R v Cumberbatch
[2002] VSC 235
•9 April 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1470 of 2001
| THE QUEEN | Plaintiff |
| v | |
| MILLICENT MAY CUMBERBATCH | Defendant |
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JUDGE: | FLATMAN J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 April 2002 | |
DATE OF RULING: | 9 April 2002 | |
CASE MAY BE CITED AS: | R v Cumberbatch | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 235 | |
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CRIMINAL LAW RULING – Admissibility of record of interview - voluntariness.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston with Ms G. Cannon | Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr D. Drake | Victoria Legal Aid |
HIS HONOUR:
Mr Drake, Counsel for the accused, made application for the exclusion from evidence of the Record of Interview conducted between members of the police force and his client, Millicent May Cumberbatch. Before dealing with the substance of the application made to me by Counsel for the accused, a brief statement of the history of the matter is appropriate.
At approximately 1.20p.m. on Saturday 9 September 2000, Stanley Cumberbatch, aged 73 years, was found by police lying in his bed deceased. He had suffered a head wound and was later found to have multiple stab wounds to the back.
Stanley Cumberbatch was last seen alive on Tuesday 5 September 2000 when he kept an appointment with his former employer and friend, Stephen Johnson, in Croydon. He left Mr Johnson's home at approximately 4.30p.m. on that day and collected the accused Millicent Cumberbatch, from whom he was legally separated, from the Croydon Library. In driving home between 6.00p.m. and 6.30 p.m. Stanley Cumberbatch stopped at the Silverdale General Store and Post Office that services the Kalorama area, asking the Post Master, John Rollinson, if there was any mail. According to the accused, they then went to the home of the deceased at 1276 Mount Dandenong Tourist Road, Kalorama and consumed a meal. The accused stated that Stanley Cumberbatch was in a strange mood and in order to avoid conflict with him told him that she was going home to Mooroolbark.
On her version of events, Mrs Cumberbatch states that the accused volunteered to drive her home, arriving at Mooroolbark at approximately 8.00 p.m. after which time Stanley Cumberbatch then returned to Kalorama. The accused stated that she told the deceased to ring her when he arrived home so as to inform her that he had returned safely. According to the accused, she did not speak to Stanley Cumberbatch again.
The accused said that when she did not received a call from Stanley Cumberbatch, she rang the deceased's telephone number. As there was no answer, she booked a taxi and was driven to Kalorama at around 9.45 p.m. on that same night She stated she made the telephone call to the taxi from her own telephone. On arriving at Kalorama and being unable to raise the deceased, she then attended the deceased's next-door neighbour's home where she said that she spent the night in an alcove underneath the stairwell of the next-door neighbour’s house.
The accused said that on Thursday 7 September 2000 she again travelled to Kalorama in the evening and that again she was unable to raise the deceased or gain entry at the front of his premises and as a consequence she again slept in the alcove of the next door neighbour's house.
Similarly, the accused stated that on Saturday 9 September 2000, she again travelled to Kalorama by taxi and on arrival at Stanley Cumberbatch’s house at approximately 8.15 a.m., she found a broken window at the rear of the premises. As a result of this, she then immediately went to the Mooroolbark Police Station in the waiting taxi in order to report this matter to the police.
The accused made a statement to the police on 11 September 2000 wherein she said that on Saturday 9 September 2000 after her visit to the Mooroolbark she remained at her home until the police attended there at 4.00 p.m. The police attended Stanley Cumberbatch’s premises at 1276 Mt. Dandenong Tourist Road Kalorama at approximately 1.20 p.m. that day and gained entry to the house via a broken window at the rear of the premises. There was a fly-wire screen on the inside of the window that was still partially in position and which, like some glass shards that remained in the window frame, had to be removed in order for police to gain entry to the inside of the house.
On entering the premises, the police found Stanley Cumberbatch deceased in bed in the master bedroom. The bed covers were pulled up over the deceased's face and ears. The book in which the deceased recorded details of daily temperatures was located and the last time that the deceased recorded the temperature reading was on 5 September 2000. The weapons used to inflict the injuries upon the deceased were never located. No keys to the premises could be found and apart from the broken window, all other windows to the premises were found to be locked and intact. All doors to the premises were found to be deadlocked. Computer equipment was found in the front garden just below the decking which adjoins the front door.
