R v Dunn
[2007] SASC 132
•17 April 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v DUNN
[2007] SASC 132
Reasons for Ruling of The Honourable Justice Nyland
17 April 2007
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE
Accused charged with murder - application to exclude various records of interview - whether accused adequately cautioned - whether questioning was inappropriate and oppressive - whether accused appropriately advised of right to legal representation - whether s74D of the Summary Offences Act complied with - whether statements voluntary - held: interviews dated 02/03/2004 and 24/03/2004 excluded.
Summary Offences Act 1953 s 74D, s 74E, referred to.
Van der Meer v The Queen (1988) 82 ALR, applied.
R v Lobban (2001) 77 SASR 24; R v Swaffield (1998) 192 CLR 159, considered.
R v DUNN
[2007] SASC 132Ruling on voir dire:
The accused is charged with the murder of Graham Wilks at Davoren Park on 3 December 2003. At the relevant time the accused and Wilks were residing together in a de facto relationship. The accused pleaded not guilty to the charge against her but on 12 March 2005 a jury returned a verdict of guilty. The accused appealed against that conviction and on 5 March 2006 the appeal was allowed and the Court of Criminal Appeal ordered a re-trial.
Rule 9 Notice
The accused was re-arraigned before me on 13 February 2007 at which time Ms Chapman, who appeared on her behalf, applied for a hearing on the voir dire. The matters which are the subject of that application are set out in the Rule 9 Notice as follows:
ORDERS SOUGHT
1.That evidence of the following interviews between the applicant and Detective McEachern be excluded:
(i) interview dated 6 December 2003
(ii) interview dated 2 March 2004
(iii) interview dated 24 March 2004
(iv) interview dated 21 April 2004.
[Statement of McEachern dated 27 July 2004
Voir dire transcript – pp 11 - 496]
PARTICULARS
(i) No caution was given. The evidence should be excluded in the exercise of the discretion.
(ii) (a) The caution was inadequate.
(b)The nature of the questioning was such that the evidence should be excluded in the exercise of the discretion for unfairness or alternatively, that the evidence is more prejudicial than probative.
(iii) (a) The caution was inadequate.
(b)The evidence should be excluded in the exercise of the discretion for unfairness or alternatively, that the evidence is more prejudicial than probative.
(iv) The applicant declined to answer questions. The evidence is not relevant.
2.That evidence that the applicant made a false allegation of criminal behaviour against Greg Havey be excluded.
[Submissions at previous trial: transcript from p723;
see “Prosecutions Outline of Argument re: Allegations about Greg Havey” dated 15 July 2005 for proposed evidence to be led;
Statements of Erin Vanderwoude dated 28/1/04, 20/7/05; Statement of Mark Atkinson dated 1/7/05]
PARTICULARS:
The evidence is irrelevant or alternatively, it is more prejudicial than probative.
3.That evidence of the location of pieces of papers with signatures of “G Wilks” in the rubbish bin at 14 Westbury Street on 17 December 2003 be excluded.
[Trial transcript – McEachern at p585;
Statement of McEachern dated 30 August 2004 – papers labelled MRM20;
Statement of Rodda dated 20 August 2004]
PARTICULARS:
The evidence is irrelevant.
4.That evidence of the accused’s prior violent behaviour be excluded.
[Statement of Ronald Irwin (senior) dated 28 July 2004;
statement of John McGinnis dated 3/8/04]
PARTICULARS:
The evidence is irrelevant or alternatively, it is more prejudicial than probative.
At the conclusion of argument on the voir dire I upheld the application by the defence with respect to paragraphs 2, 3 and 4 of the application, but reserved my decision with respect to the orders sought in para 1, which is concerned with the exclusion of evidence of a number of interviews conducted between the accused and Detective McEachern. The application to exclude the interview of 21 April 2004 was not pursued by the accused.
The only witness to give evidence on the voir dire was Detective McEachern. By agreement, Mr Heffernan, who appeared as counsel for the Director of Public Prosecutions called Detective McEachern to give evidence as to his dealings with the accused and he was thereafter made available for cross-examination by Ms Chapman.
