R v Cocks - [2011] SASC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v COCKS
[2011] SASC 61
Reasons for Ruling of The Honourable Justice Kelly
18 April 2011
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
Evidence - retrial of accused charged with the murder of his wife - accused admitted to hospital with stab wounds - accused claimed a suicide pact between himself and his wife - accused objected to the admission of evidence relating to conversation at the hospital between the accused and a police officer - where accused admitted to hospital on the morning of the interview - where accused administered doses of morphine - whether accused's ability to answer questions impaired - whether evidence should be excluded as unfair.
Held: evidence of conversation with police officer admissible - not unfair to admit interview into evidence - nothing to suggest interview improper or that accused was incapable of understanding or appreciating questions asked.

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - VOLUNTARINESS
Evidence - accused objected to the admission of evidence relating to conversations at the hospital between the accused and a psychiatric registrar and the accused and a consultant psychiatrist - where accused admitted to hospital the day before conversations - where psychiatric registrar executed an order under the Mental Health Act 2009 (SA) detaining the accused - where psychiatrists aware of police interest in the matter - whether psychiatrists persons in authority - whether statements of the accused voluntary - whether evidence should be excluded as unfair.
Held: evidence of conversations with psychiatrists allowed - statements made by the accused voluntary - psychiatrists should not be regarded as persons in authority - accused wanted to tell his side of the story - admission of evidence not unfair.
Mental Health Act 2009 (SA) , referred to.
R v Bondareff (1999) 74 SASR 353, distinguished.
R v Lem [2005] SASC 405, discussed.

R v COCKS
[2011] SASC 61
Criminal

KELLY J: Prior to the jury being empanelled I heard an argument on two matters raised in a Rule 9 notice filed on behalf of the accused.
The accused objected to the admission into evidence of a conversation between Senior Constable Suzanne Lunn and the accused which took place on the morning of 21 February 2010, and any communications between the accused and two psychiatrists, Dr Randall Long and Dr Matthew Sellen on 22 February 2010.
The grounds relied on in respect of the application concerning the interview with Constable Lunn was that it would be unfair to admit the interview as the accused had only recently been admitted into hospital, had been administered doses of morphine and other drugs which rendered him drowsy, and that there were other circumstances which impacted on the reliability of the interview. Particular complaint was made of the style of questioning of Constable Lunn and the environment in which the interview was conducted.
The grounds relied on in relation to the communications between the two psychiatrists, Drs Long and Sellen, were expressed in the alternative. First it was said that the statements were involuntary by reason of the fact that the accused was under investigation in relation to the death of his wife. At the time when the interviews with the psychiatrists were conducted, he had previously been interviewed and cautioned by the police, and the psychiatrists were aware of the police interest in the accused and failed to warn the accused before questioning him.
In the alternative it was contended that it would be unfair to admit the evidence of the conversations with the two psychiatrists because at the time the accused was under a mental health detention order and this was not a situation where the accused had attended voluntarily upon his medical practitioner and made voluntary statements. It was contended that in effect the accused was really speaking to the police via the back door through the medical practitioners and in those circumstances the discretion to exclude the evidence should be exercised.
Background
Early on the morning of 21 February 2010 the accused made a 000 call to the South Australian Ambulance Service. In that call the accused told the operator that he and his wife had tried to stab themselves. Police and ambulance officers attended at the home occupied by the accused and his wife and found the accused and the body of his wife naked in the bedroom. There was a great deal of blood on both the body and the bedclothes and other items found in the bedroom. The two ambulance officers located two knives, one on the bed beside the body of the deceased woman and one on the floor near to the side of the bed where the accused was lying.
The accused was admitted to the Flinders Medical Centre at about 7 am on 21 February 2010. He was examined by doctors and found to have a number of stab wounds, four of which were superficial only. Doctors who examined the accused described his condition as stable and the injuries as not life threatening. At 8.55 am whilst still in the resuscitation unit at the Flinders Medical Centre, Constable Lunn spoke with the accused. The interview was recorded by audio method only as a doctor at the hospital required the police to switch off the video recording when they entered the room.
The accused told Constable Lunn that he and his wife had tried to commit suicide.
One day later on the morning of 22 February 2010 at 9.20 am Dr Sellen, a psychiatric registrar at the Flinders Medical Centre, interviewed the accused. The purpose of his interview with the accused was to ascertain some preliminary information about what had happened in order to determine the mental state of the accused in consultation with Dr Long, the senior consultant who was to conduct a further assessment. The accused was in a four‑bed bay which was not fully occupied on that day. The curtains were drawn and Dr Sellen spent approximately one to one and a half hours with the accused. That interview was completed at about 10.30 am on 22 February 2010. Dr Long also consulted with the accused for approximately one and a half hours before completing the consultation at about 11.45 am on that morning.