Detective Sergeant Paul Ross attended at the home of Millicent Cumberbatch, at 10A McKay Avenue, Mooroolbark at approximately 4.51p.m. on Sunday 10 September 2000 and he was given information by the accused concerning the relationship between herself and the deceased, together with the circumstances surrounding the discovery of the deceased's body the previous day. Detective Sergeant Ross made tentative arrangements to meet with the accused at a later stage and obtain a statement from her. This was done the following day, on Monday 11 September 2000, when he obtained a typed statement from her in relation to the information that she had supplied to him the previous day.
On Tuesday 12 September 2000, in company with other police, Detective Sergeant Ross again attended at Millicent Cumberbatch’s premises for the purposes of executing a search warrant at the completion of which he arrested her for murder in relation to the death of Stanley Cumberbatch. Millicent Cumberbatch accompanied Detective Sergeant Ross to the Fitzroy Police Station where she was placed in an interview room. At 10.59 p.m. he commenced a tape recorded interview with the accused in the presence of Detective Senior Constable Caldow The interview was continued until 11.03 p.m. when it was suspended in order for the accused to rest and for further enquiries to be made in relation to the matter. The accused was then lodged in the cells of the Fitzroy Police Station pending the continuance of the interview the following day.
At 10.39a.m. the following morning, Wednesday 13 September 2000, at the Homicide Squad Offices in St Kilda Road, Detective Sergeant Ross recommenced the Record of Interview with the accused in the form of video-taped Record of Interview again in the presence of Detective Senior Constable Caldow. This interview continued until 10.45a.m. when it was suspended in order for the accused to be examined and for the taking of a forensic sample by Dr Amanda Wilkin. At 1.04p.m. the interview with the accused was recommenced and proceeded until 2.29p.m. when it was again suspended. The interview was resumed at 2.52p.m. and then continued until being suspended at 4.08p.m. The interview was recommenced at 4.44p.m. and continued until 6.43p.m. when it was again suspended. At 6.55p.m. the interview was resumed until 7.01 p.m. when it was suspended pending a video-taped re‑enactment the following day and pending a request by the accused to see a solicitor.
This is an application by Mr Drake on behalf of the accused to exclude the Record of Interview in its entirety. It is submitted that I should exclude the interview on one of two bases. First, that the Record of Interview was not admissible because it was not voluntary and, if that failed, that the answers were obtained unfairly and that I should exclude them in the exercise of my discretion. There was a further challenge to a particular portion of the Record of Interview, specifically from Questions 2561 to 2613.
Although Mr Drake suggested there was importunity in the sense that the police either wittingly or unwittingly produced the circumstances productive of the will of the confessionalist being overborne, he did not suggest that his client was threatened or that any inducement was proffered. Although he tentatively raised some other issues, the core of his submission was that the accused's will had simply been overborne by virtue of her ill‑health. He submitted that the submission was not because the police had ostensibly failed to perform fairly, nor was he attacking the police on the basis of any gross impropriety. In essence, Mr Drake's submission centred around the proposition that because of the ill‑health of the accused and the length of time involved in questioning, the interview was such that it overbore her will to speak or remain silent. It was said that a fair viewing of the Record of Interview indicated this conclusion.
The interviewing police officers, together with Dr Wilkin who interviewed and examined the accused, were called by the Crown and cross‑examined by the Defence on voir dire. The accused also gave evidence on voir dire and was cross-examined by the Crown. At the conclusion of the evidence, Mr Drake submitted that given the frailty, circumstances, age and general intimidation of the accused, albeit that on the face of it she was told about her rights, she was unable to avail herself of those rights.
It was also put that the accused had had a difficult night's sleep and underwent the interview suffering from diarrhoea in circumstances where she did not have the appropriate medication for this.
Voluntariness
The law in relation to admissibility of evidence of confessional statements is well established. The question of voluntariness is a precondition to it being admitted and once the question is raised, it must be proved by the Crown on the balance of probabilities - Wendo v R (1963) 109 CLR 559. The question does not depend on the exercise of a discretion. It is a question of law.