Exhibits
For the purposes of the voir dire, the following exhibits were tendered in evidence:
VDP1Transcript pp 11 to 96 of the evidence of Detective Pengilly, given on the voir dire at the first trial.
VDP2Transcript pp 112 to 127 of Detective Fielder, given on the voir dire at the first trial.
VDP3Transcript pp 436 to 461 of Detective Poppy, given on the voir dire at the first trial.
VDP4Transcript pp 469 to 496 of Detective Liebelt, given on the voir dire at the first trial.
VDP5Transcript pp 146 to 223 and 235 to 318 of Detective McEachern.
VDP6The video of the interview conducted with the accused on 3 December 2003.
VDP6aAn unedited transcript of the interview of 3 December 2003.
VDP6bAn edited version of the transcript of the interview of 3 December 2003.
The interview of 6 December 2003
Graham Wilks was assaulted on 3 December 2003. He subsequently died from injuries received in the assault, on 12 December 2003. The accused was interviewed by Detective Pengilly on the evening of 3 December 2003. The accused was not then a suspect, but was nevertheless cautioned by Detective Pengilly on three separate occasions in the course of the interview, that she was not obliged to answer questions but she was told that anything she said could be later used in evidence. The accused was again interviewed by police on 6 December 2003. On this occasion the interview was conducted by Detective McEachern, who had recently been seconded to the team conducting the investigation into Graham Wilks’ death. He later became the lead investigator.
The accused was not cautioned during this interview but I accept Detective McEachern’s evidence that the accused was then not a suspect. McEachern was also aware that Pengilly had cautioned the accused just a few days before. I am satisfied that at the time of the interview on 6 December 2003 the police were still gathering information. It was only a few days since the assault had occurred which later resulted in Wilks’ death, and there were a large number of matters which required further investigation by the police.
Accordingly, I consider that there was no need for a caution to have been administered at the time of this particular interview, as the investigation had not moved to the accusatory stage. Further, the accused appeared willing to answer the questions put to her by the police and to assist them with their enquiries.
I am satisfied that the statements made by the accused in this interview were voluntary and they are therefore admissible and I do not consider that there is any basis to exclude them on the grounds of unfairness. The prosecution is therefore permitted to lead evidence of that interview at the trial.
The interview of 2 March 2004
Subsequent to 6 December 2003 police enquiries continued, in the course of which police obtained information from a number of people. This included what appeared to be lies told by the accused as to her movements on the day of the assault, as well as statements alleged to have been made by her that she had drugged Wilks’ sandwich and that she had hit him with a brick in her handbag in order to kill him. A subsequent toxicology report indicated that there were high therapeutic levels of Temazepan, a sleeping drug, in Wilks’ blood at the time of his death. These were clearly significant developments in the investigation into Wilks’ death.
On 15 January 2004 Detective McEachern compiled a document entitled “Julie Dunn Lies”. This covered about 16 topics about which he considered the accused had not told the truth. This is clearly the point at which the accused was considered to be a firm suspect by the police.
In due course police decided to install a listening device in premises at 8 Cockshell Street, Davoren Park, where the accused was then residing with a man called Greg Havey. The accused, in her earlier interviews, had in fact suggested that Havey, who was an ex boyfriend or alternatively one of his associates, had been responsible for the assault on Wilks. After a search of the premises and in part due to the need for the premises to be vacant in order to install the listening device, Havey and the accused were separately transported to the Elizabeth Police Station, where a further interview took place between 9.11 pm and 11.42 pm. The transcript of this interview in its original form occupied about 88 pages.
At the commencement of the interview, Detective McEachern explained to the accused that she was not under arrest but said that he wished to ask her some further questions in relation to the bashing of Graham Wilks. The interview then continued:
Q.… You’re not obliged to answer these questions and anything you do say will be recorded on videotape and can be given in evidence later on.
Q.Yes, I know.
Q.Do you understand that.
A.Yes, I do.
Q.Are you happy to answer questions.
A.What I can remember, yeah.
Q.Okay.
A.‘Cos I’ve had a lot going on since then so –
Q.Yes, and it’s nearly, nearly two months ago isn’t it.
Q.Yeah, I’ve had a lot of family issues in WA I’ve got to deal with and I’ve just –
Q.All right.