On 25 February 2010 after the accused had been in hospital for four days, Dr Long discharged the Mental Health Act order and the accused was released from hospital. The police then arrested him.
That is a brief summary of the events which are relevant to this application.
For the purpose of determining the application I heard evidence from Dr Sellen, Constable Lunn, Detective David Gordge from the South Coast Criminal Investigation Branch and the accused. In light of the unusual circumstance, this being a retrial, I also had the benefit of the accused’s evidence at the previous trial together with the evidence of both psychiatrists and the police concerning the events of 21, 22 and 25 February 2010.
Interview with Constable Lunn
I deal first with the application to exclude the evidence of the conversation which the accused had with Constable Lunn.
Mr Healy for the accused did not contend that the statements made to Constable Lunn were involuntary, however it was contended that given the circumstances in which Constable Lunn chose to speak to the accused the interview should be excluded on the grounds of unfairness.
Constable Lunn told the Court that at the time when she first spoke with the accused on the morning of 21 February 2010 she had very little information about the circumstances of the death of Ms Cocks. All she knew was that the accused’s wife had been found deceased in the home jointly occupied by the accused and the deceased, and that there had been a suggestion of a suicide pact. Constable Lunn herself saw a suicide note on the floor of the home prior to leaving the house and travelling to the hospital. At that time she said it was the belief of the police that there were only two people in the house at the time when Ms Cocks died. Constable Lunn was therefore of the view that it was necessary to find out as soon as possible from the survivor what had occurred. It was not her intention to formally interview the accused at that stage, however when he started speaking to her at the hospital she was not expecting him to go into so much detail so quickly. That is why she stopped him early on and cautioned him. Prior to speaking with the accused she spoke to one of the doctors in attendance and asked whether the accused was up to speaking with her and whether he was willing to speak with her. She was told that he was willing to talk to the police but that he did not want to be videoed. She was also told that the accused had been given morphine. There is no dispute that Constable Lunn’s understanding that it was the accused who did not want to be videoed is in fact incorrect. It was a doctor at the hospital who told the police to switch off the video. Constable Lunn said that she saw the accused in a small anteroom near the emergency area, however at the time when she was speaking with the accused there was only herself, Constable Seto, and Brevet Sergeant Heath, a crime scene examiner, in the room.
Constable Lunn did not see or hear anything which led her to believe the accused was not fit to be interviewed. He appeared to understand her questions and freely gave her information.
Constable Lunn said that she cautioned the accused after he began to tell her what happened because she wanted to ensure that the accused knew he was not obliged to speak with her and that he did not have to talk to her if he did not want to.
Constable Lunn knew that the accused had suffered some physical injuries and that he appeared to be in pain, however she did not agree that the accused appeared to be groggy and sleepy. She did not become aware that the accused had been detained under the Mental Health Act until the following Tuesday, 23 February 2010 through another detective involved in the investigation, namely Detective Gordge.
The accused gave evidence about his conversation with Constable Lunn. He said that when he was interviewed by Constable Lunn he was initially feeling comfortable even though he was in pain but he was prepared to tell Constable Lunn what actually happened. He said that halfway through the interview he started to go downhill, his breathing became heavy, he was sweaty, and his speech became slurred and everything became quite scattered. He also claimed that a nurse changed his face mask halfway through the interview. The accused freely conceded he indicated to the doctors that he was prepared to speak to the police. He said he was trying to tell the truth to the police but because he was feeling groggy and quite scattered he did not do more than give Constable Lunn a very brief summary. It is true that through no fault of anyone, there is no video of the interview with the accused. However I have had the benefit of hearing and seeing the condition of the accused for the whole of the journey from the house at Happy Valley to Flinders Medical Centre that morning. I have also had the benefit of listening to the audio recording made of the conversation with Constable Lunn. It is apparent, contrary to the belief of the accused, that the face mask he was wearing was changed at the outset when he began to speak to Constable Lunn and not halfway through. I was not able to detect any change in tempo or any change in speech by the accused at any stage throughout the interview.
I accept the account given by Constable Lunn of the accused’s condition and the circumstances in which the interview was conducted. I cannot accept the accused’s evidence that his condition deteriorated halfway through the interview due to the drugs he had been given. It is undoubtedly true that for whatever reason the accused was in some degree of pain both physical and emotional at the time he spoke with Constable Lunn, however I am satisfied that his condition did not affect his ability to give his account of what had occurred. There is nothing which I could discern in either the content or the manner of Constable Lunn’s interview with the accused which suggests that the accused’s thinking or reasoning capacity, or his capacity to respond to questions was impaired. On the contrary I find, as the accused himself said, that he was anxious to give his account of what had occurred.
This is not a case where the mental or psychological state of the accused is so disturbed that he was rendered incapable of understanding or appreciating the questions asked of him.
