DPP v Weiss
[2002] VSC 23
•7 February 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1464 of 2001
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BOHDAN WEISS |
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Ruling No. 2
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 7 February 2002 | |
CASE MAY BE CITED AS: | DPP v Bohdan Weiss | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 23 | |
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Criminal law and procedure – murder - voir dire – admissions by accused in police interview – voluntariness – propriety – interview admissible.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Faris QC | OPP |
| For the Accused | Mr C. Lovitt QC | Victoria Legal Aid |
HIS HONOUR:
The accused, Mr Bohdan Weiss, is charged with the murder of Helen Grey in her home at Doveton on 24 November 1994. The deceased was battered to death with a cricket bat, apparently while she lay on the couch at her home.
Initially, her estranged husband, who had been the subject of some curial interest at the time, was the primary focus of the police investigation. The accused was a lesser focus, if a focus at all. The accused's female partner, Ms Jean Horstead (formerly Toft) made a police statement that he was home all night in bed with her on the night of the killing. Police interest in the accused lapsed.
Some six years later, the accused and Ms Horstead having separated, Ms Horstead contacted police and stated that she had provided a false alibi for the accused, that he was not home continuously on the night of the killing and that indeed, when the accused did come home that night, he confessed to the murder of Ms Grey.
Ultimately on 28 November 2000, following a substantial police investigation, the accused was charged with the murder and is now before the court on that charge.
Prior to the empanelment of a jury, the question has arisen as to the admissibility of admissions made by the accused to investigating police officers in interview at the Homicide Squad office on 28 November 2000.
In substance, the Homicide questioning of the accused that day took two parts. The investigating officer, Detective Sergeant Mitchell of the Homicide Squad, with his assistant, Detective Senior Constable Ross, had arrested the accused earlier that day at his home at Cockatoo and had transported him to the Homicide Squad office. They then conducted a video taped interview of the accused, commencing at 9.55 a.m. Ultimately, by approximately 11.35 a.m., the accused was informed, in question 362, that he was to be charged with the murder of Ms Grey. To that point, the accused had steadfastly denied that he had murdered Ms Grey or had any part in the killing or was present at the scene of the killing on the relevant night. After question 362, formalities including request for provision of forensic samples occurred. At 11.40 a.m., at question 386, the interview concluded. The interview concluded in contemplation of the taking of forensic samples from the accused. That interview - from 9.55 a.m. to 11.40 a.m., being questions 1 to 386 - is Exhibit A on the voir dire.
After that interview had concluded, the accused asked whether a police officer whom he had earlier known, Detective Sergeant Thomas, was in the building. In fact, Detective Sergeant Thomas was in the building, on the 16th floor, the Homicide Squad office being on the 9th floor. Detective Sergeant Thomas at the time was seconded to another substantial investigation, Operation Lorimer. The antecedents of the two persons were that the accused had lived in the Dandenong area and Detective Sergeant Thomas had been a senior CIB officer in the Dandenong area back in the early 1990's and had had some passing dealings with the accused. In the event, another officer telephoned Detective Sergeant Thomas and conveyed the accused's request to see him. Detective Sergeant Thomas came down to the 9th floor, entered the interview room, and had a brief (less than 10 minutes) conversation with the accused. They were alone. The conversation was not electronically recorded. There is a substantial disputation on the evidence as to what was said in the conversation in the interview room between Detective Sergeant Thomas and the accused. I shall return to that in a moment.
After the conversation, Detective Sergeant Thomas left the room and spoke to the investigating officer, Detective Sergeant Mitchell who with Detective Senior Constable Ross then re-entered the interview room and a further interview of the accused commenced (although the numbering is sequential) being from question 387 at 12.25 p.m. to question 526 at 12.55 p.m. That has been treated on the voir dire, and in my view correctly treated, as a separate interview, both for legal and for evidentiary purposes. It is Exhibit B on the voir dire.
In that second interview the accused graphically, and apparently convincingly, confessed to the killing of Ms Grey. He described in considerable detail, as is evidenced in questions 397, 425 and 443, how he went to the home, conversed with Ms Grey, found the cricket bat, hit the deceased with the cricket bat and in what circumstances, stating to the police that he did not intend to kill her and that the killing was an accident.
