person must be present when a person (regardless of age) with a cognitive impairment is being interviewed as a witness, victim or suspect.
Cognitive impairment, also known as mental impairment is a term which covers a range of disabilities which adversely affects a person’s ability to understand and process information. It includes intellectual disability, acquired brain injury, mental illnesses like depression, bipolar mood disorders, schizophrenia as well as neurological disorders such as dementia.
Chronology
It is now necessary to set out a detailed chronology of events.
July 2007
In July 2007, the accused was placed on a Justice Plan by a court for two years. By virtue of ss 80 to 83 of the Sentencing Act 1991, it is a precondition for the imposition of a Justice Plan that the person has an intellectual disability.
11 November 2020
The following events occurred on 11 November 2020.
At approximately 2:42pm, the accused left her home in Kurunjang. CCTV footage showed her wearing a dark coloured top with a white pattern, black leggings, black socks and light coloured runners.[2]
[2]See Summary of Prosecution Opening dated 26 April 2022, [27].
At approximately 6:42pm, the accused returned home. CCTV footage showed her wearing different clothing and footwear and her hair appeared wet.[3]
[3]See Summary of Prosecution Opening dated 26 April 2022, [43].
At approximately 11:50pm, the accused made a signed statement to police in which she said that she and George Kritikos had been driving past the deceased’s home about 10:45pm and had gone in to check on the deceased as his bedroom light was off. They discovered the deceased lying in the hallway, badly beaten up. This statement was subsequently read out in a recorded police interview conducted with the accused on 12 November 2020 between 6:05am and 7:15am.
12 November 2020
The following events occurred on 12 November 2020.
At approximately 2:00am, the accused and George Kritikos were arrested and taken to Fawkner Police Station.
Between 3:44am and 3:47am, the accused participated in a recorded police interview with police officers Solomon and Koehler (ROI-A). During that interview, she was not given the information prescribed by s 464K of the Crimes Act 1958 regarding the taking of fingerprints or footprints (the s 464K caution). Nor was an ITP present for ROI‑A.
Between 6:05am and 7:15am, the accused participated in a recorded police interview with police officers Justin and Solomon (ROI-B).[4] Prior to commencing ROI-B, Justin saw on the police database that the accused had been placed on a Justice Plan by the courts in 2007 for two years. She consulted the Sentencing Act 1991 and realised that to be placed on a Justice Plan one had to have an intellectual disability. Justin also saw on the database that the accused had been interviewed by police on some 33 occasions and had never had an ITP present. After consultation with Solomon and speaking with the accused — who told her she had schizophrenia — Justin decided to interview the accused without an ITP.[5] During ROI‑B, the following exchange occurred:
[4]Justin, a Homicide Squad detective, had oversight of the investigation at this stage although she did not become the Informant until the deceased died on 24 November 2020.
[5]Depositions, 2284 to 2385; see also Transcript of voir dire, 30 June 2023, 236–238.
Q 331When you went into Kon’s place the first time, do you take your shoes off - do you put your shoes on and off, what’s the – what’s his rules in relation to that?
ANuh, they don’t - they don’t have - take it – I don’t know, they don’t take ‘em off and on.
Q 332Mm. And did you have your - - -
AI think they do, I don’t know.
Q 333Did you have your shoes on when you went in the second time, you know, at like 10.30 or close to 11 o’clock when you went in with George, did you guys have your shoes on?
AYeah, I know I had mine on.[6]
[6]Depositions, 907.
During ROI-B, the accused was not given the s 464K caution.
At approximately 8:35am, Justin attended on the accused in her police cell. She photographed the accused then seized the black shoes she was wearing. She noted no obvious signs of blood on the inside of both shoes.[7] Subsequent examination of the inside of the shoes detected no blood.
[7]Depositions, 747.
At 7:30pm, Dr Jayawardene, a forensic medical officer, commenced an in-person Fitness for Interview (FFI) assessment of the accused who had been self-harming in the police cells. He administered a Mini Mental State Examination during that assessment on which the accused scored 26/30. In his notes Dr Jayawardene described the accused’s intelligence as ‘normal’. Dr Jayawardene determined that she was not fit for interview and that she needed to be taken to hospital to get treatment for her self‑inflicted injuries and also to get methadone and other prescribed medication. The accused was taken to hospital in accordance with Dr Jayawardene’s directions.
