Director of Public Prosecutions v Catherine James (a Pseudonym)[1]
[2016] VSCA 106
•17 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0058
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| CATHERINE JAMES (a Pseudonym)[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | OSBORN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 April 2016 |
| DATE OF JUDGMENT: | 17 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 106 |
| JUDGMENT APPEALED FROM: | DPP v [James] (Unreported, County Court of Victoria, Judge McInerney, 7 April 2016) |
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CRIMINAL LAW – Interlocutory Appeal – Exclusion of evidence of two records of interview – Whether real risk respondent did not understand caution and warnings given to her – Whether real risk respondent’s decision to proceed with interview not rational – Whether interviews unfair – No evidentiary basis for finding with respect to first interview – Finding with respect to second interview open – Consequent exercise of discretion open – Evidence Act 2008 s 90.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G J C Silbert QC with Mr P L Bourke | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr P J Morrissey SC with Mr T Guthridge | Mike Wardell Solicitor |
OSBORN JA:
PRIEST JA:
Introduction
In a pending trial for culpable driving and other offences in the County Court, a judge has, pursuant to s 90 of the Evidence Act 2008 (‘the Act’), ruled two records of interview conducted with the respondent to be inadmissible.
Pursuant to certification of the judge under s 295(3)(a) of the Criminal Procedure Act 2009, given on 7 April 2016, the Director of Public Prosecutions has sought leave to appeal, so as to challenge the judge’s ruling.[2]
[2]A purported application for leave to appeal against an interlocutory decision was also filed by the respondent. At the commencement of the hearing in this Court it was ‘withdrawn’. The Court is thus relieved of having to decide its competence.
For the reasons that follow, we are of the view that the judge erred in excluding the first record of interview, but that it was open to him to exclude the second.
Overview
On 30 March 2014, at approximately 12:50 pm, the respondent was driving a car on the Western Highway towards Stawell. Her vehicle and another collided. A passenger in the other car was killed, and the driver sustained life threatening, permanent injuries.
Later that day, at 3:25 pm, the respondent was assessed by a doctor at Stawell Hospital, before being interviewed twice by police. The first interview was brief. It commenced at 4:22 pm and concluded at 4:28 pm, and consisted of 35 questions (Qs 1 to 35). Some four hours later, at 8:19 pm, police conducted a second interview with the respondent. That second interview concluded at 9:34 pm, and consisted of over 600 questions (Qs 36 to 672). The record of the first interview consisted of an audio recording, whereas the second was both video and audio recorded. A transcript of both interviews was also produced.
The indictment filed in the County Court charges the respondent with one charge of culpable driving causing death (charge 1), and, alternatively, dangerous driving causing death (charge 2); and with negligently causing serious injury (charge 3), and, alternatively, dangerous driving causing serious injury (charge 4).
The prosecution opening indicates that the Crown will seek to rely at trial upon the following principal categories of evidence:
·observations of an independent witness with respect to the movement of the respondent’s vehicle on the roadway prior to the collision;
·evidence that at the scene of the accident the respondent said she thought she fell asleep;
·evidence of the injuries suffered by those in the car with which the respondent’s car collided;
·evidence of illicit drugs detected within a blood sample taken from the respondent following the collision;
·opinion evidence that it is likely that the respondent was suffering rebound fatigue from amphetamine use at the time of the collision;
·admissions in the records of interview;
·evidence of use of the respondent’s mobile phone supporting the inference that she had limited sleep on the night before the collision;
·opinion evidence as to the effects of sleep deprivation; and
·collision reconstruction evidence.
The impugned interlocutory decision
Prior to a jury being empanelled, counsel for the respondent sought exclusion of the two records of interview on five bases:
· first, an alleged failure to comply with the requirements of s 464C of the Crimes Act 1958 (in that police failed to give the respondent access to a friend, relative or legal practitioner);
· secondly, by reason of ss 84(1)(a) and (b) of the Act (in that to interview the respondent in her mental and physical condition was oppressive);
· thirdly, by reason of ss 85(2) and 85(3)(a) and (b) of the Act (in that the truth of any admissions were likely to have been adversely affected because of the respondent’s mental and physical condition);
· fourthly, by reason of s 137 (the probative value of the evidence was outweighed by the danger of unfair prejudice to the respondent) and s 138 of the Act (the admissions were improperly or illegally obtained); and
· fifthly, by reason of s 90 of the Act (in that the respondent’s mental and physical condition rendered the use of her admissions unfair).
The judge refused to exclude the interviews on any of the first four bases. He did, however, exclude the interviews on the fifth postulated basis, finding that s 90 of the Act was engaged. His Honour’s essential findings and reasoning can, we think, be discerned from the following parts of his ruling:[3]
[3]Emphasis added.
I have anxiously perused the video in this case. I have no doubt that in the initial interview the accused appears tired and depressed. However, she demonstrates no lack of comprehension or confusion. When the interview resumes at 8:19 with [the police interviewer] I also find that at times, especially initially, as I will now detail, she is upset and emotionally distressed.
