R v Cotchilli

Case [2007] NTSC 52

R v Cotchilli [2007] NTSC 52

PARTIES:THE QUEEN

v

COTCHILLI, RUSSELL

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:20600016

DELIVERED:  23 October 2007

HEARING DATES:  27-31 August & 12 September 2007

JUDGMENT OF:  MILDREN J

CATCHWORDS:

EVIDENCE – Admissions – Aboriginal of low intelligence -whether suspected of commission of an offence – whether caution understood - whether statement should have been required to be taped – whether admissible – whether detention unlawful

EVIDENCE – admissions – Aboriginal of low intelligence suspected of murder – Anunga guidelines not complied with – record of interview conducted after suspect had previously exercised the right to remain silent – whether voluntary or should be excluded in the exercise of discretion

Statutes:

Bail Act, s 16

Crimes Act 1914 (Cth), s 23C, s 23D

Evidence Act, s 26L

Police Administration Act, s 123, s 137, s 137(2), s 138, s 138(h), s 138(j), s 138(p), s 138(q), s 139, s 140, s 141, s 142, s 142(1), s 142(1)(a), s 143

Police Commissioner’s General Orders, General Order Q2

References:

Cross on Evidence, 4th Aust ed, Butterworths, Sydney, 1991- (loose-leaf edition)

Citations:

Followed:

R v Anunga (1976) 11 ALR 412

R v Lee (1950) 82 CLR 133

Referred to:

Cleland v The Queen (1982) 151 CLR 1

McDermott v The King (1948) 76 CLR 501

Pollard v The Queen (1992) 176 CLR 177

R v Grimley (1994) 121 FLR 236

R v Louie Riley (unreported, Mildren J, delivered 23 June 1994); [1994] NTSC 62

R v Parker (1989) 19 NSWLR 177

R v Scotty [2007] NTSC 43

R v Wilson (unreported, Kearney J, 20 November 1998)

Sinclair v The King (1946) 73 CLR 316

Tan Seng Kiah v The Queen (2000) 10 NTLR 128

The Queen v Ireland (1970) 126 CLR 321

Tofilau & Ors v The Queen [2007] HCA 39

Williams v The Queen (1986) 161 CLR 278

REPRESENTATION:

Counsel:

Director of Public Prosecutions: A Elliott

Accused:J Tippett QC and R Goldflam

Solicitors:

Crown:Office of the Director of Public Prosecutions

Accused:Northern Territory Legal Aid Commission

Judgment category classification:    B

Number of pages:  49

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Cotchilli [2007] NTSC 52

No. 20600016

BETWEEN:

THE QUEEN

Plaintiff

AND:

RUSSELL COTCHILLI

Defendant

CORAM:     MILDREN J

REASONS FOR RULING

(Delivered 23 October 2007)

  1. This is an application pursuant to s 26L of the Evidence Act to seek rulings on the admissibility of confessional statements made by the accused and upon which the Crown seeks to rely at the accused’s trial. The admissibility of the confessional statements are challenged on the ground that they are inadmissible by virtue of the provisions of the Police Administration Act and were, in any event, obtained involuntarily. Alternatively it is submitted that I should exclude them in the exercise of my discretion.

    Background facts

  2. The accused is charged with the murder of Leanne Cooper…

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AGLC
R v Cotchilli [2007] NTSC 52
Case
[2007] NTSC 52
Decision Date

CaseChat Overview and Summary

The case of R v Cotchilli involves a defendant accused of the murder of Leanne Cooper. The Crown seeks to rely on confessional statements made by the accused, but the admissibility of these statements is contested. The application is pursuant to s 26L of the Evidence Act, focusing on whether the statements are admissible under the Police Administration Act and whether they were obtained voluntarily. The accused argues that the statements were not electronically recorded as required by law, were not voluntary, and should be excluded in the exercise of the court's discretion.

