R v Darrell Arnold Hodge No. SCCRM 95/251 Judgment No. 5249 Number of Pages 7 Criminal Law and Procedure

[1995] SASC 5249

COURT IN THE COURT OF CRIMINAL APPEAL OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(1), BOLLEN(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - evidence - confessions and admissions - Videotaped confession - accused under influence of drugs - appeared drowsy or slightly affected - evidence before trial judge entitling him to find a free choice to speak - judge entitled not to reject confession in the exercise of discretion.

Criminal law and procedure - evidence - Direction as to lies told by accused - whether direction adequately specified lies - whether other motives for telling lies adequately canvassed.

HRNG ADELAIDE, 25 August 1995 #DATE 8:9:1995 #ADD 28:11:1995

Counsel for appellant:     Mr R Mayne

Solicitors for appellant:    C O'Connor

Counsel for respondent:     Mr P Brebner

Solicitors for respondent: DPP(SA)

ORDER
Appeal dismissed.

JUDGE1 DOYLE CJ This is an appeal against conviction for the offence of armed robbery consequent upon the verdict of a jury.

2. The prosecution case was that in the early hours of a morning the appellant had robbed a taxi driver, Mr Larsson, of $130. Mr Larsson had driven the appellant in a taxi to an address in an Adelaide suburb. The appellant then allegedly produced a knife, held it close to Mr Larsson's throat and demanded money. Mr Larsson gave him $130. The appellant then ran off. The police were called and not much later found the appellant walking along a road which was not far from where the alleged robbery had taken place. They stopped him and searched him. They found $130 in his possession but no knife. They took him to a police station. There he was interviewed and the interview was recorded on videotape. It lasted for about 11 minutes. The appellant admitted having been in the taxi but denied having a knife or having taken any money. He gave some confused and confusing answers about his actions.

3. At trial the appellant said that he had been taking drugs that day. He was a drug addict. He said that his memory of events was affected by the drugs he had taken. He admitted having been in the taxi. He said that he told Mr Larsson that he could get cheap whisky for him. The appellant had $40 in his pocket. He said that he persuaded Mr Larsson to give him $90, he then got out of the taxi under the pretence of going to get the cheap whisky, but simply kept going. The appellant's case was that the driver had made up the threat and the taking of the $130. However, the appellant in effect admitted having taken a lesser sum by a dishonest trick. The appellant said he had little memory of the interview the subject of the video recording. He said that he was falling asleep and was affected by drugs. He admitted that most of what he had said to the police was fabricated. In evidence he said that at the time of the interview he simply did not know what he was saying or doing. He denied that he was stalling for time or trying to make excuses when interviewed by the police (transcript pp239-240).

4. On the hearing of the appeal the Court viewed the videotape.

5. The appellant complains that His Honour erred in admitting evidence of the admissions recorded on the videotape. Counsel for the appellant argued that the appellant was so affected by drugs that he was unable to make a free choice whether to speak or not. Alternatively it was argued that His Honour, in the exercise of his discretion, should have excluded the admissions on the basis that it was unfair to use the answers which the appellant gave, having regard to the impairment of his faculties attributable to the drugs which he had taken.

6. His Honour rejected both submissions and admitted evidence of the admissions and admitted the videotape itself.

7. His Honour accepted the evidence of the police officers (given on the voir dire) who found the appellant, arrested him and who interviewed him. This evidence related to the appellant's state when first found, when being taken to the police station, when being interviewed, and on being discharged. The police officers said that the appellant was at his worst during the interview. One of the police officers had prior knowledge of the appellant and was able to draw on that knowledge. He said that he had previously seen the appellant similarly affected by drugs but thought on this occasion he was only affected to a slight degree. The other police officer took the view that the appellant was suffering from nothing more than tiredness. But neither of them thought that his faculties were other than moderately impaired. This was evidence which His Honour was entitled to accept, and he did that.

8. On the voir dire the appellant said that he was affected by drugs, but he did remember parts of his dealings with the police. He claimed to be unable to remember other parts. He agreed that he understood that he was being questioned about armed robbery, but said that he was "off my head".

9. His Honour was clearly influenced by the video recording, as am I. At times during the short interview the appellant did appear to be somewhat drowsy, especially at the very beginning of the interview. At times the appellant's responses were rather slow. But at other times he was quite quick with his responses and quite assertive. The appellant did give some quite inconsequential answers, but one must be a little cautious here because impairment of his faculties is not the only explanation for the oddity of the answers.

10. The issue before His Honour was the capacity of the appellant to make a free choice. The issue was not whether the appellant was to some extent affected by the drugs which he had taken. His Honour accepted that he was somewhat affected, but concluded that the appellant was able to and had made a free choice.