I take into account that at the previous trial the accused told the jury that he told the police the truth during the interview with Constable Lunn, even though it was a brief summary, and that his condition at the time had not affected his ability to give a truthful albeit a brief account of what occurred, even though some of the sequence might have been out of order.
The account which the accused gave to Constable Lunn on 21 February 2010 and the account he later gave to Drs Sellen and Long about 24 hours later on 22 February 2010, are very similar. This is another factor which points to the conclusion that what the accused told Constable Lunn on the morning of 21 February 2010 was an account given in the conscious and deliberate exercise of the accused’s freedom to speak or not to speak.
There was nothing improper in the conduct of Constable Lunn. The investigation was at a very early stage and it was prudent of the police to endeavour to obtain an account from the survivor of the alleged suicide pact at the earliest time. This is not a case like R v Bondareff[1] relied on by Mr Healy to support the application. The facts of that case, the course of the investigation and the stage at which the investigation had reached at the time of the impugned interviews in that case were vastly different to the situation here.
[1] R v Bondareff (1999) 74 SASR 353.
For these reasons I declined in the exercise of my discretion to exclude the interview with Constable Lunn.
Interviews with the Two Psychiatrists, Drs Sellen and Long
I deal first with the question of voluntariness.
A statement against interest is admissible only if it is proved to have been made in the exercise of a free choice to speak or remain silent. A statement which results from a threat, promise, inducement or persistent importunity by a person in authority which produces some fear of prejudice or hope of advantage which overbears their will is not made voluntarily.
The onus is upon the prosecution to establish on the balance of probabilities that the impugned statements to Drs Sellen and Long were voluntarily made. The question, if any of those statements were made voluntarily, would then arise as to whether any or all of them should be excluded by me in the exercise of the discretion to exclude on either public policy grounds or general grounds of unfairness.
The issue of voluntariness is said to arise in the circumstances of this case by reason of the fact that at the time when the accused was spoken to by the psychiatrists at the Flinders Medical Centre he was already under investigation by the police in connection with the death of his wife. It was submitted on the accused’s behalf that the doctors at the very least were aware at the time when they consulted with the accused of the police interest in the accused’s version of what had happened. Thus this was not a situation where the accused had chosen to speak of his own free will to doctors. On the contrary he was about to be detained under the Mental Health Act and in those circumstances felt that he had no choice but to speak with the psychiatrists. If he did not he ran the risk of being detained for a further period. Thus, in effect, the accused submitted that the psychiatrists stood in the same position relative to the accused on the morning of 22 February 2010 as a police officer or other person in authority.
The threat, promise, inducement, or persistent importunity which leads to an involuntary statement must have been brought about by a “person in authority”. A number of authorities have discussed the concept of what is meant by a person in authority. Gray J in R v Lem[2] reviewed some of those authorities:
[2] R v Lem [2005] SASC 405 at [153] citing McDermott v R (1948) 76 CLR 501 at 511, R v Scofield (1988) 37 A Crim R 197 at 199, R v Dixon (1992) 28 NSWLR 215 at 229.
Courts have considered the meaning of “person in authority” on a number of occasions. In McDermott, the High Court defined a person in authority as:
officers of police and the like, the prosecutor, and others concerned in preferring the charge.
In Scofield, the Court described a person in authority as:
someone engaged in the arrest, detention, examination or prosecution of the accused, or someone acting in their presence and without the dissent of such person.
In Dixon, the term was given the following meaning:
a person in authority includes any person concerned in the arrest, detention or examination of the accused, or who has an interest in respect of the offence, or who is otherwise seen by the accused by virtue of his position, as capable of influencing the course of the prosecution, or the manner in which he is treated in respect of it.
In other cases, the term “person in authority” has been extended to include a parent or guardian of a child complainant in a sexual matter. This approach has been criticised, but on either view, the mandatory requirement is that the person in authority has some connection with the police or prosecution authorities, or plays some influential role in whether charges are laid or proceeded with.
[Footnotes omitted]
The accused first spoke with Drs Sellen and Long over 24 hours after his admission to hospital. There is no evidence that either of the two psychiatrists who interviewed him on the morning of 22 February 2010 were in any way connected with the police or prosecuting authorities. Nor is there any evidence to suggest that the accused had that perception. On the contrary the accused was told by Dr Sellen at the outset that Dr Sellen was there to assess his mental state and that Dr Long would see him later on. He described the accused as responding quite appropriately to questions and quite freely, nor did he appear to be affected by the pain or medication he had taken. He said the accused was very willing to speak and he spoke quite fluently and without any reluctance at all. The accused was not in fact detained until after the conclusion of the interview with Dr Sellen and that fact was not communicated to him until Dr Long confirmed, as he was required to do under the Mental Health Act after his interview, that order.
