R v Demiri
[2007] VSCA 170
•23 August 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No 333 of 2006 |
| v | |
| SERMET DEMIRI |
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JUDGES: | VINCENT, NETTLE and NEAVE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 August 2007 | |
DATE OF JUDGMENT: | 23 August 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 170 | 1st Revision 30 August 2007 |
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CRIMINAL LAW – Conviction – Rape – Discharge of jury in course of trial – Witness referring to accused as having been or gone “inside” – Words difficult to hear and spoken over by prosecutor – Words not transcribed – Jury given copy of transcript – Discretion of trial judge – Principles applicable – No error in exercise of discretion to refuse to discharge – Evidence – Record of interview – Answers capable of amounting to admissions – Discretion to exclude – Propriety of police interrogation – Interrogation not unduly onerous or unfair – Admissions capable of rational interpretation – No error in exercise of discretion to refuse to exclude admissions – R v Hartwick (2005) 14 VR 125; R v Pritchard [1991] 1 VR 84 referred to – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C M Quin | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr Joseph Kaufman with Mr D G Just | David Tonkin & Associates |
VINCENT JA:
I will invite Nettle JA to deliver the first judgment.
NETTLE JA:
This is an application for leave to appeal against conviction on two counts of rape committed on 2 March 2003, by penile vaginal penetration of the complainant while being aware that she was not consenting or might not be consenting.
In effect, this is the second time that the matter has come before this Court. The applicant was first put up for trial for the offences in August 2004, but the trial was aborted. Following a second trial, in January 2005, the applicant was found guilty of both offences and sentenced to a total effective sentence of six years' imprisonment, with a non-parole period of four years. Thereafter he appealed to this Court, then constituted by the President and Buchanan and Redlich JJA, on grounds that the trial judge had erred in directions concerning the rule in Brown v Dunn and evidence of recent complaint and distress.[1] The appeal was heard on 8 February 2006 and upheld, and it was ordered that a new trial be had.
[1]R v Demiri [2006] VSCA 64.
The re-trial commenced with preliminary argument on 7 August 2006 and concluded on 16 August 2006, with the jury returning a verdict of guilty on both counts. The applicant was thus convicted and on 1 November 2006 he was sentenced to a term of imprisonment of five years on each count, with one year of the sentence imposed on the second sentence to be served cumulatively on the first, making for a total effective sentence of six years, with a non-parole period of four years. It is from those convictions that the applicant now seeks leave to appeal.
There are two grounds of appeal. The first is that the judge erred in failing to discharge the jury after a witness referred to the applicant as having been "inside". The second is that the judge erred in failing to exclude two answers to questions in the applicant's record of interview. It is also said that if neither ground is sufficient in itself to sustain the appeal, they are, in combination, enough to do so.
Ground 1 – Refusal to discharge the jury
During examination-in-chief of one of the witnesses for the Crown, Altay Baftirovski, Mr Baftirovski was asked the following questions, to which he gave the following answers:
What was the next thing that happened that you saw? --- Next thing I done is, I just – he [the applicant] asked me for a condom, okay, I said, ‘I haven’t got one’. I grabbed my brother and went to the pokies and then that’s it.
After you were asked for a condom, did you see where Sermet Demiri went after that? --- No. I just left.
Whilst you were up near the pole, was there anything that you heard at that time? --- No. I didn’t.
Did you see Sermet Demiri again that night? --- No.
Have you seen him since that day? --- We talk, that’s it, but not - - - *
How often would you talk? --- Probably when he’s - - -
Just say how often would you talk on any given week? --- Once in a blue moon.
Shortly after those questions and answers, senior counsel for the applicant applied to the judge[2] to discharge the jury on the basis that, although not recorded in the transcript, Mr Baftirovski's answer to the third last of the questions that I have read out continued after the words which I have spoken with the further words "before he – [or possibly we] – went inside". Counsel submitted that the jury may have heard those words and interpreted them to mean that the applicant had been to gaol. Further, in counsel's submission, because the jury were aware that there had been an earlier trial, albeit that they were not aware of the outcome, the jury might conclude from the fact that the applicant had been sent to gaol that the jury in the earlier trial had found the applicant guilty of the offences with which he was charged. In counsel's submission, that was productive of a real risk that the present jury might no longer be able to bring an opened and unprejudiced mind to the judgment of the issues.
