R v Dunn (Rulings 1-5)
[2020] VSC 372
•23 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0213
| Between | |
| THE QUEEN | |
| -and- | |
| PHILLIP DUNN | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18-25 May 2020 |
DATE OF JUDGMENT: | 23 June 2020 |
CASE MAY BE CITED AS: | R v Dunn (Rulings 1-5) |
| MEDIUM NEUTRAL CITATION: | [2020] VSC 372 |
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CRIMINAL LAW — Evidence — Murder trial — Pre-trial applications to exclude Crown evidence — Crown alleges deceased murdered inside home of co-accused on or about 26 July 2018 — Deceased’s body found buried in co-accused’s garden on 5 September 2018 — Crown case expected to be put three ways: (1) accused himself murdered deceased (with co-accused encouraging or assisting him); (2) accused, from within house, encouraged or assisted co-accused to murder deceased; (3) accused, while outside co-accused’s front door, encouraged or directed him to murder deceased — Crimes Act 1958 (Vic), ss 323(1)(a), 324 & 324B.
RULING 1 — Application to exclude oral admissions by accused to police officer on 30 August 2018 — Accused a “person of interest” in disappearance of deceased (then missing) — Whether accused was or ought to have been suspected of involvement in offence — Whether accused should have been cautioned and advised of rights — Whether any impropriety by police — Evidence not excluded— Evidence Act 2008 (Vic), ss 90 & 138; Crimes Act 1958 (Vic), ss 464A & 464C.
RULING 2 — Application to exclude accused’s signed handwritten statement to police on 1 September 2018 — Police had information implicating accused in homicide of deceased — Whether accused was or ought to have been suspected of involvement in offence — Whether accused should have been cautioned and advised of rights — Whether questioning and anything said ought to have been recorded or subsequently confirmed by recording — Whether exceptional circumstances in failing to record or confirm by subsequent recording — Statement excluded— Evidence Act 2008 (Vic), ss 86, 90 & 138; Crimes Act 1958 (Vic), ss 464A, 464C & 464H(1)(e).
RULING 3 — Application to exclude audio-visual record of interview of accused by police (“VROI”) conducted on 5 September 2018 — Previous day, accused arrested for being drunk — Accused told police knows deceased (still missing) murdered by co-accused — While in custody at police station for being drunk, police questioned accused without caution or rights explained — Questioning covertly recorded only in part as device malfunctioned — During questioning, accused made admissions — Accused kept in custody for next 30 hours before VROI conducted at different police station — Accused spoke to solicitor when drunk on 4 September 2018 — Solicitor spoke to police next morning, but not to accused — Commencement of VROI deferred from lunchtime to allow accused to speak to solicitor — VROI nevertheless conducted in evening without accused consulting solicitor — Accused made largely same admissions in VROI as made in drunken interview the day before — Whether VROI obtained in consequence of impropriety — Whether police used information from earlier drunken interview when questioning in VROI — Whether desirability of admitting VROI outweighs undesirability of admitting VROI given way obtained — Whether unfair to accused to use VROI at trial — Whether “the questioning and anything said by [accused]” extended to earlier partly-unrecorded questioning when accused drunk — VROI excluded in part — Evidence Act 2008 (Vic), ss 90 & 138; Crimes Act 1958 (Vic), ss 464A, 464B, 464C & 464H(1)(d).
RULING 4 — Application to exclude evidence of accused’s utterances around time of arrest for being drunk — Whether unfair to do so — Whether circumstances in which admissions made such as to make it unlikely that truth of admissions adversely affected — Evidence excluded — Evidence Act 2008 (Vic), ss 85 & 90.
RULING 5 — Application to exclude evidence of alleged threats by accused to kill deceased — Whether probative value of evidence outweighed by danger of unfair prejudice to accused — Evidence not excluded — Evidence Act 2008 (Vic), s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Dickie and Ms B Goding | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms D Price | Sally Wilson Legal |
HIS HONOUR:
Overview
Phillip Dunn is charged with the murder of Nathan Day at Wangaratta on or about 26 July 2018. He will plead not guilty upon arraignment.
Originally, Mr Dunn was charged jointly with Darcy McNamara. A joint trial was to be heard in Shepparton in May this year. However, as a result of the suspension of jury trials in the wake of the COVID-19 pandemic, that hearing date was vacated. Also, on 12 May 2020, Mr McNamara pleaded guilty to murder. Presently, his plea in mitigation is to be heard in Wangaratta next term. Now that jury trials are to return next month, it is expected that Mr Dunn’s matter will be fixed for a trial proper once all pre-trial matters have been resolved.
In the meantime, Ms Price, who appears for Mr Dunn, has made several pre-trial applications to exclude various pieces of evidence that the Director of Public Prosecutions had proposed to lead before the jury. For the purposes of determining those applications, I heard viva voce evidence on a voir dire from six police officers, and received in evidence numerous statements, police notes and other documents. I also have the depositions before me. In addition, I received comprehensive written and oral submissions from Ms Price and also from Mr Dickie and Ms Goding, who appear for the Director.
Initially, the Director opposed all of the applications for exclusion. During the voir dire, however, Mr Dickie indicated that the Director no longer sought to lead one of the more significant pieces of evidence under challenge — namely, evidence of a conversation (part of which was recorded covertly) between a detective and two uniformed officers and Mr Dunn at Benalla Police Station on 4 September 2018. This conversation, which, as will be seen, was more in the form of an interview and included admissions by Mr Dunn, occurred without any caution being administered or any explanation given to him of his rights, and while it was obvious that he was extremely intoxicated. In fact, Mr Dunn was in police custody at that time precisely because he had just been arrested by uniformed officers for being so intoxicated as to be drunk in a public place.
