DPP v Towle (Ruling no 5)

[2008] VSC 260

IN THE SUPREME COURT OF VICTORIA Not Restricted

CRIMINAL DIVISION

No. 1460 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS GRAHAM TOWLE

Ruling No. 5

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	22 February 2008
CASE MAY BE CITED AS:	DPP v Towle (Ruling No 5)
MEDIUM NEUTRAL CITATION:	[2008] VSC 260

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Criminal law and procedure – culpable driving causing death – evidence – voluntary statements of accused to examining doctor – admissibility.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Gamble SC with Ms A Forrester	Office of Public Prosecutions
For the Accused	Mr R Richter QC with Ms K Blair	Victorian Aboriginal Legal Service

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Ruling No. 5

HIS HONOUR:

1. I consider that in the exercise of discretion the statements of the accused to Dr G.R. Murphy on the early morning of Sunday, 19 February 2006 and as appears at page 519 of the depositions, should not be admitted.  They appear the fourth last paragraph of Dr Murphy’s statement of 5 April 2006 as follows: "He said that he had been trying to turn a very steep corner that had no lighting.  He hit gravel on the kerb and lost control.  He said that he had panicked after the incident and returned home.  He said that he had taken two Temazepam sleeping tablets following the incident."

1. That last sentence is not proposed to be led anyway.  I agree with Mr Richter that in the exercise of discretion it is appropriate to exclude that whole paragraph.  The statements, in my view, clearly were voluntary.  They were not improperly obtained.  However, in the exercise of the fairness discretion as the accused was in custody and was being seen by a doctor while he was in custody and secondly and importantly, in order to ensure that accused persons in custody are able to give full and frank histories to medical practitioners for medical purposes I think it is desirable not to admit this material in the exercise of discretion and accordingly I exclude it.

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