R v Dunlop
[2016] VSC 676
•9 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0064
| THE QUEEN | |
| v | |
| GAYLE DUNLOP | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 November 2016 |
DATE OF RULING: | 9 November 2016 |
CASE MAY BE CITED AS: | R v Dunlop |
MEDIUM NEUTRAL CITATION: | [2016] VSC 676 |
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CRIMINAL LAW – Ruling – Crimes Act 1958 ss 464C and 464H – Caution and rights of the accused not properly administered or incomplete – Evidence Act 2008 ss 138 and 139 – Evidence Act 2008 ss 90 and 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Dr N Rogers QC | Office of Public Prosecutions |
| For the Accused | Mr S Gardner | James Dowsley & Associates |
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HIS HONOUR
Gayle Dunlop is charged with the murder of John Reid on 18 July 2015 at Seaford.
The deceased was the de facto partner of the accused woman and, on that day, the Crown case is that the pair engaged in a heated argument during which the accused struck the deceased to the back of the head with a footstool which caused his death. The accused then called triple-0 and reported having found the deceased on the floor bleeding after a fall. The accused was given certain instructions during the triple-0 phone call including the administration of cardiopulmonary resuscitation and could be heard saying certain things which the Crown propose to rely on as evidence of an implied admission in support of their case that the accused murdered the deceased.
The accused agrees that she struck the deceased with a timber footstool, although the number of blows and the physical location of she and the deceased at the time those blows were struck is in issue. She also asserts that at the time she struck the deceased she was acting in self-defence and there will likewise be an issue as to whether or not the prosecution can prove beyond reasonable doubt that the accused had a murderous intent.
As a pre-trial issue, a question has arisen as to the admissibility of several conversations had with the police in the early stages of their investigation in the matter.
In relation to one of those conversations, which I might refer to as the conversation with Detective Hough, I have already indicated to counsel that as a result of the unexplained non-compliance by police, and by Mr Hough in particular, with s 464C of the Crimes Act 1958 in relation to the accused’s request when told of her rights to make contact with her sister, the resulting conversation would be excluded.
The caution was in the following terms:
You are under arrest for the assault on John Reid. I must inform you that you do not have to say or do anything but anything you say or do may be given in evidence, do you understand that?---Yes.
I must also inform you of the following rights. You have the right to communicate with or attempt to communicate with a friend or relative, to inform that person of your whereabouts. You have the right to communicate with or attempt to communicate with a legal practitioner. If you are not a citizen or permanent resident of Australia you have a right to communicate with or attempt to communicate with a consular office of the country of which you are a citizen, do you understand these rights? ---Yes.
Do you wish to exercise any of these rights?---Yes, I would like to speak with my sister.
Can you tell me what happened to John?..
The reason that the conversation that the accused then had with Mr Hough was excluded was because in administering that caution she sought to exercise a right which appears to have simply been ignored for reasons that the police are unable to explain.
The police accept that such a request was made and are unable to explain why it was not acted on. When pressed, Ms Rogers QC, on behalf of the prosecution, did not seem to press the admission of that evidence.
However, there are two other conversations upon which I must rule.
The first of those conversations relates to the police officer Sergeant Foster. In his statement contained in the depositions,[1] Sergeant Foster said that he went to the scene of this incident in Broughton Street, Seaford at 11.30pm on Saturday 18 July 2015. He said he spoke with the accused and asked her for her name, address and date of birth and informed her that he was going to conduct a brief search of the premises. During that time, he said he asked Senior Constable Williams if the accused had been cautioned. He stated that she had, and he then had a further conversation with the accused informing her that the unit in which she lived was now a crime scene. The following then appears in his statement:
I then had a further conversation with her over the night’s incident. She stated that she and the victim had had an argument over him contacting another female known as Lynn. The accused stated that the victim then had his medication, which normally makes him drowsy. The accused stated that the argument made her angry but she went to bed.