The requirement of voluntariness was set out by Dixon J. in McDermott v R (1948) 76 CLR 501 in the following terms, at p.511:
“At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is a result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made. at common law”
Whilst the common law is clear, it must also be understood that certain provisions contained in s.464 Crimes Act 1958 were framed to reflect many of the recommendations of the consultative committee on police powers of investigation. The legislation itself provides for checks and balances involving police investigations and any interrogation[1] and the opportunity to view a contemporaneous video tape of the process is of great assistance. Nevertheless, the considerations expressed by Brennan J. in Collins v R (1980) 31 ALR 257 are still relevant:
[1]See Coldrey J. R v Li and Anor (1993) 2 VR p.80 at p.83.
At p.307:
"The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused."
Although in this case the conduct of the police is not directly under attack, the physical, and by implication mental state of the accused, is nevertheless said to be relevant to her voluntariness. I note the words again of Brennan J.:
“As the means by which a confessionalist’s will can be overborne are various, one cannot postulate in advance that of particular cases the extrinsic circumstances which will necessarily result in the exclusion of a confession as involuntary, or which will necessarily prove insufficient to found a challenge to its voluntary character. When all the facts are ascertained then “in a common sense way“ the court must find whether or no the will of the particular confessionalist has been overborne.”
The ultimate question is whether the will of the person has been overborne, or whether he/she has confessed in the exercise of free choice.
I turn now to the substance of the application. It was firstly submitted that the accused did not properly understand her rights. In the course of her evidence on voir dire, she said this:
Q:When you commenced this interview with the police you were told that you had the right to remain silent; is that right?
A:Yes, I think so.
Q:Did you believe that you had a right to remain silent?
A:I didn't really know. I was just stressed out and I didn't – I had never had any dealings with the police before. I didn't really know what my rights were to be honest.
This has to be considered in the light of the following matters.
She was advised of her rights in an initial taped interview with police on the evening of 12 September 2000, the night before the challenged Record of Interview. This was audio-tape recorded. She then exercised one of those rights, namely the right to see a solicitor.
She spoke to two solicitors, one of whom gave her advice by telephone. It was conceded by Mr Drake that I could conclude, that having spoken to a solicitor he would have informed her of her rights again.
The interview recommenced at 10.39p.m. on Wednesday 13 September 2000, when she was again informed of her rights being then told:
Q 54 Alright. Now, do you understand that those rights are available to you at any time whilst you are in custody with us.
A Yes. Right.
Q55Right. They’re continuing and all you have to do if you want to exercise those rights is to tell us and we’ll give you that opportunity.
She then went on to confirm that she had spoken to a solicitor that morning.
She was seen by Dr Amanda Wilkin for 40 minutes on the day of the tape recorded interview. The purpose of this was, inter alia, to assess her fitness for interview. She was assessed as fit to undergo the interview in circumstances where Dr Wilkin said that she would have expected the accused to be interviewed for about five hours. Amongst other things when examined by Dr Wilkin on 13 September 2000, the accused scored 30 out of 30 on the mini-mental state alertness test.
After being seen by Dr Wilkin, the interviewed recommenced at 1.04p.m. In the meantime, her glasses had been located and she was provided with refreshments. At Question 108, the accused was again informed of her rights and she was told that they were available to her at all times while she was there. At the end of that portion of the interview, at Question 893, she was asked:
Q:How are you going? Do you – are you happy to continue or do you want a bit of a break or?
A:I'm desperately trying to remember.
At Question 909:
Q 909:Right. Do you want to have a break for a couple of minutes? Do you want to have a break or do you want to continue?
A:No, I'll keep going.
Q 910: Are you sure?
A:I'm - - -
Q 911:Are you up to it?
A:Yeah.
Q 912:You said you were tired a minute ago?
A:Well, go on.
Q 913:Are you – do you want – it's up – it's totally up to you?
A:No, I'll try to keep going.
Q 914:Well if you want to stop just tell me and we'll stop. Do you understand that?
(Detective Senior Constable Caldow): A cup tea, that sort of thing if you wish.
Stop for a drink or a toilet break or anything.
Q 915:Sorry?
A:I – I will stop for a bit because.
Q916:Okay.
