R v Douglass
[2003] VSC 474
•18 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1431 of 2003
| THE QUEEN |
| v |
| TERRENCE MAIN DOUGLASS |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 NOVEMBER 2003 | |
DATE OF RULING: | 18 NOVEMBER 2003 | |
CASE MAY BE CITED AS: | R v DOUGLASS | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 474 | |
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Ruling – Admissibility – Whether prejudicial effect outweighs probative value of evidence as to feigned disabilities – Fairness and public policy discretions – Whether accused should have been cautioned as a suspect when statements taken from him.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams | Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr S. Srent | Victoria Legal Aid |
HIS HONOUR:
Application is made on behalf of the accused Terrance Douglass for the exclusion of certain portions of the evidence; in some instances on the grounds of relevance, and in others on the basis that the prejudicial effect of the material outweighs its probative value.
Objection has also been taken to the admissibility of statements made by the accused on 14 February and 6 March 2002. The basis of the objection being that the accused was not accorded the legal rights of a suspect.
The first aspect of the evidence to which issue was taken was that relating to surveillance of the accused on various days between 5 and 23 March 2002 in a period subsequent to the alleged killing of the deceased Ms Jenny Hu which was on or shortly after 25 January of that year. Some of the video-recorded material relates to the accused walking with a walking frame and looking around continually while doing so, and observations of him using a mobile phone, and at one stage a pay phone. On occasions the accused is depicted walking without the aid of a frame. The most important observations are of the accused driving a car, PUX-775, that he claimed was hired and driven by the deceased. It is entered and driven by him from a Safeway carpark in Glenhuntly on 7 March 2002. This evidence would clearly be relevant to the false claim earlier made by the accused about the deceased having control of the vehicle. Evidence of its location on 8 March outside Abbey Car Rentals from where it was hired would also have some relevance.
What is objected to by the defence is the surveillance tape showing the accused continually looking around before approaching the vehicle in the Safeway carpark on 7 March. It was put that such evidence could not constitute any consciousness of guilt. On the assumption that the accused was posing as blind and disabled and hence needed to be cautious lest his subdefuge was detected by the relevant authorities, his activities in the carpark were equivocal. I agree with that submission.
What is important and may be described without resort to the surveillance tape is the entry and driving away of the car by the accused, whilst a similar description could conveniently be given of the time, date and circumstances of the subsequent location of the car outside the premises of the hirer. The balance of the surveillance tapes, particularly given that they were recorded some six weeks after the death of the deceased, are prima facie irrelevant. They could become forensically relevant if the accused were to allege that visual and physical infirmities precluded him from participating in this killing. Otherwise they are irrelevant and prejudicial and therefore inadmissible.
Objection was next taken to three statements made by Asian women who had been subjected to the accused's attentions variously via e-mail, telephone and in person. The statements contain ample evidence of his predatory technique, posing, (inter alia), as a surgeon, neurologist or cardiologist in order to win their sexual favours. Two of these encounters were well after the death of Ms Hu and the other during a period when she was absent in China. It was put by the Crown that this highly prejudicial material which profiles the accused as a sleaze bag is relevant to motiv. It was argued that the jury could draw the inference that the accused wished to get rid of Jenny Hu because of his desire to sample other women. It is sufficient to say that the material goes nowhere near providing such a tenable motive. Accordingly, the statements, which are ultimately purely prejudicial, are excluded.
A series of telephone intercepts was also the subject of argument. It was conceded by the Crown that the bulk of these were irrelevant and I do not need to set out their contents. Ultimately the Crown persisted with only two calls, numbers 461 and 759. In the first, recorded on 12 April 2002, almost three months after the death of Ms Hu, the accused, who had shortly before been the subject of self-induced harassment by phone calls from Asian women whom he had targeted, states he is unaware of the whereabouts of Jenny and that Terry has gone overseas. This is after the caller does not identify herself despite five requests by the accused that she do so. There was no specific evidence that the accused knew the caller and in the circumstances, his responses, even if regarded as being capable of constituting lies, are too flimsy to evince any consciousness of guilt. Accordingly, that telephone intercept is excluded.
As for intercept 759, the major objection to it relates to the passage where the accused admits he is not a doctor. The Crown does not press that portion of the conversation and, with it excised,the balance of the conversation is admissible.
It was further submitted by the defence that the body of evidence as to the visual and physical capacities of the accused given by neighbours, and to some extent by the carers engaged to look after him, was highly prejudicial. It was put that to reveal him as a con man would be extremely damaging in a circumstantial evidence case and would, in effect, rob him of a fair trial.
The contrary view advanced by the Crown was that the presence of carers at the accused's house on a daily basis would not make sense in the absence of evidence about the accused's purported disabilities. Their evidence would be given in an artificial vacuum and in a situation of unreality if this material were excluded. Any prejudice could be remedied, submitted the Crown, by appropriate directions to the jury.
I agree with that submission. The accused continues to present in this court as a visually and physically disabled person. No concession is made that, in January 2002, he could see what he was doing and that he was not otherwise physically disabled. Even were that concession to be made, there is the need to sensibly explain the purpose of the carers and to rebut the impression that the accused chooses to give in this courtroom. This does not require any inflammatory statements of opinion or detailed descriptions as to his capacities. Ultimately the facts speak for themselves. It is a matter for the defence if they wish to forensically moderate their effect in the trial. In this regard assistance will be provided by a judicial direction on this topic.