[2]In absence of the jury.
After considering the matter over the luncheon adjournment, however, and upon viewing a VCR recording of the witness's evidence, the judge ruled that she would not discharge the jury, for reasons which she expressed as follows:
… I have replayed that portion [of the witness’s evidence] again over lunchtime and I think it is likely that the witness did say or meant to say ‘he’, but in reality he [was] speaking very quickly and with a slight accent, and I found it hard to discern whether in fact he said ‘we’ or ‘he’ went inside.
I say that I think it is likely that he meant ‘he’ because I know now, or have been reminded that the accused did go into custody. As I said in discussion, at the time when I heard the word ‘inside’ when it was first said, I took it to mean going back into the nightclub. The question is what will the jury have heard and what will they make of it, bearing in mind their state of knowledge as opposed to ours.
I am not satisfied that as they are furtherest away from the witness that they will have heard the answer as, ‘before he went inside’. Even if they did, I am not satisfied that they would assume that this meant that the accused went into custody, even with their knowledge of there being previous trials, because ‘inside’ could also mean, as it did for me on the first hearing, back into the nightclub, there being evidence that the accused did return to the Brass Monkey and attempt to regain re-entry…
…
The jury have not yet been provided with a copy of the transcript, but it is proposed that they will be, and although they will be told that the evidence is what they hear and not to treat the transcript as evidence, that fact that the worrying part of the answer with which we are here concerned in this application, has not found its way into the transcript – in all likelihood because of the speed at which the witness was speaking and his slight accent, that fact gives me even greater reason to not be concerned that the jury will recall this answer, and less reason to think that they will use any memory of the answer beyond what is in the transcript to jump to the conclusion that it means that the accused has been in gaol.
Further, when I directed the jury about there being previous trials,[3] I specifically directed them not to speculate about what did or did not happen in those previous trials. I expect them to abide by that direction. Therefore, I am not satisfied that the jury will have heard the witness say, ‘Before he went inside’. I am not satisfied they would assume, if they did hear that, that that meant that the accused went to gaol, and I am not satisfied that there is therefore a high degree of need to discharge this jury without verdict…
[3]Before the trial in March 2005, there had been an earlier trial aborted part way through.
The applicant attacks the judge's ruling as ignoring the practical reality that the jury had the most direct view of the witness, and that it would have been enough for just one of the jury to have heard the additional words in order to make them available to the deliberations of the jury. Counsel for the applicant submits on that basis that there was indeed a real risk that the jury heard the words, and if so, a real chance that they may have interpreted them as meaning that the previous jury had found the applicant guilty. Alternatively, it is said, the jury may have construed the words as meaning that the applicant was sent to gaol for some other offence, either alone or in conjunction with Mr Baftirovski. Either way, however, it is submitted, the applicant would have been seriously prejudiced and hence there was a high degree of need for the jury to be discharged.
Despite the force of those submissions, I am not persuaded by them. The law relating to the discharge of juries because of a disclosure which might unfairly prejudice the accused was revisited by this Court relatively recently in R v Hartwick.[4] As was there explained:
…The decision of the Court of Criminal Appeal in R v Knape41 was once thought to mean that an irregular disclosure of evidence of bad character in the course of trial would result in the discharge of the jury unless the disclosure could not possibly have affected the jury’s judgment. But the inflexibility of that sort of approach was rejected by the Court of Criminal Appeal in R v Boland42 and in R v Vaitos43 and hence, as the New South Wales Court of Criminal Appeal later observed in R v George, Harris and Hilton,44 the informing principle in Victoria as in New South Wales is one which places responsibility on the trial judge to determine in light of the nature of the trial and the extent of the prejudice caused by the disclosure whether it is necessary to discharge the jury in the interests of ensuring a fair trial. In R v Su, Katsuno, Katsuon, Katsuon, Asami and Honda,45 this court reiterated that the principle is one of necessity. There must be evident a high degree of need for discharge before that course should be adopted.46 In Crofts v R47 the High Court gave its imprimatur to that approach. The High Court said that there are no rigid rules to govern the outcome of an application for such a discharge. Each case depends among other things upon the seriousness of the occasion in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.[5]
It is evident from the judge's ruling that her Honour approached this matter on just that basis.
