Director of Public Prosecutions v Waleed Haddara (Ruling No 1)
[2012] VSC 276
•5 June 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0176 of 2011
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WALEED HADDARA |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 June 2012 | |
DATE OF RULING: | 5 June 2012 | |
CASE MAY BE CITED AS: | DPP v Waleed Haddara (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 276 | |
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CRIMINAL LAW – Evidence – Attempted murder – Tape recording of conversation at time of shooting – Comparison with recording of interview of accused by police – Whether recording of interview admissible – Accused suffering from intellectual impairment – Whether accused had adequate capacity to exercise right to silence – Evidence Act 2008 (Vict) s 90, 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M Rochford SC | Solicitor for Public Prosecutions |
| For the Accused | Mr C Dane QC | Garde-Wilson Lawyers |
HIS HONOUR:
In this matter, the accused man, Waleed Haddara, is charged with a number of offences, including the attempted murder of Sabet Haddara, and recklessly endangering the life of Antonio Sawan, on 6 June 2010. Mr Dane of Queen’s Counsel, who appears on behalf of the accused, has objected to the admissibility of a record of interview conducted on the accused man at the St Kilda Road Police Complex on 18 March 2011 following his arrest earlier that day.
The offences, with which the accused man is charged, are alleged to have taken place at 10.30 p.m. in Chambers Road, Altona North. What follows is a brief summary of the prosecution case.
It is alleged that at about 10 p.m. the accused man met with a man called XY. The accused then had with him a 9 millimetre calibre Beretta handgun. The purpose of the meeting was to drive in XY’s vehicle to a location to exchange the Beretta for a .22 semi‑automatic pistol, which belonged to an associate of XY.
After they met, XY activated the record button on his mobile telephone. He will say that he did so because he was frightened of the accused. While they were driving, the accused man directed XY to drive to the vicinity of the McDonald’s restaurant in Altona North. When they arrived there, the accused man then directed XY to follow a green Holden Vectra motor vehicle, which he had sighted in that location.
XY followed the Vectra vehicle to Chambers Road, and pulled up behind it. Thereupon, the accused man fired his Beretta weapon at the vehicle. At that time, the vehicle was occupied and driven by Sabet Haddara, and the passenger in it was Antonio Sawan. One of the shots alleged to have been fired by the accused man struck Sabet Haddara. Shortly after the shooting, XY and the accused man left the scene.
The accused man will deny that he was in XY’s vehicle at the time of the shooting and he thus denies that he was the person who discharged the firearm at the Vectra vehicle. Thus, a critical issue in the case will be the identity of the person, who accompanied XY in his vehicle, and who fired the weapon at the Vectra vehicle.
The accused was arrested at 1.29 p.m. on 18 March 2011. He was interviewed briefly in relation to an unrelated matter between 4.34 p.m. and 4.40 p.m. At that time, he had had legal advice, and he made no comment answers in response to questions asked in the course of that interview.
The interview relating to the matters of 6 June 2010 commenced at 5.02 p.m. and completed at 8.31 p.m. It was suspended about three quarters of the way through it for a short time, during which it would appear the accused man received further legal advice.
During the interview, particularly at the earlier stages of it, the accused man responded to a number of questions with the answer “no comment”. If the record of interview is admitted into evidence, it is common ground that a number of those answers, together with some other answers, will be excluded from it.
Mr Dane has objected to the admissibility of the whole of the record of interview and, alternatively, he has objected to some further answers which are contained in it. Ultimately, in relation to that latter matter, Mr Rochford of Senior Counsel, who appears for the prosecution, conceded all but one of Mr Dane’s objections.
It is clear that the answers contained in the record of interview, which so far have not been excluded from it, do not contain any relevant admission by the accused, and indeed, as I understand it, the prosecution will not be relying on them as an admission of any fact which is in issue in the matter.
Rather, it is apparent that the sole purpose of the prosecution seeking to lead evidence of the record of interview is to put before the jury a sample of the voice of the accused man, so that it can be compared with one of the voices which was recorded by XY on his mobile telephone.