13 November 2020
The following events occurred on 13 November 2020.
At 2:05am, having been brought back to Fawkner Police Station from the hospital, officer Reynolds took the accused’s footprints.[8] He did not administer the s 464K caution before doing so. On a voir dire, he said that he was instructed to take her footprints and her partner’s footprints by a Detective Stewart, who had interviewed the accused’s partner.[9] At the time Reynolds was a uniformed police officer working in the watchhouse. He said he was not aware whether the accused had been given a s 464K caution during her recorded interview.[10] He said he had assumed that she had consented to the taking of her footprints.[11]
[8]Depositions, 325.
[9]On a voir dire, Stewart said he only directed Reynolds to take George’s footprints.
[10]Transcript of voir dire, 26 June 2023, 56.
[11]Transcript of voir dire, 26 June 2023, 60.
At approximately 9:05am, Justin returned to the Fawkner Police Station. She was briefed that the accused’s footprints had been taken. On a voir dire, she said this:
[T]here was discussions about why it was taken, um, because her interview hadn’t been concluded and she hadn’t been given her formal caution.[12]
[12]Transcript of voir dire, 26 June 2023, 25.
Between 1:10pm and 2:05pm, Dr Huang conducted an FFI assessment of the accused. The accused told Dr Huang that she may have been diagnosed with schizophrenia but was not sure. Dr Huang found her fit for interview. Dr Huang did not detect any cognitive incapacity and saw no clinical reason for an ITP.[13] However, Dr Huang recommended an ITP after consultation with his supervisor and having regard to the fact that she had been in custody in hospital a long time and was potentially a vulnerable person.[14]
[13]Transcript of voir dire, 30 June 2023, 166.
[14]Transcript of voir dire, 30 June 2023, 167.
Between 3:50pm and 4:37pm, Justin and Bradford conducted a further recorded interview with the accused (ROI-C). Because of Covid, the ITP, Naomi Hatch, participated by phone. When asked to explain back the caution a second time, the accused said ‘I don’t have to do anything or say anything.’[15] The accused said she had just spoken to her lawyer and had been advised by the lawyer to say ‘no comment’ which was what she intended to do.[16] Nonetheless, she answered some questions. Towards the end of the interview,[17] the accused was given the s 464K caution regarding both fingerprints and footprints. The accused responded that the footprints had already been done. Justin agreed and said they were only going to take her fingerprints.[18] On a voir dire, Justin said this about giving the s 464K caution to the accused regarding footprints at the conclusion of ROI-C:
All right. So your position is that you didn’t see this as a problem at all? Not at the time, no.
And your position seems to be this. ‘I didn't think this was a problem right through until 9 March’ — well, until after 9 March, is that correct? Correct.
All right. Why didn’t you think it was a problem? I mean, on the face of it you had got the match for a footprint on the basis of a footprint that had been unlawfully obtained. Why didn’t you see that as a problem? It was — it had obviously come up in the briefing in the morning. I then reinterviewed her and I gave her her caution and included the footprint and fingerprint in that, and I thought that that would be sufficient to say that she’s been given her caution for both.
So you were trying to cure something that had happened earlier that morning? I’ve included footprints in my caution, yes.
Yes. And are you saying that you deliberately did that because you understood that that would then cure the unlawful taking of her footprints earlier that morning?‑‑‑No. If I was — if I thought they were taken illegally, I would have arranged for them to be taken again when I took her fingerprints on the 13/11.[19]
[15]Depositions, 922 (Q & A 452).
[16]Depositions, 927 (Q 489).
[17]Depositions, 945–946 (Q 582).
[18]Depositions, 946.
[19]Transcript of voir dire, 30 June 2023, 226.
At approximately 5:11pm, Justin was informed that the footprints taken from the accused at 2:05am had been compared with the bloodied footprints in George Kritikos’ bedroom at the deceased’s house and they were a match.
Sometime after 6:30pm, the accused was released from custody.
24 November 2020
On 24 November, the deceased died in hospital. Over the following months, police gathered more evidence, including telephone intercept material.