While I think it was wise and appropriate for the Director to change stance on that evidence, as will be seen, the fact that that interview occurred is still of relevance to the question of the admissibility of the formal interview of Mr Dunn conducted by different police officers in Wangaratta the next day.
Mr Dickie also conceded that the Director would no longer be seeking to lead evidence to the effect that it was impossible to see through Mr McNamara’s front screen door from the outside to the inside of the house. The significance of that will become apparent when I summarise the case shortly.
Another piece of evidence that was challenged concerned an alleged assault by Mr Dunn on Mr Day in April 2017. At the time of the voir dire, the state of the evidence was uncertain on whether Mr Dunn did in fact assault Mr Day, or at least as to whether he was convicted of, and sentenced for, any such assault. Counsel indicated that time was required for the Director to seek further information on this question. That said, whatever the truth may be, there seemed to be firm evidence (from various admissions made by Mr Dunn) that he believed that he did assault Mr Day, that he was gaoled in consequence of Mr Day’s complaint to police about it, and that he was pretty miffed about the whole affair. On the face of it, it appeared that that belief alone may well be relevant to the question of Mr Dunn’s alleged animus towards Mr Day. The parties accepted that the issue might be revisited once the state of the evidence was resolved. I also suggested that the parties might consider agreeing to a means of leading evidence of Mr Dunn’s anger or animus towards Mr Day but in a less prejudicial way. Thus, the matter has been left in abeyance for the moment.
In summary, on the remaining disputed applications, I have come to the following conclusions:
(a) Ruling 1: The application to exclude evidence of Mr Dunn’s utterances to police on 30 August 2018 is refused.
(b) Ruling 2: The application to exclude Mr Dunn’s signed handwritten statement to police on 1 September 2018 is granted.
(c) Ruling 3: The application to exclude the audio-visual record of interview (“VROI”) between police and Mr Dunn at Wangaratta from about 6:30 p.m. on 5 September 2018 is refused in part and granted in part. In particular, subject to any further editing that might occur, the interview is admissible from the preamble at 6:30 p.m. immediately preceding question 115 until answer 481, but is excluded thereafter —namely, from question 482 until the conclusion of the interview.
(d) Ruling 4: The application to exclude evidence of Mr Dunn’s utterances around the time of his arrest for being drunk in Benalla on 4 September 2018 is granted.
(e) Ruling 5: The application to exclude evidence of alleged threats by Mr Dunn to kill Mr Day is refused. The admissibility of that evidence, however, may need to be reconsidered after the pre-recording of the particular witness who is expected to give that evidence.
Before giving my summary of reasons for each ruling, I shall set out an overview of the prosecution case.
Overview of prosecution case
Mr Day went missing on or about 26 July 2018. His body was found buried in the rear garden of Mr McNamara’s home at 1/11 Ryan Avenue in Wangaratta on 5 September 2018.
The Director alleges that, on the evening of 26 July 2018 (or possibly into the next morning), when inside Mr McNamara’s home, Mr Day suffered a fatal injury to his neck in the course of an attack perpetrated by Mr McNamara and Mr Dunn. While his body also showed signs of assault and possibly strangulation, the cause of his death was the severing of his carotid artery with a sharp implement. That underlying injury is reflected in an incised injury to the right side of his neck, measuring nine centimetres in length and about two to two-and-a-half centimetres in depth.
It is also alleged that both Mr McNamara and Mr Dunn were involved in burying Mr Day’s body in the garden.
Mr Dickie explained that he intends to put the Crown case against Mr Dunn in three ways:
(a) first, while inside the house, Mr Dunn murdered Mr Day (with Mr McNamara encouraging or assisting him);
(b) second, Mr Dunn, from inside the house, encouraged or assisted Mr McNamara to murder Mr Day, which he did; [1] and
(c) third, Mr Dunn, while outside the front door, encouraged or directed Mr McNamara, when inside the house, to murder Mr Day, which he did.[2]
[1]See Crimes Act 1958 (Vic), ss 323(1)(a) and 324.
[2]See Crimes Act 1958 (Vic), ss 323(1)(a) and 324.
Mr Dickie also makes it clear that the Director’s principal case is that both Mr McNamara and Mr Dunn were inside the premises when Mr Day was killed. He also concedes, however, that, on the evidence as it stands, the Director is unable to prove beyond reasonable doubt which of the two accused inflicted the fatal wound.[3]
[3]Crown Preliminary Outline on Pre-trial Argument (15 May 2020) at [4].
Summary of evidence
Overview
I turn now to a summary of the evidence on which the Director proposes to rely to establish that case.
The main features of that evidence may be categorised as follows:
(a) first, items found by investigators in various searches, and inferences that can be drawn from that evidence;
(b) second, evidence demonstrating animosity by Mr Dunn towards Mr Day;
(c) third, admissions made by Mr Dunn to police and civilians; and
(d) finally, lies or other statements by Mr Dunn amounting to incriminating conduct.
Mr Day, Mr Dunn and Mr McNamara
Mr Day
Mr Day was aged 35 at the time of his death. His nickname was “Pockets”. He had a drinking problem and struggled to maintain regular housing. He would often sleep rough in makeshift camps under bridges along the Ovens River in Wangaratta or would “couch surf” with friends.
In April 2017, he lived with Mr Dunn at his home at 1 Ryan Avenue in Wangaratta. That arrangement ended after a dispute between the two men.