It is the prosecution's contention that a number of the admissions made by the accused in that second interview are true, particularly that he did go to the premises and that he did kill the deceased with the cricket bat; but that the accused’s statements are not true in these particulars: one, that the killing was accidental; next, the number of blows (the accused said one or two; the pathologist says a minimum of three); and finally, that the killing occurred in the course of a conversation in which the accused and the deceased were standing up and in which she first assaulted him. The prosecution says that in fact the deceased was lying on the couch in a still position and the accused attacked her with the cricket bat from behind. That indeed is what the accused said to his female partner when he returned home that night, if her evidence is true. The prosecution says those untruths in the accused's second police interview, Exhibit B, are no more than the routine minimisation by an accused of the more egregious aspects of the fatal acts.
The defence puts that the accused's inaccurate factual statements as to the position of the deceased when first struck (standing or lying on the couch with a rug around her legs) and as to the number of blows demonstrate that the confession to the police in Exhibit B, although made, was not a confession of truth, and was made by the accused in ignorance of the true facts of the killing; and the unfactuality of them in the respects that I have stated, demonstrates its untruth. That is, as I understand it, how the issues are joined.
I return to the dealings of the police with the accused founding this voir dire.
The application made most comprehensively and helpfully by Mr Lovitt on behalf of the accused is that the second interview of the accused, Exhibit B (the confessional interview) ought be excluded on two grounds: first, that the admissions made therein were not voluntary, that is to say they were not made as contemplated by relevant authority in the free exercise of the right to speak or remain silent; and secondly, even if they were, they were made in circumstances of unfairness and specifically impropriety; and that either or both of those matters properly should found the exclusion of the second interview, Exhibit B. To that end a substantial body of evidence has been called, including that of the accused, and a number of submissions made in summary form conveniently by Mr Lovitt at the conclusion of the evidence. In essence, it is the submission of Mr Lovitt that upon the evidence called, and notably from his client who gave comprehensive evidence before me and whom I observed give evidence in the witness-box, the police persuaded the accused to give a false and incriminatory account in pretended protection of himself from a more serious legal fate.
Mr Lovitt relied upon the evidence of his client who said that while he was being brought in from Cockatoo to the Homicide Squad Offices in St Kilda Road on 28 November 2000, the senior officer, Detective Sergeant Mitchell, said to him in the car that the police "had new scientific evidence" and that, "if he was me, he would start thinking manslaughter" (T.199). In eliciting the accused's evidence-in-chief, Mr Lovitt commenced to move to another topic, so in one of my few evidentiary interventions, I asked the accused:
"Before you start moving on from that, did you reply to that statement by him to start thinking about manslaughter?, --- I wasn't saying much, Your Honour. I believe that I told Detective Mitchell that I do watch 'Blue Heelers' on television and I still can't figure them out and I don't know how they work, but if he's referring to DNA evidence he's taking a long shot because I never had the murder weapon in my hand."
According to the accused, nothing further was said about manslaughter at that point and there was no extrapolation either of what were the relevant elements that he ought to be thinking about, other than the tag "manslaughter", or of how that might be translated into a fictional narrative account. I might add that Detective Sergeant Mitchell said that as a matter of proper police procedure he did not engage the accused in any conversation in the car on the way in about the crime or about anything of substance because the situation was there was no recording and the accused had not been warned - Detective Sergeant Mitchell did not say that, but that was the implication of what he said. What he did say was, "I put on 3AK and we listened to passing music" - I think it was 3AK.
Then the party arrived at the Homicide Squad offices and the first interview occurred, as I have said, it being an interview of denial. The accused steadfastly maintained in that interview that he was not the killer. It is not for me, when there is a jury trial imminent, to comment in detail upon the appearance of the accused in that interview, but at times he appeared to be under some pressure from the logic of the police questions, particularly at and after question 264, as can be seen on the video At all events, he steadfastly maintained non-involvement in the killing.
I turn to question 360. The interview, to that question, had taken some 65 minutes (9.55 a.m. to 10.55 a.m. (Q.320) and 11.30 a.m. (Q.321) to 11.35 a.m. (Q.360)) and plainly was in its concluding phase. That is evident from the questions asked and that also is the evidence of the interrogating officer Detective Sergeant Mitchell which I accept. It was at that formal juncture - where the formal matters of charge and forensic procedure were to be articulated - that question 360 was asked. It was:
"Rightio. Is there - can you give me any reason for - any reason for why your DNA would be on the murder weapon?---Not at all. Not at all."