I observe that it is now well established that it is permissible for a jury to be asked to compare for itself the voice on a recording, which is in evidence, with the voice of an accused man in a recording of a record of interview or in some other process. I refer, in particular, to Bulejcik v R[1], R v Nguyen[2] and R v Solomon.[3]
[1](1995) 185 CLR 385 at 383 Brennan CJ, and at 395, Toohey and Gaudron JJA.
[2](2002) 131 A Crim R 341.
[3][2005] SASC 265.
In such a case, it is necessary for the judge to give careful directions to the jury, because of the recognised dangers involved in a jury undertaking such a comparison, and because also of the limitations which are inherent in the validity of any such comparison undertaken by the jury.
In R v Korgbara,[4] the New South Wales Court of Criminal Appeal held that where the prosecution seeks to put before a jury a recording of an accused man’s voice for comparison with a voice on a recording which is relevant to the case, the trial judge must determine, first, whether the quality and quantity of the material is sufficient to enable a useful comparison to be made.
[4](2007) 71 NSWLR 187.
For that purpose, I listened in chambers to the record of interview, which was conducted on the accused man, and I listened in court to the recording made by XY in his vehicle on 6 June 2010. I am satisfied that, if the record of interview were admitted into evidence, the quality and quantity of it, and of the conversation which was recorded by XY on his mobile phone, is such as to enable a useful comparison to be made between the two recordings.
Accordingly, and apart from the objections raised by Mr Dane, the evidence of the record of interview would otherwise be admissible, for the purpose of enabling the jury to compare the accused man’s voice on it with the voice which was captured on the recording made by XY on his telephone.
The objection, which is raised by Mr Dane, is made under s 90 and s 137 of the Evidence Act. In particular, Mr Dane has submitted that it would be unfair to use the evidence of the record of interview in the manner foreshadowed by the prosecution. He submitted that that unfairness is based on the fact that the accused man suffers from an intellectual impairment, and he referred me to the testing of the accused man’s intellectual quotient by a psychologist, Mr Patrick Newton, who found he has a full scale IQ of 53.
Mr Dane has pointed out that, before the interview was commenced, the accused man obtained advice from a solicitor, and as a result he largely made no comment answers in the principal record of interview until question 87, in response to questions in which the police put to the accused man allegations as to his involvement in the shooting which took place on 6 June 2010.
Mr Dane has then submitted that, at question 88 the police, to use Mr Dane’s phrase, changed tack. They asked him as to his whereabouts on this particular day, and, in response to that line of questioning, the accused man proceeded to speak to the police and provide some answers to him. It was submitted by Mr Dane that that process diverted the accused man from his intention to exercise his right not to answer any questions in the course of the interview.
Mr Dane did not allege any impropriety by the police. Rather, he submitted that because of the accused man’s intellectual deficit, the accused was at a disadvantage, which may not have been apparent to the investigating police. The accused had made it clear, from the outset, that he did not wish to comment in response to questions put to him, but nonetheless the police persisted and changed their tack at question 88.
Mr Dane submitted that, in doing so, the police thus undermined the accused man’s intention to exercise his right to silence. Further, he submitted that it was not until question 200, that the police revealed to the accused man that the tape‑recording, made by XY, was in existence, and thus he submitted the accused had not been alerted to that fact before he commenced speaking during the interview. Thus, Mr Dane submitted, the unfairness to the accused man was compounded.
In response, Mr Rochford submitted that the record of interview was of significant probative value in relation to the central issue in the case, namely, the identification of the voice on the recording made by XY shortly before, during and after the shooting which took place.
He pointed out that before the accused man commenced his interview, he received legal advice which he clearly understood. Furthermore, he pointed out that, throughout the interview, the accused man selectively chose to exercise his right to silence, and that he did so in a number of passages subsequent to question 88 to which Mr Dane has referred.
Mr Rochford submitted that, in doing so, the accused man clearly understood when it was in his interests to exercise his right not to incriminate himself, and that he successfully did so.