The court had to decide whether the statements made by the accused were admissible, considering the failure to comply with the electronic recording requirement and the voluntariness of the statements. The accused, an Aboriginal man with limited intellectual capacity and English proficiency, was detained and questioned by police. The court needed to evaluate whether the accused understood the implications of his statements and whether the statements were made freely without coercion. Additionally, the court had to consider whether the accused's rights were adequately protected during the questioning process.

The court concluded that the statements should be deemed inadmissible. The failure to electronically record the conversations undermined the reliability of the evidence. Furthermore, the court found that the circumstances surrounding the obtaining of the statements did not ensure their voluntariness. The court exercised its discretion to exclude the evidence, finding that the failure to comply with the statutory requirements was inexcusable and that there was a risk that the accused's rights were not properly safeguarded. The court was not satisfied that it had been fully informed of the context leading up to the confession, which raised doubts about the integrity of the statements.

The court ruled that the evidence obtained from the accused after his detention outside the Gap View Hotel on 30 December 2005 was inadmissible. This decision was based on the failure to comply with the recording requirement, concerns about the voluntariness of the statements, and the exercise of the court's discretion to exclude unreliable evidence.

Orders

Orders of the court

1. Evidence deemed inadmissible.

Background

Background to the litigation

This is an application pursuant to s 26L of the Evidence Act to seek rulings on the admissibility of confessional statements made by the accused and upon which the Crown seeks to rely at the accused’s trial. The admissibility of the confessional statements are challenged on the ground that they are inadmissible by virtue of the provisions of the Police Administration Act and were, in any event, obtained involuntarily. Alternatively it is submitted that I should exclude them in the exercise of my discretion.Background facts The accused is charged with the murder of Leanne Cooper (the deceased) at Alice Springs on or about Wednesday 21 December 2005. The Crown case is that the deceased’s body was found in the dry bed of the Todd River near the Stott Terrace Bridge, Alice Springs, on the morning of Thursday 22 December 2005. There were 14 stab wounds to various parts of the body, some of which penetrated vital organs including the upper part of the left lung, deep penetrating wounds to the heart and wounds to the stomach and liver. The cause of death was multiple stab wounds to the chest. The deceased also had a blood alcohol reading of 0.122 per cent and cannabis metabolites were also detected in samples taken from the body. The deceased was an Aboriginal female aged 23, 164 cm in height and weighing 68 kg. When the body was discovered at about 11:00 am on 22 December, the police were called and an examination of the crime scene located a knife handle with no blade nearby. A knife blade consistent with having become detached from the handle was found underneath the body. The knife blade was bloodstained. A fingerprint thumbprint or similar print was found on the blade. The print does not belong to the accused and has not been identified. There is evidence which suggests that the print was probably left after the deceased’s blood came to be left on the knife blade. The autopsy report indicates that the examination was commenced at 1500 hours on 22 December 2005. At that stage there was evidence of early decomposition of the body. Post mortem hypostasis was not identified. Rigor mortis was partially developed. The autopsy report does not indicate the likely time of death. The pathologist, Dr Sinton, gave evidence at the committal that he attended the scene at 1300 hours on 22 December and that the injuries were inflicted “some hours, seven or eight perhaps” prior to this. A large number of samples were submitted for testing for DNA. The results of those tests did not implicate the accused, nor for that matter, any other individual. A number of enquiries were made by police for the purpose of locating possible witnesses. One of the persons spoken to was David Jabarula West, who was interviewed and from whom a statement was taken by police on Saturday 24 December 2005. According to his statement West slept at his ‘Uncle’s Wayne Halik camp’ under the bridge with his wife on Wednesday night, 21 December, after consuming some “Fruity Gordo” with another unidentified Aboriginal man. He awoke the following morning at 6:00 am but did not see the deceased’s body and had no knowledge of how the deceased met her death.