She is clearly worried about her children. She is no doubt tired. It must be remembered that here is a person, alleged by the Crown, and indeed as a result of her own admissions, [who] also fell asleep eight hours earlier while driving a car owing to lack of sleep. And indeed, such is alleged to be the culpable cause of death in this case.
Further, the accused is concerned about her present circumstances, such obviously is a matter that would be of grave concern to a person given the potential effect upon her future life.
I will identify these matters I am about to refer to by way of question numbers, however, if necessary, I have got the precise times as to when these occur on the actual video. I further find that she was retching, at around the time of question 46, that she was bent over in distress on the table at around the time of questions 72 and 84, that she was sighing, that around the time of question 69, she was burping, retching and wanting to vomit. That around the time of question 81, she was retching and feeling she was going to vomit. That around the time of questions 86, 87 and 92, she was grimacing, distressed and further hunched over the table, that is question 89. At the time of question 116, she had her hand [to] her head, was wiping her face and was distressed.
Despite such condition, she chose to continue with the interview and gave, I find, clear and comprehensive answers. …
…
That brings me to s 90 of the Evidence Act 2008. I must admit to a degree of perturbation on this issue and anxious consideration overnight. Section 90 of the Evidence Act 2008 mirrors the Common Law rule that a trial judge has a discretion to exclude evidence of an admission if, having regard to the conduct of the police in obtaining it and in all the circumstances of the case, it would be unfair to admit the evidence against the defendant. The onus in this case rests with the accused to demonstrate such unfairness.
…
[A]s I said to the learned prosecutor yesterday, I was concerned and my concentration in regard to the s 90 submission made concerns the matters that I have referred to in the record of interview and detailed by me as to the accused’s physical and mental state as evidenced in the record of interview, prior to question 116. I have identified those precisely and I will not go over them. But I have in detail set out such physical state during the time that mandated warnings/cautions were given. That is at a time when she was required to take on board and process these warnings.
…
I find that to conduct the record of interview and give the mandatory cautions/warnings while the accused was in such a condition created a very real risk that the accused in fact had a reduced awareness and understanding of what the warnings entailed and meant.
I find further that the consensual answers she gave in response to such cautions, that is to proceed with the record of interview without utilising the rights that she was advised may, given her physical condition, not have been the product of a rational mind. Had she been acting rationally, she may not have made the subsequent answers and admissions that she did make and which I have detailed.
Despite my finding of the truth of the subsequent admissions made, to allow such evidence to be used in this trial against the accused would, I find, in the terms of Swaffield,[4] be unacceptable having regard to contemporary community standards.
I therefore find the defence have, for the reasons which I have detailed, established in terms of s 90 of the Evidence Act 2008 that it would be unfair to the accused for the record of interview to be used as evidence of admissions in this trial, having regard to the circumstances in which such admissions were made.
I want to stress this, there is in such finding no criticism of either of the police officers involved in such record of interview. …
[4]R v Swaffield; Pavic v R (1998) 192 CLR 159 (‘Swaffield and Pavic’).
The judge granted a certificate pursuant to s 295(3) of the Criminal Procedure Act 2009 with respect to his decision.
Grounds of appeal and submissions
The Director’s three grounds of appeal claim that the trial judge erred:
· first, in ruling that despite his finding that the respondent demonstrated no lack of comprehension or confusion in the first record of interview (Qs 1 to 35), it would be unfair to admit the interview pursuant to s 90 of the Act;
· secondly, in ruling that it would be unfair to admit the second record of interview (Qs 36 to 672) into evidence pursuant to s 90 of the Act in that it was not open to find that — there was a very real risk that the respondent had a reduced awareness and understanding of what the warnings entailed and meant; the respondent’s decision to proceed with the interview may not have been the product of a rational mind; and, had the respondent been acting rationally, she may not have made the admissions contained in the interview; and
· thirdly, and in the alternative — if the impugned findings were open — in ruling that it would be unfair to admit the second record of interview (Qs 36 to 672) into evidence pursuant to s 90 of the Act.
In support of the grounds of appeal, counsel for the Director submitted that:
·there was no evidence that the respondent was physically distressed at the time of the first record of interview;
·it was not open to the judge to make the findings he did with respect to the second record of interview on the basis of the video evidence and such findings were inconsistent with findings made by the judge in rejecting the alternative bases upon which the respondent sought to exclude evidence of the records of interview; and
·even if the findings of fact made by the judge as to the respondent’s physical state were open, they did not justify the exercise of the discretion under s 90 of the Act.
Counsel for the respondent contended that:
·the evidence as a whole as to the context in which the interviews occurred justified the findings made with respect to the first record of interview and supported the conclusions reached with respect to the second record of interview; and
·the judge’s conclusions with respect to the respondent’s physical state were open and entirely warranted when the video evidence is closely considered;
·the judge’s exercise of discretion was open to him and entirely warranted by his findings of fact.