Mr Rochford also pointed out that the accused man is experienced in being interviewed by the police, and that he was adequately able to look after his interests in the course of the interview, and that he exercised his right not to answer questions appropriately.
The objection, made by Mr Dane, is based on the evidence of Mr Patrick Newton, psychologist, who gave short evidence before me on a voir dire. Mr Newton had in fact assessed the accused in December 2007, and reassessed him in 2008. He conducted at that time formal testing comprising the Wechsler Adult Intelligence Scale 3rd edition with the Australian adaptation of it. He also interviewed the accused man twice to explore his reported level of adapted functioning.
Mr Newton also had available to him an earlier assessment of the accused man in 1996 when the accused was then 13 years of age.
In his evidence, Mr Newton pointed out that, while the accused man attended a normal primary school, he attended a special school for his secondary education with some mainstreaming, but in the end, although he did attain Year 10 level officially, his intellectual quotient suggested he in fact did not effectively proceed beyond a mid primary school level.
Mr Newton stated that his testing revealed that the accused man had globalised deficits across all areas of cognitive functioning. His full scale IQ was measured at 53. When confidence levels are applied, the true reading was between 51 and 57. That score places the accused man in the lowest one 1000th of the population, so that one in 1000 people would score at that level on the conduct of an IQ test.
Mr Newton stated that, as a result, the accused man’s capacity to sift out relevant material was relatively poor, his capacity to concentrate is very poor, and he has, to use the words of Mr Newton, a globalised deficit and is severely impaired.
The accused man has a slightly higher verbal IQ of 60, and Mr Newton observed that he is able to express himself and to speak in a way which is comprehensible. He expresses himself in fact at a level which is in the lowest percentile; in other words, one person in 100 in the population would express themselves that poorly.
Mr Newton stated that, while the accused man does have some capacity to express himself, in doing so, he does, to some extent, tend to mask his underlying intellectual impairment. Indeed, he observed that, while he might be using a word which could signal greater understanding, nevertheless when his understanding of what he has said is properly tested, his understanding of it might not be so good.
Mr Newton also noted that the accused man has had previous experience in the criminal justice system, and thus he was familiar with the processes of the police interview.
He stated that the accused man could certainly be expected to understand the advice given to him by a solicitor, when the solicitor advised him to make a no comment record of interview, and that he would be able to understand the import of that advice and he would be able to implement it, at least to some extent, as he did in the interview.
Mr Dane then asked Mr Newton as to the potential effect of what Mr Dane describes as the change of tack at question 88 in the interview, and Mr Dane asked Mr Newton whether the accused would have been able to perceive that change in tack. In response, Mr Newton stated that he would have realised that the energy in the conversation had moved from the police officer making active statements, to the accused man himself making active statements. However, in terms of more strategic issues about disclosure, he did not think the accused would have had the strategic overview of the interview at that level, and in that respect the broader implications would have been lost on him.
When I asked Mr Newton whether the accused man had the intellectual capacity to understand that he needed to follow the advice of his solicitor, and to adhere to that advice, Mr Newton responded that his capacity to adhere to that course is limited because of his intellectual disability. He has difficulty holding material in his memory for a long time and difficulty in sticking to a course of action. He might implement a rote process, but when it is broken, he had little capacity to reinitiate it.
In cross‑examination by Mr Rochford, Mr Newton did concede that the accused man did in fact reinitiate the use of the no comment answer to questions asked after question 88, and in that respect he did display a selective ability to answer “no comment”.
As I stated, Mr Dane has submitted that I should exclude the evidence under s 90 and s 137 of the Evidence Act, but it is common ground that s 90 is more applicable to the objection made by Mr Dane. Indeed, Mr Rochford accepted that, if in the circumstances, I were to conclude that it would be unfair to the accused man to use the evidence in the case, then I would have power to exclude it under s 90. In my view, that concession is correct. Section 90 provides that 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, having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
The objection in this case is somewhat unusual, and indeed I have not been able to find any authority in which this type of objection has been made before. That is because, ordinarily, where an accused person suffers from an intellectual impairment, the objection to the record of interview is more commonly based on an incapacity of the accused man to understand and make answer to questions asked of him. On that basis, generally, the objection is made to admissions contained in the record of interview being adduced as evidence of the truth of the facts stated by the accused.