A.I’ve had a breakdown, the doctor told me I had a breakdown, so -
Q.Okay, now I spoke to you on the 6th of December 2003 at the Elizabeth Police Station. Do you agree with that.
A. Yeah.
Q. Okay. Since that time have you had any legal advice at all in relation to it.
A. No.
Q. All right. Are you - Do you wish legal advice or are you happy to proceed.
A. Legal advice for what?
Q. Oh, in relation to the questions that I’m going to ask you.
A. Depending on the questions.
Q. All right. So you’ll make up your mind as we go.
A. Yes.
Q. Okay. So the option’s there.
A. Yeah.
McEachern then told the accused that he wanted to run through with her what had happened on Wednesday, 3 December at 14 Westbury Street, Davoren Park. He thereafter covered a range of topics which included whether the accused had been out shopping with her son’s de facto, Tracey, the clothes that she was wearing, whether Wilks had been cranky that day, what he had had for lunch, whether she had bought cannabis, whether she had answered the phone to Wilks’ brother Bill, what was said in the triple 0 call, whether she had touched Wilks, previous contact by Wilks towards her, whether she had placed sleeping tablets in the curried egg sandwiches and whether she had made a statement about putting a brick in her handbag and bashing Wilks over the head. She was also asked questions about a weapon, statements she had made relating to Greg Havey, arguments with Wilks about milk and tobacco, her conduct subsequent to 3 December, as well as what she had said in previous interviews.
McEachern then said to the accused (at p 8):
Q.All right. Well we’ve since spoken to Tracey Goodrick at length and she’s admitted that that was a lie. In fact she’s told us as well that you both went out in the morning, shopping, and she’s since told us that that is a lie, that you didn’t go out at all that morning, and that you asked her to lie for you.
A.No.
Q.What do you say to that.
A.I didn’t lie to her and I haven’t, didn’t lie to you either, so –
Q.Why would she say that.
A.I don’t know but Tracey and Ronnie are compulsive liars so I wouldn’t know.
Q.All right.
A.And I know my son is a liar, so – And Tracey has told her mother quite a few whoppers as well and she’s been caught out.
Q.So why would they lie about that.
A.I wouldn’t know.
Q.What possible reason would they have to lie?
At pp 10 and 11:
Q.Right, okay. So did you have the yellow tank top on at all that day.
A.No.
Q.Well why has someone said that you did have.
A.I wouldn’t have a clue but I didn’t have a yellow tank top on that day.
Q.How can you be sure of that when your memory’s so bad.
A.‘Cos the yellow tank top wasn’t in the washing basket when you asked what clothes I had on.
Q.How do you remember that.
A.‘Cos someone was looking for the washing basket and asked me for what clothes I had on and I had my orange dress on and I said I had my jeans and a maroony top which were in the washing basket.
Q.Yes. So it’s all flooding back now isn’t it?
A.Not all of it, no, but I can remember that.
Q.All right. So you don’t remember saying that yourself, Tracey and Melanie drove to Munno Para Shopping Centre in the morning, to the police.
A.No.
Q.I don’t understand how you can remember that.
A.Because I can’t remember going out. Honestly, I can’t remember going out.
Q.All right. I don’t believe you. I think you’re lying about that, Julie.
At p 15:
Q.Because I think you’re lying about your whereabouts on the morning, Julie, and you’re getting yourself confused as to what you’ve said and –
At p 16:
Q.So why have you said that on two occasions, two separate interviews.
A.I don’t know.
Q.You were lying.
A.What, back then?
Q.Yes. I’ve spoken to Tracey, I’ve spoken to Ronnie at length. You were lying on those occasions where you, where you said you’d been and you asked them to lie for you.
A.No, I didn’t ask no kids to lie for me and the kids knew I was home, so –
Q.All right. Well I believe that you have, Julie, okay, and so far I’m not very satisfied with the explanation that you’re giving us about your movements on that morning.
…
Q.All right. So, so just run, just tell me again why, why you, well I say lied, on the first two occasions about where you were in the morning. Why did you give those versions.
At p 18:
Q.Again, I believe that you’re lying.
At p 19:
Q.So are you saying that you lied about what you did that day. Well I believe you did. Are you admitting to that lie.