At the time of his death, Mr Day was being cared for by Elizabeth (“Betty”) Torney, whom he referred to as “Gran”. He often slept and bathed at her house in Wangaratta.
Mr Dunn
Mr Dunn is aged 61. He lived alone at 1 Ryan Avenue. The house belongs to his mother, who lives in a retirement home.
Mr McNamara
Mr McNamara is aged 43. Apart from his nine cats, Mr McNamara lived alone at 1/11 Ryan Avenue, which is just down the street from Mr Dunn’s home.
Relationships among the three men
The relationships among these three men were changeable. Mr Dunn and Mr McNamara, like Mr Day, were also heavy drinkers. There were episodes of aggression among them, but also periods of relative peace and friendship.
Events of 26 July 2018
Mr Day
Around the middle of the day on Thursday 26 July 2018, Mr Day was at the home of Ms Torney. Bruce Hordern, the pastor of the Victory Church, came to visit and saw Mr Day there. Mr Day was upset about some things that he believed were being said about him by a person called Kim Turner. He decided to leave the premises and go for a walk. He left all of his belongings behind, including his phone. Pastor Hordern considered him to be in good spirits when he left.
On the prosecution case, Ms Torney and Pastor Hordern were the last people, other than Mr Dunn and Mr McNamara, to see Mr Day alive.
Mr Dunn
At 2:08 p.m. that day, Mr Dunn made a call to triple-zero to report that someone was trespassing on his property, breaking windows and attempting to gain entry to his house. He said that the person was a bloke called Darcy, who lived down the road, and that he was “with some bloke that I knew a fair while ago”. Leading Senior Constable Jennifer Browne and other police attended at Mr Dunn’s address, where he was noted to be polite and co-operative. He showed police three broken windows, which he said had been broken that morning by Mr McNamara. He did not want any police action taken.
Mr McNamara
Jacqueline Anderson, a support worker at a mental health support organisation, visited Mr McNamara at his unit at about 11:40 a.m. on 26 July 2018. He presented as agitated and anxious and stated that he was feeling unsafe, apparently because of some unspecified incident the previous week. Ms Anderson noted that the front door of the unit was completely off its hinges, and that some of the front windows were broken and covered up. This had also been the case on her previous visit a week or two earlier.
At about noon, Mr McNamara went to the house of his neighbour Belinda Field at 13 Ryan Avenue. He asked to borrow a jerry can of fuel. Ms Field assessed him as being drunk and in a bad mood. The request was refused. Mr McNamara became abusive, and then left. Ms Field went over the road to the Victory Church to speak to Pastor Hordern about the situation. At the same time, Mr McNamara attended her premises again, at which time Ms Field’s son Daniel saw him punch a wooden panel next to the door and kick the door. He also threatened to kill Daniel. Mr McNamara yelled more abuse, then deliberately kicked the letter box before leaving. This was all captured on CCTV. Police attended, but Mr McNamara went inside his house when he saw them arrive.
Ms Anderson returned to Mr McNamara’s unit at about 3:06 p.m. He let her inside and locked the security door behind her. His presentation had changed. He now appeared to her to be intoxicated. He was erratic and agitated, but friendlier than on the earlier occasion. Ms Anderson described him as appearing paranoid, saying people were coming to get him, and it would all be clear soon.
A short time later, L/S/C Browne and other police arrived, in response to the allegations made by Mr Dunn earlier. On request, Mr McNamara unlocked the screen door and let Ms Anderson out. He would not come out to speak to police, but would only speak to them through the security door.
Screaming overheard
Michael Lugg’s home backs onto the One Mile Creek Reserve roughly opposite Mr McNamara’s unit. He heard screaming coming from Ryan Avenue on the other side of the reserve just after 7:30 p.m. The vegetation prevented him from being able to see anything. He thought nothing of it and went inside.
He came back outside shortly before 8:00 p.m. He heard screaming again. This time, he listened carefully and heard a male voice yelling, “I’m gonna kill ya. You’re nothing but dogs. I don’t give a fuck what happens to me. You’re nothing but cunts, I’m gonna get ya.” The tone seemed angry, and Mr Lugg was concerned. He telephoned triple-zero at 7:57 p.m. and reported what he had heard.
Two police officers arrived in Ryan Avenue at approximately 8:04 p.m. in a marked police car and patrolled the area for around six minutes. They did not see or hear anything of interest. They noted that lights were on and music was coming from Mr Dunn’s address at 1 Ryan Avenue. They did not attend at that or any other address.
The killing of Mr Day
The prosecution case is that Mr Day, Mr McNamara and Mr Dunn all ended up at Mr McNamara’s unit on the evening of 26 July 2018. It is said to be plausible that Mr Day and Mr McNamara were there together first, and then were joined by Mr Dunn, but this is unable to be determined.
It is alleged that, sometime that evening, perhaps around 8:00 p.m., or possibly in the very early hours of the next morning, either Mr McNamara or Mr Dunn assaulted Mr Day while inside the house. One of the accused murdered Mr Day by causing a deep incised wound to his neck, which severed his carotid artery. At the time that this was done, the other accused was intentionally assisting or encouraging the commission of that offence.
As we have seen, it is also alleged, in the alternative, that Mr McNamara murdered Mr Day, with Mr Dunn encouraging or directing him to do so from outside the front screen door.