Section 90 of the Act
Section 90 of the Act provides:
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.[5]
[5]Evidence Act 2008 s 90.
Section 90 appears in pt 3.4 of the Act which concerns ‘Admissions’. Some of the provisions in that part apply both to civil and criminal proceedings. Others, including ss 85, 86 and 90, apply only in criminal proceedings.
In Em v The Queen, Gummow and Hayne JJ differentiated s 90[6] from the other provisions on the following basis:
It should be observed that s 90 is cast in a form which differs from ss 84, 85 and 86. These set out rules whereby in stipulated circumstances evidence of certain admissions is not to be admitted. Section 90 empowers the court in a criminal proceeding to refuse to admit evidence adduced by the prosecution of an admission (not expressly limited to an admission by the defendant) where to use the evidence would be ‘unfair to a defendant’.[7]
[6]In the Evidence Act 1995 (NSW).
[7](2007) 232 CLR 67, 101 [94] (‘Em’).
The onus with respect to the voluntariness of a confession is upon the prosecution,[8] but upon an accused with respect to the issue of unfairness.
[8]Crimes Act 1958 s 464J(b).
The discretionary nature of s 90 means that this Court will not interfere with the exercise of the power by a trial judge unless error can be demonstrated of one of the kinds identified in House v The King.[9]
[9](1936) 55 CLR 499.
Section 90 does not itself define unfairness and it is a protean and necessarily fact-specific concept. In Em, Gleeson CJ and Heydon J said:
The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. ... In any particular case, the application of s 90 is likely to be highly fact-specific. Certainly it is on the facts of this particular case that the result must turn.[10]
[10](2007) 232 CLR 67, 89 [56].
Gummow and Hayne JJ emphasised that the focus of s 90 is upon the use of the evidence at trial:
As pointed out at the commencement of these reasons, the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence, at the trial of the person who made the admissions, ‘would be unfair’. That is, the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as ‘fair’ or ‘unfair’.[11]
[11]Ibid 103 [107] (Gummow and Hayne JJ).
Section 90 must be read in the context of the Act as a whole. Conclusions that evidence is not to be excluded under ss 84, 85, 86, 137 or 138 involve considerations which might otherwise be regarded as going in different ways to considerations of fairness.
When it is ‘unfair’ to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. ‘Unfairness’, whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or ‘safety net’ provision.[12]
[12]Ibid 104 [109] (Gummow and Hayne JJ).
It is in this sense that s 90 provides a residual or ‘safety net’ discretion. It provides a general supervening discretion after the application of specific rules governing the admissibility of evidence in particular situations. Contrary to the submission of the applicant, there was no error by the trial judge in coming to s 90 after dealing with the specific challenges made under ss 84, 85, 137 and 138 of the Act.
In particular, if the freedom of an accused to choose whether or not to make admissions to police is objectively compromised, then it may be unfair to admit those admissions in evidence at trial despite the fact that the conduct of the police in obtaining them did not involve impropriety and the answers ultimately obtained were reliable.
We accept the submission made on behalf of the respondent that, in principle, it may be sufficient if there was an objective failure of process productive of unfairness whether or not that failure or process was produced by impropriety or oppressive behaviour.
In a case such as the present, advice to an accused that a child or close relative of the accused had died as a result of the collision could exemplify such a possible circumstance. Further, we accept that physical distress might in principle constitute a circumstance rendering the admission of the record of interview unfair despite the fact that an accused had demonstrated no lack of comprehension or confusion in the record of interview itself.
Ground 1 of appeal
Ground 1 of appeal is:
The Learned Trial Judge erred in ruling that despite his findings that the Accused demonstrated no lack of comprehension or confusion in Recorded Interview #1 (Questions 1–35), it would be unfair to admit that Recorded Interview into evidence pursuant to s 90 Evidence Act 2008.
As we have said, the first record of interview was very brief and the subject of audio recording only. Nevertheless, it contained at least one material admission by the respondent, namely that she was on the wrong side of the road at the time of the fatal collision.
The first ground of appeal refers expressly to the judge’s finding that the respondent understood the caution and was not confused as to its meaning at the time of the first recorded interview.
Such a finding does not, however, necessarily preclude a finding that, in all the circumstances, it would be unfair to admit evidence of the first record of interview at trial. As we have said, it may be unfair to do so because of the impact of circumstances which are not otherwise regulated by the Act. The physical state of an accused may constitute such a circumstance.
The respondent submits that his Honour’s findings concerning both records of interview were made in a context which included the following matters:
·The accused was tired both at the time of the first and second recorded interviews.
·The Crown case was that the accused had had only approximately four hours’ rest the previous night.
·The Crown case was that it was probable that the accused was experiencing rebound fatigue from amphetamine use and was in a fatigued and sleep-deprived state at the time she fell asleep when driving, namely approximately 12:50 pm.