[4](2005) 14 VR 125.
[5]Ibid, 156 [75].
Furthermore, as the Court in Hartwick went on to point out:
…the authorities to which we have referred suggest that a good deal of leeway should be allowed to a trial judge in evaluating the considerations which are relevant to the fairness of the trial. That is so because the judge will usually have a better appreciation of the significance of the event complained of, when seen in context, than can be discerned from reading transcript. We see no reason to doubt that the judge did have that advantage in this case.[6]
In my view, that consideration is of particular importance in the circumstances of this case.
[6]Ibid, [76].
Despite being able to look at the VCR of Mr Baftirovski's evidence ourselves, it is obvious that we are not in as good a position as the judge to assess the likely effect on the jury of the additional words. As a trial judge of considerable experience, her Honour would have been closely attuned to each change of tone and nuance throughout the course of the evidence, and to its apparent effect on the perception of the jury. By comparison, all we can do is read the transcript, which obviously does not record the additional words, and look at the digital reproduction of the witness's testimony, which gives little more than a general idea of the way in which that evidence was given and received. Consequently, in my view, this case is one in which particular weight should be accorded to the judge's assessment.
Over and above that, however, I am, with respect, strongly inclined to agree with the judge that the chances of the jury or any member of the jury being affected by the extra words in the way suggested was remote indeed. As the judge said, and is borne out by the VCR, the words were spoken with such a speed, and with something of an accent, as to make them particularly difficult to hear and, if heard, particularly difficult to attribute with any certain meaning. It is also apparent from the VCR that the prosecutor spoke over the witness as he uttered the words, and thereby made them even more difficult to comprehend. Doubtless that explains why they were not transcribed. Further, although spoken on the fourth day of trial, there were another five days of trial before the jury retired to consider their verdict and there was a great deal more evidence in the meantime. Thus, the possibility of the jury recalling the additional words by the end of the trial, or of then attributing to them any adverse significance of the kind now suggested, was in my view most unlikely. To that may be added the judge's admonishment to the jury to disregard the earlier trial and to concentrate simply on the evidence before them, which I consider the jury is likely to have observed. As well as that, as her Honour pointed out, there was in this case the further protection that the jury were supplied with the transcript, to which, if any of the jury thought that they had heard the words and attributed them any significance, they are likely to have had recourse, and, as the judge said, the words did not appear in the transcript.
In my view, therefore, ground 1 fails.
Ground 2 – Failure to exclude answers to questions 787 and 788
According to the police record of interview, investigating police officers began to interview the applicant at 8 pm on 3 March 2003, the offences having been committed between about 1 am and 2 am that morning. The interview then continued through 350 questions and answers to 8.50 pm, when it was suspended in order to enable a change of tape for recording purposes. Near to the end of that first stage of the interview, the applicant was asked, among other things, the following questions, to which he gave the following answers:
331.Okay. During this time did you insert you penis into her vagina?
--- No, I didn’t.
332.Well, I put to you that there’s allegations been made by the girl that you inserted your penis in her vagina? --- No, I didn’t. She – like she said to me to put it in – put it in a little bit, like that, that’s about it. ….and I said, ‘No, c-‘, you know, put my fingers in.
333. I put to you that you were interrupted by a security guard.
--- Yes. Cos they said, you know, ‘Your 10 minutes is up, go’, you know. I got up and left, went back to the Brass Monkeys – back to the front.
