R v Dempsey
[2000] VSC 521
•23 November 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1437 of 2000
| THE QUEEN |
| v. |
| BRENDAN ERIC DEMPSEY AND KATHLEEN LINDA DEMPSEY |
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JUDGE: | HARPER, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 23 NOVEMBER 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 521 | |
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CATCHWORDS: Ruling – Criminal trial – Application to exclude record of interview – Confession – Whether voluntary – Inducement – Role of Department of Human Services and police – Whether an implied promise by police sufficient – Collins v. The Queen (1980) 31 ALR 257 applied – Evidence Act 1958, s.149.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Ms. M. Sexton with Mr. J. Dowsley | Peter Wood, Solicitor for Public Prosecutions |
| For Brendan Dempsey | Mr. M. Bourke with Ms. T. Hartnett | Victoria Legal Aid |
| For Kathleen Dempsey | Mr. A. Lewis | Anthony Isaacs |
HIS HONOUR:
Sometimes people die unexpectedly. Even when death is expected, any civilised society requires some explanation for the death. In the routine case this is given by a medical certificate. In such cases nothing more is required.
The death of Bo Dylan Dempsey on 12 August 1998 was not in this category. He was only 11 weeks old when he died. There is a body of medical opinion, which may be challenged - perhaps successfully challenged - at the trial, to the effect that his death was caused by a fractured skull. There is also evidence - which again may be challenged at the trial - that the injury occurred some days before death and that in the interval between the two occurrences no medical treatment was sought on the baby's behalf. Not only that, but during that same interval the baby's leg was broken. There is also evidence that the house in which the baby lived was in a very poor state of general cleanliness.
Bo Dylan had a brother, Axul Dempsey. He was 22 months old when his brother died. Like Bo Dylan, he was then living with his parents. They are the accused, Brendan Dempsey and Kathleen Dempsey. There is no suggestion of any outside involvement in Bo Dylan's death.
In these circumstances, any civilised society would look for an explanation for the baby's injuries and for the apparent failure of any responsible person to seek medical treatment on the baby's behalf. Bo Dylan's parents would and did expect nothing less. In that sense they felt themselves to be under pressure to provide an explanation from the moment that the death was made known. One or two attempts were made in the days immediately following the death to explain its occurrence, but those explanations were not satisfactory. They did not fit what were then the known facts. Of course, those "facts" might have subsequently been, and might still be, shown not to be "facts" at all. While the evidence was in its then state, however, the initial explanation or explanations given for the injuries to Bo Dylan and for the failure to procure medical intervention on his behalf were necessarily seen by those concerned with the matter as being unreliable. They were that Mr Dempsey may have sat on the baby accidentally and may have caused the head injuries thereby; or that Axul may have dropped something on his brother's head.
Two authorities were particularly concerned with the circumstances surrounding Bo Dylan's death. They were the police and the Department of Human Services. The interest of the police was and is obvious. The Department became involved because it is charged by orders made by the Children's Court, and otherwise under the Children and Young Persons Act 1999, with the care of children in need of protection. For the purposes of the Act a child is in need of protection if, amongst other things, he or she has suffered or is likely to suffer significant harm as a result of physical injury and the child's parents have not protected or are unlikely to protect the child from harm of that type (s.63(c)); or the child's physical development or health has been or is likely to be significantly harmed and the child's parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care (s.63(f)).
I mention the Children's Court and the provisions of the Act not because of any particular significance which they might have in this case. Rather, I refer to them simply because they together constitute particular instances of the general position which any civilised society would take to circumstances such as those surrounding the death of Bo Dylan Dempsey. It is in accordance with nothing more or less than generally applicable precepts that after a death such as Bo Dylan's, Axul Dempsey was considered to be a child in need of protection. That position would not change until there was a change in some relevant circumstance. One such circumstance, mentioned by way only of illustration, would be Axul's progression from a child to an adult. Another would be a relevant change in the situation which pertained at the time that Axul actually became in need of protection: if, for example, he was no longer likely to suffer significant harm as a result of physical injury and his parents were in the new circumstances likely (or, to put it the other way, no longer unlikely) to protect him from harm of that type. One possible "new circumstance" would be a credible explanation for Bo Dylan's death.
