Kamsma v The Queen
[2011] VSCA 123
•5 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 0612 2009
| BRENDAN PATRICK KAMSMA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | ASHLEY and HARPER JJA and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 3 May 2011 |
| DATE OF JUDGMENT | 5 May 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 123 |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge Parsons, 23 April 2009) |
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CRIMINAL LAW – Conviction – Aggravated burglary and assault with intent to rape – Whether trial judge erred in not warning the jury about the use of unrecorded and uncorroborated admissions to the police – Admissions reiterated during record of interview – McKinney v The Queen (1991) 171 CLR 468.
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| Appearances: | Counsel | Solicitors |
For the Applicant | Mr S Gillespie-Jones with Mr T B Ashton | Tyler Tipping & Woods |
For the Crown | Ms A L Forrester | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I agree with Harper JA.
HARPER JA:
Introduction
On 14 October 2008, the applicant was found guilty by a jury of one count of aggravated burglary and two counts of assault with intent to rape. Two young women were alleged to be the victims. The applicant now seeks leave to appeal against his conviction.
The applicant did not, at the trial, dispute that, on 4 January 2007, the two victims had been inside their home when someone entered as a trespasser. Nor was it said that, if accepted, their evidence did not establish the foundation for the conviction of the intruder on each of the counts of assault. That evidence was that, having pushed open the back door against the resistance of at least one of the occupants, their assailant pushed both victims into a bedroom, closed the door of that room, and ordered each to undress. On this basis, the Crown sought to establish that the elements of aggravated burglary were made out because the intruder knew, as he entered the house, that at least one person was inside, and intended to assault that person. The intention to rape at least one of the victims was established, so the Crown contended, by the assailant’s actions once inside the house, and by admissions made by the applicant in the record of his police interview.
The applicant did not seek to deny the entry, or that the intruder was scared off after one of the two young women escaped from the bedroom. Perhaps anticipating that the escapee would sound the alarm, the assailant ran into the backyard and so got away.
A single issue remained between the Crown and the applicant. His defence was that he was not the intruder.
The Crown relied on what it contended were confessions. The applicant’s case was that some of these were fabrications, and the others – those made in a recorded interview with the police – were not made voluntarily, but were induced by threat of reprisals if the applicant did not respond in accordance with police instructions.
The applicant also relied, at trial, on mistaken identification. Each of the women described their assailant as having markings, which looked like tattoos, on an arm. Under cross-examination, each said that the markings were tattoos. As the Crown conceded, however, the applicant did not then have, and has not since acquired, tattoos.
The remaining ground of appeal
The applicant gave notice that he intended to rely on three grounds of appeal. Only one was, however, pursued. That relating to the point about the tattoos, and a ground alleging that the conviction was unsafe and unsatisfactory, were abandoned on the morning of the hearing of the appeal. The sole remaining ground is that ‘[t]he learned judge erred in failing to give a McKinney direction’ to the jury.
An otherwise unaccompanied accused person in the custody of unprofessional police officers is in a position of vulnerability. The police may be convinced of the guilt of the apprehended person, and on that basis be prepared to fabricate a confession. Or they may be prepared to take that step even without being satisfied of the guilt of the accused. The High Court in McKinneyv the Queen[1] accordingly held that, whenever police evidence of a confessional statement allegedly made by an accused person in police custody is disputed, and its making is not reliably corroborated, the judge should, as a rule of practice, warn the jury of the danger of convicting on the basis of that evidence alone.
[1](1991) 171 CLR 468, 476 (Mason CJ and Deane, Gaudron and McHugh JJ; Brennan, Dawson and Toohey JJ contra).
Admissions not electronically recorded
The principal investigating officer in this case was Senior Constable Jason Venturoni. He gave evidence in chief of three separate admissions, each of them having been made by the applicant on 14 March 2008, but before the interview which the police conducted with the applicant later that day. Mr Venturoni heard all three. No-one else did. None were electronically recorded.
The first of the alleged admissions was made in the car park of the sawmill at which the applicant was employed. In his evidence in chief, the officer said that, having reminded the applicant that he was not obliged to say anything, he was asked about the incident under investigation. According to the evidence of Mr Venturoni, and to a contemporaneous note taken by him, the applicant ‘simply replied that it was him.’ In giving his evidence in chief, Mr Venturoni said that the applicant then added, in words of which no note was taken, that he ‘forced his way’ in the back door and ‘scared the girls.’
