R v Bristow

[2002] VSC 55

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT WANGARATTA

CRIMINAL DIVISION

No. 1482 of 2001

QUEEN

v

JANINE BRISTOW

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JUDGE:	TEAGUE J
WHERE HELD:	Wangaratta
DATE OF RULING:	5 March 2002
DATE OF REASONS:	12 March 2002
CASE MAY BE CITED AS:	R v Janine Bristow
MEDIUM NEUTRAL CITATION:	[2002] VSC 55

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Evidence – Admissions – Confirming substance – Crimes Act Section 464H(e) – alleged non-compliance – exercise of unfairness discretion – reasons for ruling excluding segment of record of interview

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Morgan-Payler Q.C.	Office of Public Prosecutions
For the Defendant	Mr. M. Bourke	Victorian Legal Aid

HIS HONOUR:

1. Janine Bristow has been charged with the murder of Peter McCormack at Porepunkah on 1 December 2000. The trial was due to start on 4 March 2002 at Wangaratta. An application was made before the jury was empanelled for the exclusion of certain evidence that the prosecution planned to lead. The application for exclusion was made by Mr Bourke of counsel on behalf of the accused, and was opposed by Mr Morgan-Payler Q.C. prosecuting. The evidence in question was as to two related aspects. The first was as to questioning by a policeman Senior Constable Morris of the accused on 1 December close to the place where the body of the deceased was located. The second was as to those parts of a videotaped interview of the accused by a Detective Sergeant Jenks in the company of a Detective Senior Constable Creece later on 1 December, when Detective Jenks went through the questions of Morris and the answers of the accused, and sought confirmation. I ruled that the evidence be excluded in the exercise of my discretion to exclude evidence seen to be unfair. I indicated that I did not accept the primary basis argued. That was that there had been a failure to comply with the provisions of paragraph (e) of Section 464H of the Crimes Act 1958. I said I would provide detailed reasons later. These are the reasons.

1. Before I heard the application, I had viewed the tape of the interview, and I had read the statements and the evidence at the committal hearing of three witnesses who had seen the accused on 1 December, namely: Senior Constable Morris, Detective Creece and a Doctor Price. Oral testimony was led on the voir dire from Doctor Justin Barry-Walsh.

1. Not long after 3 a.m. on 1 December, Senior Constable Morris spoke to the accused at the Porepunkah farm to which the police and ambulance had been summoned.  He had known the accused and the deceased in circumstances that he had occasion to be well disposed to her, but not to him.  He cautioned her and told her of her rights.  He asked questions of the accused, making a handwritten record of the questions and answers in his notebook. He moved around as she pointed out a knife, was provided with a blanket and was moved to a vehicle.  He conducted a breath test for alcohol on the accused, which yielded a nil reading.  Over 50 questions were asked and answered.  He was asked at the committal hearing to comment on the demeanour of the accused at the time. He said that she was candid in her answers, but unusually detached, so that he turned his mind to the possibility of her having mental problems.  Shortly before 6 a.m., he spoke with her again briefly in an audio-recorded interview at the Wangaratta Police Station, arranging for her to exercise rights to contact a relative and a lawyer.

1. At 11.28 a.m., the video-recorded interview by Detectives Jenks and Creece began.  The questioning continued for around two hours, with a short break in the middle.  A record was also made of short segments before and after the accused was seen by Doctor Price, and of questioning during a partial re-enactment at the scene of the killing held just before 5 p.m. that day.  During the whole of the taped interview an independent person was present. At the committal hearing, Doctor Price and Detective Creece were asked questions about how the accused presented when they saw her that day.  Doctor Price said that he noted her restlessness and her non-responsive references to her children.  Detective Creece noted that she appeared starey-eyed.