16 December 2020
On 16 December 2020, Justin spoke to the footprint expert , Lucy Skiller.[20] There was discussion about taking another set of reference footprints from the accused. Justin made a contemporaneous note — ‘Advised additional prints can be taken. Delay won’t be an issue’. Justin testified on a voir dire that when Skiller requested a further set of reference footprints, she (Justin) was concerned about delay because of warts or lumps observed on the accused’s feet in November 2020 which might have disappeared, changing the surface of the soles of the accused’s feet. She was advised by Skiller that that would not be a problem.
[20]Transcript of voir dire, 30 June 2023, 227.
9 March 2021
On 9 March 2021, the accused was re-arrested and re-interviewed (ROI-D) by Justin and McGowan between 11:12am and 11:20am. No ITP was present but she was permitted to speak to her lawyer over the phone in private before the interview commenced. She mainly answered ‘no comment’. At the conclusion of the interview, Justin gave her the s 464K caution in relation to both fingerprints and footprints. When the accused remarked that police already had them, Justin said they needed to be taken again. The accused consented to giving them. The footprint expert Skiller and a colleague were present at the police station for the purpose of taking the second set of reference footprints. At a voir dire, Skiller gave evidence that she had requested that Justin get a fresh set of footprints from the accused because of the quality of the first set of reference footprints taken on 13 November 2020.
7 May 2021
On 7 May 2021, Skiller compared the footprints taken from the accused on 9 March 2021 with the bloodied footprints from George Kritikos’ bedroom at the deceased’s home and concluded they were a match.[21] The second set of reference footprints also had more features in common with the bloodied footprints than the first set of reference footprints.
[21]Depositions, 384–385.
Evidence on Voir Dire
Evidence was given on a voir dire by Officers Stewart, Reynolds and Justin, Doctors Jayawardene and Huang, ITP Hatch and footprint expert Skiller. I have already referred to some of their evidence in the above chronology. I need only mention a few things about their evidence at this point.
Stewart said he only instructed Reynolds to take George Kritikos’ footprints on 12 November 2020. Reynolds said Stewart instructed him to take both George Kritikos’ footprints and the accused’s footprints.
Justin said this about the reasons for getting a second set of reference footprints from the accused on 9 March 2021:
So I’d been liaising with Lucy Skiller who was the fingerprint expert in relation to this matter prior to her arrest on the 9th of the 3rd. And she’d had a discussion with me about the fact that, um, she would prefer a second set of footprints are taken. Um, the footprints on — that were taken earlier on in the piece were, um, taken by a member who — we don’t take footprints as a matter of — with all of our accused. Ah, so she preferred that a second print get — second set be taken.[22]
[22]Transcript of voir dire, 26 June 2023, 28.
Justin denied on the voir dire that the reason for the interview of 9 March 2021 was that she understood there was a problem with the admissibility of the first set of reference footprints. She indicated that it was after 9 March 2021 that she became aware that there was a problem with the first set of reference footprints through discussions with the OPP.
Justin indicated that the main purpose of the interview on 9 March 2021 was to question the accused about additional information that had come to light during the investigation which contradicted the accused’s version of events.[23]
[23]Transcript of voir dire, 26 June 2023, 42.
As for her not organising an ITP for the accused on 9 March 2021, Justin said this:
First of all, what was your knowledge of the accused having any cognitive impairment — either in November or of March 2021? I don’t think her cognition was impaired.
…
Can you just tell His Honour what was the basis of your conclusions that she didn’t need an ITP?‑‑‑So that’s through my own observations, ah, conversations that I’ve with her, and that’s included in the whole of the investigation from November through to the March. I had been, ah, reviewing independently her telephone intercepts, um, so I was able to listen to those conversations, um, checking the police database, um ‑ ‑ ‑[24]
[24]Transcript of voir dire, 30 June 2023, 202–203.
Skiller’s evidence on the voir dire confirmed what Justin said about Skiller asking for a second set of reference prints because of the quality of the first set of reference prints. Skiller also confirmed that more common features with the crime scene footprints were identified using the reference footprints taken from the accused on 9 March 2021.
I note that no evidence was given or called by the accused on the voir dire.
SUBMISSIONS
Given the limited time available to me, I will only summarise the accused’s submissions.