Admissions (to civilians) by Mr Dunn
Mr Gottschling
At about 3:00 a.m. on Friday 27 July 2018, Mr Dunn went to the house of his friend David Gottschling at 55 Mackay Street in Wangaratta. Mr Gottschling observed that Mr Dunn had blood all over one of his hands, on his jeans and on his shoes. The whole surface of his hand was covered in dried blood; it had changed colour. He asked to wash his hands, and did so. He told Mr Gottschling, “We did something really bad, me and Darcy.” He went on to say, “Darcy’s fucking mad.” He also said that it made a lot of noise, and it was a wonder no-one heard it. Mr Dunn asked to change shoes, saying that it was because his had blood on them. He took his shoes off and put them in the rubbish bin. He put on a pair of Mr Gottschling’s shoes. Mr Dunn brought a paint scraper with him. He left that behind in Mr Gottschling’s premises.
On 4 September 2018, Detective Senior Constable Timothy Ryan located the paint scraper at Mr Gottschling’s premises. Subsequent DNA analysis showed that Mr Dunn’s DNA was on the handle.
Mr Gottschling knew that Mr McNamara had a lot of pet cats, and he assumed that they had killed one of them. He says that it was not until he saw the missing person posters that he connected it all to Mr Day’s disappearance.
Mr Gottschling also alleges that Mr Dunn made threats against Mr Day’s life on other occasions, which I shall detail later.
Ms Hart
Mr Dunn spoke to Donna Hart when they crossed paths in Coles in mid-August 2018. In reference to Mr Day, Mr Dunn said, “It’s a blessing that he’s no longer around. It couldn’t have happened to a better fella.”
Mr Chalk
On an occasion after Mr Day went missing and before his body was found, Mr Dunn went to visit Paul Hayes and Bradley Chalk. Other people were present and alcohol was consumed. The conversation turned to Mr Day, and what had happened to him. Mr Chalk heard Mr Dunn say that he had seen “Pockets” take his last breath, and that he (Mr Dunn) had stomped on his legs as he lay in the hallway.
Mr Hayes and Mr Bodsworth
On or about 3 September 2018, in the afternoon, Mr Dunn visited Mr Hayes at his unit. Raymond Bodsworth was also there. Mr Dunn brought up the topic of what had happened to Mr Day. Mr Dunn said, “I know where Nathan is, I saw him take his last breath.” He further said that “we buried him in the backyard”.
When Mr Bodsworth asked Mr Dunn how Mr Day had died, he said that he and Mr McNamara had strangled and bashed him.
Incriminating conduct
The Director also proposes to rely on the following pieces of evidence (and some others) as evidence against Mr Dunn of incriminating conduct.
Ms Doherty
First, on or around 27 August 2018, while at the APCO service station in Wangaratta, Melissa Doherty asked Mr Dunn if he knew anything about where Mr Day was. He told her that Mr McNamara had a received a call from Mr Day, to whom he referred as Mr McNamara’s boyfriend. Mr Dunn said Mr Day was calling from the Docklands or Flinders Street in Melbourne. Mr Dunn told Ms Doherty not to tell anyone that he was the source of that information.
Ms Doherty reported the information to police, but without mentioning Mr Dunn as the source.
Mr Wyllie
Second, on an occasion after Mr Day had gone missing but before his body was found, Mr Dunn was visiting Mr Chalk and Mr Hayes. Robert Wyllie was also there. The conversation turned to the topic of what had happened to Mr Day. Mr Wyllie heard Mr Dunn say that Mr Day was probably in Geelong or Seymour and would be back in a few days.
Ms Massey
Third, on or about 7 August 2018, Mr Dunn spoke to Rosemary Massey, a Salvation Army chaplain who was the rostered chaplain that day. He told her that, on the day that Mr Day had gone missing, he (Mr Dunn) had been drinking with him and Mr McNamara. An argument broke out and Mr Dunn went home. Mr Dunn later returned and looked through the front door. He said that he saw Mr McNamara and Mr Day engaged in a homosexual act. He was surprised and disgusted and went home. He went on to say that he thought that Mr Day had gone to Melbourne. He subsequently told Ms Massey that this information was in strict confidence.
Director’s argument
The Director’s case is that, as revealed by his admissions to others, Mr Dunn knew full well that Mr Day was dead. By telling various people that Mr Day was alive, but away from Wangaratta, it is alleged that he was attempting to lay a false trail in order to confound any investigation. It is also alleged that he was spreading a story that Mr Day and Mr McNamara were in a homosexual relationship in order to deflect suspicion onto Mr McNamara and therefore away from himself.
It is submitted that the statement about the observation of Mr Day and Mr McNamara differs in significant respects from the later version given in his formal recorded interview with police, and therefore also goes to the credibility of his account in that interview.
Police speak to Mr Dunn on 30 August 2018
Incriminating conduct
A fourth piece of incriminating conduct is said to arise from the following evidence. On 30 August 2018, at about 2:45 p.m., Detective Sergeant Christopher Hill and another police officer attended at Mr Dunn’s premises and spoke to him. Mr Dunn told police that he had not seen Mr Day for over a month; and that he had not seen Mr Day since before he was locked up for ten days at Wangaratta (which would imply that Mr Dunn had not seen Mr Day since 8 July 2018).
The Director seeks to rely on these statements as lies amounting to incriminating conduct. It is said that the fact, and date, of the ten-day sentence is relevant to make that particular statement intelligible.
Motive
Mr Dunn also stated to Detective Hill that he had had run-ins with Mr Day, and that Mr Day had recently admitted to him that he had damaged Mr Dunn’s house. These statements are relied upon as helping to establish motive.
Police take written statement from Mr Dunn on 1 September 2018
Motive
Detective Hill returned to Mr Dunn’s address at about 11:30 a.m. on 1 September 2018 and took a written statement from him. In that statement, Mr Dunn outlined some of his history with Mr Day, including the following:
(a) Mr Day boarded with him in early-2017.