1. I watched the tape of the interview.  I noted that Detective Jenks appeared to work to a sensible plan in his questioning.  He proceeded through a number of stages.  First, he gave the usual caution and explanation of rights. He then asked some general questions.  To one, the accused very candidly said that she was in police custody because she had knifed the deceased in the chest.  From question 60, Detective Jenks proceeded into what I will call “the confirming stage”.  He went to the notes typed up by Senior Constable Morris of the questioning early in the morning.  He set about seeking confirmation from the accused that the questions and answers as recorded were accurate.  One of the 50 plus questions put by Senior Constable Morris to and answered by the accused was: Q: Was it your intention to kill him? A: Yes.  Detective Jenks proceeded to try to get the accused to run through the events earlier in the day in her own words.  I will call that “the run-through stage”.  From question 262, Detective Jenks asked questions going to the background of the relationship of the accused and the deceased.  He then moved back to the events of 1 December.  The accused declined to answer questions at a stage when she was asked for details of events shortly prior to the stabbing.

1. Just as the questioning went through stages, so did the demeanour of the accused go through stages.  Even during different stages, there were fluctuations.  At times, she appeared to be attentive and focused. Indeed, at times, she corrected Detective Jenks.  At other times, she appeared distracted.  At times, she answered promptly and responsively.  At other times, there were long delays or half-hearted responses, or non-responsive comments.  Through years of watching videotapes of police interviews, one gets to understand certain patterns.  This interview did not conform to those patterns.  The accused seemed over-ready at times to admit guilt.  She seemed unable at other times to use more than disjointed words and phrases.

1. Through Doctor Barry-Walsh extensive evidence was led as to the psychiatric problems which had afflicted the accused for many years.  An unhappy childhood as an adopted child was followed by a period of some relative stability.  She completed training and worked for about 20 years as a state enrolled nurse.  She was married twice, having a son and daughter by the first marriage, and a daughter by the second.  In 1994 and again in 1997, she was admitted to psychiatric hospitals.  Amongst the concerns noted then were indications that she suffered from paranoid delusions and morbid guilt.  She continued to receive attention for psychiatric problems into and through the year 2000.  She had an appointment to see the local psychiatry team on 2 December, the day after Peter McCormack was killed.  After being charged with murder, she was remanded.  Later in December, she was seen by a psychiatrist and was prescribed anti-anxiety medication.  Later again in the month, she was admitted to Thomas Embling Hospital where she remained for nearly 3 months.  No clear cut diagnosis of her condition was made.  She was seen to be suffering from a combination of depression and anxiety, with mood disturbances, manic phases and psychotic symptoms at times.  Doctor Barry-Walsh expressed opinions as to the accused’s state on the morning of 1 December 2000.  He made it clear that he relied only partly on having reviewed her records and having seen her recently.  He also relied substantially on having watched the videotaped interview.  He noted from watching the tape that she appeared overwhelmed, distressed, overtaken by events and at times emotionally detached.  While he accepted that she was fit to be interviewed, she was nevertheless to be seen as having been actively ill on 1 December, in that she was obviously mentally disturbed.  She was affected by her pre-existing disorder.  She was also showing signs of the stress of being a part of a traumatic, overwhelming experience.  She was more vulnerable to the stress because of the disorder.  Those matters should be taken into account in assessing the reliability of the answers she gave in the interview.  Another matter to be taken into account was that it was part of her condition for her to tend to emphasise her own sense of guilt.

1. The primary argument of Mr Bourke was that I should not be satisfied that paragraph 464H(e) of the Crimes Act had not been complied with. In short, that sub-section enables a confession or admission not recorded at the time to be received into evidence, where later: “…the substance of the confession or admission was confirmed by the person questioned and the confirmation was tape-recorded…”. Mr Bourke argued that there had not been a requisite confirming by the accused to Detective Jenks of the substance of the admissions made in the questioning by Senior Constable Morris. Mr Bourke took me to some 1990 pre-trial rulings concerned with the operation of paragraph 464H(e) of Hampel J in Redenbach and Lucas and of Gobbo J in Crowley.  He accepted that the rulings contributed little save that in the Redenbach ruling, Hampel J made observations that passing references to an earlier conversation would not suffice as confirmation and that not every detail need be confirmed.