Here, as I have observed, the objection is somewhat different, in that it is made on the basis it would be unfair to admit the record of interview as a record of the accused man’s voice for the principal purpose of comparing it with the voice contained in the recording made by XY in his motor vehicle on 6 June 2010.
I have also observed at the outset that there is no evidence that either of the police, who participated in the interview knew, suspected, or, indeed, had reason to suspect, that the accused man had an intellectual impairment. As I noted in the course of argument, having listened to and watched the record of interview myself, I do not consider it is apparent from the accused man’s demeanour, or the manner in which he answered questions in that interview, that he did in fact have an IQ as low as 53. The accused man clearly understood all the questions put to him. With a few exceptions, his answers were relevant and addressed the questions. It is evident that he does have a limited vocabulary, but he certainly did not lack the verbal skills to make appropriate answer to the questions put to him. Thus, to the untrained observer, it would not appear that the accused man was suffering any relevant impairment, which would have impacted on his capacity both to make proper answers in the interview, and to avail himself of his right to not answer questions.
Further, I should say that I consider that the nature and content of the questions put to the accused man by the police was quite appropriate. Contrary to the submissions made by Mr Dane, they were not designed nor calculated to wear the accused man down. The police commenced by putting specific allegations to the accused man and gave him the opportunity to respond to them. They then asked him his whereabouts. They did ask him a number of questions about his business, and some of them would seem to have not been entirely relevant or necessary, but I do not perceive any unfairness in those questions being asked.
Indeed, I interpolate that if those aspects of the interview were admitted, they would probably reflect well on the accused man.
Overall, I do not gain the impression that he was overborne in the course of the interview. Rather, he well understood what to answer and when to answer it.
Nor do I consider that it would be inappropriate to use a record of interview, not for the purpose of relying on admissions made by the accused, but as evidence of his voice, in the manner intended by the prosecution in this case. In an ordinary case, and apart from questions of the accused man’s intellectual impairment, in my view it would not be unfair or improper for the prosecution to seek to use a record of interview in such a way.
Ultimately, it seems to me the critical issue which I must determine concerns the effect of the accused man’s intellectual impairment, and, in particular, whether that impairment affected his capacity to exercise his privilege against self‑incrimination, in such a way that it would be unfair to the accused man to admit the interview for the purpose sought by the prosecution.
In determining that question, it is useful to restate some very basic legal principles. First, of course, the police do not have any power to compel a person to undergo a record of interview. Indeed, the police, apart from statute, do not possess any power to require an accused person to participate in a process, which may produce evidence which can be admitted in a court of law against him or her.
Thus, it is well established that the police do not have power to compel an accused person to participate in an identification parade (see Clune v R[5]). Similarly, the police do not have any power, apart from statute, to require an accused to provide a body sample, such as blood (see R v. Cain unreported, Victorian Court of Criminal Appeal, 17 December 1976). Nor do the police have the power to require an accused person to provide a sample of handwriting (R v Browning[6]).
[5][1982] VR 1 at 9 Crockett J, and at 23‑25 McGarvie J.
[6](1991) 103 FLR 25 at 434‑5 Miles CJ.
The right to refuse to participate in an interview, or in an identification parade, or to provide a blood sample or a sample of handwriting, are all aspects of the privilege against self-incrimination, which is a very important and basic right of any citizen in our society. Thus, it is a right which does, I acknowledge, loom large in this case.
On the other hand, if an accused person is properly cautioned, and understands his or her rights, and then undergoes an interview, subject to any other questions of admissibility, the answers and admissions made by an accused person in that interview can be used against him or her. Further, as I stated, in my view, provided the interview is properly conducted, the interview can also be used for other purposes, such as providing a sample of the voice of an accused person for the purpose of comparison with a recording of a voice which is to be put before the court.