·The probability must be that she was even more tired when first interviewed at 4:22 pm and more tired again when interviewed at 8:19 pm.
·The accused had been involved in an horrific head-on collision.
·The accused knew someone had been killed in the collision by the time she was interviewed.
·The accused had been impacted by an airbag to the head at the time of collision.
·The accused was very concerned about the fate of her children.
·The accused had been handcuffed when arrested at the scene of the accident.
·Eyewitnesses at the scene of the accident described her as appearing to be in shock.
The difficulty confronting the respondent in respect of the first recorded interview is, however, that there is no evidence that the accused was in physical distress at this time of the kind contained in the subsequent video recording of the second interview. There is no evidence of the kind which the trial judge identified by reference to specific passages at the outset of the second record of interview demonstrating obvious physical and mental distress.
The assessment of the respondent’s physical state at the time of the first record of interview fell to be made in part in the light of the evidence as to the accused’s medical condition when she was released to police custody shortly before. His Honour analysed that evidence as follows:
As to the physical injuries, the [respondent] reported to Professor Kennett that at the time of the record of interview, (1) She was concussed, (2) She was in a state of confusion and shock, (3) That she [was] in pain from injuries in the accident, and from the fact that she was given no medication, (4) That she was suffering from repeated dizziness, vomiting, nausea and drowsiness prior to and during the record of interview. It is difficult to accept the totality of such history given to the Professor.
Firstly, no injury was reported at the accident scene by the [respondent], (See Exhibit A) that is, the report of the ambulance officer.
Secondly, no injury was reported at the hospital, but for a minor abrasion to the left knee and elbow. (See Exhibit B). No complaint of any pain or injury was made to the triage nurse or doctor, and a medical clearance was given by the doctor (See Exhibit B).
Thirdly, no injury complaint was made on admission to the police station or any complaint of such made at the police station (See Exhibit D).
Fourthly, while under observation by way of CCTV and physical observation, made by two officers, in the cells, there was no notation in the record kept of such observations of any vomiting or of the reporting of any medical issue (See Exhibit C).
Fifthly, as to the issue of concussion, the doctor who saw the [respondent] and gave evidence in this Court yesterday, Dr Okworojwang, reported a full examination by him as a medical practitioner, for a period of 25 minutes in the casualty department of the Stawell hospital, where subsequent to what appears to be a very fulsome examination, no diagnosis of concussion was made by him. Indeed, he undertook in the examination, a Glasgow Coma Score, which recorded the highest level of consciousness that a person can exhibit, that is, 15.
By coincidence, as detailed in Exhibit A, the ambulance officer had undertaken exactly such a process and recorded, on two separate occasions at the scene, a Glasgow Score exactly the same as the doctor.
Further, pursuant to Exhibit A and the evidence of the ambulance officer, an experienced officer at that, there was no evidence before this Court of any symptoms or diagnosis by any person at the scene of the accident, over a period of one and a half hours, of concussion or symptoms of same.
Further, in the record of interview the [respondent] says that at the hospital, subsequent to her examination the doctor told the police she was not hurt and it was okay for her to be interviewed. In the record of interview at Question 99 the accused was asked, ‘Were you happy with that?’, that is the examination and the advice given, and her answer was, ‘Yes’.
The doctor said that in his evidence that he was sure, due to the accident, that when he cleared her medically he would, as was his normal practice in such circumstances, have asked the police to care for her welfare and keep her under watch. Indeed, [the Sergeant] said he put the [respondent] under observation in the cells at 4:20 pm. Given his experience and assessment made in his day book of her suffering shock, being pale and shaking, he said in evidence he did not want her to go into medical shock, that is, as he described, when reality hits people of the experience endured and the likely consequences of same, no doubt especially when they find themselves in a police cell.
As the trial judge found, the evidence did not support the conclusion that the respondent was suffering from concussion at the time of the first record of interview.
We accept, as the respondent submits, that the contextual matters upon which she relies support the view that she was stressed at the time of the first interview. Nonetheless, there is simply no evidence of physical sickness or distress at this point in time such as that upon which the trial judge relied in respect of analysing the second record of interview. In our view, the evidence relating to the first record of interview simply did not justify a finding that there was a very real risk that the respondent had a reduced awareness and understanding of the caution and warnings which she was given at that time. We are fortified in this conclusion by the fact that the judge identified no specific evidence relating to the first record of interview which would justify such a conclusion and advanced no specific reasons justifying his conclusions in respect of the first record of interview.
Accordingly, ground 1 of appeal is made out.
Ground 2
Ground 2 of appeal is as follows:
The Learned Trial Judge erred in ruling that it would be unfair to admit Recorded Interview #2 (Questions 36–672) into evidence pursuant to s 90 Evidence Act 2008 in that it was not open for the Learned Trial Judge to find:
a.That there was a very real risk that the Accused had a reduced awareness and understanding of what the caution and rights administered to her entailed and meant.
b.That the Accused’s decision to proceed with the Recorded Interview may not have been the product of a rational mind.
c.That if the accused had been acting rationally she may not have made the admissions contained in the Recorded Interview.