That was, I regret, a badly phrased question which warrants close scrutiny, as do the circumstances surrounding its and the consequences of its asking.
Not unnaturally, Mr Lovitt has submitted in relation to that question, that not only was it a factually erroneous question, but that it was designed to break down the free will of the accused by inculcating in him the belief that the police had his DNA on the murder weapon. Indeed the accused, in his evidence, has given evidence that he thought that is what they meant: that somehow the police had or were claiming they had his DNA on the murder weapon. I accept the accused's evidence on that point, that that is what he thought they meant. I think that an ordinary interviewee hearing that question would come to the conclusion that the interviewee's DNA had been found on the murder weapon. However, I do not accept at all that the question was asked deliberately misleadingly or with any improper intent. It was a rolled-up question, asked by the officer after a couple of hours of lengthy and detailed questioning, when the officer considered that he was now on to formalities at the end. The circumstance that the question was rolled-up, in my view, explains why it was expressed in the way that it unfortunately was; "rolled-up" meaning that he was both putting a proposition and asking a question in the one sentence. It would have been much happier if the question had been prefaced with the simple word "if" and expressed clearly as prospective: as "If your DNA is found on the murder weapon, what would you say to that?" I am confident that is what the officer meant when he asked the question. He has sworn as much before me and I accept his evidence. That is confirmed by four further matters. First, the question was asked in the subjunctive - "would be" on the murder weapon. "Might be" would have been a better phrase than "would be", and "if" clearest of all; but it was none the less the subjunctive, not the indicative, that was used. That is not merely a pedantic grammatical matter. Second, the normal police procedure, as I understand it, if there is information that the police are putting to an accused in interview, is to say: "We have information that (such and such). Do you wish to comment on that?" The fact that the officer did not divide his question up in that way - assertion first and then question - is a further reason for accepting his evidence that he was not putting or intending to put a proposition of fact. (Indeed, on 24 November 2000 Detective Sergeant Mitchell had e-mailed the forensic scientist Mr. M. Jones asking about the "value of further DNA analysis" (D.725). The analysis did not arrive until March 2001). Third, if the question were designed to elicit a confession by misstating the forensic evidence, the officer left virtually no scope for that aim to be efficacious. He asked the question at the end of the interview, in its formal concluding phase, immediately before informing the accused he was to be charged with murder. Finally, I consider that logic supports the officer's evidence that it was not a deliberately misleading question; because the officer would be hanging himself out to dry if he were deliberately asserting to an accused that there was DNA evidence connecting the accused with the offence when, as a matter of record, out at Macleod in VFSL material, there was no such evidence, and that lack could be demonstrated as a matter of contemporaneous record by the slightest inquiry.
Accordingly I accept Detective Sergeant Mitchell's evidence that the question was not asked with any intent to mislead the accused.
That does not mean, of course, that the accused would not have been mislead and I accept the evidence of the accused as to the way he took it. I shall return to this matter.
I turn to what happened next.
Two questions after question 360, the accused was told he was going to be charged with murder. Formal questions were asked about provision of forensic samples and the interview concluded five minutes after question 360. The interviewing officers left the room to arrange forensic matters. Then the accused asked for Detective Sergeant Thomas.
On a voir dire, it is inappropriate for a judge to comment in detail upon an accused's evidence. An accused person is under enough strain as it is, facing a jury trial, without detailed comment by a judge before a jury is even empanelled. It is thus the practice of the court not to traverse in detail reasons one might normally traverse, for example in a sentence, if one were giving detailed reasons for accepting or rejecting evidence, or in a non-jury witness judgment.