Ultimately, as I say, the question of fairness under s.90 must depend on whether in this case the accused man was able to properly exercise his right not to incriminate himself. Ordinarily, the exercise of that right in an interview is directed to protecting a suspect from making incriminating admissions. In my view, in this case, the question, whether it would be unfair to the accused person to permit the interview to be used for the purposes of comparing his voice with one of the voices on XY’s recording, must ultimately depend on whether the accused was able to properly exercise his right not to answer the questions in the interview. Thus, as I say, the critical question is whether the accused man’s intellectual impairment so compromised his proper exercise of his right not to answer questions that it would be unfair to him to admit the answers in evidence for the purpose of comparing his voice with the voice which is contained in the recording made by XY.
To answer that question, it is necessary to consider the interview in some detail. I do so, bearing in mind the evidence given by Mr Newton as to the gross impairment of Mr Haddara’s intellectual capacity, and I particularly bear in mind Mr Newton’s evidence relating to the effects of that incapacity on his concentration and on his ability to adhere to a pre‑planned course of action.
In order to answer the question I have listened carefully on a number of occasions to the record of interview, and I have read and re‑read the transcript of it.
It is clear, and common ground, that at the outset to the interview the accused man understood and knew of his right not to answer questions, and he commenced by exercising it promptly and indeed almost automatically when asked questions relating to, firstly, the unrelated incident, and then the incident of 6 June 2010.
When the second interview recommenced at 5.02 p.m., after formalities, the policeman conducting the questions, Detective Senior Constable Hammet, at questions 38 and following, put to the accused man a series of allegations made about the offending in the case. The accused man in relation to those questions provided a no comment answer.
At question 63 the accused man then rhetorically asked the question whether the person who was making the allegation, was trying to say that he, the accused man, shot his own cousin. He then proceeded to explain, in answer to the next 20 questions or so, why it was that he was therefore exercising his right not to incriminate himself.
It is true, as Mr Dane points out, that the police then, at question 88, asked the accused, and indeed invited him, to provide them with details of his movements and whereabouts on the day. The accused commenced to answer those questions, and, at question 97, the police prompted him by saying that the occasion was momentous because it involved the shooting of his cousin.
At questions 97 to 127, the accused man then related the circumstances in which he heard that Sabet Haddara was shot. At questions 129-130 he reverted to invoking his right to silence. That was not in answer to specific allegations, but, rather, in answer to questions as to what Sabet Haddara said to him. In that context, it is not entirely evident why he did choose to invoke his right to silence, but it is noteworthy, that, at that stage, he was cognisant of the fact he was entitled to do so, and he certainly perceived he ought to at that time.
For the next 50 or so questions, up to question 186, he was asked in relation to matters particularly relating to his work and the business, which he had purchased, and he answered those questions effectively. He did not invoke the privilege against self‑incrimination, nor do I interpolate would there have been any need for him to do so, as they did not in any direct way or indeed indirect way relate to the offending, other than his ownership of the business.
At question 187, the police then came back to questions concerning what happened on 6 June. It is significant that, at questions 193 and 196, in that context, the accused man then again made a no comment answer. At question 199, the police drew to the accused’s attention the fact that there was a recording of the incident in which a shooting took place, and in, response the accused man then made no comment answers to questions 200 and 202.
The interview was suspended at question 209. It then recommenced at 8.11 p.m. and for the next 30 questions, from questions 222‑254, he was asked more questions about his business at Hoppers Crossing. Those matters at best are only tangentially related to the case, and the accused man answered them. At questions 255 and following, he was then asked about a search that was conducted at that business, and he answered questions relating to that.
At question 341 and following, the police, at the conclusion of the interview, as a matter of formality, put to the accused a number of questions in the usual form as to why he had participated in the offending. In response to each of them, the accused man made a no comment answer.
The analysis, which I have just undertaken, is, I think, important. First, as I have already stated, it is clear that the accused man fully understood his right to make a no comment answer where he saw necessary and he exercised that right on a number of occasions.