(b) Mr Dunn was then locked up for a couple of months after he hit Mr Day on the head with a carpenter’s hammer in the course of trying to kick him out of his house.
(c) When he got him out of his house, it was trashed and his property was stolen.
(d) Mr Day subsequently admitted to Mr Dunn that he had trashed his house.
(e) This pissed off Mr Dunn. He pointed his hand at him like a gun and also pulled his hand across his neck like he had cut his throat. This was just a threat for him to go away.
The foregoing aspects of the statement are relied upon as going to motive.
Incriminating conduct
In the statement, Mr Dunn also said the following:
(a) He had not seen Mr Day since his ten-day sentence.
(b) He went to Mr McNamara’s house one day to have a drink. He looked through the front door, which was locked, and saw Mr Day with his pants down. Then he saw Mr McNamara belt Mr Day. He got him on the floor and just pummelled him. This all happened before the ten-day sentence.
These statements are relied upon as lies amounting to incriminating conduct. The statement about seeing Mr Day at Mr McNamara’s unit differs in significant respects from the later version Mr Dunn gave in his formal interview with police, and therefore is said to go to his credibility in that interview as well.
Arrest of Mr Dunn for being drunk in Benalla on 4 September 2018
At about 12:12 p.m. on 4 September 2018, after receiving a report of a man being drunk in a public place, First Constable Lisa Thompson and First Constable Nicholas Upton spoke to Mr Dunn near the Benalla Rose Gardens. On speaking to police, Mr Dunn said that he wanted to tell them about a murder. He then said it was the murder of Nathan Day and that Darcy McNamara had done it. Mr Dunn said, “I saw it. He was still kicking.”
He was arrested for being drunk in a public place and conveyed back to Benalla Police Station.
While F/C Thompson and F/C Upton were processing Mr Dunn at the custody counter, Detective Senior Constable Travis Carroll and Senior Constable Bradley Jones arrived and asked him if he wanted to tell them about what he knew about Mr Day. Mr Dunn said that he did and that Mr Day was “deady bones”.
Mr Dunn’s admissions during drunken interview
Mr Dunn was taken to an interview room by Detective Carroll and S/C Jones. F/C Thompson went to make Mr Dunn a cup of coffee and returned to the interview room a short while later.
The three police officers then spoke to Mr Dunn. The conversation was recorded covertly by Detective Carroll, but the recording failed after about 20 minutes.
During the covertly recorded part of the conversation, among other things, Mr Dunn stated the following:
(a) He knew exactly what had happened to Mr Day, and was prepared to spill his guts.
(b) He said, “I’ll tell ya exactly what I’ve seen, but don’t bring it back on me.”
(c) The door was locked and there was a homosexual affair with the pants down.
(d) Mr Dunn said, “Well, what’s the prick doing at your house?” and Mr McNamara killed him.
(e) Mr Dunn did not kill him.
(f) He said he had already made a statement about it to Chris, a detective in Wangaratta.
(g) He said he did not know what the time frame was as he drinks a lot.
(h) He asked police whether Mr Day was still kicking, still alive. Then he said he was “deady bones”.
(i) The flywire door was locked. He said, “What’s that cunt doing there with his pants down.” Mr McNamara killed him.
(j) Mr McNamara “says he’s gunna dob me in for it” but it wasn’t his (Mr Dunn’s) fault.
(k) “What’s the dude doing with his pants down? It’s a homosexual act. He killed him.” He (Mr McNamara) said, “You [meaning Mr Day] killed one of my cats,” and he done him in.
(l) Previously, Mr Day had stayed at his house, along with others. They took things.
(m) Mr McNamara killed Mr Day. Mr Dunn was locked out. He said, “What’s that cunt doing in your fuckin’ flat?”
(n) Mr Dunn and Mr McNamara were drinking tequila (at Mr Dunn’s house). Half-an-hour later, he was scratching his head. Half-an-hour later, he went down there (to Mr McNamara’s flat) and said, “What’s that fuckin’ fruit doing in your flat.” And Mr McNamara turned around and he thumped him. In the eye. Mr Dunn was locked out. He did not touch him. It was all Mr McNamara — he killed him.
(o) Mr Dunn was locked out completely. He did not touch the cunt. Mr Dunn said, “He’s still kicking, he’s still kicking, kill the cunt.” … Yeah, I did, through the door, locked door. “Kill the cunt.” He did.
(p) But he does not know whether he did in fact kill him. Was it a play act?
(q) Mr McNamara said he killed him.
(r) Mr Dunn walked away when he wasn’t breathing. He could tell from the locked door that Mr Day wasn’t kicking, that he was dead. But he thought it was an act. Five weeks ago he thought it was all bullshit, just a play act.
(s) Mr Dunn said, “What’s that cunt doing in your flat with his pants down?” Homosexual act. He turned on him, snuffed him out. He (Mr McNamara) said, “You killed my cat, I’m going to kill you.” It had nothing to do with Mr Dunn.
(t) Mr McNamara choked him. And he wasn’t moving.
(u) Mr Dunn did not know how he disposed of the body, but said he thinks he is in the garden. But that had nothing to do with Mr Dunn. He thought he was in the garden because Mr McNamara asked him for shovels and mattocks and shit to bury the cunt, dispose of it. But he was only guessing. Mr McNamara did not have a car, so where else would he bury him?
(v) Mr Dunn said, “I’m not implicated. I didn’t touch him.” He “seen it” but “thought it was a performance … a staged act.” He did not think Mr Day was dead.
