R v Collins

[2015] SASC 53

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Voir Dire (Murder))

R v COLLINS

[2015] SASC 53

Reasons for Rulings of The Honourable Justice Vanstone

2 April 2015

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION

Accused charged with murder - application by accused for order excluding evidence of interview between police and accused as a matter of discretion - contention that questioning had continued in the face of the accused indicating unwillingness to answer questions .

Held:  application refused.

R v Swaffield (1998) 192 CLR 159; R v King and Pitson (No 1) (1998) 199 LSJS 104; R v Kageregere [2011] SASC 154; R v Bueti (1997) 70 SASR 370; R v Stafford (1976) 13 SASR 392; R v Hutchison (1993) 171 LSJS 364, considered.

R v COLLINS
[2015] SASC 53

Criminal

Application for exclusion of evidence

1. VANSTONE J:     Darren Michael Collins is charged with the murder of Jacqueline Franklin.  He has pleaded guilty to manslaughter but the prosecution does not accept that plea in answer to the charge.

2. The trial is to start today, 23 March 2015.

3. By Rule 49 application the accused seeks an order excluding from evidence the interview between the accused and police officers Koch and Winterfield, which took place on 29 October 2013.

4. The victim in this matter was last seen on either 15 October, or in the early hours of 16 October 2013 on a street in Woodville Gardens.  On 17 December 2013 her body was found buried at a house premises at Stansbury.  The victim’s father had reported her missing on 25 October.

5. By 29 October police investigating the disappearance had information that Ms Franklin was last seen with the accused on 15 October.

6. On 29 October the accused was in custody at the Port Augusta prison where he was on remand for a recently committed theft from the Ardrossan BP Service Station and in relation to property which had been stolen from a house at Houghton on Tuesday, 15 October.

7. Police attended at the prison at about 11.00 am and recorded an interview with the accused.  After obtaining the accused’s date of birth and home address Senior Constable Koch told him that they were investigating Jacqueline Franklin’s disappearance and gave him a caution in regular terms.  During the short conversation which followed the accused said:

   I don’t think I will be answering any questions but.

   Later, after having agreed that he had seen Ms Franklin on the evening of 14 October at the time she was working on Hanson Road, he said:

   I mean ah that’s as far as I can tell you, apart from that I’m not sure what’s going on.  So I’d rather not answer any more questions but… Yeah ahm that’s all I know of her so.

   And upon his attitude then being clarified he said:

   Yeah I’d rather speak to a lawyer before I answer any more questions.

8. Counsel for the accused, Mr Mead SC, contends that as soon as the accused intimated that he did not think he “would be answering any questions but” the interview should have ceased.  He contends that the accused’s choice to speak or remain silent was compromised.  Noting that the accused was in custody and therefore in a disadvantageous position, Mr Mead argued that police should have been doubly careful to ensure that, if the accused spoke to them, he did so freely.  He argues that it was improper of police to continue to question the accused in the face of his intimation and that it would be unfair to use against him his admission of having been with the victim and his false denial of knowledge of what led to her death.  Mr Mead did not contend that the statements made by the accused were involuntary.

9. In support of his argument Mr Mead referred to R v Swaffield (1998) 192 CLR 159; R v King & Pitson (1998) 199 LSJS 104; R v Kageregere [2011] SASC 154 and R v Bueti (1997) 70 SASR 370.

10. In my view the principles are fairly clear.  If an accused person indicates that he does not wish to answer questions or asks to see a solicitor before answering then the police should not further question him and any statements made thereafter should be excluded:  R v Stafford (1976) 13 SASR 392; R v King & Pitson (No 1) (1998) 199 LSJS 104; R v Hutchinson (1993) 171 LSJS 364.

11. The question which here arises is whether the accused did, as suggested, refuse to answer questions at an early stage.  Looking at the transcript of the interview, the accused’s initial statement about answering questions seems to me to be equivocal and could be contrasted with his later attitude, which seemingly involved a decision not to further answer.

12. My viewing of the recording of the interview fortifies me in the opinion that the accused was not initially categorically saying that he would not answer questions, but was rather prognosticating about what his attitude might be.  Indeed, when giving the first answer I set out he was smiling at the officers, as if to let them know he would be unlikely to answer.  When further questioned he was prepared to answer.  Then, when he said he would rather not answer more questions, the police clarified his position and stopped questioning him.

13. I have not overlooked the fact that the accused was in police custody at the time of the interview.  Against that, I have also considered that the tentative way he spoke might be a feature of his way of communicating.  In the end, I am not persuaded either that there was any police impropriety in continuing to question the accused, or that there would be any unfairness in using the accused’s statements against him.  I am satisfied that the statements were made voluntarily and I decline to exclude them as a matter of discretion.