She then stated that she returned a short time later to get a drink and located the victim slumped over the couch with an injury to his head. She did not know how it happened and stated there was no one else in the unit at the time. She then called the ambulance.
The accused would start to talk to police but would then start speaking about another subject. It was difficult to get her to concentrate on the questions and it was possible she was alcohol affected as there were empty cans in the bin.
[1]At p 496.
In his evidence during the voir dire before me, the witness also gave some evidence about the state of sobriety of the accused and said:
I would say that she’d had – she definitely wasn’t drunk and I would say that she understood what was happening and knew why we were there and was happy to answer all questions. The indicators were that the bins were full of empty cans and bottles. I didn’t actually see her actually drinking at all before – well, while I was there. There was no open bottles or anything like that but I believe she had been drinking that day.
In cross-examination, the witness agreed that he did not hear the accused being cautioned by Williams although later, when reminded of the caution administered by Mr Hough, he said he heard that caution and the explanation of the rights of the accused but by then he had already had the impugned conversation with her.
The caution administered by Senior Constable Williams before Sergeant Foster spoke to the accused and which Foster did not hear was as follows:
Gayle you are under arrest for intentionally causing injury. Before continuing I must inform you that you do not have to say or do anything but anything you say or do may be given in evidence. Do you understand that?
The accused said “yes”. Williams then said:
Do you wish to exercise any of these rights?
The accused said “no”.
It is common ground that the caution was incomplete because s 464C of the Crimes Act 1958 was not complied with. S 464C is in the following terms:
464C Right to communicate with friend, relative and legal practitioner
(1)Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she—
(a)may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and
…
The section then goes on to indicate that unless the investigating official believes that such a communication would result in the escape of an accomplice or the fabrication of evidence or the questioning is so urgent that it should not be delayed,:
…
the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.
Sub-section (2) goes on to require that facilities must be offered to enable that to occur.
The authorities seem to indicate that non-compliance with this section by police does not automatically mean that the resulting conversation must be excluded.[2] However, in this case the responses are of some consequence. The prosecutor wishes to rely on what the accused said as an implied admission and, I assume, as some evidence of motive that the accused may have had to kill the deceased. As I understand the position of the prosecutor, she accepts that caution was incomplete. In her submission the most important aspect of the caution, that is that she doesn't have to speak if she doesn't want to, had been recited.
[2]R v Shaw (1991) 57 A Crim R 425
In my opinion, in the exercise of that discretion I should exclude that part of Sergeant Foster’s evidence.
The next piece of evidence which is sought to be excluded on behalf of the accused is the conversation that the accused had with Messrs Vandermeer and Magno-Thornton, two members of the police force who first attended at her unit. That occurred in the following circumstances. Senior Constable Vandermeer and Constable Magno-Thornton were operating a divisional van on the evening of Saturday 18 July. At 9.28pm, they received an instruction to attend at the unit of the accused. They arrived at the address and were admitted to the premises by the accused. Mr Vandermeer said he had the following conversation with her:
Hello, I am Peter Vandermeer from the Frankston Police Station, did you call 000 in relation to a male having injured himself?—Yes, I did, but he’s already gone to hospital with the ambulance.
Can you show me where he fell?
The accused then showed the police to her kitchenette and indicated that the incident had happened near a couch. Mr Vandermeer saw that there were blood stains on the floor and said to her:
Can you tell me what happened?---We had been drinking together and I’d gone to bed. I woke up after being in bed for an hour and found him lying on the ground.
The accused then pointed to a blood stain on the carpet. She then said:
He was on the floor and bleeding from the head, he must have fallen over. I called 000.
Mr Vandermeer then took some photographs of some blood stains and, while that was occurring, the accused said:
We had been drinking and he was on the phone so I went to bed. When I woke up I found him.
Did you provide him with any assistance?---Yes, I was told by 000 to put a clean towel against the wound, I used a tea towel, as she pointed to the towel on the ground.
She then said:
Why have the police been called for this?