A.No. If I did it was unintentional.
Q.Well how can you can unintentionally lie. And how can you be mistaken when you’re being interviewed on what you did that day. How do you explain that?
A.Don’t know.
…
Q.Well I put it to you that you were lying, Julie. What do you say to that?
A.No
Q.But you can’t offer any other explanation.
A.No.
At p 22:
Q.Yeah, but I, I think you’re trying to give this version as, as occurring then, but Smith has told us his version of it and it’s different to yours, you weren’t there.
A.No, ‘cos I was sitting with Mel and I could hear Graham and Richard turned around and said ‘Is that Graham yelling?’ I went ‘Yeah, probably, he’s working on the motor out the back’.
Q.Yeah. So I, I think that’s a lie, Julie, and that’s occurred after you’ve left.
A.Graham and I didn’t yell at each other, we weren’t fighting, we weren’t doing anything. Graham and I never fought, or he never raised his voice at me.
Q.Mm. So why has Smith said that.
A.I don’t know, but it wasn’t me he was yelling at.
At p 26:
Q.Well of course it was important because we’re trying to trace everybody’s movements, particular yours, on that day.
A.Mm.
Q.And you’ve lied about it. Why.
A.Don’t know.
Q.But there’s got to be an explanation as to why.
A.I can’t give you an explanation why but I know I needed time out so -
(at Page 29):
Q.I would say it was because it’s a lie, that you didn’t go there at all. Again you’ve asked Goodrick and Ronnie to lie. They did but they’ve since told us the truth about what happened that day and that included you asking them to lie for them, or you asking them to lie for you.
A.I never asked the kids to lie for me at all.
Q.Well I think you have. In fact I know you have ‘cos I’ve been told by several people. So are you going to tell us the truth about what happened that day.
A.That is the truth of what happened, not what I told – What I’m telling you now is what happened.
Q.Why then did you lie? They’re clearly lies, you can’t make that many mistakes. Why did you lie on the day?
A.I don’t know.
Q.And three days later.
A.I don’t know.
Q.You can’t tell me you weren’t aware that you were lying. Yes or no.
A.No.
At p 30:
Q.No, it’s at 2.03 pm you answer the phone and Bill Wilks is calling and you hand the phone to Graham. How do you explain that, Julie.
A.I didn’t answer the phone.
Q.I’m saying that you did answer the phone.
A.No.
At p 31:
A.I answered the phone at lunch time when it rang.
At p 32 on the topic of buying cannabis:
Q.Well I think that’s another lie, Julie.
…
Q.Well there’s a lot of things you haven’t thought of isn’t there, there’s a lot of lies you’ve told, Julie. And why would you lie if you’ve got nothing to hide.
A.I haven’t got anything to hide.
Q.I think you have. …
At p 36:
Q.Did you – Have you ever said to anyone that Graham used to, to bash you.
A.No.
Q.All right. Why has someone given us a statement to that effect?
A.I don’t know but that is not –
Q.You, in the days leading up to the bashing, spoke of Graham belting you.
A.No, yeah, Graham’s never laid a hand on me in the six months that we were together, not once did he ever hit me.
Q.All right. Why have you said that to someone.
A.I haven’t said that (to) anybody.
Q.Why would the person lie?
At p 37:
Q.All right. Because we have several signed statements, Julie, that say that you spoke of placing sleeping tablets in the curried egg sandwiches of Graham’s.
…
Q.So why have people signed statements to us to that effect.
…
Q.No we’ve got you, oh we say overtly lying as to what you did that day.
A.I don’t take sleeping tablets, so no.
Q.Well that’s another issue which I’ll get to shortly. We’ve got people saying on the day he was bashed, in fact hours before he was bashed, that you spoke of placing sleeping tablets, crushed up, in his curried egg sandwiches.
At p 38:
A.No, I never said anything like that.
Q.Well we have several people saying that you did, Julie. Can you comment on that or give us any explanation as to why.
A.No, because it never happened.
Q.Well I believe that it did happen.
A.No, it didn’t.
Q.And it’s yet another lie that you’re telling us.