The accused submitted that I should find that Justin organised the interview on 9 March 2021 because she knew there was a problem with the admissibility of the footprint evidence given that Reynolds took the reference prints without a s 464K caution having first been given to the accused. The accused submitted that Justin’s professed reasons for re-interviewing the accused on 9 March 2021 were a ruse to conceal the real reason. The accused submitted that I should reject the evidence of Justin and Skiller that Skiller simply wanted a new set of reference prints because of the quality of the first set of reference prints. The accused highlighted the fact that there were no email or written communications between Justin and Skiller confirming this. The accused submitted that if she had been told the real reason for the interview of 9 March 2021 — as should have been done — she may not have consented to the taking of her footprints and permission may not have been obtained from a Sergeant pursuant to s 464K(7) for the taking of the prints without her consent.
The accused submitted that the conduct of the interview on 9 March 2021 was also improper because of the absence of an ITP. This was a clear and deliberate contravention of the Victoria Police Manual guidelines for interviewing persons with a cognitive impairment. Justin knew the accused had been put on a Justice Plan in 2007 and knew that meant she had been assessed as having an intellectual disability. Justin also admitted that the accused told her that she was a schizophrenic. In other words, she was a person with a cognitive impairment (as defined in the Victoria Police Manual and Intranet) in two respects.
The accused submitted that the probative value of the impugned evidence was not high. Nor was it important evidence. That is because the accused was present in the house on the night of 11 November 2020, when she and her partner found the deceased lying in the hallway and could have deposited her footprints then. She could have taken off her shoes for many reasons, including to avoid slipping over or getting blood on her shoes. And she could have cleaned her feet thereafter, which would explain why there was no blood detected on the inside of her shoes which were seized by Justin on 12 November 2020 at approximately 8:35am. The accused submitted that the accused’s answer to Q 333 of ROI-B that she did not take off her shoes when she went into the deceased’s house said nothing about what she did after she went in. The accused submitted there needed to be a follow up question such as ‘Did you remove your shoes at any time after you went in?’ for there to be a proper foundation for a finding that the accused did not take off her shoes inside the house on the night of 11 November 2020. The accused had also witnessed a shocking scene on the night of 11 November 2020, one which traumatised her according to what she told police in various conversations that were covertly recorded by police. In those circumstances, it would be wrong to assume that if she had taken off her shoes inside the house on the night of 11 November 2020, she would have said so in ROI-B in response to Q 333.
The accused submitted that the combination of the contravention of s 464K on 13 November 2020 and the failure of Justin to involve an ITP in the interview on 9 March 2021 was ‘impropriety of the highest order … a deliberate and calculated example of police illegality and impropriety.’[25]
[25]Accused’s written submissions dated 26 June 2023, [25].
The accused submitted it was a simple matter for the police to follow the legalities and proprieties. The complexities surrounding the s 464K caution made it important for them to have an ITP present on 9 March 2021.
ANALYSIS
Obtained in consequence of a contravention of Australian law
There is no dispute that the reference footprints taken from the accused on the morning of 13 November 2020 were taken contrary to s 464K of the Crimes Act 1958. Then, on the afternoon of 13 November 2020, a footprint expert confirmed that the reference footprints were a match with the bloodied footprints left in George Kritikos’ bedroom in the deceased’s house. But for that confirmation of a match, it is unlikely that the police would have sought a second set of reference prints from the accused on 9 March 2021. In my view, there is thus a causal link between the illegally taken reference footprints and the second set of reference prints taken on 9 March 2021 on which the prosecution rely. I am consequently satisfied by the defence that the impugned footprint evidence — namely Skiller’s opinion evidence about the match between the second set of reference prints and the bloodied footprints found in George Kritikos’ bedroom in the deceased’s house — was obtained in consequence of a contravention of an Australian law.
Having said that, I reject the defence submission that Justin perjured herself on the voir dire and that her real purpose in conducting the interview on 9 March 2021 was to cure the illegality of the taking of the first set of reference prints on 13 November 2020. Whilst one might expect an experienced detective to understand that giving the s 464K caution after the taking of prints was no cure for the illegality, I was persuaded by her evidence on 30 June 2023 that, having administered the s 464K caution to the accused at the conclusion of ROI-C on the afternoon of 13 November 2020, she did not appreciate there was an ongoing legal problem with the first set of reference prints until after 9 March 2021 when it was brought to her attention by lawyers at the OPP.[26] In particular, I was struck by her answer that if she thought there was an ongoing problem with the first set of reference footprints, she would have taken a second set of reference footprints immediately after ROI-C on the afternoon of 13 November 2020.
