R v Badenoch
[2001] VSC 410
•10 October 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1473 of 2000
| THE QUEEN |
| v. |
| FARREN BADENOCH |
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JUDGE: | COLDREY, J | |
WHERE HELD: | MILDURA | |
DATE OF HEARING: | 10 OCTOBER 2001 | |
DATE OF RULING: | 10 OCTOBER 2001 | |
CASE MAY BE CITED AS: | R. v. BADENOCH | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 410 | |
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CATCHWORDS: Ruling – Admissibility of recorded interviews with accused – Issues of voluntariness (overbearing of the suspect's will) and the unfairness and public policy discretions and breach of s.464C Crimes Act 1958 raised – Police questioning after suspect sought to communicate with a solicitor – Held – interviews voluntary – Portion of initial interview with Homicide Squad (5.05 a.m. on 2/3/01) excluded in the exercise of the fairness discretion and/or the application of s.464C of the Act and public policy considerations.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr. McDermott | Ms. McRickard Office of Public Prosecutions |
| For the Accused | Mr. O'Doherty | Mr. Drazetic Victoria Legal Aid |
HIS HONOUR:
In the course of the initial discontinued trial of this matter issues of admissibility were raised on behalf of the accused concerning conversations between him and various police officers and the Sun Siesta Caravan Park and as to a subsequent series of interviews conducted with the accused by investigating police.
These issues were explored by way of a voir dire in which the Crown called all the relevant witnesses. Counsel in the present trial were content to adopt that evidentiary material.
During argument it became clear that the question of what conversations between the accused police at the caravan park should be led in evidence had been resolved between the parties, making any ruling by me unnecessary.
Further, as I understand the Crown position, it does not press for the admission into evidence of the interviews conducted by local police which tended to enshrine a series of arguments about the accused's rights as a suspect, rather than containing matters probative of forensic issues.
It was however agreed by both the Crown and the accused that these interviews were of relevance in assessing the issues of the lack of voluntariness and unfairness of the Homicide Squad interviews, being the principal issues advanced on behalf of the accused.
The factual background of these interviews may be briefly stated. After an altercation between the accused and his deceased sister, Amalie, at a local Mildura supermarket on the previous evening, the deceased drove to the Sun Siesta Caravan Park on 1 March 2000. The accused and his family resided at this location. Amalie Badenoch drove her car into the accused's vehicle, which was parked nearby a caravan, in which he and his family were sleeping. This gave rise to an altercation between the accused and the deceased, in which the latter received a fatal stab wound to the abdomen.
On the police attending the scene, the accused was observed crouched near the body of Amalie Badenoch and wearing blood-strained shorts. He told a Sergeant Gerard Kelly he and the deceased had been “wrestling around” and he did not know what went wrong. At that stage there was no admission by the accused of having used any knife. Rather, it was asserted that the sister had the knife which the accused had later taken to his caravan.
The accused, having admitted fighting with his sister, was taken into custody and the first series of interviews with the local police, Detective Senior Constable Irwin, and Detective Senior Constable Wellington occurred at the Mildura CIU. I should add that the accused had been informed of his rights at the caravan park and this information was repeated at the police station in an interview commencing at 11.32 p.m. on 1 March. In all, three short interviews were conducted. The second commencing at 12.43 a.m. and the third at 1.25 a.m. on 2 March and concluding at 1.28 a.m. The third of these interviews related solely to the taking of a forensic sample.
It is unnecessary to go into any detail as to the contents of the interviews. In the course of them the accused spoke to a solicitor from the Aboriginal Legal Service at 11.46 p.m. He was seen by Dr Gerald Murphy at 12.05 a.m. on 2 March, and he consulted with a Mr Ray Clark from the Aboriginal Co-operative at 12.15 a.m. on that date.
Having listened carefully to these tape recordings it is quite clear that the accused was not only aware of his rights but was forcefully asserting them. His comments included his disinclination to be interviewed by Messrs Irwin and Wellington but a willingness to participate in an interview with other police.
The whole tenor of these interviews is of the investigating police being careful that the accused was aware of his rights and of an accused quite able to determine what he would or would not do. Ultimately, the local police did not persist with their questioning.
I should add that it is not contended that the accused was physically incapable of participating in any records of interview despite his complaints about a sore toe and some vomiting which Dr Gerald Murphy attributed to nervousness, an understandable state in the circumstances. Dr Murphy's view was that the accused was fit to be interviewed.