At p 40:
Q.… I believe that you did crush this Temazepan up and that’s why there’s a high level of Temazepan in Graham’s blood, okay. You’ve spoken about it within two hours of him being bashed. It’s my belief that you have crushed the - crushed the tablets up, placed them in the sandwich and he’s eaten them.
A.No, I didn’t.
Q.And that you’ve gone out at some period of time to let him relax, go and lie down, have a sleep. What do you say to that.
A.No, I didn’t do that.
Q.All right, and you can’t explain why people have told us that you’ve made those statements.
A.No. I never said anything like that on the day.
At p 42:
Q.It’s been, it’s been told to us by witnesses that you stated you would like to put a brick in a handbag and bash Graham over the head.
A.I don’t think so. No way.
Q.And that was said either on the day he was bashed or the days leading up to that.
A.No. No way.
Q.Again, why would someone tell us that, Julie?
A.I don’t know. Unless I’ve ticked somebody off or they’ve got something against me, there’s no way I’d hurt Graham, no.
Q.There’s so many discrepancies in your whole story and, and nothing coincides with anything else you’re saying.
…
Q.Well his brother’s saying that he sounded drugged, okay, and you’re there with him. So how do you explain that.
A.I don’t know.
Q.You can’t.
A.But I wasn’t there with him.
Q.Well you were.
A.No, I wasn’t.
Q.Well I say you were and so does he.
At p 43:
A.No, I didn’t hit Graham.
Q.I believe that you have.
Well I didn’t.
Q.I’ve interviewed Ronnie on a number of occasions in relation to this and he’s, he’s told us that you admitted hitting Graham to him.
A.No.
Q.And he, and it’s been said that you did this –
A.No.
Q.Because Graham tried to strangle you.
A.No.
Q.Well why would he say that.
A.I don’t know. I really don’t know my son anymore. All I know that he is a damned good liar.
Q.But why would he lie.
A.Don’t know.
At p 47:
Q.Well I think that’s a lie, Julie. I think it’s absolutely ridiculous what you’re saying.
At p 52:
Q.‘Cos that’s when Ronnie said it was, was on the Wednesday. So why, why has Ronnie said and he said it at a time of the day which is crucial to when Graham was bashed.
…
Q.So either one or both of you are lying in this case.
At p 53:
Q.Over there because they had run out of milk, and this was at about midday and it was around about the time where you’ve spoken about drugging him.
A.No.
Q.So that didn’t happen, you did not take milk over.
A.No, I went and bought a milk.
Q.All right. Why, why have people said that?
…
Q.Yeah and you can’t explain why people have said that to us in signed statements.
Q.No.
Q.There’s a lot here that you can’t explain isn’t there.
At p 55:
Q.So you did not give them, either Ronnie or Tracey, any tobacco at all on the Wednesday.
A.No.
Q.Why are they saying that you did?
At p 57:
Q.All right. So Ronnie, Tracey and Richard have all said that you came back with the milk, with the longlife milk and said that ‘Graham’s getting pissed off’ – in their words – over them borrowing stuff.
A.No, not that day.
Q.Again, Julie why would these people lie about that.
A.I don’t know, I really don’t know.
Q.Well why are you, why are you lying, I say why are you lying about it. Are you frightened that this may reveal some sort of motive for you bashing him?
A.I didn’t bash him.
At p 58:
Q.And that’s what, that coupled with the milk is what the argument’s been about.
A.I never gave the kids any tobacco on the Wednesday.
Q.Well why are they saying that you did.
A.I don’t know but they didn’t get it from us.
Q.So why would they lie. You saying they’re lying.
A.Yeah, my son conveniently lies when he feels like it.
Q.What, what reason has he got to lie.
At p 69, l 17 there is significant comment which is omitted from the transcript. The accused is heard to say “Time for bed” after the comment “It’s 11.06 pm”.
At p 73:
Q.Why have you said that to Cotton.
A.I didn’t say anything like that to him.
Q.Well why has he said that in a signed statement.
…
Q.So this is someone else that you say is lying to us.
A.But I didn’t say anything to him.
Q.Well why has he said that.
At p 74:
Q.With his version and he had a very clear memory of what happened that night.
A.No.
Q.So what, how do you explain it?