1. Turning to the situation before me, I would note that what Detective Jenks did was to painstakingly go through all of the Morris questions and answers with the accused.  He put the questions and answers word by word.  It seemed to me that he tried as well to do all that was reasonable possible to ensure that the accused understood what he was doing. Mr Bourke’s argument relied upon a combination of several considerations for seeking to persuade me that the accused had not confirmed the substance of the earlier conversation.  They went in small measure to the position of the detective, but mainly to the position of the accused.  One consideration was her illness.  Another was the compounding effect on that illness of the overwhelming nature of her then situation.  Another was as to aspects of the responses given by the accused when questioned by Detective Jenks about the Morris questioning.  Included in those aspects was that many times she answered in a distracted way with an “Mmm”.  At times there were indications of a possible misunderstanding or tentativeness.

1. I am not disposed to suggest that there can be bright lines drawn as to what does and does not  amount under the sub-section to confirming the substance of admissions.  I am well satisfied that there was here such a confirming.  For a start, it seemed to me that Detective Jenks went about a difficult situation a in  sensible way.  He had a long list of questions and answers.  He opted to go through them one at a time.  It is true that he might have tried to summarise questions and answers in an effort to achieve substance.  But, unless he was extremely careful in doing so, he would have run the risk of sacrificing clarity for expediency.  Any reservations as to the effectiveness of the process must be based on concerns as to the impact of the mental state of the accused on her capacity to confirm.  I did have concerns, given the evidence of Dr Barry-Walsh and my own assessment of the interview.  At times, I was impressed at the accused’s capacity to focus.  At other times, she was plainly distracted.  I make that comment both as to the interview generally, and as to the confirming stage.  The overall impression was sufficiently clear.  The accused understood what the process was about, and she participated in it.  Giving reasons that appeared appropriate to the context, she declined more than once to accept that she had given certain answers.  Even more significantly, she pointed out more than once that Detective Jenks appeared to have misunderstood what had been prepared for him by Senior Constable Morris.

1. I turn finally to my reasons for exercising my discretion to exclude the evidence in contention on grounds of unfairness.  The applicable principles were reviewed in The Queen v Swaffield (1992) 192 CLR 159 at 189-190. Put shortly, unfairness relates to the right of an accused to a fair trial, not to whether the police have acted unfairly, and unreliability may be a, but is not the sole, touchstone of unfairness. Not without reservations, I was satisfied in this case that it would be unfair for the confirming segment to be introduced into evidence. The reasons for my coming to that conclusion are difficult to understand by anybody who has not viewed the videotape, and assessed the detail of the evidence of Dr Barry-Walsh. I was troubled by the marked fluctuations in the state of the accused during the interview on a focused-distracted continuum. There were also marked fluctuations during some stages in the times taken to provide answers to questions. Indeed, at times, I was so intrigued that I came to note the period of delays in seconds on my copy of the transcript. I had concerns as to the capacity of the jury to appreciate aspects of the fluctuations in the way the accused responded during the confirming stage. I might have been disposed to leave it to the jury to make its own assessment, if there had not been one further consideration. That was that the jury would have before it the run-through stage and the questioning that followed, albeit that the picture provided would not have been as complete. The jury would thus have before it most of the admissions provided during the confirming stage, and in a context where the accused’s demeanour was viewable. If all of the questioning by Detective Jenks was before the jury, the jury should have been able to infer that the process when the accused provided certain kinds of answers to questions put by Senior Constable Morris was likely to have been akin to that when she answered the like questions put by Detective Jenks. What troubled me was that I perceived that there was a significant risk that the subtlety involved in drawing that inference might be lost. In the circumstances, I considered that not to have excluded the evidence proposed to be led would have involved too high a risk of unfairness. Accordingly I ruled that it be excluded.