(w) Mr Dunn said that he did not like Mr Day, not a bit. He disturbed his (Mr Dunn’s) mother’s place. He “wrecked it up” and did “$2,000 worth of damage to doors and fuckin’ windows”. Mr Day also stole from him — he didn’t pay his way. He had a bit of time for Mr Day. He’s all right. But he “dropped his strides in front of me”. Mr Dunn just said to him, he’s a homo, poofter. Mr Day clobbered him. He took his birds and his dog. “See why I’m so angry?” But he “didn’t do the cunt”.
(x) He said, however, “I wouldn’t do him in though, I’d kiss him and hug him. He had potential, that cunt.”
(y) “But fuckin’ Darcy did him in.” Darcy (Mr McNamara) is an “[a]bsolute freak show. Autistic”. “What these cunts do on ice, they all go homo on it.”
(z) Mr Dunn ended up lending Mr McNamara some clean-up squeezy shit and then spray. He wanted a shovel and a mattock, tools, a chainsaw. Mr Dunn said, “No, don’t chainsaw him up.”
The covert recording ceased at about that point.
The parties agreed that the police notes and viva voce evidence on the voir dire revealed that the following additional topics were raised during the unrecorded part of the questioning:
(a) Mr Dunn loaned Mr McNamara a knife, which Mr Dunn threw away at One Mile Creek when it was returned by Mr McNamara.
(b) Mr Dunn disposed of other unidentified items.
(c) Mr McNamara stomped on Mr Day.
(d) Mr Day was buried in the garden between 11:00 p.m. and 2:00 a.m.
(e) Mr Dunn thought he was released from the prison the day before.
(f) Mr Dunn admits to having tried ice.
(g) Mr Dunn told Mr Chalk, Mr Hayes and Mr Wyllie what happened while at Mr Chalk’s home on Norton Street.
(h) There were rumours as to what had happened to Mr Day. “Super Dave” from Yarrawonga said that the God Squad had knocked him off due to a debt.
(i) Mr Dunn referred to fearing judgment by God.
At no point was Mr Dunn cautioned or told of his rights prior to, or during the course of, the conversation with Detective Carroll and the two other officers.
It is also obvious — from listening to the covertly recorded part of the conversation — that Mr Dunn was heavily intoxicated.
Arrest of Mr Dunn for murder
At 6:40 p.m. the same day, while in the cells area of the Benalla Police Station, Mr Dunn was notionally released from custody for being drunk. I say notionally because he was immediately arrested by Detective Sergeant Graham Hamilton in the company of Detective Ryan while still in the cells area of the police station. He was not specifically told he was under arrest for murder, but instead Detective Hamilton spoke of the “disappearance” of Mr Day or what “we believe is the death of Nathan Day”.
Mr Dunn was cautioned and given his rights to contact a legal practitioner or a friend or relative.
While the police spoke of allowing Mr Dunn to speak to a solicitor, it is also plain, from the audio-visual recording, that he was still drunk at this time.
Failed attempt to interview Mr Dunn
At about 8:00 p.m., while still at Benalla Police Station, Detective Leading Senior Constable Peter Downer (who is now the informant) and Detective Hamilton attempted to interview Mr Dunn “in relation to the suspicious disappearance of … [Mr] Day”. Detective Towner administered a caution and advised Mr Dunn of his rights to contact a friend or relative and a solicitor.
Mr Dunn still appeared to be drunk or otherwise unfit to be interviewed. He also wanted to have his solicitor with him. Police suspended the interview so that Mr Dunn “could go back to bed”.
Police subsequently transported Mr Dunn to Wangaratta Police Station, where he spent the night in the cells.
Search of Mr McNamara’s premises
The next day, on 5 September 2018, police searched Mr McNamara’s premises.
The unit was examined by crime scene officer Leading Senior Constable Robert Huygen. The small backyard (which is more of side yard, really) was mostly paved, except for a garden bed against the eastern fence line. On top of the garden bed was a pile of objects which included broken chairs, parts of a table top, pieces of carpet, and other pieces of apparent rubbish. The objects were removed. Mr Day’s body was found buried in the garden bed underneath where the pile had been. Portions of his hair and right hip were visible above the soil. The body was exhumed and later transported to the Victorian Institute of Forensic Medicine in Southbank.
A fire pit was located in the backyard of the unit. It contained various pieces of burnt debris. A spade was found beside the back door. A mop was found in the bathroom, which had its handle partially broken off. The handles of the spade and the mop were tested and found to have Mr McNamara’s DNA on them.
A blood spatter pattern was found on the purple chest of drawers which were against the west wall of the bedroom, near to the foot of the bed. The blood was from Mr Day. The spatter pattern indicates that a force was applied to Mr Day’s liquid blood in the vicinity of the chest of drawers. The blood source was below the top of the chest of drawers, near the end of the bed.
Dilute saturated blood staining was observed on many areas of the carpeted floor of the bedroom. It was most concentrated in the area at the foot of the bed near the chest of drawers. The blood was from Mr Day. When the investigators arrived, they found a rug over this area at the foot of the bed. The bottom of the rug also tested positive for blood. These findings, says the Director, indicate that Mr Day was positioned for a period of time at the foot of the bed while he bled heavily. The area was subsequently washed, which resulted in the dilute appearance of the stains. The rug was then placed over the area while the carpet was still wet.
There were other blood stains on other parts of the floor, including the area closer to the bathroom door. Blood stains were found on the internal surface of the door that leads from the bathroom to the garden. These were transfer stains, indicating that a wet bloodstained surface had come into contact with this area. This blood came from Mr Day.
There were transfer stains on the bedroom wardrobe frame, and on the wall next to the wardrobe. This is also next to the bedroom door. Again, the blood was from Mr Day.