[26]Transcript of voir dire, 30 June 2023, 222.
Impugned evidence also obtained improperly
Section 138 ‘impropriety’ is conduct which is ‘clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances’.[27] In my view, it was improper of Justin to interview the accused on 9 March 2021 without an ITP after discovering from the police database on 12 November 2020 that the accused had been put on a Justice Plan in 2007. She understood on 12 November 2020 that a person could not be put on a Justice Plan unless they had an intellectual disability. The Victorian Police Manual required her to involve an ITP when interviewing a person with a cognitive impairment. The Manual’s definition of cognitive impairment includes a person with an intellectual disability. It also includes a person with a mental illness. The accused told Justin on 12 November 2020 that she was a schizophrenic. The fact that the accused may have been interviewed by police over 30 times without an ITP and that Justin considered her level of comprehension adequate did not make it proper for her to disregard her own Manual’s directives. Consequently, I am satisfied that the impugned evidence was also obtained improperly in that the police did not have an ITP present for the interview on 9 March 2021 when the accused was given a s 464K caution regarding footprints and consented to the police taking the second set of reference prints.
[27]RidgewayvThe Queen (1995) 184 CLR 19, 37 (per Mason CJ); Hills v The Queen [2011] VSCA 364, [18].
Balancing exercise
I am, however, persuaded by the prosecution that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence in the way in which the evidence was obtained.
Probative value of evidence
I reject the accused’s argument that a jury could not exclude the reasonable possibility that the accused deposited her footprints in the accused’s blood when she and her partner entered the house on the night of 11 November 2020. It would be open to a jury to find that if the accused had taken off her shoes inside the house on the night of 11 November 2020, one would have expected the accused to mention it in ROI‑B given the questions asked by Justin at Questions 331 to 333. Those questions inquired whether there was any rule about taking off one’s shoes in the deceased’s house and whether she or George took off their shoes when they ‘went in’ the house on the night of 11 November 2020 (the accused said ‘I know I had mine on’). It is a remote possibility in my view that she understood Q 333 as directed solely to the moment she stepped over the threshold.
In my view, the probative value of the impugned evidence is high. It would be open to the jury to find that the accused’s footprints were deposited in the deceased’s blood on the afternoon of 11 November 2020. The evidence of the neighbour Jonathan Evans supports such a finding, as does the evidence of the accused’s change of clothing and footwear when she returned home at approximately 6:42pm on 11 November 2020. So too does the absence of blood on the inside of the shoes she was wearing when she was arrested. The impugned evidence puts her at the scene of the crime at the time of the crime. The evidence has additional probative value because a jury could use it to find that the accused lied when she told police that she did not enter the deceased’s house on the afternoon of 11 November 2020. A jury could then use that lie as incriminating conduct, as asserted in the Prosecution’s Notice of Incriminating Conduct. The accused did not dispute, that if it was open to the jury to find that she lied about not entering the house on the afternoon of 11 November 2020, it could use that lie as incriminating conduct.
Importance of evidence
There is other evidence that puts the accused inside the house on the afternoon of 11 November 2020. That of course is the evidence of the neighbour Jonathan Evans who recognised the accused’s voice coming from inside the house after he went to investigate the thudding and groaning noises coming from the deceased’s house. He also said he had a conversation with the accused over the fence about whether his wife had received a text from the accused about when the deceased’s wife was coming home from hospital. But that does not render the footprint evidence unimportant. Evans did not actually see the accused at that point in time, or about 15 minutes later when he says he had a brief conversation with her over the fence. Unless the accused admits that she went inside the house on the afternoon of 11 November 2020 — which she has not done in her Defence Response dated 8 June 2022 — Evans’ voice identification evidence will most likely be the subject of jury directions pursuant to Division 4 of Part 4 of the Jury Directions Act 2015. The impugned evidence corroborates Evans’ identification evidence.
Nature of the offence
The accused is charged with murder. In my view, the seriousness of the offence militates in favour of the admissibility of the impugned evidence.
Gravity of contravention and impropriety
In DPP v Marijancevic,[28] the Court of Appeal said this at [67]:
At the least serious end of the spectrum of improper conduct would be that which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a consequence of that impropriety. In the middle of the range would be conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal. At the most serious end of the range would be conduct which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct.