It is convenient at this point to remember that when Axul was first perceived to be a child in need of protection his brother had very recently died from serious injuries to his head. If that were all one knew, deciding upon anything other than Axul's immediate future would be at least problematic. In the short-term, natural caution would indicate an application for an Interim Accommodation Order or something of that kind. That is exactly what happened in this case. For the longer term, any responsible person would look for an explanation for Bo Dylan's injuries. In the circumstances of this case the first people to whom one would look would be Brendan Dempsey and Kathleen Dempsey. One would in so doing be bound to take as a starting point the fact of death, the fact of injury to the baby's head and leg, and what was on its face the opinion or opinions of properly qualified medical practitioners. Until the medical evidence changed in its nature or until there was some reason to suspect the accuracy of the initial medical conclusions, any responsible person would not act upon an explanation from the parents if that explanation diverged from the medical evidence to the point that the explanation lost credibility.
In the meantime, the person or body of persons charged with Axul's welfare would look for like information from other sources. After all, the care which can be given to a child such as Axul will necessarily be improved with each item of relevant information that comes to hand.
So the Department of Human Services communicated with the police as part of the discharge of its responsibilities to Axul. The same situation obtained after the birth of Axul's sister Shemiah in May 1999. It was not, however, a one-way street. As is usual, the Department and the police co-operated in court presentations when the cases of Axul and Shemiah were dealt with by the courts. I have no doubt that in addition the Department, when it thought it appropriate (or when it was bound) to do so, passed on relevant information to the police. I also have no doubt that Mr Dempsey appreciated this. He says, and I accept, that he perceived a close alliance between the Department and the police in their interest in his case. He also perceived, and I am again prepared to accept that he perceived correctly, that he was the principal suspect. His wife's role in Bo Dylan's death was thought by both the Department and the police as probably being secondary.
Insights of this kind are, I am satisfied, well within the capacity of Mr Dempsey. In giving his evidence he presented as a person with more than sufficient understanding of ordinary human nature and the operations of institutions such as the police and other arms of government to be able to draw sensible and logical inferences from relatively common factual situations. Indeed, an important part of the argument put on his behalf in this application rests on that very foundation.
His evidence is that he and his wife were very keen to regain custody of Axul Dempsey. They were also both desperately anxious not to lose custody of their baby Shemiah after she was born in May 1999. Yet they were fully aware of the likelihood, later the reality, that the Department would not allow Shemiah to live with them. On numerous occasions they put before the Department schemes which they hoped would be acceptable to the Department and which would, if implemented, result in full "reunification" of the family ("reunification" being a word commonly employed in departmental documentation of the case). On other occasions Mr Dempsey offered to separate from his wife so that, free of the inhibiting element which, as he appreciated, his presence as the principal suspect would otherwise have, she could be reunited with her children.
None of these proposals bore fruit. The Department, as was submitted to me on Mr Dempsey's behalf, and as I accept, emphatically pointed to the lack of a credible explanation for Bo Dylan's death. Until such an explanation was to hand, the responsibility (if any) of each parent would remain unclear. Until it was clear that one or both was or were not implicated in a way which was relevant to the arrangements for Axul and Shemiah the Department (to quote from a departmental case note of 17 March 1999) "could [not] move on to address the areas of risk."
In none of the dealings with the Department of Human Services was the question of a confession raised. It was submitted on Mr Dempsey's behalf, and his evidence was, that he nevertheless deduced that nothing short of a confession by him which at the same time exculpated Kathleen Dempsey would be acceptable to the Department as a basis upon which areas of risk could be reassessed. He deduced this because he appreciated that an explanation for Bo Dylan's death (and the Department wanted no more than a credible explanation) would not be credible unless it was consistent with the medical and other evidence surrounding that death. And such consistency was in reality difficult, if not impossible, unless a confession were involved.
The argument put forward on Mr Dempsey's behalf was accordingly as follows: He desperately wanted his children to be reunited with himself and his wife; and if reunification with him was impossible, at least with his wife. The Department saw criminality as being an element in Bo Dylan's death and saw Mr Dempsey as the most likely suspect. The Department made this plain to him, as it made plain its position that only a credible explanation for Bo Dylan's death - including an acceptance of responsibility - could enable areas of risk to be re-examined. No particular results of this re-examination were discussed in detail, but none was ruled out. Some form of reunification between Kathleen Dempsey and her children, therefore, remained a prospect (but I add that the evidence on the point - which is meagre - is that it never became any more than that). In this state of things
Mr Dempsey worked out for himself that the only explanation which would or even might result in a desirable change of attitude in the Department would be a confession by him. Thus (the argument put on his behalf continued), induced by the Department's insistence on an explanation, he confessed on 5 August 1999.
In my opinion, this argument is specious. If Mr Dempsey could work out for himself that the only explanation which would serve his "reunification" purposes was a confession, he was equally capable for working out for himself that nothing could be done to advance those purposes until an explanation was forthcoming. He did not need the Department to tell him that. I find that he worked it out for himself.