The second alleged admission was made to Mr Venturoni in a police car after the applicant’s arrest. The officer recorded in his notes that the applicant told him that he (the applicant) had ‘lost 11 stone since April last year (2007)’. The notes continued:
Saw Asian girl, attractive. Plan two months; pushed my way in. Took her to bedroom. Told her to get undressed. Was trying to have sex with her. She said ‘No’. Heard someone coming, ran out the back door.
The evidence about this admission was not given in chief. It first emerged in cross-examination.
The third admission was also elicited after Mr Venturoni had given evidence of a visit to the house where the applicant lived. He was asked by the prosecutor whether anything had been found there. He replied that ‘[t]here was a white polo top T-shirt, short-sleeved shirt, that the accused pointed out as something he had worn on that … night.’ The Crown had sought to tender it during Mr Venturoni’s evidence in chief, but on the judge describing it as ‘simply property belonging to Mr Kamsma’ it was at his Honour’s suggestion merely marked ‘for identification’. Mr Venturoni was asked about it by counsel for the applicant. He replied:
When we went into the accused’s house in his presence I asked him if there was any clothing at the house that was worn on that … night and he pointed to that shirt and told me that was the shirt he had worn.
Another police officer, Senior Constable Danny Sharrock, was in attendance in the car park and at the house, and was also the driver of the police car, at the time each of the three sets of admissions were made. He heard none of them.
Under cross-examination, Mr Venturoni denied that any of the three admissions was fabricated. But if the evidence had been left at that point, a McKinney warning might well have been required, even though it had been the applicant’s trial counsel who raised in cross-examination what was described as the second confession, and who in cross-examination fleshed out the third confession.
The record of the police interview
The evidence did not remain at that point. The applicant was on 14 March 2008, interviewed by Mr Venturoni, with Mr Shaddock in attendance. The interview was electronically recorded. The applicant does not contend that the recording is inaccurate; his position is simply that he said what he said because he was frightened of the consequences if he did not.
During the course of the interview, the applicant agreed that the incident of 4 January 2007 had been discussed in the car park of the sawmill. He was then asked what he could tell the police about it. He responded: ‘I admitted to you, sir, that I did it.’ He went on to describe in some detail what he was wearing when he visited the home of the two victims, and what occurred there. He said that he was wearing, among other things, a ‘beanie so I wouldn’t get recognised’ and a white shirt, which conformed with the polo shirt allegedly identified by the applicant as being the garment worn by him when, in the 4 January 2007 incident, he forced his way into the house. He said that he told those inside, whom he described as ‘two young girls’, to get into the bedroom and take their clothes off. He closed the bedroom door, and was about to have sex with the older of them when he heard something, so he ‘just ran out the back door, sir, and … drove away.’
In my opinion, the answers given by the applicant during the course of the police interview both corroborate the evidence of those admissions which were allegedly made to Senior Constable Venturino, and of themselves constitute admissions upon the basis of which the jury was entitled to return a verdict of guilty.
It is true that, taken all in all, there are differences between what was allegedly said to Mr Venturino alone and what was said in the interview. The latter was, as is to be expected, much more detailed. And when describing during the interview the same matters about which he allegedly spoke to Mr Venturino, the applicant used not only somewhat different words, but differed in some of the details. On the other hand, the substance of the material portions of all the admissions upon which the Crown relied is the same.
The applicant sought to bolster his argument about the necessity for a McKinney warning by referring to what he contended was a particularly significant portion of the record of the police interview. Mr Venturino had just informed the applicant that he was about ‘to ask you for a fair bit of detail’. The applicant having responded with ‘Okay’, Mr Venturino then said: ‘If you don’t remember, just tell me, but tell me as much as you can.’ This elicited the following from, in turn, the applicant and the officer:
Are you sure you’re not gonna have a go at me or anything?
What?
You are not gonna…
Of course not. We just – what you can remember.
It was on this passage that, at trial, the applicant based his submission to the jury to the effect that a police threat could be implied – a threat that, unless answers acceptable to the police were forthcoming, the applicant could expect police reprisals. On appeal, the point was that, in the circumstances which obtained after this exchange, the record of interview could not be taken as corroborating the earlier admissions.
In my opinion, there is nothing in this point. It is, it seems to me, impossible to read into this passage the implications which the applicant would have us draw. It would be quite wrong to ascribe to the police, or to conclude that the applicant ascribed to the police, the threat which the Court has been urged to discover in an otherwise entirely innocuous (in the presently relevant sense) record of interview.
Conclusion
In these circumstances, a McKinney warning was not, in my opinion, required.
In my opinion the application for leave to appeal should be refused.
LASRY AJA:
I also agree with Harper JA.
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