11. In my opinion His Honour had evidence before him which entitled him to make that finding. Having regard to the video and the evidence of the police officers it is a finding with which I am inclined to agree, although that is not the issue before this Court. The issue before this Court is whether it can be said that His Honour was wrong in accepting the evidence which he did and in reaching the conclusion which he did. In my opinion His Honour was entitled to do both of those things and it has not been shown that His Honour erred.

12. Particular complaint was made about the failure of His Honour to accept evidence of Dr Lucas, a psychiatrist, and on the basis of that evidence to exclude evidence of the admissions. Dr Lucas had watched the video and had been informed, in general terms, of the consumption of drugs by the appellant. In my opinion the tenor of Dr Lucas' evidence was that the appellant's appearance was consistent with his faculties being somewhat impaired by the consumption of drugs, and Dr Lucas furthermore expressed the view that it would have been preferable if the police had allowed time for the effect of those drugs to wear off before questioning the appellant. But, once again, that was not the central issue. Dr Lucas' evidence included the following answer (transcript p117):
    "I think there was nothing to indicate that he didn't
    exercise a free choice in the general sense, but my
    reservations are as to whether he was intoxicated to
    the extent that his judgment about this might have
    been impaired."

13. His Honour clearly took the view that the evidence of Dr Lucas established no more than that there was some impairment and that in Dr Lucas' opinion it would have been preferable to allow time for that impairment to wear off. That falls far short of establishing that the accused was not able to make a free choice. In my opinion His Honour was entitled to conclude that that was all that Dr Lucas' evidence established, and in my opinion no error has been shown in his approach to that evidence.

14. Complaint was also made about His Honour's failure to exclude the admissions in the exercise of his discretion, on the basis that having regard to the appellant's impaired state it was unfair to him to use against him the answers which he gave. On this aspect of the matter the condition of the appellant is obviously relevant. It is also relevant to note that he did give some inconsequential answers. In my opinion it is clear that he was to some degree affected by the drugs which he had taken. But in my opinion His Honour was entitled to conclude that the appellant was not so affected that it was unfair to him to allow the use of this evidence. My own observation of the video recording was that the appellant did understand what was going on, understood the questions which were being put to him and was capable of answering them. It is also important to note that the manner in which the officer questioned the appellant was, in my opinion, very restrained. The appellant was allowed plenty of time to consider his answers. There was nothing oppressive or intimidatory in the tone of the questioning. Counsel for the appellant did describe the approach to the questioning as overbearing, but in my opinion that submission is quite unfounded. Complaint was also made that the police officer in effect cross-examined the appellant on some of his answers. It is well established that it is not permissible to question a suspect in this manner. However, in my opinion the police officer did nothing more than put the allegations to the appellant and, the appellant having made an allusion to buying heroin, the police officer then explored the question of whether the appellant had taken money from the taxi driver to buy heroin. One of the questions asked was asked on the premiss that the appellant had taken money from the taxi driver, but that it was in fact the appellant's money. When the appellant assented to that proposition the police officer then explored that, but the appellant then denied having taken any money. While it is true to say that some of the questions were asked in a form which assumed events contrary to what the appellant was saying, the manner in which the questions were asked deprives the criticism based on that fact of any force. The police officer did not in any sense press these questions upon the appellant. It is my opinion that when one takes into account the manner in which the questions were asked as well as the words used, he did nothing more than explore some of the somewhat confusing answers given by the appellant. It should be remembered once again that the whole interview lasted no more than about 11 minutes.

15. Finally, His Honour was influenced by the fact that in the course of the interview the appellant made no damaging admissions, although at trial the prosecution was able to comment upon the fact that much of what the appellant said was clearly not correct.

16. When one considers all the circumstances it is my opinion that His Honour was entitled to come to the conclusion, as he did, that there was no unfairness to the appellant in permitting the use of this evidence by the prosecution. In my opinion the fact that the appellant appeared to suffer from only a moderate degree of impairment, coupled with the moderate manner in which the interview was conducted and with the content of the interview, all combine to support the conclusion to which His Honour came.

17. I therefore conclude that no error by His Honour is shown in his conclusion that the prosecution had established that the appellant made a free choice and in my opinion no error is shown in His Honour's conclusion that he should not, in the exercise of his discretion, exclude the interview.

18. The appellant also complained about His Honour's directions as to lies. The alleged lies with which His Honour dealt were the statements which the appellant made during the course of questioning by the police. His Honour directed the jury at some length upon this matter. Generally, in my opinion the directions were favourable to the appellant. The tenor of His Honour's directions was to downplay the significance of any possible lies. His Honour stressed the unlikelihood that things said when the appellant was affected by drugs were deliberate lies told with the consciousness of guilt. He explained that even if the statements were lies, they were not necessarily indicative of guilt, and might only go to credibility. In general terms it seems to me that His Honour's direction dealt with the matters which, in recent judgments, the High Court has said must be dealt with when the issue of lies arises.