The accused maintained in evidence on the voir dire that he only spoke to the psychiatrists because he believed that if he did not he would be detained under the Mental Health Act. Notwithstanding that fact he freely admitted to telling untruths to the doctors in interviews and proffered this explanation for why he did so:
Because it was something that I believed he [Dr Sellen] didn't need to know. He, he was an independent person, he wasn't involved with the police force at all, in regard to it so I didn't believe at the time it was necessary for him to know.
Later, the accused elaborated on why he had chosen to withhold certain matters from the psychiatrists during his conversations with them:
Because it was something that didn't concern them. To me, they weren't - like, Dr Sellen had said to me 'Well maybe, like, you should get legal representation' and that. So, in the end, why would I want to speak to them? So I didn't want to disclose anything else to them and that because it didn't concern them, and that they were there to treat me. But they put me under the Mental Health Act and that. It was something that I had never been under before, I wanted to get off of it and that. So I said whatever I could to try and get off the Health Act and that because I wanted to be there for my son.

That evidence is to be contrasted with the evidence which the accused gave at the first trial. At no stage during the first trial did the accused claim to have been overborne by some inducement or fear of prejudice if he did not speak to either Dr Sellen or Dr Long. On the contrary he claimed that he had discussions with each of the doctors in which he chose for reasons personal to him to withhold certain information. One of those desires was to protect the memory of the deceased.
I find that the evidence of the accused on the voir dire was tailored to suit the proposition which the accused now advances. I do not believe him. I am satisfied that when the psychiatrists Drs Sellen and Long spoke with the accused they did so in a therapeutic context and against the background that the accused himself had been admitted to hospital as a result of claims made by him that he and his wife had earlier that week tried to commit suicide. There is no evidence that either psychiatrist made any implied threat, promise, inducement or any other improper suggestion to the accused when questioning him on the morning of 22 February 2010. Moreover, although the concept of a person in authority is a flexible one I am satisfied that the two psychiatrists were in no way connected with the police or prosecuting authorities, nor were they perceived to be by the accused. In these circumstances I do not consider that either of the doctors should be regarded as persons in authority. True it is that the doctors had the power to detain the accused under the Mental Health Act, however there is no evidence to suggest that the accused’s will was overborne or that he spoke to the psychiatrists other than in the exercise of his own free will. In fact, after taking into account all that the accused has had to say on this topic, both in the context of the hearing on the voir dire and at the previous trial, I am satisfied that the accused was anxious to tell his side of the story to the police and the doctors and to others in the days following the death of Ms Cocks.
I turn now to the issue of whether the statements made to the psychiatrists ought to be excluded on some other ground.
The accused contended that even if the statements made to the psychiatrists were voluntary, they should nevertheless be excluded because to admit them would impact on the fairness of his trial. It was said that the circumstances in which the accused spoke to the two psychiatrists impacted on its reliability and the fact that neither of the psychiatrists made comprehensive notes about the conversations was also a factor that should enliven the discretion to exclude the statements.
It is true that although both psychiatrists made some notes neither of the doctors were interviewing the accused in a forensic context. Their procedure therefore was in accordance with the usual procedures adopted by a psychiatrist who is interviewing a patient. However both doctors were cross‑examined at the first trial and conceded that not everything which the accused said was necessarily recorded in their notes. The accused also gave evidence at the first trial in which he said that although he told the psychiatrists some of the story he chose to withhold other parts of the story for personal reasons including the fact that he wished to protect the memory of his wife, his physical condition at the time and the limitations of the ward environment where he was interviewed, and his general attitude towards the psychiatrists. Whilst these are all relevant matters when assessing the overall reliability and accuracy of the doctors’ evidence about what the accused had to say, it is not a matter which should result in the exercise of the discretion to exclude that evidence. As in the first trial all of the relevant circumstances in which the accused spoke with the doctors will be before the jury. It is a matter for the jury ultimately to assess what weight should be given to that evidence in light of all of the circumstances.
Both of the psychiatrists gave evidence that their principal line of enquiry and purpose for speaking with the accused was to endeavour to ascertain whether he was fit to be released from hospital or whether he was a danger to himself or others. It is hardly surprising that concerns were held about the condition of the accused at that time. After all it was only one day since he had been admitted to hospital apparently after a suicide attempt and in circumstances where he appeared to be the sole survivor of a suicide pact. There is nothing to suggest that either of the psychiatrists regarded their conversations with him as other than in a therapeutic context and in the context of the question as to whether he was fit to be released from hospital.
I find that in the days immediately after the death of Ms Cocks the accused was only too willing to tell his side of the story to both the police, the doctors and to other hospital staff during the course of his stay at the Flinders Medical Centre between 21 February and 25 February 2010 when he was released.
For these reasons I decline in the exercise of my discretion to exclude the evidence of the conversations which the accused had with Drs Sellen and Long on 22 February 2010.