334. Yep and then what happened? --- She went her own way, she wanted to go her own way. She goes, ‘I’m goin’.
The interview resumed at 9.05 pm at question 351 and for the next 50 or so questions the applicant was asked about what he and the complainant were wearing, and as to where they had lain, and about oral sex and digital penetration, which the applicant told the police had occurred with the consent and active encouragement of the complainant. Then the applicant was asked the following questions concerning penile penetration, to which he gave the following answers:
415. Did you put your penis in her vagina at that stage? --- At that stage, no. Not at that stage.
416. When did you do that? --- What’s that?
417.When did you - - -? --- Later on started, you know, puttin’ into her ….she goes, ‘Condom, get a condom first. Get a – grab a condom’. I said, ‘I haven’t got any here, but’ - - -
418. So, you mean, well, did you put your penis inside her vagina? --- I tried to. I couldn’t .
419. Why not? Because I was pretty pissed. Wouldn’t – well, you know, and I wouldn’t do it really without a condom. … think so no.
The applicant was next asked some nine questions about the oral sex which he said he had had with the complainant, and then these further questions about penile penetration, to which he gave the following answers:
429.Did you penetrate her vagina at all with your penis during this time? --- What do you mean by that?
430.Did you put your penis into her vagina? --- For that time?
431.After you said you tried? --- No.
432.Did it go inside her? --- No.
433.And how many times did you try to put it inside her? --- About once or twice. She said, ‘No, don’t’ and I said, ‘No, why?’ and she goes, ‘Get a condom, grab a condom’. She was still lyin’ there, so I seen if I can get one. I said, ‘I haven’t got any’, you know.”
…
438.Okay, and what – what did you do when you came back? What did you say to her? --- ‘I haven’t got any’ and she was still there and my cousin said to me, ‘He’s [referring to a security guard] given you another 10 minutes, you know, then out ‘cos it’s a public area’.
439.So, what did you do then? --- I went back said, . . . . ‘I haven’t got any, you know, don’t have one’.
…
447.… I mean I’m putting to you that you were frustrated when you went back without a condom. That’s what I’m - - -? ---I wasn’t - - -
448.Putting to you? --- Frustrated no. I just said, ‘No-one . . . .got one. Bad luck, you can’t have sex’.
449.And what happened then? --- She started kissing me and said – starting playing her pussy – she – she, you know, playing with, holding my cock. Said, you know, ‘Forget about it, let’s go – let’s go.’ She said, ‘I’ll take you home and rah-rah-rah. Let’s go’.
450.Did you take her home? --- No, I didn’t. She goes, you know, ‘I’ll find my own way home. Catch a taxi or something’.
Thereafter the interview continued with questions concerning allegations made by a security guard, Mr Rubins, that he had seen a male thrusting into a female consistent with intercourse with the female:
462. The observation of security guard seeing a person thrusting himself - --? --- Yeah, I – like, yeah, I – it – ‘cos it – I was in a different position then. He could see me half naked, yeah - - -
463. When you were - - -? --- She was half naked.
464. At that time were you thrusting into her? ---I don’t - at that time? I was just on top of her my penis out.
465. At that time, did you thrust you penis into her? --- No. I didn’t. Had my fingers in there. She’s screaming, ‘Just take it easy, slowly, slowly. Ah, ah’. She was enjoying it.
…
480. During the time that the security guard there, did you yourself or anyone mention to the security guard that that was your girlfriend? --- Did I mention to anyone?
481. Did you mention that to anyone? --- No.
482.To the security guard? Yep? --- No, I didn’t mention it to the security guard. . . .
483. As to your knowledge, did any of your cousins, friends or otherwise say that to any security guard there, during – whilst you were in the bushes? --- I don’t know. All I – I can recall he gave me another 10 minutes, you know I was saying, I wanted you know, asked for a condom. He said, ‘You can have 10 minutes …. ….’
484. Did the security guard know that you wanted another 10 minutes in there? --- Yeah, he – he said I c-, he even said to my cousin, ‘I’ll give him another 10 minutes and then he has to go’.
485.Alright. When you left - - -? --- And he – he was there that for the whole time.
The interview then moved off into other matters until the applicant was asked the following further questions about penile penetration, to which he gave the following answers:
664.Now you mentioned initially, you tried to have sex with her – sexual intercourse, meaning your penis going into her vagina? --- Mm.