19. It is true that His Honour did not identify each possible lie during the course of the interview. But in my opinion it is not always necessary to do so. This is a case in which the appellant himself admitted that most of what he had said to the police was false. The appellant also admitted that he was in the taxi on the night in question. The issue was whether he had taken $130 after threatening the taxi driver with a knife, or had taken some $90 by means of a dishonest trick. In relation to the possible lies the issue for the jury was whether the appellant was simply confused, and did not know what he was saying, or whether he was in fact telling deliberate lies, and if so whether those lies were told with a consciousness of guilt or whether, as His Honour explained to the jury, they might have been told for reasons which were not indicative of guilt. His Honour made the point that lies, if told, might do no more than reflect on the appellant's credibility. I do not think that separate identification of the various possible lies would have made any difference in a case like this.

20. Particular complaint was made that His Honour did not instruct the jury that if the appellant had told deliberate lies he might have done so, at the stage of the interview, to cover up or conceal the dishonest trick which he was later to admit in his evidence at trial. It is true that His Honour did not point this out. It is also true that that is a possible motive for lies. But His Honour was not clearly asked to do so, although a request for a redirection by counsel for the accused at trial might have been so intended. If it was so intended, it is not clear that it was so intended. When asking for a redirection on this point at page 44 of the transcript of the summing up counsel at trial did refer to the offence to which the appellant was admitting, but in the end seems to have asked for a redirection to the effect that the appellant should be given credit for having at least being honest about having committed the offence to which he admitted.

21. In addition to this I am influenced by the fact that if His Honour had put to the jury that a motive for lies might have been a deliberate attempt to conceal the dishonest trick which was later to be revealed to the jury, such an approach would have been inconsistent with and somewhat destructive of the appellant's evidence and case that at the time of the interview with the police he was hardly aware of what was going on and was not in any position to look after his own interests. The direction which on appeal it was suggested should have been given could only be given on the hypothesis that, at the time of the interview, the appellant was well aware of what had happened and was sufficiently alert to tell lies which would conceal his involvement in a different offence.

22. In the end, in my opinion the limited significance given by His Honour to lies, and the generally favourable tenor of his directions on the topic, coupled with the absence of a specific request for a direction on this point and the fact that the direction if given might have eroded the appellant's case in other respects, all lead to the conclusion that the direction which His Honour gave was adequate as a matter of law. It is also my opinion that while it is arguable that the suggested further direction might have been given as a matter of completeness, His Honour cannot be criticised for having failed to do so nor can it be said that the failure to do so could have led to a miscarriage of justice.

23. The two grounds upon which the conviction was attacked having failed, it is my opinion that the appeal must be dismissed.

JUDGE2 BOLLEN J The facts have been set out by the Chief Justice.

2. I think that the appellant voluntarily answered questions at the interview. A view and hearing of the video and audio demonstrate to me that the appellant was making voluntary answers to the questions asked. Perhaps he was slightly intoxicated or, as one officer said, tired. But he answered questions without protest. He answered questions with, on the whole, relevant answers. He firmly denied the offence. He firmly denied possession of a knife. He said things which, if true, would have amounted to facts capable of proving an offence which was not charged against him. The questioning was done in a mild manner. No doubt the appellant would have preferred to be elsewhere. But he knew what he was asked. He knew what he had decided to answer. He chose, off his own bat, to answer as he did.

3. The learned trial judge was right to hold that the record of interview was admissible. Nor was there any unfairness in admitting it.

4. The complaint that the evidence of Dr Lucas was given too little weight has no substance. His evidence lacked any foundation.

5. No matter what be the theory of Dr Lucas, the video and sound, in themselves, told the learned trial judge that he should admit the evidence of the interview.

6. I think the learned trial judge gave a thorough direction on lies in the circumstances. If he omitted identifying and commenting on one lie that omission was, as the Chief Justice pointed out in argument, not harmful to the accused. But, in my opinion, there was no need for the learned trial judge to say more than he did about lies. And the fact is that he virtually recommended that the jury give no weight to any lie told by the appellant.

7. I would dismiss the appeal.

JUDGE3 DEBELLE J I agree with the reasons of the Chief Justice.

2. I add that a viewing of the videotape of the police interview reinforces the conclusion that the trial judge was entitled to conclude that the appellant was able to make and had made a free choice to be interviewed; that the interview was conducted fairly; and that the trial judge was entitled to exercise his discretion and admit the evidence of the interview.

3. I agree the appeal should be dismissed.