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 of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cocks

Details

AGLC: R v Cocks [2011] SASC 61
Case: [2011] SASC 61
Decision Date: 18 April 2011

CaseChat Overview and Summary

The case of R v Cocks involved a retrial of the accused, who was charged with the murder of his wife. The accused claimed a suicide pact between himself and his wife and objected to the admission of evidence relating to conversations he had at the hospital with a police officer, a psychiatric registrar, and a consultant psychiatrist. The primary legal issue was whether the evidence obtained from the accused while he was under medical treatment and administered doses of morphine should be excluded as it was unfair or improperly obtained. The court also had to determine if the psychiatrists should be regarded as persons in authority, which would affect the voluntariness of the accused's statements.

The court examined the circumstances of the conversations and found that the accused's ability to answer questions was not impaired. There was no evidence to suggest that the interview was improper or that the accused was incapable of understanding or appreciating the questions asked by Constable Lunn. The court concluded that the evidence of the conversation with Constable Lunn was admissible and not unfair to admit. Regarding the conversations with the psychiatrists, the court found that the accused voluntarily wanted to tell his side of the story, and the admission of evidence was not unfair. The psychiatrists were not regarded as persons in authority, as the accused was aware of the police interest in the matter and was not attending voluntarily upon his medical practitioner.

The court's reasoning was based on the facts that the accused was not under duress, was not coerced, and voluntarily engaged in conversations with the police officer and psychiatrists. The court also found that the accused's mental state did not prevent him from understanding and appreciating the questions asked during the interviews. Therefore, the evidence of the conversations with the psychiatrists was allowed, and the statements made by the accused were considered voluntary. The court's decision was that the evidence should not be excluded as unfair, and it was admissible in the retrial of the accused.

The final orders of the court were that the evidence of the conversations with Constable Lunn, the psychiatric registrar, and the consultant psychiatrist be admitted in the retrial of the accused. The court found that the accused's ability to answer questions was not impaired and that the evidence was not unfair to admit. The court also determined that the psychiatrists should not be regarded as persons in authority, and the accused's statements were voluntary. This decision allowed the evidence to be used in the retrial, ensuring that the accused's rights were protected while also allowing the court to consider all relevant evidence in reaching a verdict.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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