[28](2011) 33 VR 440; [2011] VSCA 355.
I am satisfied that Justin had no idea that Reynolds was going to take the footprints in the early hours of 13 November 2020. Further, I am not satisfied that Reynolds knew that he was acting illegally when he took the accused’s footprints. Based on his answers in the voir dire, it appears that he wrongly assumed that other officers who were responsible for interviewing and cautioning the accused had observed the legalities. I am satisfied that neither Justin or Reynolds sought to illegally obtain any unfair advantage. As already mentioned, I am also persuaded that Justin genuinely but mistakenly believed (until OPP lawyers enlightened her sometime after 9 March 2021) that she had cured any problem with the reference footprints taken by Reynolds by administering the s 464K caution in ROI-C on the afternoon of 13 November 2020. I therefore regard the contravention of s 464K as being at the lower end of the spectrum.
I regard Justin’s failure to have an ITP present at the interview on 9 March 2021 as more serious but I do not consider it a high end impropriety. Whilst Justin deliberately second guessed the clear directives of the Victoria Police Manual, and should have had an ITP person present, I am satisfied that Justin believed that the accused did not actually need an ITP and did not dispense with an ITP to obtain an advantage. Indeed, no advantage was gained. The accused understood she did not have to say or do anything if she did not want to: in ROI-B with Justin, the accused had demonstrated that understanding. Prior to the interview on 9 March 2021, the accused was given the opportunity to speak to her lawyer over the phone in private. She confirmed at the commencement of the interview that she understood the caution. She also demonstrated the capacity to exercise her rights by mainly answering ‘no comment’ in the interview of 9 March 2021, although she consented to the taking of her prints after the s 464K caution was correctly given. Had an ITP been present during the interview, it is unlikely that the outcome would have been different. It is no part of an ITP’s role to advise an accused how to exercise their rights in a police interview.[29]
[29]Even if the presence of the ITP had made a difference, and the accused had refused consent to the taking of her footprints, it is likely that the footprints would have been taken anyway, having regard to s 464K(7) of the Crimes Act 1958.
Deliberate or reckless
As already indicated, the contravention of s 464K was, in my view, neither deliberate or reckless.
As regards the failure to have an ITP present for the interview on 9 March 2021, I am satisfied, as already indicated, that Justin was aware of the Manual’s requirement but I accept her evidence that she believed that the accused was not cognitively impaired and that an ITP was not strictly necessary, given the accused’s demonstrated level of understanding during conversations and interviews with her and during covertly intercepted conversations. I note that neither of the two forensic medical officers who assessed the accused on 12 and 13 November 2020 assessed her as cognitively impaired.
International Covenant on Civil and Political Rights
It was not suggested by the accused that there was any breach of her ICCP rights.
I consider this a neutral consideration.
Other proceedings regarding contravention/impropriety
As far as I am aware, there are no disciplinary proceedings on foot, or likely to be instituted, in respect of the police contravention and impropriety in this case.
This state of affairs militates somewhat in favour of exclusion of the evidence.
The difficulty of obtaining the evidence lawfully/properly
It would have been easy to obtain the evidence without the contravention or impropriety. Had the police observed all the legalities and proprieties, it is likely that they would have obtained the accused’s consent to the taking of the reference footprints.
This state of affairs also militates somewhat in favour of exclusion of the evidence.
Conclusion
This is a balancing exercise which pits the high probative value and importance of the evidence in a murder case against the low gravity of the contravention and the low to mid gravity of the impropriety. In my view, these are the most important considerations. It is a very different case to one recently decided by the Court of Appeal, namely Johnstone (a Pseudonym) v The King[30] where the contravention was of a high order and tipped the balance in favour of exclusion of the impugned evidence pursuant to s 138 of the Evidence Act 2008. In my view, the balancing exercise in the present case clearly favours the desirability of admitting the impugned evidence.
[30][2023] VSCA 49.
Finally, for the reasons given above, the impugned evidence may be used by the prosecution to put the accused at the scene of the crime at the time of the crime. It may also be used to establish the lie that the accused did not go into the house on the afternoon of 11 November 2020, which the prosecution may rely on as incriminating conduct.
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