The situation is, however, markedly different in respect of the second record of interview. By that time, the respondent had been in custody for a further four hour period during which the judge accepted that she had vomited. She had been unable to eat and had not rested. She must, as a matter of common sense, have been more tired than she was both at the time of the alleged offending, in respect of which the Crown case was that she was already sleep-deprived and fatigued, and more tired than she was at the time of the first interview.
More fundamentally, the trial judge made a series of specific findings based on the video evidence of the second recorded interview. In so doing, his Honour focussed upon the questions and answers in the period at the commencement of the interview during which the respondent was cautioned and told of her right to silence. We accept the submission made on behalf of the respondent that the video recording may be regarded as the best evidence available of the respondent’s condition during this period of time.
We agree with the trial judge that the video indicates that the respondent was in considerable physical distress. The video does this both by directly depicting her condition and by recording her explicit complaints that she felt very unwell. Insofar as the first aspect of the evidence — the depiction of her condition — his Honour was correct to highlight the following matters:
·She dry-retches at around the time of question 46.
·At question 69, she retches and appears to want to vomit.
·She is bent over in distress on the interview table at around the time of questions 72 and 84. She evidences distress by sighing and groaning.
·At question 81, she is retching and says that she is feeling that she is going to vomit.
·At questions 86, 87, 89 and 92, she is grimacing, obviously distressed and further hunched over the table.
·At question 116, she has her hand to her head and is wiping her face and is visibly distressed.
It is necessary to set out the transcript of the second record of interview to make clear the juxtaposition of the observations as to the respondent’s state which the trial judge made with the question and answer process. It not only demonstrates that the giving of cautions and warnings occurred during a period of time when the respondent was exhibiting clear signs of physical distress, it also shows, amongst other things, that:
·the respondent made no audible reply to a number of the initial questions she was asked and, in our view, exhibited distress at these times;
·the respondent volunteered statements that she was feeling extremely unwell in conjunction with the apparent physical distress noted by the judge; and
·the respondent’s apparent distress was sufficiently obvious to elicit direct enquiry as to her fitness to continue.
The transcript of the relevant portion of the interview is as follows:
Q
41
OK. Now, before continuing I must inform you that you are not obliged to say or do anything but anything you say or do to me may be given in evidence. Do you understand that?
A
(NO AUDIBLE REPLY)
Q
42
Yeah?
A
(NO AUDIBLE REPLY)
Q
43
I can see you’re nodding but if you can - - -
A
Yes.
Q
44
Yes, OK.
A
Sorry.
Q
45
No, that’s OK. It’s OK. Can you just tell me what — in your own words, what you believe that to mean, that caution that I’ve given you?
A
(NO AUDIBLE REPLY)
Q
46
What I’ve just said to you, what — what do you think that means?
A
Anything I do or say could get me in the shit.
Q
47
Well, yeah, OK.
A
I’m stressed.
Q
48
And it also means that — no, that’s OK — it also means that you don’t have to answer my questions if you don’t want to. All right?
A
Uh ‘huh.
Q
49
It’s up to you — purely up to you as to how you answer — if you answer at all. All right?
A
(NO AUDIBLE REPLY)
Q
50
So if I ask you a question you don’t have to answer it if you don’t want to. OK?
A
Yeah.
Q
51
All right. I must also inform you of the following rights that you have. You may speak with or attempt to speak with a friend or relative to inform that person of your whereabouts here at the station. You may speak with or attempt to speak with a legal practitioner, solicitor, lawyer. OK?
A
I probably should telephone them.
Q
52
If you are not an Australian citizen or permanent resident of Australia you may speak with or attempt to speak with the consular office of the country of which you are a citizen. Do you understand these rights?
A
Yes.
Q
53
Do you wish to exercise any of the rights before we proceed any further?
A
No.
Q
54
Do you wanna ring anyone?
A
My mum.
Q
55
Yeah.
A
I can’t tell her — nuh.
Q
56
Do you want to seek some legal advice?
A
I probably should but it’s just gunna dick you guys around isn’t it?
Q
57
Well, it is entirely up to you. Do you — do you have someone you know?
A
Yeah, my stepdad.
Q
58
Is he a qualified legal practitioner?
A
Not qualified.
Q
59
OK.
A
He’s a justice of the peace and stuff. He’s a Customs officer so - - -
Q
60
Oh, yeah, OK, all right. Well, do you want [to] contact anyone or do you want to - - -
A
Can just go — I don’t think its gunna matter much.
Q
61
Well, it’s your choice, [Catherine]. We can continue or you can — we can stop and you can try and make a phone call if you want to or you can make a phone call after we finish. It’s - -
A
Yeah, it’s all right, just keep going.
Q
62
Keep going?