The final matter for consideration was the admissibility of the accused's statements made on 14 February and 6 March to police officer Sergeant Kenneth Douglas. The statements contained admissions in the sense of false denials. It was submitted that at the time each statement was taken the accused was a suspect for this murder, or ought reasonably have been so suspected. As I understand the submission, the failure to caution the accused at that stage should attract the operation of the fairness or public policy discretions resulting in the exclusion of the statements. The issue as to whether exclusion could occur pursuant to the provisions of s.464H of the Crimes Act 1958 was not specifically argued. But any possible attraction of its provisions must, in any event, depend on the answer to the same threshold question as to whether the accused should have been regarded and treated as a suspect.
Evidence was given on a voir dire by Sergeant Douglas that his role in the investigation commenced on 5 February. Jenny Hu had been reported missing on 1 February 2002 by her employers, Super-partners, she having failed to appear at their City office after the Australia Day long weekend. In early February Ms Hu's relatives in Shanghai, China, had faxed the Victoria Police expressing concerns about her situation. It appeared that her failure to arrive at work and her failure to contact her family was out of character. It is not precisely clear as to the timing of enquiries made by Sergeant Douglas, but he checked airline movements and the deceased's bank accounts, the latter based on information supplied by her employer. Those particular accounts had not been accessed, nor had Ms Hu's mobile phone been utilised.
Sergeant Douglas visited the accused's home where he had resided with Ms Hu on 8 February. He obtained a statement from the accused on that date, but the accused would not sign it because he claimed he could not read the police officer's writing. Nonetheless, he was co-operative and handed over a personal organiser which he said belonged to Ms Hu. Amongst the enquiries pursued in the following days were meetings with various medical practitioners of the deceased when it was indicated that it had been thought that she may have been suffering from multiple sclerosis. The witness was also seeking information about the possible suicide of Ms Hu and, to this end, was seeking any medical evidence of depression. This did not emerge.
Sergeant Douglas was also aware that the deceased was intending to move out of the accused's residence into a flat of her own, although she had not commenced looking for such a flat as at 25 January. Although the family regarded Ms Hu's failure to contact them for the Chinese New Year on 12 February as unusual that did not, in itself, raise the spectre of foul play. Indeed, the witness expressed the view that the deceased had been lying to her family about her relationship with the accused.
A statement was ultimately taken on 14 February and the read back was recorded. Because of problems with the accused's printer that statement had to be later reprinted from the computer disk and was ultimately signed as true and correct by the accused on 15 February. On 14 February the accused handed police a desk diary which was said to belong to the deceased and a photo was also handed over to assist with publicity.
In my view the situation at the time of 14 February interview was that foul play had not even been established, let alone the accused's involvement in the death in Ms Hu. The investigative actions of Sergeant Douglas are all consistent with his assertion that at this stage there was no suspect and that he had an open mind as to the fate of Ms Hu. In the course of cross-examination numerous further investigative steps taken by Sergeant Douglas were canvassed. These included establishing that the deceased's Met ticket had last been used at about 5.15 p.m. to go through Parliament station on the Friday of the Australia Day weekend.
On 27 February the investigator sought the assistance of the Homicide missing persons unit. A visit to the accused's unit on 28 February resulted in his offering to provide an authority for the inspection of his medical records. Subsequently Sergeant Douglas followed up names and numbers in the deceased's diary which had to be translated. None of this points to the accused as a specific suspect.
What next occurred was a surveillance operation designed, according to the witness, to ascertain whether the accused had the physical capacity to do anything to the deceased. This followed an earlier conversation Sergeant Douglas had with a carer, Judy Prescott, in which she expressed her scepticism about the extent of the accused's disabilities. It is significant that no listening device warrant was sought at this stage, the explanation being a lack of evidence firstly that an offence had been committed and, secondly, that the accused was a suspect. Sergeant Douglas reiterated his belief that at this stage the possibility of suicide was high, predicated upon the deceased's shame at her realistiaon that she was not going to marry a successful doctor, and the possibility, in her mind, that she may have had multiple sclerosis.
At one point, (which is indeterminate), the witness investigated a possible sighting of the deceased at Wheelers Hill. Again, this is consistent with an ongoing investigation.
The second statement which is a follow-up on the first was taken on 6 March prior to the discovery of the motor car claimed by the accused to have been taken by the deceased when she left his premises. The fact that it was learned at an earlier time, (19 February), that the accused had hired the car, (assuming this was known to Sergeant Douglas), is but one matter in the large number that I have detailed. Once the accused was found to still be in possession of the car on 7 March his status may well have changed. However, at the time of 6 March statement, as with the statement of 14 February, he was not a suspect as that term is understood in the cases. (See, for example, R v. Heaney [1992] 2 V.R. 531). Accordingly, the answer to the threshold question is that the accused was not a suspect requiring a caution at the time the two statements were taken and both of them are admissible in evidence in this trial.
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