Detective Sergeant Thomas gave evidence before me that prior to entering the interview room, he thought the accused (who had been told he was going to be charged with murder) had called for him to discuss a "welfare-type issue" (T.163). I accept the evidence of Detective Sergeant Thomas given before me yesterday, that he then had the conversation with the accused which Detective Sergeant Thomas deposed to before me, which was, in substance, that the accused wanted to speak to him, that the accused said he was under significant emotional pressure, that he wanted to tell the truth, that he had not told the truth to the police in the first interview, and that he wished to tell the investigating police the truth. That evidence, I consider, is both logical and psychologically persuasive. It is logical because the accused was maintaining a position in the first interview steadfastly, but clearly was under some logical pressure as is evidenced by his answers and demeanour from Q. 264 onwards; and secondly, it was the accused who called for Detective Sergeant Thomas, not the other way around. I do not rely at all upon the circumstance that Mr Lovitt at first put that it was the interviewing police who called for Detective Sergeant Thomas, rather than the accused. There was a substantial amount of factual material to cover on the voir dire and Mr Lovitt made a genuine mistake which does not adversely affect his client at all. Indeed his client's written instructions demonstrate precisely that, that his client had maintained it was he who called for Detective Sergeant Thomas, not the investigating police.
The other matters which I consider relevant are the demeanour before me of Detective Sergeant Thomas and the subsequent nature of the statements by the accused in the second interview. I was impressed by the evidence of Detective Sergeant Thomas; and without descending to detail about the answers of the accused in Exhibit B, because no doubt the jury will have to make its mind up about that and I am not the jury, the answers and the demeanour of the accused in Exhibit B confirm the evidence of Detective Sergeant Thomas.
I do not accept the evidence of the accused that he was pressured by Detective Sergeant Thomas, or by any other police officer, into a false confession. The accused, before me, gave evidence that, after preliminary matters were discussed between him and Mr Thomas, Mr Thomas had said that he had never bullshitted the accused, who returned the compliment, that Detective Sergeant Thomas said "You had better come, basically come to the party and tell us what you know" (T.220) and that the accused said "I didn't do this one, I don't want to dog anyone in, I can't take the rap for this one." The accused gave evidence that Detective Sergeant Thomas then asked "But who are you talking about?" to which the accused replied "I'm not going to mention no names" to which Detective Sergeant Thomas kept asking "But who, Boh, but who?"
The accused, in giving evidence before me, gave that evidence before he had the aid of his notes. It would have not passed the mind of an observer listening to that evidence, of the apparent impasse that the accused's evidence had got him into. The independent observer would ask him or herself: how does one get from there to manslaughter? It was at that point, unfortunately, that Mr Lovitt in a leading question asked: "Well, did the topic of manslaughter come up?" (T.222). That is why I then intervened, because it seemed to me that what would assist the court was to hear from the accused himself how he got from the impasse of not revealing the identity of the true killer, to killing by the accused. At all events, the accused, after Mr Lovitt's question, said that the idea of manslaughter came from Detective Sergeant Thomas and then there was a brief further discussion about it, in which the accused asked "What constitutes manslaughter?" to which Detective Sergeant Thomas said "If it was an accident" (T.229).
There would appear from the evidence of the accused to be no further education of the accused by Detective Sergeant Thomas of the incidents in law of manslaughter, nor any coaching by the officer as to what story the accused might give - other than saying "You're going to have to be convincing." In Exhibit B, the accused gave a graphic account of the two persons standing up and where the cricket bat was and who said what, particularly in questions 397, 425 and 443, all of which the accused says was invented by him spontaneously and without preparation, coaching or guidance, and all on a video where his demeanour appears to be remorseful, stressed and genuine.
In all the circumstances I accept the evidence of Detective Sergeant Thomas and I am satisfied that Detective Sergeant Thomas did not seek to pervert the accused from his situation of stated innocence into an untrue confession of guilt.
I am satisfied that despite the misfortune of how question 360 was expressed, the
accused acted voluntarily and fully of free will after discussion with his acquaintance, Detective Sergeant Thomas, in telling the police what he did in the second interview. I do not consider that question 360 defeated or deflected the accused's free will (as defined by the authorities) nor did question 360 cause or influence the accused to make an untrue confession of guilt. I am satisfied the reason that the accused made the second interview was that which he stated to Detective Sergeant Thomas, whom the accused himself asked to be called down, and in that respect I accept the evidence of Detective Sergeant Thomas. I think it is inappropriate for me to say more than that.
In summary, therefore, I consider that the accused acted voluntarily and I consider that the police at no stage acted unfairly or improperly; and the only criticism which I think properly can be made of the police was the unfortunate method of expression of question 360, which I am satisfied (a) was not deliberately designed to mislead and (b) was not the reason why the accused made the second interview, Exhibit B.
For those reasons I rule that the second interview, Exhibit B, is admissible both in law and in discretion.
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