A
Yeah.
Q
63
OK. So do you wish to exercise any of these rights before we proceed?
A
No.
Q
64
What is your age and date of birth?
A
25, 10th of the 8th 88.
Q
65
Sorry?
A
10th of the 8th 88, and 25.
Q
66
OK. Are you a permanent resident in Australia?
A
Yes.
Q
67
Are you an Australian citizen?
A
Yes.
Q
68
Are you of Aboriginal or Torres Strait Island descent?
A
No.
Q
69
OK, all right. Now, I can see you’re upset. That’s entirely understandable with what’s happened today, OK? If for any reason you want to have a break or you want to get a coffee or a cigarette or a toilet break [or] whatever, you just have to tell me and we’ll just stop it. There’s no issues with that.
A
Yeah.
Q
70
OK? Or if it’s getting too much and you’re struggling, then just tell me, all right? OK.
A
I’m really feeling sick.
Q
71
Sorry?
A
I’m feeling sick.
Q
72
You’re feeling sick? All right.
A
All right.
Q
73
Are you gunna be right to go on?
A
Yeah.
Q
74
OK. Can you tell me what injuries you’ve got from today from today from the collision?
A
A scrape on the elbow and a scrape on my knee and a scrape on my wrist, that’s it.
Q
75
That’s it.
A
(NO AUDIBLE REPLY)
Q
76
OK. Did you — did you go to hospital?
A
Yeah.
Q
77
Tell me what happened at the hospital.
A
They took my blood and checked me over to make sure I was all right.
Q
78
Yeah? Were you admitted?
A
I don’t know.
Q
79
Well, you just went into the emergency department, did you?
A
Yeah.
Q
80
OK. And did a doctor speak to you?
A
Yeah, eventually.
Q
81
All right. Are you right?
A
Yeah, I just feel I’m gunna be sick. It’s OK. Yeah, keep going.
Q
82
OK. And a doctor spoke to you. Correct?
A
Yeah.
Q
83
And someone took some blood from you, did they?
A
Yeah.
Q
84
All right. And did they tell you why they were taking blood?
A
‘Cause I was in a car accident.
Q
85
Yeah, OK. Did you receive a copy of that blood or a tube with that blood in it?
A
Yes.
Q
86
OK. How many tubes did they take?
A
Three.
Q
87
And you received one of them?
A
Yeah.
Q
88
OK. And where is that blood now?
A
The cops have got two of them and I’ve got one.
Q
89
So you’ve got one here in your property, have you?
A
Yeah.
Q
90
All right. And what did the doctor say to you about — did he ask you how you were feeling?
A
Yeah.
Q
91
Yeah? Did he ask you about whether you were fit to be interviewed?
A
No.
Q
92
No?
A
No, that was the coppers.
Q
93
Sorry?
A
The cop — that’s what — the coppers asked that.
Q
94
The police — there were police there with you?
A
Yeah.
Q
95
Did they ask the doctor?
A
Yeah.
Q
96
In front of you?
A
Yeah, I think so. I can’t remember. I can’t remember, that’s all.
Q
97
Yeah.
A
Ouh, shit.
Q
98
And what did the doctor say about your fitness to be spoken to by police about the collision?
A
That I was all right, I wasn’t hurt.
Q
99
Yeah. And were you happy with that?
A
Yeah.
Q
100
All right. I take it from there you were then brought back to the police station. Is that right?
A
(NO AUDIBLE REPLY)
Q
101
And you were put in this room?
A
Yeah.
Q
102
OK. And some — someone did an interview with you on this machine.
A
(NO AUDIBLE REPLY)
Q
103
OK. Did they ask you anything about the collision?
A
(NO AUDIBLE REPLY)
Q
104
And did they ask you what happened?
A
Yeah.
Q
105
Yeah, OK. And you gave some sort of account, did you?
A
(NO AUDIBLE REPLY)
Q
106
All right. And were you then put in the cells, were you?
A
Yes.
Q
107
OK. And I do apologise, you’ve been there a while. I explained before the interview what the delay was. We’re here now anyway. Have you had something to eat?
A
They got me a dinner but I couldn’t eat it.
Q
108
All right, OK. Have you been sick while you’ve been here?
A
(NO AUDIBLE REPLY)
Q
109
What’s that from?
A
Just stress, I think.
Q
110
Stress?
A
(NO AUDIBLE REPLY)
Q
111
Stress from what’s happened today?
A
(NO AUDIBLE REPLY)
Q
112
OK.
A
I’m worried about the boys.
Q
113
Sorry?
A
I’m worried about the boys.
Q
114
All right. Now, you did have your two sons in the car with you when the collision occurred.
A
(NO AUDIBLE REPLY)
Q
115
Yeah. Now, my understanding is that they’ve been taken to the Royal Children’s and that they are — they’ve been taken there as a precaution. I don’t know the extent of any of their injuries or any injuries that they may have — they may have, but yeah, but my understanding is that they’re OK, all right?
