DPP v Schaeffer
[2006] VSC 418
•23 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL LAW DIVISION
No. 1484 of 2003
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) | Plaintiff |
| V | |
| PETER SCHAEFFER | Defendant |
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JUDGE: | COLDREY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 - 17 October 2006 | |
DATE OF RULING: | 17 October 2006 | |
| DATE OF REASONS CASE MAY BE CITED AS: | 23 October 2006 DPP v Schaeffer | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 418 | |
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Criminal Law - Ruling – Exercise of fairness discretion – Relationship to s. 464H Crimes Act 1958 (Vic.) – Considerations applicable – Failure to put alleged admissions to accused – Evidence inadmissible
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Gyorffy | Solicitor for the Office of Public Prosecutions |
| For the Defendant | Mr J Montgomery | Tony Hannebery Lawyers |
HIS HONOUR:
Following the ordering of a re-trial by the Court of Appeal in R v. Schaeffer[1], a decision of Chief Justice Warren, Ormiston and Eames, J.J.A., the question has arisen as to whether purported utterances by the accused which are capable of constituting an admission, should be admitted into evidence.
[1]2005 V.S.C.A.306
In considering this issue, it is not my task to review either the ruling of the previous Trial Judge, or to make any extensive analysis of the reasons advanced by members of the Court of Appeal.
Indeed Eames J., with whose reasons Ormiston J. agreed, found it unnecessary to reach a final conclusion as to whether the discretion to admit the disputed evidence had been properly exercised by the Trial Judge. (See paragraph 64.)
My task is simply to determine whether or not the alleged admission ought to be excluded in the exercise of the fairness discretion. However in doing so, I will refer to passages in the judgments of the Court of Appeal which I regard as legally and factually relevant.
The facts which provide the background to this issue are conveniently set out by Eames J. in his judgment. (See paras 15 to 21.) It is not necessary to repeat them in detail. It is sufficient to note that the deceased, Nathan Hanley, died from acute blood loss following stab wounds to the left flank and chest.
The defence, so far as is relevant, involved accident and lack of any murderous intent. This is also the case in the current trial and it was in this context that the impugned material must be evaluated. Clearly, the level of awareness of the accused as to the number of stab wounds inflicted impinges upon these issues.
The Crown desire to adduce evidence that in a telephone communication with his brother-in-law, Michael Kurrle, which was inadvertently overheard by Senior Constable Shane Bourke, the accused stated, "I stabbed him, I stabbed him twice." That conversation occurred pursuant to the provisions of s.464C of the Crimes Act (the Act), which, inter alia, gives a suspect the right to communicate with a friend or relative to inform such person of their whereabouts. I should add that no point is made about any purported breach of the accused's privacy involved in the overhearing of the telephone conversation.
When called to give evidence in a voir dire held at the commencement of the accused's first trial, Mr Kurrle, the recipient of the phone call, emphatically denied the police version of this conversation, deposing to the applicant having said, "I stabbed him. I don't know if he's going to make it or not." Although equivocal as to the number of stab wounds, this version of the telephone conversation was in contrast to that of the police member which specified two acts of stabbing.
The police version of the conversation was never put to the accused in the course of the electronically recorded interview subsequently conducted with him, although there was ample opportunity to do so. Mr Bourke's explanation for this omission was inadvertence or inexperience.
The reported admission was not the subject of any contemporaneous note by Mr Bourke and it first appeared in his statement made on 30 June 2003.
It was the evidence of Homicide Squad member, Detective Sergeant Sol Solomon, on the voir dire that Mr Bourke had informed him of the accused's comments on 22 June. This evidence was presumably led on the voir dire to rebut any assertion of recent invention. The matter was noted in Mr Solomon's statement of 1 September 2003.
The effect of not putting the alleged admission to the accused at the time of the interviews was to deprive him of the opportunity of accepting or, in the circumstances of this case, denying that he had made it.
The major legislative provision relating to the tape-recording admissions is contained in s.464H of the Act. For the purposes of this ruling, I do not need to quote it.
It was not contended before me, or on appeal, that s.464H had been directly breached in the circumstances of this case. This is because the admission of the accused could not be said to have been made to an investigating official for the purpose of that section. (See R v Bartlett, an unreported decision of the Court of Criminal Appeal, dated 14 September 1994.) Whether the section should be extended to admissions made in the presence of an investigating official is a question for another day. However, the resolution of this issue should not depend on whether, in a strictly legal sense, s.464H was breached. It is appropriate, in my view, to look also at the purpose of s.464H, and the effect of a failure to comply with the spirit of it.
As Eames J. put it, at paragraph 59:
"Provisions such as s.464H are directed not only to the avoidance of fabricated admissions, but also to problems associated with the perception, recording, recollection and transmission to the court of the alleged admissions, and the dangers of mis-recollection and misunderstanding are also important considerations."