Secondly, it is clear that he listened to, and understood, and was able to answer, all the questions put to him.
Thirdly, it would seem to me, with a couple of exceptions, the accused man adopted what might be described as a system or a strategy by which he exercised the right to silence. In particular, he consistently exercised the right when allegations were put to him, or he was asked, about the incident in which Sabet Haddara was shot. Clearly, he had an approach to the interview whereby he would invoke the right not to answer questions when the questions touched on the particular incident, with which this case is concerned, and he implemented that approach or strategy on a number of occasions throughout the interview.
I accept that the accused man does have a significant intellectual impairment, but, as was pointed out in the course of argument, and indeed by Mr Newton, he is not naïve or a novice in the interview process. He was indeed well practised in the exercise of making a no comment answer, and, when he perceived the occasion arose for him to do so, he was quite quick to make such an answer. In other words, there was little delay between the question and the answer. He seemed to be able to perceive fairly quickly when questions would touch on the offending itself, and when, therefore, he ought to adopt or adhere to his right to silence.
In particular, as I stated, it is clear that he had an approach whereby he would exercise his privilege against self‑incrimination, when he perceived that the questions touched on the offending itself, and he demonstrated a clear capacity to detect those questions and to answer them.
That approach or strategy itself did demonstrate, in my view, a degree of insight by the accused man into the purpose of the existence of the right not to incriminate himself, and into the importance of exercising it.
I do not consider that the strategy or approach adopted by the accused man was misconceived, nor in my view could it be fairly concluded that, if he did not have an intellectual impairment, he might not have adopted such a similar approach or strategy.
Ultimately, as I have observed, he did not make any admissions against interest, and, indeed, he was careful not to answer questions which touched on the offending in this case.
In those circumstances, I am satisfied that the accused man not only understood his right, but demonstrated a capacity to exercise it effectively. I am satisfied that, notwithstanding his intellectual impairment, which is severe, he was able to consistently exercise his right in a meaningful manner and in a relatively consistent manner.
Further, I do not consider his impairment compromised his capacity to exercise his right in answer to questions, which were directed to the particular event in this case. Thus, in my view, it would not be unfair to the accused man to admit the evidence against him in this case.
Mr Dane also made a second submission which was based on the fact that an expert engaged by the prosecution compared the recording, made by XY, with some 30 or so recorded telephone calls which had been made by the accused man to friends and relatives from prison. The expert was unable to express a concluded view as to whether, using those telephone calls, the voice contained in XY’s recording is, or is not, the voice of the accused man.
Mr Dane submitted that it would be unfair to the accused to permit the jury, in those circumstances, to be invited to compare the accused man’s voice on the interview with the voice on the recording made by XY, in circumstances in which an expert, engaged by the Crown, had been unable to express a concluded view as to a comparison between the accused’s voice on the telephone calls from gaol with the voice on the recording made by XY.
In my view, it would not be unfair or inappropriate to admit that evidence. No doubt, I would permit the jury to be informed appropriately that an expert commissioned by the Crown had been unable to express a concluded view about the comparison of the telephone calls made by the accused man and the voice contained in XY’s recording. That matter would of course be relevant to the weight and effect of any comparison between the voice on XY’s recording and the voice of the accused man in the record of interview.
However, the jury would not be thereby invited to substitute their own view for that of an expert. Rather, they would be undertaking a different comparison which I do not consider would be unfair. I will of course give to the jury appropriate directions relating to the special care which they will need to undertake in such a comparison for themselves.
In those circumstances, I reject the application made on behalf of the accused man to exclude the whole of the interview.
With that conclusion, I turn to the one question and answer which is in dispute, that is question 77 and the answer to it. I uphold Mr Dane’s submission in relation to that. In my view, the answer to it is tied up with the accused man’s exercise of his right not to incriminate himself, and I consider it would be unfair to admit question 77 and the answer to it. So that question and answer will be excluded, in addition to the further questions and answers to which Mr Dane has taken objection, and which Mr Rochford has correctly conceded should be excluded.
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