665. And it didn’t work? --- No, just not.
666. Because your penis was flaccid? --- Yeah.
667. Meaning - - -? --- Couldn’t get it up.
668. Couldn’t get an erection? --- That’s right.
669.Yep. That was the only reason intercourse didn’t happen? --- Not ‘cos of that.
670. Well, what was the reason? --- No condoms.
671. But you said you still tried? --- I tried a bit.
672.Was she agreeing to that at that stage, consenting to you trying to have sexual - - -? ---S-, - - -
673.Intercourse with her? --- Yeah, but … … … … … and then she said, ‘No.’ I said, you know, ‘We’d better not’. …
674.So, when she said, ‘No’ you stopped? --- I stopped, you know, I - - -
675. Are you - - - ? --- Stopped.
676.Sure about that? --- Yes.
677.So you’re fairly clear about that, but you can’t remember any of the other conversation beforehand that you had with her? --- Like what?
678.Well, personal things that you were … … --- There wasn’t - there wasn’t much questions, things we were talking about, you know.
679.Now, when you said that you s-, you stopped after she said that - - -?
--- She said, ‘Get a condom, grab a condom’.
680. And – and you pulled up your pants and let - - - -? --- I pulled up my
- - -
681.Walked away? --- Pants up, she was still there waiting for me lying down and the security guards were there at the time.
682.Yep? --- When I got up, they’re there – my cousin was there.
683.Was she conscious the whole time? --- She was there waiting for me.
684.While you were with her there? --- Yeah, she still had her pants off. When I went there, asked the – for the guys for a condom, she goes, ‘Grab a condom, get a condom’.
685. So how long were you away from her? --- Only about a minute or so, 30 seconds.
686.And when you returned she still had her pants off? --- She still had her pants off.
After some further questions on other matters, the second stage of the interview concluded at question 770 at about 9.48 pm.
Following the suspension, the interview resumed at 9.55 pm at question 771, and then after formalities the following further substantive questions were asked of the applicant, to which he gave the following answers:
781.Okay. Just – just a couple of points I wanted to clear up, Sermet. Did – mm. Did you ejaculate at all - - - ? --- Ye -, - - -
782. On that night? --- Yeah.
783. Ejaculate, do you know what I mean by that? --- Ejaculate?
784. Mm. --- …
785. Do you know what - - -? Did you come? --- Come, No, I didn’t.
786. Did you eject sperm? --- No, I didn’t
787. Right. When you tried to put your penis in her vagina, at any time, did she - - -? --- She was screaming, ‘Hurting me’.
788.And what did you do then? --- Pulled it out, I didn’t put it in all the way in, just little bit of my head. No, that’s it, won’t do it. … … …. … I just thought, ‘Twice is enough, can’t get it right without a condom myself’. She said, ‘Get a condom, better – don’t do it without a condom.’ She asked me for a condom.
The remainder of the questions were about other matters and the interview concluded at question 848 at 10 pm.
Counsel for the applicant argued that the judge erred in refusing to exclude questions 787 and 788 and the answers to those questions. They submit that they should have been excluded as a matter of fairness because they came late in the interview, after three previous sets of questions and answers on the same matters, and because by that time the structure of the interrogation had descended to one of excessive and overbearing persistence and unfairness. Counsel also contend that the unfairness was exacerbated by reason that neither question nor the context in which it was asked distinguished between the first episode (the subject of count 1), and the second (the subject of count 2), which was alleged to have occurred after the applicant returned without a condom, and by reason that there was no attempt by the interrogating police to clarify the meaning of the answer to question 788 by means of further questioning. Further, as counsel would have it, the matter should be seen as being one of particular importance in that questions 787 and 788 and the answers thereto were among the contested evidence on which the Crown relied heavily in order to establish the first count, in circumstances where the complainant did not give any evidence of penetration for the purposes of that count.
I do not accept those submissions. In the trial judge's ruling to refuse the application for the exclusion of questions 787 and 788, her Honour concluded that she did not consider that the questioning was overbearing, and that in her view it had been reasonable for the investigating police officers to explore the account given by the accused, including any variations in it, as they had. I agree with her Honour.