A.I would not know. All I know is that guy takes a lot of tablets too. Don’t know what for.
Q.So, but someone that you say is lying, not you.
A.I definitely didn’t say anything in that way to Gary at all.
At p 76:
Q.All right, Julie. I’ve written out a list of what I believe are lies that you’ve told the police, okay. [and please comment on them if you would]
A.Yeah.
Q.Just re-set the audiotapes. The time is 11.20 pm. Now further to what we were saying, I’ll list the lie, what I believe are lies that you’ve told the police, Julie, in relation to the 3rd of December and the bashing of Graham Wilks. That when you called triple 0 you found Graham bashed and you told them that you’d been out all day with your son.
THE DOCUMENT HEADED ‘JULIE DUNN LIES’ IS PRODUCED
At p 78:
Q.Well so why is Ronn(ie) lying about that.
At p 79:
Q.Okay. You don’t lie unless there’s a reason, Julie. Why did you lie.
A.I didn’t do it on purpose if that’s what you mean.
Q.Well I think you, you lie, when you lie it’s on purpose.
A.Oh.
At p 80:
Q.And that you waited in the car for Tracey to come back, and you meet Tracey who says she wants to stay and then you go straight away. Why is that, why did you lie about that. Are you admitting that’s a lie.
A.No.
Q.What, what do you mean no.
At p 81:
Q.‘Cos that’s a lie as well isn’t it.
A.No, it’s not a lie. I actually went down an bought ‘em some milk.
Q.So why has everyone else said you bought longlife milk from Graham’s house.
…
Q.So how do you explain these other people –
A.I don’t know.
Q.Giving us those signed statements.
A.I don’t know.
At p 85:
Q.So how do you explain this weapon that both Goodrick and Ronnie see in the bedroom that was no longer there by the time the police had arrived on the 3rd to search.
A.I don’t know even what they’re talking about.
Q.So why have they said –
And at p 86:
Q.… how do you explain Bill Wilks ringing at 2.03 pm and saying that Graham sounded drugged.
A.I can’t explain that.
…
Q.How do you explain people saying to us that you were wearing a yellow tank top on the day.
A.I don’t know but I definitely wasn’t wearing a yellow tank top on that day.
(Emphasis added)
I have set out excerpts from this interview in some detail as it can be seen that the accused was subjected to an intensive interrogation by Detective McEachern, over a large range of topics, many of which were revisited on more than one occasion. Significantly, throughout this interview Detective McEachern put to the accused that she was lying. This included the production of the document that he had prepared in January, dealing with what he considered to be lies that she had told about these events. Detective McEachern told the accused on a number of occasions that he did not believe she was telling the truth and he referred to statements made by others whom he believed to be truthful and he then asked the accused to speculate as to why those others would lie. In addition, there were a number of occasions when he interrupted the answers of the accused or talked over her, as well as making dismissive remarks, such as “so its all flooding back now, is it?” The break in the interview recorded at p 69 in which the accused on video recording was heard to say “time for bed” and appears to be tired, but the interview thereafter continued for about half an hour longer.
The prosecution quite properly acknowledged in the course of the voir dire that there were some portions of this interview which should not be led in evidence and proposed that an edited version of the interview be played to the jury.
At the time of this interview, I am satisfied that the accused was the prime suspect in Wilks’ murder. I am satisfied that the purpose of the interview, apart from providing the opportunity to install the listening device, was to try to get the accused to incriminate herself. The accused had been cautioned on 3 December 2003 by Pengilly when she was not a suspect. In my view she should have been properly alerted to the fact that by the time of this interview her status had changed.
In those circumstances I am not satisfied that the accused was appropriately advised of her right to legal representation. I also consider that the form of questioning was inappropriate and oppressive. In my view, the problems arising from those portions of the interview which are clearly inappropriate, cannot be cured by placing an edited version of the interview before the jury. The edited version would have the effect of reducing a two and a half hour interview by about one-third. This would preclude the jury from being able fully to appreciate the context in which many of the answers were given, in a situation where the critical issue of the assessment of the credibility of the accused might well depend upon the jury’s observation of the accused in this video.