In Nicholls v R[2], a case where it was argued that a failure to electronically record "off-camera" admissions by an accused fell within a statutory exception to that requirement, (in that case s.570D(2) of the Criminal Code of Western Australia,) McHugh J. nonetheless expressed the view that this evidence should have been excluded in the exercise of the fairness discretion. His Honour stated at paragraph 108:
"The legislature has set its face against admitting unrecorded admissions by suspects except in special circumstances. When interviewing police officers encourage the making of off-camera admissions despite the presence of recording equipment and then fail to refer to the admissions when the recording resumes, the policy of the legislation points strongly to excluding the admissions, even though, if the officer's evidence is accepted, the case comes within an exception specified in s.570D(2). Given the legislative policy of recording interviews of suspects, wherever possible, so that disputes concerning admissions can be reduced to a minimum, attempts to avoid the effect of that policy should be perceived as unfair attempts to obtain evidence and such evidence should be excluded."
[2](2005) 219 CLR 196.
In his judgment Eames J. did not regard the fact that in Nicholls' case the police encouraged the accused to make off-camera admissions as a critical distinguishing factor from the present case. (See paragraph 61). Nor do I. It is the effect of the failure by investigating police to electronically record admissions which the Crown later wish to rely upon which is the critical consideration.
In arguing for the admissibility of the admissions Mr Gyorffy effectively adopted the arguments presented to the appellate court on behalf of the Crown. It was put that the spirit of s.464H had not been breached, let alone the substance. The admissions were relevant to the issues raised in the case; any omission to put the alleged admission to the accused was inadvertent; the evidence of the witness, Kurrle, was available in support of the defence version; and in any event the evidence could be the subject of the type of jury warning suggested in McKinney v R.[3]
[3](1991) 171 CLR 468.
In dealing with the Crown's submissions on the appeal, Eames J. commented at paragraph 58:
"Whilst the matters raised … would undoubtedly have a bearing on the exercise of the discretion, there remains the fundamental question of the fairness of reliance on the admissions when the applicant had been deprived of the opportunity to make his denial of the admission at the first opportunity and on video tape. Bourke himself apparently considered it fair to allow privacy in that communication but he did not offer any explanation, save for oversight and inexperience, for his failure to put the admission to the applicant when he resumed the record of interview."
Eames J. went on to advert to the purpose of s.464H in the passage that I have already quoted.
The omission to immediately put the alleged admissions to the accused in a timely manner, namely during the electronically recorded interview, deprived him of the opportunity to provide a spontaneous and relatively contemporaneous answer to the police assertion. In my view this omission has the very real capacity to render less cogent any subsequent repudiation of the admission by the accused. Moreover, the only support for the accused's contention would be provided by his brother-in-law, a witness that a jury is likely to regard as less than independent.
The Crown, if it is permitted to lead this evidence, would inevitably rely on the independence and integrity of the police officers involved in an endeavour to undermine the evidence of Mr Kurrle. In the circumstances, a McKinney warning is very much an inferior option.
It was these types of implications which drove Warren C.J. to conclude in her judgment that the admission should have been excluded in the exercise of the fairness discretion. (See paragraph 6).
The avoidance of this type of adversarial exercise is precisely the reason why s.464H was enacted and why both the letter and spirit of it should be observed. So much was recognised by McHugh J. in Nicholls' case.
I add that, although the ambit of the fairness discretion is not well defined, it certainly encompasses conduct of investigating police which, whilst not unlawful, nevertheless creates forensic unfairness.
The course of events in this case have, in my view, occasioned such a forensic disadvantage to the accused as to require the challenged material to be excluded in the exercise of the fairness discretion.
Before leaving this matter I desire to briefly refer again to the so-called McKinney warning. It is necessarily predicated upon the absence of independent corroboration of alleged confessions and/or admissions, the existence of which is in dispute. Legislative regimes such as that exemplified by s.464H of the Act are designed to eliminate the need for warnings formulated in the McKinney mould. Indeed, that decision itself preceded the requirements for electronic recording of admissions or confessions in most Australian jurisdictions (Victoria and Tasmania being the exceptions).
One of the vices of such a warning identified by Ormiston, J in the Court of Appeal judgment, is that it stigmatises police witnesses. (See paragraph 12.) All this could be largely obviated if all admissions and confessions were electronically recorded. Ultimately the residual area of operation of directions such as the McKinney warning, may reside in those rare cases where unrecorded admissions or confessions are admitted into evidence under the legal umbrella of exceptional circumstances.
In any event, those are the reasons for the ruling I made on 17 October 2006 excluding the prosecution evidence.
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