Evidence

Evidence Before The Court

The accused challenges the admissibility of the evidence relating to all of the conversations which Detective Butcher had with the accused on the following grounds:1. The evidence relating to conversations which were not electronically recorded are inadmissible because of the failure of the Police to comply with s 142 of the Police Administration Act.2. The evidence relating to all conversations were not voluntary.3. Alternatively to 1 and 2 above, the conversations should be excluded in the exercise of the Court’s discretion.Evidence of accused’s intellectual disability The accused, according to the record of interview Ext P7, is a full blood Aboriginal male, aged about 24. He gave his date of birth as 1 January 1983. It is common for Aboriginal people who do not know their birth date to say they were born on 1 January. He told the psychologist, Mr Franklin, that he is aged 26, but, as Mr Franklin observes, he looks to be older. He was born in Derby, Western Australia. He says in the record of interview that he lives in “Kintore” (which the interpreter stated was “Kiwirrkura”) and which the accused spelt out as “Kiwikrrkurra” on a piece of paper for Mr Franklin. The correct spelling for the community is “Kiwirrkurra”. It is located in WA near the Northern Territory’s border with WA in the East Pilbara region. The accused stated that he attended school at Yirara College in Alice Springs to Year 12. He claimed in the record of interview to be able to read and write a “little bit”. He told Mr Franklin that he can read a newspaper on occasions but cannot read books. He was able to write his name and has some proficiency with letter formation. It is not unusual for Aboriginal people to say they have studied at school to Year 12 but to be virtually illiterate in the English language or, for that matter, any language. The accused called evidence and tendered a report from Mr Franklin, who conducted an assessment of the accused at the Berrimah Correctional Centre on 20 July 2007. The assessment was carried out in less than ideal conditions over a period of 1 hour and 40 minutes in an interview room in C Block. An interpreter in Luritja was employed. Mr Franklin is very experienced in assessing indigenous Australians. He has been in practice for 35 years and has assessed numerous Aboriginal people for intellectual and educational reasons and also for forensic reports since 1981. He is well qualified to express the opinions he has formed. The Crown did not call any psychological evidence. I do not know whether the Crown has made any attempt to have the accused assessed by another psychologist. Mr Franklin observed that the accused has very limited English skills. The accused was easily confused with complex sentences. The best he was able to do was respond with two or three word statements. He did not use sentences. His expressive English is limited to using a few basic words to express sentences and he often used ecoleic language i.e. copying the words said to him. Mr Franklin’s opinion was that his grasp of English was more like English as a foreign language rather than English as a second language. Because of this, assessment of verbal mental abilities was not pursued and tests were carried out utilising non-verbal responses. This type of assessment is considered to be fairer for many indigenous individuals.

Decision

Reasons for decision

If that is all that was said, that did not necessarily mean that the accused’s confession in the sally port was involuntary or that it should necessarily be excluded in the exercise of discretion. However, I am not satisfied that this constitutes the whole of the conversation. The conversation should have been electronically recorded: see s 141 of the Act. The Court retains a discretion to admit evidence of the conversation under s 143, including the accused’s admissions, but in my opinion the admission of this evidence is not in the interests of justice because I have no confidence that I know all that was said and I am not satisfied that the evidence of this confessional statement is reliable. If, notwithstanding non-compliance with s 141, the substance of the admission was later recorded electronically on Ext P8 and therefore because admissible under s 142(1)(a) I would exclude it in the exercise of my discretion because I consider that the failure to comply with s 141 was inexcusable, because I am not satisfied that I have been told the whole of the circumstances leading up to the confession and that this leaves me to suspect that questioning may well have taken place which lead to the confession. This would operate as a separate reason for excluding the subsequent record of interview Ext P9 conducted shortly thereafter during which the confession was reaffirmed and questioned about.Conclusions In conclusion, I have rejected all of the statements and admissions made by the accused after the accused was located outside the Gap View Hotel at 1445 hours on 30 December 2005.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.