Insofar as it is submitted that these interviews demonstrate any overbearing of the accused's will, the material itself leads to very opposite conclusions. In any event, I have already indicated that the interviews should be excluded on the grounds of relevance. The only relevant response may arguably be contained in the accused’s answer to Question 89, of the initial interview. However, in the context of the interview as a whole, I would not permit that answer to be placed before the jury.
Subsequent to these interviews the accused spoke to a Mr Gerald Atkinson of the Aboriginal Co-operative at 1.42 a.m.
The second series of interviews, which were conducted by Senior Detective Mark Colbert and Detective Sergeant Gordon Hynd of the Homicide Squad, commenced at 5.05 a.m. on 2 March 2000. The first interview contains a lengthy prologue, (questions 1 to 196), in which the accused's rights are debated and in which the accused, who was well aware of his rights, is both assertive and argumentative.
It is worth nothing that up until this time no specific questions have been put to the accused about the incident of the previous evening. The matter had been left in the somewhat vague situation that the accused had suggested he was amenable to questioning by police other than Messrs Irwin and Wellington.
In relation to these interviews, I add these general comments. The fact that an accused may answer, "No Comment" is not of itself an impediment to police putting questions or allegations to a suspect, albeit the ultimate result may be material which has no probative value. Further, whilst there existed the entitlement of this accused to communicate yet again with a solicitor, that did not carry with it an entitlement to have a solicitor present at the record of interview. Moreover I do not regard as valid the defence characterisation of the police approach to these interviews as that of a "tag-team". Each of the various interviews had its own purpose and rationale.
In the course of his submissions, Mr O'Doherty, on behalf of the accused, drew my attention to passages in the records of interview and the cross-examination of Mr Colbert on the voir dire designed to establish that the police sought to proceed unfairly with the 5.05 a.m. interview, having endeavoured to dissuade the accused from further contact with a solicitor.
In the context of the questioning as a whole I am not persuaded this is so. On the contrary I take the view that the police were attempting to accommodate the exercise of the rights of a somewhat difficult suspect. Ultimately, at Question 196 the accused chose to proceed with the interview. Certainly, the onus of demonstrating unfairness is not discharged by the accused, and any fair listening to the exchanges between the interviewer and suspect, do not support the contention that his will was being overborne.
It was, however, further argued by Mr O'Doherty, that the 5.05 a.m. interview should have been discontinued at the point, (being Question 310), when the accused expressed the desire to see a solicitor.
I confess that this submission has occasioned me some anxiety. It is, I think, arguable that the accused at all times remained in control of the information he was prepared to impart to the interviewing police. On the other hand, it may be said that this request, made in the context of prior discussions between the parties, should have been explored further by the interviewing police rather than simply continuing the questioning.
I have some sympathy for the police situation given the nature of the relationship between interviewer and interviewee, demonstrated by the material. Ultimately, however, and not without some hesitation, I have concluded that I should exclude Questions 311 to 380 in the exercise of the fairness discretion and/or the application of s.464C and public policy considerations.
Next in time the accused spoke to a solicitor,(on this occasion Mr Pat Bourke from the Aboriginal Legal Service) prior to a short interview which commenced at 6.38 a.m. Later, the accused spoke to Ms Ann Hennessy, another solicitor, at about 9.10 a.m. and to Ms Hennessy and Mr Lindsay Anderson, yet another lawyer, at 10.30 a.m.
At 11.06 a.m. a further interview occurred with the Homicide Squad, after which the accused was released without charge pending further investigation. Subsequently, at about 3 p.m. the accused was arrested for the murder of his sister and a final interview was conducted with the Homicide Squad commencing at 3.31 p.m. on 2 March 2000.
Mr O'Doherty's submissions relating to these interviews were, in essence, that by this time the accused's will was completely overborne and hence he made admissions that would not otherwise have been forthcoming.
Again, having listened to these interviews, I am of the view the Crown has satisfied the onus of demonstrating that they are voluntary and moreover that no unfairness adheres to them. Consequently, they are admissible.
There may well be portions of these interviews which require exclusion. For example, questions 469 and 70 of the 11.06 a.m. interview and part or all of Question 155 of the 3.31 p.m. interview. There may be other questions and answers which also require consideration but I leave that initially to counsel to consider.
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