DPP v Schaeffer
[2004] VSC 538
•21 December 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1484 of 2003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER SCHAEFFER |
---
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 22 November 2004 | |
DATE OF REASONS OF RULING: | 21 December 2004 | |
CASE MAY BE CITED AS: | DPP v Schaeffer | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 538 | |
REASONS FOR RULING NO. 2
---
Criminal law and procedure – murder – evidence – admissibility – accused in custody – authorised telephone communication by accused to relative to inform relative of accused’s whereabouts – communication overheard – admission therein – s.464C(1) Crimes Act 1958 – compliance with provisions of Part III Div. 1 S./Div. 30A Crimes Act 1958 – evidence admitted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | S. Pullen S.C. | Solicitor for Public Prosecutions |
| For the Accused | G. Thomas S.C. | Tony Hannebery & Associates |
--------------------------------------
Reasons for Ruling No 2
HIS HONOUR:
On 22 November 2004 at page 159 I gave Ruling No 2 in this matter. I stated then that I shall later publish my reasons. I now do so.
Arising for determination is the admissibility of an admission said to be made by the accused wherein he stated “I stabbed him. I stabbed him twice”. The admission is said to have been made by the accused in a telephone conversation to his brother-in-law which was heard by an investigating police officer and which conversation occurred some two hours after the stabbing of the victim. The victim died some four hours after the telephone conversation.
The accused, Mr Peter Schaeffer, is charged with the murder of Mr Nathan Hanley at Wodonga on 21 June 2003. At about 1.00 am on Saturday 21 June 2003, outside 143 Brockley Street, Wodonga, a private home, the deceased, angry and drunk, called out threats to his female partner from whom he was separated and who was inside the house with the accused and family members including children. The accused left the house with a baseball bat and a kitchen knife to confront the deceased and another man also out the front. A short time later the deceased was lying mortally wounded on the footpath at the front of the house. He had been hit with the baseball bat and had two knife wounds to his body, one to the front just below the sternum and one to the left flank which cut the aorta. The latter wound caused massive blood loss and the victim died seven hours later at the Albury Base Hospital, to where he had been removed. The cause of death was blood loss leading to cardiac arrest.
The accused did not leave the scene. Police and ambulance were called and rapidly attended. At the scene the accused was informed by a police officer, Leading Senior Constable Shane Bourke, of Wodonga C.I.V., of his rights of silence and of communication with a friend or relative and legal practitioner. The accused was placed under arrest and removed to the Wodonga Police Station and was to be interviewed. At about 3.45 am, Leading Senior Constable Bourke sought to enable the accused to exercise the rights the accused had been correctly informed of. There was a telephone in the breath test room at the police station. Leading Senior Constable Bourke took the accused into the room and dialled the telephone number of the accused’s brother-in-law as requested by the accused. The officer’s statement (made on 30 June 2003 and confirmed in evidence before me on the voir dire) continues (D 333):
“I then handed the phone to the defendant and walked towards the door to ensure they have [sic] privacy. At this time I heard the defendant state: ‘I stabbed him. I stabbed him twice’. I then closed the door.”
The officer left the accused in the room to have the conversation. He deposed (and said in his statement) that a few minutes later the accused opened the door and asked could he contact a solicitor, which then was arranged.
I heard evidence on the voir dire on the question of what in fact was said. Leading Senior Constable Bourke gave evidence as I have stated and was cross-examined. He did not make any note of the alleged admission until his statement made on 30 June 2003. He was present at interviews of the accused later on 21 June 2003 at Wodonga C.I.V. and did not put the admission to the accused in interview even though at that time the accused was not directly stating that he had stabbed the deceased (let alone twice). Those later interviews were conducted by Detective Senior Constable Kneebone of Wodonga C.I.V. as the principal officer but Leading Senior Constable Bourke was present and asked questions including Qs 267-276 at about 4.15 am on 21 June 2003:
“Alright. Just in relation, do you --– do you recall how many times Nathan was stabbed at all? Do ---?
No.
You --- do you remember any of that incident or part of it?
No, I don’t.”
Mr Michael Kurrle, brother-in-law of the accused, gave evidence on the voir dire. He deposed (and made a police statement on 21 June 2003 at 6.11 am to the same effect) that in that conversation the accused said:
“I stabbed him.”
Nothing about twice.
The accused was not called to give evidence on the voir dire.
Leading Senior Constable Bourke impressed me as a truthful witness. So too did Mr Michael Kurrle. I consider Leading Senior Constable Bourke’s evidence is accurate. Although he did not note the admission or later put it to the accused (through oversight, the officer said), so far as appears the officer had no other contemporaneous source of knowledge that the victim had been stabbed twice. At 3.45 am the victim was on the operating table at the Albury Base Hospital. The autopsy was conducted in Melbourne the following Monday. It is more likely that Mr Kurrle, whom I consider entirely honest, did not catch the full wording in the shock of the situation, than that Leading Senior Constable Bourke invented it. The accused did not give evidence about the matter.
Accordingly, for purposes of the Ruling, I am satisfied that the admission was made.
I am satisfied that the admission is admissible. The accused had properly and correctly been informed of his right to silence and his rights to attempt to communicate with a friend or relative and a legal practitioner. He was in the process of being provided the facility to exercise those rights. There was no subterfuge being practised upon him. The provisions of Part III Div. 1 S./Div. 30A Crimes Act 1958 were followed and followed fully and properly. There is no requirement under s. 464C(1) (the right to attempt to communicate with a friend or relative to inform that person of the accused’s whereabouts) that that communication be private. There is no statutory provision as to the communication with a friend or relative equivalent or analogous to that of s. 464C(2)(b) applicable to communication with a legal practitioner (“will not be overheard”). In this case the officer was in the process of providing privacy but in law that was a gratuity. An accused’s communication with a legal practitioner as provided for by s. 464C(1) should be private by reason of the provision of s. 464C(2)(b) (“will not be overheard”) and by reason of its nature and of the existence of legal privilege (once the grounds stated in s. 464C(1)(c) and (d) do not arise). However, there is no legal privilege applicable to communicating with a relative or friend; and the nature of that communication – to inform that person of the whereabouts of the accused – does not involve or require privacy. Finally, there is nothing unfair in the receipt of the evidence. The statement of the accused was voluntary, it was not induced by subterfuge, and the officer was complying with the provisions of s. 464C in full respect.
There is no requirement that a suspect in custody be told in terms that the telephone communication with the friend or relative to inform that person of the suspect’s whereabouts can be used in evidence. The accused had already been holistically warned (“anything you say or do may be given in evidence”). He knew he was in police custody. The gratuity of the officer seeking to give the accused privacy for the telephone conversation should not be the cause of excluding relevant evidence which is otherwise admissible. Of course, such evidence would be excluded if obtained by subterfuge or trickery. That did not occur here.
For those reasons I ruled in Ruling No. 2 that the evidence of the admission was admissible.
---
0
0
0