A
I just miss them.
Q
116
Yeah. Well, you’ll see them real soon, all right?
A
(NO AUDIBLE REPLY)
Insofar as the respondent’s explicit complaints of distress are concerned, we accept the respondent’s submission that these come to a head between answers 70 and 81. The respondent made clear that she was feeling ‘really sick’. Her appearance was sufficiently alarming to elicit direct enquiries as to whether she was alright. The video makes clear that by that point she had displayed a series of signs of significant physical distress. Her complaints confirmed the reality of this apparent distress.
The fact that she was nevertheless prepared to proceed with the interview tends, if anything, to confirm that she was not playacting when she complained of significant physical distress. Likewise, the judge’s overall assessment of her truthfulness during the record of interview tends to confirm the truth of these complaints.
When the evidence is viewed as a whole there was an evidentiary basis for the trial judge’s findings concerning the respondent’s condition and ground 2 must fail. It was open to the judge to make the findings which are challenged by the Director.
Ground 3 of appeal
Ground 3 of appeal is as follows:
Further, in the alternative, if the findings referred to at paragraphs 2(a), (b) and (c) above were open, the Learned Trial Judge erred in ruling that, as a consequence, it would be unfair to admit Recorded Interview #2 (Questions 36–672) into evidence pursuant to s 90 Evidence Act 2008.
It may be noted that the trial judge did not find as a fact that the respondent had a reduced awareness and understanding of the caution and warning which she received. Nor did he find as a fact that the respondent’s decision to participate in the record of interview was not in fact the product of a rational mind. He expressed his findings in terms of ‘real risks’.
Nevertheless, we accept that an unacceptable risk that an accused was unable to properly evaluate and exercise his or her rights might in principle render the receipt of evidence at trial unfair. Such a risk might, in an appropriate case, render the receipt of evidence unfair whether or not the judge could be positively satisfied as to the extent the accused’s right to silence was in fact compromised.
It will be a matter of fact and degree for the judge to evaluate the totality of the circumstances in issue when assessing the unfairness flowing from such a risk.
If such a risk were established, it logically follows that no admissions might have been made at all if the risk had not been taken.[13]
[13]Cf Swaffield and Pavic (1998) 192 CLR 159.
In this sense, the unfairness identified by the trial judge went to the fundamental question of whether the respondent’s ability to exercise her rights was unfairly prejudiced. This is a different issue from the question of whether the answers which she subsequently gave were likely to be true and reliable.
The Director submitted that the basis of the discretion to exclude evidence as unfair at common law rested upon some impropriety in the investigation process leading to the making of the relevant admissions. We do not accept that the unfairness discretion was necessarily so limited at common law.[14]
[14]Rozenes v Beljajev [1995] 1 VR 533, 539; Haddara v The Queen (2014) 43 VR 53, 59–70 [15]–[50] (Redlich and Weinberg JJA).
Further, it seems to us (consistently with the view taken by Gummow and Hayne JJ in Em)[15] that the common law impropriety basis for the exclusion of evidence is now substantially subsumed by s 138.
[15](2007) 232 CLR 67.
Section 90 provides a further residual discretion.
The Director next submits that the adoption by the trial judge of language derived from Swaffield and Pavic,[16] namely that the admission of the evidence would be ‘unacceptable having regard to contemporary community standards’, involved the adoption of an inappropriate test directed to the propriety of the means by which admissions were obtained.
[16](1998) 192 CLR 159.
In addressing the use of covertly recorded confessional evidence, the plurality in Swaffield and Pavic said:
However, the notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. 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.[17]
[17]Ibid 202 [91] (Toohey, Gaudron and Gummow JJ).
In the present case, however, it is plain that the judge ultimately concluded that, having regard to the circumstances in which the admissions were obtained, it would be unfair to admit them in evidence at trial.
The notion of prevailing community standards is not to be substituted for the language of s 90. Nevertheless, if understood in the following way, it may be thought to inform the broad concept of unfairness:
… we wish to point out that the reference by the High Court, as by this Court, to community standards in this respect is not to any notion of populist public opinion. Rather, this refers to community standards concerning the maintenance of the rule of law in a liberal democracy, the elements of the proper administration of justice and the due requirements of law enforcement.[18]
[18]R v Suckling [1999] NSWCCA 36 [40] (emphasis in original).
In our view, it was not necessary for the respondent to establish impropriety on the part of the interviewing police officers in order to invoke the discretion under s 90. This does not ignore the fact that the absence of impropriety would ordinarily favour the view that the receipt of the evidence would not be unfair. The absence of impropriety is not, however, logically conclusive of the question of unfairness. The judge was entitled to approach that question as he did.
The Director further submits that the finding of unfairness was inconsistent with other findings made by the trial judge.