A trial judge has a discretion to exclude a voluntary confessional statement on the basis that it would be unfair to use it against the accused. First considered by the High Court in McDermott v The King,[7] the extent of the discretion was subsequently re-stated in The King v Lee,[8] as follows:
If it is voluntary, circumstances may be proved which call for an exercise of discretion. The only circumstance which has been suggested as calling for an exercise of the discretion is the use of ‘improper’ or ‘unfair’ methods by police officers in interrogating suspected persons or persons in custody. It was with such cases in mind that Latham, C.J., in McDermott v. The King[9], said that the trial judge had ‘a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him.’ In the same case Dixon, J. [10]said:- ‘In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.’ In our opinion the rule is fully and adequately stated in those two passages. What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent or the application of these conceptions.[11]
[7](1948) 76 CLR 501.
[8](1950) 82 CLR 133.
[9](1948) 76 CLR 501, 506-7.
[10]Ibid, 513.
[11](1950) 82 CLR 133, 150-151.
Later decisions of the High Court and of this court have adumbrated the application of the discretion. The Court of Criminal Appeal essayed more recent developments in R v Pritchard,[12] as follows:
In this connection reliance was particularly placed upon a ruling of Smith J. in R v Amad.[13] His Honour in that case ruled that it is improper, even after caution, to subject a person in custody to cross examination tending to extort admissions or to overcome mental resistance to the making of admissions: see, too, per Williams J. in McDermott's Case.[14] There is no doubt, of course, that at the material time the applicant was in the relevant sense in custody. Smith J. particularly treated as cross examination forbidden by rules of fairness, inter alia, questions in which disbelief is repeatedly expressed in the suspect's denials of complicity and questions designed to obtain damaging admissions. Of course, a police interrogator is not bound to accept the first answer made, and questioning is not unfair merely because it may be described as persistent: see R v Smith.[15]
Moreover, the Chief Commissioner's Standing Orders are not rules of law and the mere fact of breach of any one of them does not of itself mean that an accused's answers are to be excluded on the ground of unfairness. A substantial reason should be shown to justify a discretionary rejection of a voluntary admission: Lee's Case.[16] These propositions have since been referred to with approval in the High Court. The most recent case is Van der Meer v R[17]: see per the joint judgment of Wilson, Dawson and Toohey JJ.[18] That judgment in the course of the citation to which we have referred repeated the remark of Gibbs, C.J. in Cleland v R[19] that ‘the trial judge has a discretion to reject (a voluntary statement) if he considers that it was obtained in circumstances that would render it unfair to use it against the accused’. ‘Unfairness is, in this sense’, as the joint judgment observed, ‘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’. In that case the questions ‘assumed the character of cross examination’ and were asked in an undesirable, aggressive style. Yet the trial judge, so it was held, was not shown to have erred in his determination to admit the challenged interrogations.[20]
[12][1991] 1 VR 84.
[13][1962] VR 45.
[14](1948) 76 CLR 501, 517.
[15][1964] VR 95.
[16](1950) 82 CLR 133, 154.
[17](1988) 82 ALR 10.
[18]Ibid, 26.
[19](1982) 151 CLR 1, 5.
[20]Ibid, 91, see also R v Tiplea, VSCA, Unreported 12 April 1995, BC9503276, 7 (Crockett, Hampel, Smith JJ); R v Fotios Fotu VSCA, Unreported 26 June 1996, BC 9602773, 12; R v Robinson [1998] 1 VR 570, 580.
Those cases make it plain that while persistent cross-examining during the course of interview will be regarded as unfair, and as such liable to be excluded, investigating police are not bound to accept the first answer made. Depending upon the circumstances of the case, persistent and thorough questioning of a suspect may well be appropriate and acceptable, so long as the interrogation is not carried out to the point of impropriety, in the sense of bringing pressure to bear on the suspect or bringing about an unfair or unreliable result.[21]
[21]R v Smith [1964] VR 95, 97; R v Pritchard [1991] 1 VR 84, 91.