In this regard, I adopt the comments of Deane J in Van der Meer v The Queen[1]:
That being so, the repeated assertion in the course of the interrogation of a suspect that allegations have been made against him by others is likely to make the record of what was said in the course of that interrogation unfairly prejudicial to him. Even if the allegations are deleted from what goes before a jury, it will often be apparent to an intelligent juror that the record of what was said has been edited to protect the accused from damaging material. It is also likely to lead to overbearing cross-examination by the police instead of dispassionate questioning to remove ambiguity in a confessional statement and to ‘intimidation, persistent importunity, or sustained or undue insistence or pressure’ of a kind which will preclude the resulting statements made by the suspect from being properly regarded as voluntary (see per Dixon J, McDermott v R, (1948) 76 CLR 501 at 511, repeated with approve in R v Lee,(1950) 82 CLR 133 at 144).
[1] (1988) 82 ALR 10 at 36
Consistently with those remarks, I consider the statements made by the accused in the interview of the 2 March 2004 were involuntary and are therefore not admissible. In any event, even if I am wrong about that, and they were in fact voluntary, I consider that they should be excluded in the exercise of discretion, on the grounds of unfairness in the sense that the admission of them would render the trial unfair. In this regard I refer to R v Lobban[2] and R v Swaffield[3]. In those circumstances I would exercise my discretion in favour of the accused and exclude the record of that interview from evidence at the trial.
[2] (2000) 77 SASR 24
[3] (1998) 192 CLR 159
The interview of 24 March 2004
On 6 March 2004 McEachern re-attended at 8 Cockshell Street. He was alone and did not have either a video or audio tape. He went there on the pretext of returning some prescriptions which had been seized. While he was there he had a discussion with the accused and Havey about a problem which had arisen with Cash Converters with respect to some property the accused had pawned the day after the assault on Graham Wilks. Those items were subsequently seized by the police but the accused had been obliged to continue to pay interest on the loan for which they had been used as security. McEachern acknowledged that the only record of the conversation which took place on that occasion was the listening device recording. He described not taking a video camera on this occasion as a tactical decision. He did not want to do anything that would have aroused suspicion as to his attendance there and he did not want to compromise the listening device.
On 17 March 2004, Detective McEachern rang the accused and told her arrangements had been made for her to attend at Cash Converters with Havey the following day, in order for the interest charged on the loan to be refunded to her. As well as making arrangements about the refund, McEachern had discussions with Cash Converters to keep the accused and Havey at their office for a period of time to provide the police with the opportunity to install a second listening device at Cockshell Street. McEachern had also contacted the accused and Havey about these arrangements, in the hope of generating some conversation between them about Wilks’ murder which could be recorded on the listening device. McEachern said that he regarded this as a conversation which formed part of a series of conversations which attracted the provisions of s 74D of the Summary Offences Act (1953). The accused also mentioned in the course of this conversation that a man called Diesel had told her about disposing of a hat and T -shirt (which might have been connected to Wilks’ assault) and McEachern told the accused that he would come and speak to her about that.
On 18 March 2004 Police installed the second listening device at the house at the house at Cockshell Street. On 24 March 2004 Detective McEachern returned to 8 Cockshell Street with Detective Bengel. He then conducted a further interview with the accused between 12.35 pm and 2.17 pm. That interview was conducted with the assistance of a hand-held video, although the battery on the video failed before the interview was completed. At the beginning of the interview, after introducing themselves, McEachern said to the accused:
Q2. Just er, we’ve got the tapes running, that’s all because
A. No that’s okay
Q3. Legers, legislatively we have to do that.
A. Yeah I know you do.
…
Q21.Thanks. All right Julie, um just before we start, um do you agree that I’m here as a result of a phone conversation that I had with you at about 11, about 11.06 am on Thursday the 17th of March, you may not remember the date, but I rang here.
A.Yeah to do with Cash Converters.
Q22.Yeah to do with Cash Converters.
A.Yeah and I mentioned something to you on the phone.
Q23.Yep do you agree that we had a conversation then.
A.Yeah a brief one.
Q24.Yep and er during that time you mentioned um you’ve bumped into Diesel.
A.Oh yeah.