There were also transfer stains on the back of a television in the lounge room. This stain was not further tested.
Search of Mr Dunn’s premises
Mr Dunn’s premises at 1 Ryan Avenue were also searched. A spade, a mop and mop buckets were found in the front bedroom.
Another failed attempt to interview Mr Dunn
At 12:35 p.m. the same day (5 September 2018), Detective Towner and Detective Senior Constable Tim Drummond again sought to interview Mr Dunn. The interview was suspended yet again, this time to allow Mr Dunn to have lunch, to allow him to speak to his solicitor and so that an independent third person could be arranged.
Mr Dunn interviewed by police
At 6:32 p.m. that evening, at Wangaratta Police Station, Detective Towner and Detective Drummond commenced an interview with Mr Dunn in relation to “the suspicious disappearance” of Mr Day.
Detective Towner administered a caution. When asked to tell what he had just been told, in his own words, Mr Dunn said, “I’ve got the right to not say anything.”
Detective Towner then advised Mr Dunn of his rights to contact a friend or relative. Mr Dunn explained that he had just contacted his minister (meaning Ms Massey, the Salvation Army chaplain).
The detective also introduced Mr Dunn to an independent third person he had arranged.
Detective Towner advised Mr Dunn of his right to communicate with or attempt to communicate with a legal practitioner. He stated the fact that Mr Dunn had spoken to a solicitor the previous day, but not “this morning or today”. Mr Dunn said that “they [i.e. his solicitors] left me high and dry, of course”. Detective Towner’s response was, “Yep, yep. So, you’re happy to proceed?” Mr Dunn responded, “Yeah, yeah, fine.”
Detective Towner then said, “[W]hat we need to know from you, Phil, is about what you know about Nathan Day. This is your opportunity to tell me what you know about what’s happened to Nathan and your involvement.” Mr Dunn said, “Yep, well, it was pretty unclear in my head what initially happened on the 26th of July, but I can tell what happened on the 26th of July.” Among other things, Mr Dunn then said the following:
· Q141: On 26 July 2018, he was drinking red wine with Mr McNamara. He went and bought a bottle of tequila towards the evening.
· Q142-143: Mr Dunn had an infection in his scalp, which he sat there scratching, but Mr McNamara went home. About half-an-hour or so later, Mr Dunn wandered down to his place. It was dark. He got to the flywire door. He looked inside and saw Mr Day in his bedroom, with his pants down or something. He saw Mr McNamara in the lounge room and he was facing Mr Dunn with his back towards Mr Day in the bedroom. Mr Dunn said, “What’s that bloke doing there?” Mr McNamara turned around and absolutely went him, thumped him, down he went. He thought Mr McNamara choked the life out of him. Mr Dunn was completely locked out of the flat all the time, and Mr Day was prone, he was not moving at all. Mr Dunn just left, didn’t want to know about it. He went and saw his friend Mr Gottschling over in Mackay Street.
· Q144-145: Mr McNamara came to his house the next morning and took some cleaning products from his house. Mr Dunn got out of the house and left him in there. Mr McNamara also took a knife up to his joint, and cleaning products. And then he brought the knife back to Mr Dunn’s house. He was covered in blood all over his face and he said, “He’s got a home now, a permanent home.”
· Q146: Mr McNamara said that Mr Day’s leg was hanging out of the garden and that he couldn’t get the hole deep enough. He brought the knife back. Mr Dunn thought he was planting evidence in his house, so he (Mr Dunn) threw it in the creek. Later, Mr McNamara smashed his (Mr Dunn’s) window and tried to kick his door in, about which he rang police. Mr McNamara also approached Belinda Field looking for a jerry can to burn down his (Mr Dunn’s) house.
· Q149: Mr Dunn thought it was “staged”, that it was “all a bloody big act”, and that Mr Day was still alive in Melbourne or somewhere.
· Q151-152: Mr McNamara wanted him to help dispose of the body. He asked Mr Dunn around to his house one night and opened his side gate to his garden and asked, “Can you smell anything?” Mr Dunn said, “No,” and left.
When asked whether he had told anyone else about this, Mr Dunn said that he told “Chris”, a Wangaratta detective, “not the complete … thing … but most of it about the blue and being locked out and being a witness to it”; “Rosie the … Salvo chaplain”; and “Ben”, a custodial officer. He also tried to tell others in confidence, but he was not sure whether it was real or not until recently. (Q158-163.)
Mr Dunn was then taken back over his account. He said this:
· Q171: He was drinking with Mr McNamara “at my place”.
· Q174: It was around 10:00 p.m. when he went to Mr McNamara’s place.
· Q178-180: The flywire door was locked and the lights were on — “must have been most of them, lounge, bedroom and kitchen because it was quite visible to me”.
· Q181: The first thing he saw was Nathan Day in Mr McNamara’s bedroom with his trousers down for some reason.
· Q189-190: Mr McNamara must have been on the lounge room couch, because he popped up when he said, “What the hell’s he doing in here.” Mr McNamara had his back to Mr Day.
· Q191: Mr McNamara actually grabbed and put down Mr Day and just absolutely pummelled him. Pummelled him and pummelled him until he wasn’t moving. He couldn’t see how he did it exactly. He thought he must have choked him; his head wasn’t visible to Mr Dunn. His feet were and most of his body was but not his head area.
· Q196-203: A couple of days later, Mr Dunn accused Mr McNamara of having a homosexual rendezvous, which angered Mr McNamara, who chased him down the road.