In those circumstances, the fact that the Department told him what he already knew cannot amount to an inducement. "Inducement" is a word defined in the New Shorter Oxford Dictionary as (among other definitions) "lead, persuade, influence (a person)". Another definition is to be found in Butterworths Australian Legal Dictionary under the sub-heading "Criminal Law". The following appears: "A persuasion of temporal or worldly as opposed to moral or religious character aimed at producing some willing action on the part of an accused by a person with authority."
But a statement of the obvious cannot be persuasive or influential. In this context, the observations of Brennan J in Collins v. The Queen (1980) 31 A.L.R. 257 at 309 are pertinent.
His Honour there said:
"Of course, the motive to confess, like the motive for many human actions, may be mixed and if there be a congeries of motives it is necessary to determine whether the confession would not have been made but for pressure placed upon the confessionalist or some fear of prejudice or hope of advantage induced by a person in authority, or whether the making of a confession is really to be accounted for by motives of the confessionalist which are not referable to such pressure, fear or hope. This is a question of fact and of degree to be resolved according to the particular circumstances of the case."
Here Mr Dempsey's motives for making the confession of 5 August 1999 were not referable to pressure, fear or hope emanating from anything the Department said. The source of any pressure, fear or hope existed quite independently of any statement, however emphatically made, to Mr Dempsey by the Department. Accordingly, in my opinion, the argument based upon the proposition that Mr Dempsey was induced by departmental statements cannot be accepted.
The next issue is whether the police induced the confessional statement in question. It is submitted on Mr Dempsey's behalf that they did. His evidence-in-chief on the subject was that after an aggressive exchange with the police at the time of his arrest he called out to his wife not to say anything until a solicitor was contacted. Then at the police station to which they were subsequently taken he spoke to Detective Senior Sergeant Michael Daly. In Mr Dempsey's own words (transcript page 461 line 18): "I asked him where Kathleen was." Question: "Why did you ask him that?" Answer: "Well, I was very concerned for her." Question: "Did he tell you where he was?" Answer: "Yes, he said she was being placed in another room." Question: "Was there any further conversation then?" Answer: "Yes. I said to him look, if youse promise to leave Kathleen alone I will tell youse what you want to hear." Question: "What was your reply to that? What was his reply to you?" Answer: "He said, 'Will it be something different?' and I said, 'Yes, I will tell you something different. I will tell you that I hit him'." Question: "Do you remember the exact words and everything, do you think?" Answer: "Not exactly. That's pretty close. That's about it." Question: "What did he say to you after you'd said that?" Answer: "He said, 'All right, I'll just go and get somebody else' and he left." Question: "And leave you in the room by yourself?" Answer: "Yes." Question: "Did anybody come in then?" Answer: "No. Well, a couple of minutes later, yes, (Detective Senior Constable Andrew Burgess) came in."
Question: "And what transpired between you and Burgess? Was there any conversation?" Answer: "Yes." Question: "Do you remember everything that was said between you?" Answer: "Not everything exactly, but pretty close." Question: "What was said at the start then?" Answer: "He came in and said, 'What's going on?' and I said, 'If youse - look, if youse promise to leave Kathleen out of it I will tell you what you want to hear.'" Question: "Anything else at that stage?" Answer: "He said, 'Well, what are you going to tell us?' and I said, 'Well, I hit him' and he didn't really ask for any more detail than that, as far as I remember." Question: "Without going into the detail of it, was there any further conversation between you and him at that stage?" Answer: "Yes". Question: "Do you remember everything that was said exactly or just that there was a conversation?" Answer: "I don't remember exactly, but what I understood from that conversation was that they might still need to ask her questions and talk to her, but I felt that he had agreed that no charges would be laid and I then went on to talk about the media, that is I was concerned for Kathleen particularly on the media, that if she was released that she would be hassled." Question: "He says that one of the things you said to him was that you asked him to do something about the media to stop them from hassling Kathleen." Answer: "Yes." Question: "What do you mean by that?" Answer: "Well, as far as I was concerned we had made an agreement that if I gave an admission she wouldn't be charged and that she would be released and I was very concerned, particularly because of what happened to us when Bo died, for about three weeks we were on the run and hiding from investigative reporters."