First, it is pointed out that his Honour found that there was no breach of s 464C of the Crimes Act 1958. The respondent was provided with all relevant cautions and advised of her rights and had the opportunity to exercise those rights if she wished. In our view, the judge was careful to distinguish between the evidence establishing these facts and the evidence going to the physical distress of the respondent and the unfairness he identified.
Next, it is submitted that the trial judge found that the respondent in fact understood the warnings she was given and declined to exercise her rights. Once again, his Honour’s ultimate conclusions are not inconsistent with these findings. They go to the fairness of the circumstances in which the respondent took the course which she did. The Director further submits that his Honour found that the respondent was advised that she was able to have a rest or break at any time during the interview but declined to do so. Again, this fact is not directly inconsistent with his Honour’s findings as to the respondent’s state when she was cautioned and embarked on the interview.
The Director further relies on the judge’s finding that the respondent did not participate in the interview under the influence of any oppressive conduct, threats, intimidation or acts done in bad faith by the police officers in the performance of their duties. As we have sought to make clear, his Honour’s reasons were not dependent upon a finding of impropriety.
The Director also points to the judge’s finding that, after the respondent’s initial distress, she was able to give comprehensive, factual and truthful answers in the interview as a whole concerning her driving, drug use, tiredness and the occurrence of the accident. Particular reliance is placed on the following passage in his Honour’s reasons:
Despite such condition, she chose to continue with the interview and gave, I find, clear and comprehensive answers. I reject Mr Guthridge’s submissions that she was confused and in particular, the four examples that he submitted of such.
The accused in the following hour, after those instances of distress, I have detailed above (the record of interview goes for approximately an hour and a half), in the following hour, was able to give what I find to be comprehensive, truthful and detailed factual answers to a number of questions concerning her movement, her driving prior to the collision, her drug taking, her tiredness and generally her activities prior to the accident and indeed evidence as to the happening of the actual accident.
At the time of the making of the admissions, I find that she was rational and giving a precise summary of the facts and circumstances and the events which lead to the accident. She does become further upset as the record of interview proceeds. In particular, when she is called upon to describe the collision in question 145, when she is asked to explain why she did not pull over when she was having problems with tiredness at question 357, when she reported that she had fallen asleep, question 360, when she realised, to use her words, that her life is ‘Fucked,’ question 536 to 537, that her life was ‘fucked’ given these circumstances, question 630, again using her words, that there was a very grave risk that she would suffer gaol as a consequence and generally the state of her life both before and caused by this accident at questions 647 to 651, and then further she becomes upset when the precise charges are recounted to her by the investigating officer at question 662.
Such upset is understandable, considering her predicament and her awareness of the death and serious injury caused to the driver and passenger in the other car. However, having closely analysed the transcript and video, I am of the opinion that such circumstances have not adversely affected the truth of the admissions made. In coming to that conclusion, I specifically reject the evidence of Professor Kennett (again accepting that such is admissible at this stage) that the totality of the accused’s physical and mental state, as he identified and diagnosed, rendered the accused unable to concentrate or understand the implications of her responses, being the admissions.
In our view, his Honour’s findings as to the reliability of the answers ultimately given by the respondent in the course of the record of interview do not preclude the ultimate findings which he made as to her initial physical distress and the unfairness consequent upon that distress at the time she was cautioned and advised of her rights.
It may well be that it will be an unusual case in which evidence meets the requirements of s 85(2) of the Act but the accused’s state at the time she or he is cautioned gives rise to unfairness as a result of physical distress. There is, however, no necessary inconsistency between the judge’s conclusions in this regard. Put simply, the fact that the respondent ‘got a second wind’, as it was put in submission on the appeal, does not mean that the manner in which she was cautioned at the outset of the second recorded interview was fair or that it would be fair to receive that evidence in the trial.
Finally, the Director points to the rejection by the trial judge of expert evidence called by the respondent from a psychologist and submits that the receipt of evidence of the second recorded interview could not be regarded as unfair in the absence of ‘acceptable evidence of any actual mental disorder or disability’.
For the reasons we have explained, it was open to regard the video recording as a satisfactory basis for forming the factual conclusions which his Honour did as to the respondent’s physical condition at the outset of the second recorded interview. In turn, the trial judge’s findings of actual physical distress provided a factual basis for his conclusions as to unfairness. The fact that he rejected other aspects of the evidence upon which the respondent sought to rely is not to the point. It simply demonstrates that his Honour carefully considered the evidence as a whole.
Conclusion
Leave to appeal will be granted.
For the above reasons, ground 1 of the appeal with respect to the first recorded interview must succeed. Grounds 2 and 3, which relate to the second recorded interview, must fail. It was open to the trial judge in respect of the second recorded interview to make the findings of fact which he did concerning the circumstances in which the admissions were obtained. It was further open, as a matter of discretion, to exclude those admissions on the basis that, having regard to those circumstances, receipt of the evidence at the trial would be unfair.
The appeal will be allowed in part.
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COURT OF APPEAL
459 Lonsdale Street, Melbourne, VIC 3000
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