I have referred already to most of the sections of the record of interview which may be thought to bear upon the propriety of the interrogation. It might be thought that there were a couple of those passages which bordered on cross-examination, particularly in the section of the interview between questions 429 and 450. But, taken as a whole, the technique of questioning appears to me to have been perfectly fair. In particular, it was not tendentious, it was not overbearing and, throughout, it was courteous. Given that the interview lasted in total no more than two hours, including breaks for tape changes, and that the applicant was at the commencement of each stage of the interrogation scrupulously warned in accordance with s 464A of the Crimes Act 1958, I am unable to discern any impropriety or other infraction of standards in the conduct of the interrogation sufficient to render unfair the use against the applicant at trial of any of his answers.
It remains, however, to deal with the submission that questions 787 and 788 were unfair because they insufficiently distinguished between the first episode and the second.
In her ruling, the judge dealt with that submission by first analysing each set of questions and answers concerned with penile penetration in terms of whether they related to the first or second episode. As her Honour assessed the outcome, questions 331 to 334 seemed to relate to the second episode after the accused came back from seeking a condom. Similarly, question 418 related to the second episode after the applicant returned from seeking a condom. Questions 429 to 433 related to the first episode, because they appear to be concerned with conduct before the applicant went in search of a condom. Questions 448 to 449 related to the second episode. It was impossible to determine whether question 464 related to the first or second episode. Question 664 related to the first episode because it was to do with events going on before the search for a condom. Her Honour then made reference to questions 732 to 788, and continued as follows:
The learned prosecutor submits this question [scil. 788] was in respect of the first episode because the accused had previously acknowledged that he had tried to penetrate the complainant at that stage, which acknowledgment it is submitted is the basis of the question 787. However, on my analysis the accused had said on occasions earlier in the record of interview that he had tried both before and after seeking a condom. Looking at the answer to 788 the accused seemed to be referring to the first episode because although there is a reference to ‘twice is enough’, he then says that she asked him for a condom.
The learned senior counsel for the defence submits that the questions are overbearing and uncertain as to which count and should be excluded on those bases…
As to the uncertainty arising out of Question 787 and 788 on the analysis that I have undertaken it is open for the prosecution to submit and for the jury to accept that it relates to the first episode, and in that instance also therefore to Count 1. I have therefore decided not to exercise my discretion to exclude the answers 787 to 8. It will ultimately be a matter for the jury whether as to
they accept the answer relates to Count 1, and, if they do, what weight they put on it…
With respect, I take leave to doubt that question 418 was concerned with the second episode. It looks to me to have been concerned with the conduct before the applicant left to go in search of a condom and so to have related to the first episode (count 1). But that difference is irrelevant for present purposes. Whatever may be said about other questions and answers, I completely agree with the judge that it was open to interpret questions 787 and 788 as relating to events before the applicant went in search of a condom, and thus for the Crown to put them to the jury as an admission of penetration for the purposes of count 1. Even standing alone, those questions and answers seem to me to have that effect, and when they are considered in light of the other evidence presented as part of the Crown case – particularly the evidence of the security guard Mr Rubins that he saw the applicant and a woman in flagrante before the applicant emerged from the bushes in search of a condom, and the evidence of Mr Baftirovski that he saw the applicant emerging from the bushes in search of a condom and that the security guard then allowed the applicant another ten minutes in which to return to the bushes and continue with the woman before being moved on, it does not seem to me that there was really any doubt about it.
I allow that if answers to questions 787 and 788 had been meaningless or so uncertain as not to permit of rational interpretation, they might have been excluded in the exercise of discretion (as evidence of which the probative value was outweighed by prejudicial effect, or perhaps, more specifically, as evidence upon which it would be dangerous for a jury to act).[22] But, for the reasons which I have given, I consider that they were anything but so uncertain or meaningless.
[22]The Queen v Swaffield (1998) 192 CLR 159, 192 [64]; Heydon, Cross on Evidence, [11125].
In my view, ground 2 fails, and so too does therefore any idea that it would be sufficient in combination with ground 1 to warrant the grant of leave.
Conclusion
In the result, I would refuse the application.
VINCENT JA:
I agree.
NEAVE JA:
I agree.
VINCENT JA:
The order of the Court is that the application for leave to appeal against conviction is dismissed.
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