This version of events was put to Messrs Daly and Burgess when they were cross-examined. It was not then suggested to either witness that either had responded with a promise that Kathleen Dempsey would not be charged. By contrast, when Mr Dempsey was cross-examined the following exchange took place. Transcript page 484 line 19. Question: "I just want to be absolutely clear about this. No police officer actually promised you that if you confessed they would not charge your wife?" answer. "Mr Burgess did." question: "when did Mr Burgess promise you that?" answer: "before I gave the interview in the conversation I had with him before that interview." Question: "What exactly did Mr Burgess say?" Answer: "I can't recall exact words but the conversation he came into the room. I said to him please promise to leave Kathleen alone and I'll tell you what you want to hear and he asked me what I did have to say and I said that I will tell you that I hit him and he said to me that they might still have to talk to her and ask her questions, but that he wouldn't charge her, they wouldn't charge her, and I was happy with that."
Mr Burgess made a statement in which his account of the relevant conversations is set out. "He [that is, Mr Dempsey] said, 'Look, I want to tell you something. Leave Kathleen out of it. She had nothing to do with it.' I said, 'That's what we're here to sort out, Brendan.' He said, 'Look, I'll tell you the truth. Kathleen had nothing to do with it, it was me.' I said, 'What do you mean?' He said, 'It was me. I didn't tell her I hit Bo Dylan. It was me.' I said, 'We need to sort this out.' He said, 'I don't want no media. That's why I didn't say before. I was scared. I didn't want it in the news.' I said, 'I can tell you we won't contact the papers, but court is a public place and I can't stop them from being at court.' He said, 'Come on man, I don't want them hassling Kathleen.' I said, 'Brendan, we're going to interview you shortly. It's up to you what you say. I'm only interested in hearing the truth.' He said, 'I'm telling the truth, man.' I said, 'Okay. Stay here. We will get going in a minute.'"
In this version the reference to Mr Dempsey's desire to tell the police something precedes his statement about Kathleen. In Mr Dempsey's evidence the order was reversed. In his version too he asked for a police promise. There is no suggestion of that in Mr Burgess' account.
On the other hand, in cross-examination Mr Burgess moved closer to the Dempsey version of the order in which things were said while denying the use by Mr Dempsey of the word "promise". The following is the relevant passage. Transcript page 236 line 24. Question: "Can I suggest to you that he asked you to leave Kathleen alone and then he admits or will admit to it, to hitting his child?" Answer: "Yes, he certainly asked to leave Kathleen alone and then he does admit hitting the child." Question: "If you promise to leave Kathleen out of it or alone?" Answer: "No, that's not right."
I find that Mr Dempsey did introduce the subject of the confession and that he sought a promise that his wife be left alone in return for his telling the truth. I also find that while the police made no explicit promise not to charge Kathleen Dempsey, neither did they make it clear that their then intention was to do just that even if Mr Dempsey confessed. I do not think that Mr Dempsey thought he had a formal bargain, but I am not prepared to rule out the possibility that he retained a hope, reasonably based upon an implied police promise, that his wife would not be charged. To put it another way, I find that the prosecution has not persuaded me on the balance of probabilities that Mr Dempsey did not believe (to adopt the words of Brennan J in Collins at 310, "That he will or may be better off by speaking" (my emphasis).
Resort to the whole of the relevant passage in a judgement of Brennan J will, I think, make the consequences at common law clear:
"If a confessionalist because of pressure or of inducements of the relevant kind believes that he will or may be better off by speaking (or conversely that a refusal to speak will or may make it worse for him), a confession which is made in that belief is inadmissible."
In Victoria, however, the position is effected by the presence in the Evidence Act 1958 of s.149, a provision dealing with a confession that amounts, as does this confession, to an admission of actual guilt of the crime in question and which was, as was this confession, induced by an (implicit) promise by a person in authority. Where these circumstances pertain, the section is imperative and leaves no room for the exercise of discretion. R v. Lee (1950) 82 C.L.R. 133 at 150. The section is in the following terms:
"No confession which is tendered in evidence shall be rejected on the ground that a promise or threat has been held out to the person confessing unless the judge or other presiding officer is of opinion that the inducement was really calculated to cause an untrue admission of guilt to be made, nor shall any confession which is tendered in evidence be rejected on the ground that it was made or purports to have been made on oath."
The section, of course, contains a proviso. The confession shall not be rejected unless the judge is of opinion that the inducement was really likely to cause an untrue admission of guilt to be made.
I am not of this opinion. In my opinion, there was no likelihood that by their silence in response to Mr Dempsey's offer the police put forward an inducement that was really likely to cause an untrue confession of guilt. It is my opinion that no such likelihood existed.
For these reasons it seems to me that the record of interview of 5 August 1999 is admissible.
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