Q25.Okay. And er I want to ask you some further questions in relation to that statement that you made, okay you are not obliged to answer these questions.
A.Yeah I can only tell you, I wasn’t really concentrating on what he said cause we were on our way to cashies.
Q26.Okay but anything you do say will be recorded on video and audio tape and can be given in evidence later on, do you understand that.
A.Yeah okay.
Q27.So are you happy to talk without advice from a solicitor.
A.Yep.
Transcript p18:
Q225.Oh, look I can fully understand that, had, if you haven’t done it, I still have had great suspicions that you have done it.
A. No, I haven’t done it.
Q226. You know my stance there, about where I stand there.
A.If I did it I would be (sic) sitting here I would have been long gone. Diesel is still trying to get me to go and I haven’t done anything.
Transcript p 23:
Q283. So is there anything else you haven’t told us.
A.Yeah one more thing to do with the tablets.
Thereafter followed a detailed discussion about her prescription for Temazepan.
Q318.Right, see this is where I believe you did crush up the tablets and that you’ve got rid of that evidence by tossing away the container.
A. No, I wouldn’t do that.
At transcript p 32:
Q384.Alright, so I spoke about this to you a few weeks ago as well, er my suspicions are perhaps you, you er would drug Graham, and Greg even.
A. …
Q385.Because they both assaulted you previously, and that …
A.Graham’s never assaulted me, I don’t know where anyone’s getting that from.
Q386.Alright.
A.He’s never hit me.
Q387.I get it from someone that’s told me that you’ve told them.
A.Nah.
Q388.That he was assaulting you.
A.Nah, I, I’ve mentioned his moods have changed, but I’ve never said he’s assaulted me.
Q389.Alright. And, also, when Ronnie tells me that on the day, you said that you hit Graham.
A.Nah.
Q390.And you did that because he’d tried to strangle you.
A.No, I didn’t say that at all.
Q391.Alright, well again why, why would he say that. Why would Ronnie say that.
…
Q396.But you can’t explain why they would have said that.
Transcript p 34:
Q435. Why did you lie again, can you just tell me that again.
A. Well I don’t know why.
Q436. Well I think it’s probably because you’ve got something to hide and that –
Transcript p 41:
Q482.Why have people, and I’ve spoke about this with you before, why have people said that, why has Richard said that he heard an argument over there.
A.I don’t know, when he heard the argument I was sitting in the lounge at the kids place.
As can be seen, portions of this interview are also affected by the form of questioning which took place on 2 March 2004, such as invitations to speculate on statements made by others. The prosecution proposed, however, that those portions should be excised from evidence at the trial.
Ms Chapman, in the course of her submissions, complained about breaches of s 74D in relation to this particular interview. Detective McEachern candidly acknowledged that he had breached s 74D after the battery for the video failed, as well as deliberately breaching s 74D in the interview he had with the accused at her home at the time of returning exhibit items to her.
Any breach of s 74D is serious, but in the circumstances of this case, that is, an investigation into a charge of murder, and with no challenge to the accuracy of what was said, I would have exercised my discretion under s 74E to admit that evidence, notwithstanding the breach. The breach is, however, a relevant matter to take into account when considering whether the interview should be excluded on the grounds of unfairness. In my view the accused should have received a proper caution at the commencement of the interview on 24 March 2004. She was the chief suspect at that time. Detective McEachern hoped that in the interview the accused would tell more lies that could be disproved. He did not direct her attention as to his belief in her possible involvement in the murder of Graham Wilks, but rather to the statement she had made concerning Diesel. This must also be looked at in the context of the informal contact with the accused between the interview of 2 March 2004 and this particular interview.
I also consider that the questions and answers given in this interview are tainted by what had occurred in the interview of 2 March 2004, in particular the manner in which the accused volunteered statements in this interview with respect to Temazepan could only properly be understood by reference to the intense questioning on that particular topic in the course of the earlier interview.
I therefore consider the statements made by the accused in this interview should be excluded from evidence at the trial on the grounds that the answers are involuntary or alternatively in the exercise of the unfairness discretion.
For all of the above reasons I ruled on the 20 February 2007 that the interviews of the 24 March 2004 and 2 March 2004 not be led in evidence of the trial.
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