A:I'm getting exhausted.
The interview was then suspended at 2.29p.m.
The interview was resumed at 2.52p.m. She had been provided with a drink. She said she was quite happy to continue and again she was advised of her rights at Question 934.
The next portion of the interview was suspended at 4.08 p.m. when again the police asked her whether she wanted to have a break and whether she wanted a drink. She then asked for a cup of fresh tea at Question 1581.
The next portion of the Record of Interview commenced at 4.44 p.m. and again she was advised of her rights at Question 1588. Again she was asked whether she understood those rights and whether she was feeling better after that short break because of a problem with the lights used for the video taping. After again being informed of her rights she was asked:
Q 1592 Okay, you're quite happy to continue?
---Yes
Q 1593Are you feeling better than you – after that short break? Did it improve things?
--Yeah . It’s just – the light was ----
Q1594Okay
-Blinding me.
Q1595Unfortunately
-I know. I know.
Q1596Yeah
-I real- I understand, it’s just-
Q1597Right
-I’ve got a blinding headache
Q1598 Alright. Okay. You’re quite happy to continue?
Yeah
Body Language
In addition to her sworn evidence, it was submitted that I could have regard to her body language in the Record of Interview in that even if she did understand her rights, her will was nevertheless overborne. I have had the advantage of viewing the video-taped interview in its entirety in chambers and also observing the accused in the course of her evidence. I have considered the passages referred to me by both Counsel. My view is that the accused was alert and participated in the Record of Interview. She examined documents, referred to the calendar, participated in demonstrating matters on the plan and on the white board and asked questions from time to time. In my view, she was quite capable of handling the questions and there was nothing to suggest that her will was overborne at any time. Whilst from time to time she could not remember or took time to remember some matters, her performance, if anything, in the Record of Interview, was stronger than that in the witness box in court.
General Health
It was further submitted by Mr Drake that her general health was such that she was overborne. In particular, he relied on her physical condition and frailty in that she suffered from such problems as rheumatoid arthritis, diverticulitis, panic attacks, urinary and faecal incontinence, a trapped sciatic nerve in her left leg, bursitis, and a collapse vertebra.[2] This evidence has also got to be considered in the light of the following:
[2]See cross-examination of Dr. Amanda Wilkin on voir dire (Trial Transcript p.23)
(a) On her own account in the Record of Interview she slept out in the doorway of a neighbour's porch overnight on the night of 7 September 2000 and returned again to sleep on the same porch overnight on 9 September 2000. She did this with no medication and in circumstances which suggest significant physical capacity despite her health;
(b) Moreover during the course of the interview there was nothing said to indicate any distress because of her health. I could not discern anything from her body language to indicate that she was so distressed;
(c) It was suggested that I could infer lack of voluntariness from her failure to ask for breaks. It is of significance that the breaks were initiated by the police in that they were concerned to ensure her welfare. The fact that she seemed more concerned with getting on with answering the questions in the interview only highlights the fact that she was not troubled by her physical condition.
Diarrhoea
It was submitted that the accused had had a particularly difficult night at the Fitzroy watch house, the night before the video-taped interview and was suffering from diarrhoea during the course of the interview but was too embarrassed to say anything about it. Although this was led in evidence from the accused, it was in conflict with the objective facts. There was no complaint made to the doctor of any diarrhoea on the night of 12 September 2000, the night before interview of 13 September 2000. The cross‑examination centred on her experience on the night of 13 September 2000 after the video-taped interview and before the video-taped crime scene re‑enactment at Kalorama which took place on 14 September 2000 and which is not under challenge.
Far from being embarrassed about her condition, she readily discussed her need for incontinence pads at the time of the execution of the search warrant with the police.[3] During the course of the Record of Interview, she discussed the fact that she was on Imodium for diarrhoea[4] and made a request to go to the toilet.[5] Although she made no mention of diarrhoea to the police, I do not accept that because she did not mention it that she was too embarrassed to do so. There was nothing in her body language during the course of the Record of Interview to suggest at any time that she was suffering from discomfort because of diarrhoea.
[3]See statement of Sergeant Ross.
[4]At Questions 2050, 2065 and 2072.
[5]At Question 2553.