The police officer said:
Whenever an ambulance is called to a job where it is possibly a domestic dispute, the police are notified.
The accused then complained that the police were not notified in relation to another incident where she was injured some time previously.
In the opinion of Mr Vandermeer, the accused was drunk and becoming argumentative. Shortly after that conversation, Vandermeer and Magno-Thornton left the unit and went to the hospital.
The first complaint made about this part of the evidence is that the accused was not cautioned by either police officer before that conversation was held. Reliance is therefore placed on s 139 of the Evidence Act and in particular on the basis that the accused was a person who was under arrest, being someone who was in the company of an investigating official for the purpose of being questioned. If the official believes there is sufficient evidence to establish that the person has committed an offence that is to be the subject of questioning, or the official would not allow the person to leave if the person wished to do so, or the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.
In my opinion, neither police officer believed at that stage there was sufficient evidence to establish that the accused had committed an offence, which was to be then the subject of the questioning. At that stage the accused was not a suspect and was is no sense in custody or quasi-custody. That situation developed sometime later as I have already indicated. In this early stage, the two police officers were simply there for the purpose of establishing what occurred. The most cogent evidence of their state of mind so far as the accused was concerned was that after the conversation with her was completed, both officers left her premises and went to the hospital where the deceased man had been taken. No police officer remained with the accused as would have occurred if she was a suspect and in police custody. Mr Magno-Thornton said in the course of his evidence, then someone would have remained with her if she was effectively under arrest. She clearly was not.
Therefore, in my view, this evidence was not illegally or improperly obtained within the meaning of s 138 of the Evidence Act.
Next, on behalf of the accused, Mr Gardiner relies on the provisions of s 90 of the Evidence Act, which provides:
Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to the defendant to use the evidence.
The essential basis for the submission that s 90 should be invoked to exclude this evidence is because the accused was intoxicated. Mr Vandermeer did say in the course of his evidence that the accused appeared extremely alcohol-affected, and he made a note accordingly. As I earlier indicated, Sergeant Foster indicated when he saw her some time later that the accused was not drunk, although he realised she had been drinking alcohol and was so affected. He said she was not slurring her words and, in his view, she was aware of what was happening around her.
Mr Magno-Thornton, in his evidence, did not describe the accused as being intoxicated.
There was no other evidence about her state of intoxication and the accused herself did not give evidence on the voir dire before me.
There is no contention between the parties that what the accused said to Messrs Vandermeer and Magno-Thornton was an admission within the meaning of s 90 of the Evidence Act. The submission effectively is that having regard to the circumstances in which the admission was made it would be unfair to use the evidence. The circumstances refer to the state of sobriety of the accused. There is no argument that the accused had been drinking. She said so, but gave coherent answers to the questions she was asked. It would have been apparent to her from the conversation that at that stage she was not a suspect. I am unable to see any unfairness in admitting the conversation she had with Vandermeer and Magno-Thornton on the basis of an application of s 90 of the Evidence Act.
Mr Gardiner also relied on s 137 of the Evidence Act. His primary submission in relation to that was that if all of the statements made by the accused to police at the scene were admitted there would be a significant prejudice generated by the repetition of such evidence which, in any event, already arises from what the accused said on the recording of the triple-0 phone call and what she told the ambulance officers. In relation to the three impugned parts of the evidence, I have excluded two of them and the repetition on which he relies will not occur. In any event such consequences, if they are likely, are amenable to judicial direction.
This trial is to be conducted on the basis that what is in issue is whether or not the accused was acting in self-defence and whether or not the prosecution can establish that she intended to kill the deceased or cause him really serious injury. It does seem to me that lies told by her at this stage to police officers, albeit that they were not investigating and she was not a suspect, are capable of amounting to implied admissions contrary to those defences.
I therefore propose to admit the evidence of Messrs Vandermeer and Magno-Thornton as to the conversations they had with the accused when they first visited her unit in Broughton Avenue, Seaford.
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