The Headache
It was suggested that I should have regard to the effects of the light from the video camera given, that at one stage, she complained of a blinding headache. I have carefully considered the video-taped Record of Interview, before and after the passages relating to the light and the headache contained at Questions 1592 and 1598 and I am satisfied that the accused was willing to continue and was able to participate fully.
The Comment “Going away for a long time”.
In the course of legal argument, Mr Drake also relied on an allegation made by the accused in her evidence on the voir dire that an unknown policeman had made remarks to her about her "going away for a long time" and that this occurred at the time of the search of her premises.
Mr Elston for the Crown put it that I should take what he described as a "jaundiced view" of this evidence. He said that the accused had plenty of opportunity to complain to Mr Caldow or Mr Ross or to draw it to the attention of her own solicitor. He pointed out that the allegation was not put to the police on the voir dire.
For my part, having regard to the surrounding objective facts, I find it extremely hard to accept that such a comment would have been made in the circumstances of this investigation. The accused was prepared to be quite assertive in the course of the interview and was not backward in criticizing the police. She had ample opportunity to complain of this matter to her solicitors or to other police and did not do so. If such a comment was made, and I reject that it was, any effect would, in my view, have dissipated by the time of the interview. More importantly I note that the accused did not claim in her evidence on voir dire that it in any way affected her decision to speak or to be silent. Given that the critical issue on this question relates to what effect such words had, if any, upon the accused, I cannot see how it could have any bearing on the question of voluntariness.
Applying the appropriate test, I am quite satisfied that the Mrs Cumberbatch was fully informed of her rights, and that she understood them and that her will was in no way overborne . The interview conducted with Mrs Cumberbatch was voluntary.
I turn now to the argument of the exercise of the unfairness discretion.
The Unfairness Discretion
The ambit of the unfairness discretion is set out in Vandermeer v R (1988) 35 A Crim R 232. In Vandermeer the majority said:
"In considering whether a confessional statement should be excluded the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him: Lee at 154; Cleland at 18. Unfairness in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement."
Although at one stage Mr Drake said he did not suggest that the facts involved here produced unreliability in the interview, I think the contention is still implicit in his submissions that the state of her health and the general circumstances were such that she could not do herself justice.
It was submitted that the facts relied upon for this contention, overlap with the submissions in relation to voluntariness. I agree and I have therefore canvassed the same issues that were considered in respect of the first question. For the reasons set out above, I am not persuaded that the accused was unable to do herself justice in the circumstances. She presented as an alert and participating interviewee. I am therefore not persuaded that the accused in this case would be denied a fair trial by the admission of the Record of Interview.
Whilst it was not specifically argued that I should exclude the Record of Interview on public policy grounds, Mr Drake at one stage did put that this was a matter where the police ought to have stopped the interview on a regular basis to have the accused medically examined. In the circumstances of this case, I can see no basis for adopting this course, having regard to the fact that the police conducted the Record of Interview after having the accused medically examined and in circumstances where they were consistently concerned to look after her welfare by allowing appropriate breaks. I also note that there was nothing in the demeanour or the behaviour of the accused during the course of the Record of Interview to suggest to the police that there was any need for such a course to be followed. In my view, at all times the police acted in a bona fide way and there is nothing in their behaviour to suggest that the evidence could be bought at a price which was unacceptable, having regard to contemporary standards.
I have considered the alternative final submission made by Mr Drake that Questions 2561 to 2613 be excluded because of a breach of s.464C Crimes Act 1958 in that the accused said she could not go on and asked for a solicitor.
The accused agreed to go on when she was told that it would only take three questions, one of which was in relation to fingerprints. The implication was open that this was only going to be a formal winding up of the Record of Interview. Whilst I do not believe it was a breach of the aforementioned section, accepting that the police did finish the interview quickly and acted in good faith, I am concerned that the questions were not just formal questions and that they were asked after she said she had had enough. Although I have some reservations, in the end because of the inducement, I am not prepared to admit that portion of the Record of Interview involving Questions 2561 to 2613.
Accordingly, I rule that the accused’s video-taped Record of Interview was voluntary and that it be admissible at trial save for Questions 2561 to 2613 inclusive.
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