· Q204-208: The pummelling by Mr McNamara took place right in the lounge room doorway in between the bedroom and lounge room. Half his body was in Mr McNamara’s bedroom. His legs were poking out in the lounge room and Mr McNamara was in the bedroom. It wasn’t visible what he was actually doing, choking him or whatever. All Mr Dunn could see was the legs going. Mr Day was not yelling out, but was making breathing noises. Mr Dunn thought Mr McNamara was choking him.
· Q209-210: Mr McNamara said he’s got things of Mr Dunn’s at his house and he was going to implicate him.
· Q211-220: All he told David Gottschling when he went there afterwards was “a lot of shit went down with Darcy this evening”. He was with Mr Gottschling for “many hours”, but he “wouldn’t comprehend” and has “pretty bad schizophrenia”.
Mr Dunn detailed some of his movements and further interactions he had with Mr McNamara in the days following the incident, including Mr McNamara telling him that he thought Mr Day was going to smash him with a mug (Q227-247 & 256-273).
Mr Dunn was then asked if he had any issue with Mr Day. He said the following:
· Q274-300: He said he did and that he believed that Mr Day trashed his house three times. He said that Mr Day and two others who answered a “rooms for rent ad” never paid their way and stole from him. So he asked them to leave and they said no. He told Mr Day to leave. Mr Day then “dropped his strides in front of me”, which caused Mr Dunn to say “all this stuff about homo fuckin’ paedophile”, and then Mr Day “smashed me over the head with something so I hit him back with a fuckin’ little … carpenter’s hammer. Well, they jailed me for two months, so they lived at me house for a fuckin’ month, rent free, stole me dog, me birds, and fuckin’ wrecked everything. [They did] $2,000 worth of fuckin’ windows and – of course I’ve got an issue with him.” He was not sure of the date, but he thought he went to gaol in May of the previous year. Despite this, Mr Dunn still had a bit of time for him because he had some potential. He admitted to threatening to kill Mr Day when he disclosed to him at the church that he was the one who damaged his mother’s house.
· Q303-309: Mr Dunn denied having anything to do with Mr Day’s disappearance, or disposing of his body. When asked what he thought had happened to Mr Day, Mr Dunn said, “I reckon he might be buried in that side garden at [Mr] McNamara’s, but fucked if I know.” He explained that he thought it was staged until recently, when he learned that he had not accessed his bank accounts. He denied assaulting Mr McNamara. He repeated that the flywire door was locked. He described himself as around six on a scale of one to ten of drunkenness. He said he does not top up like “alcos do”.
The interview was suspended at 7:07 p.m. and resumed at 7:23 p.m. (Q326-328). Upon the resumption, Detective Towner explained that “the cautions that we explained to you before still apply” and asked whether he wished to exercise any of “these rights” before they continued. Mr Dunn indicated he was happy to continue. (Q329-332.)
Detective Towner asked Mr Dunn to tell him about the knife that he disposed of, to which he responded as follows:
· Q335-409: Mr McNamara took some items from his house, including the knife. When he returned, he had this blood all over his face. Mr Dunn was concerned that he had used it to cut up Mr Day, so he chucked it down the creek on the Friday morning. It was completely silver, all metal and about a foot long. He disposed of it in a billabong, near the scout hall area under or beside the Vincent Road bridge in a grey shopping bag, which he pierced. He did this because he thought it was planted evidence. He had put it in his drawer without Mr Dunn knowing. He believes he would have wiped it clean with a tea towel, but he was not sure.
After explaining that police were executing a search warrant at Mr Dunn’s home, Detective Towner then returned to the topic of his visit to Mr Gottschling. Mr Dunn said that he said to Mr Gottschling, “Dave, Dave, I think Darcy’s done something really bad tonight.” He said he thought he did not elaborate. The detective then said that police had a detailed statement from Mr Gottschling, who said that Mr Dunn had blood on him when at his (Mr Gottschling’s) house. Initially, Mr Dunn said he did not know how that would have come about. Then he said that he had blood on his hands from scratching his head as a result of a spider bite. He did not think that he cleaned himself while there. He denied that he had blood on his jeans and shoes or that he had swapped his shoes while there. (Q449-481.)
Next (at Q482), Detective Towner said: “Now, the night of the 26th, we’ve got statements from people, the neighbours in the area, who’ve said that you were running around up and down the street screaming and yelling, ‘Now, I’m gunna kill you, I’m gunna kill you.’ Is that true?” Mr Dunn’s response was: “No. I was at the front door yelling out shit to Darcy, nothing fuckin’ like shit. Not running around the streets going – saying, ‘I’ll kill, I’ll kill ya.’ No way known.”
The foregoing was a misstatement of the evidence. It may be that Detective Towner misunderstood what Mr Lugg had told police or relied on something that was not in evidence.
Immediately after that, the questions and answers were as follows:
Q483: Yep. Did you ever yell out to Darcy, “Strangle him, strangle him, kill him”? - - - Could have done, I don’t think I did though. Might have done. It would have been from the locked front door but Darcy might have been the one yelling. I fuckin’ don’t remember really fuckin’ saying that, excuse me.
Q484: Yeah, no worries, mate. - - - Well, I knew this would go down this track. Fuckin’ shit, isn’t it?
Q485: Yep. - - - Yeah, well, far out.
Q486: So you – you say you could have yelled out. Why would you yell out something like that? - - - Cause I was pissed and he’s fuckin’ intruded me house and he fuckin’ – “What’s the cunt doing in there?” It didn’t make sense to me.
Q487: So is it possible you were encouraging Darcy? - - - Well, if I was encouraging I don’t know. Like, he didn’t have to carry it out, did he? It was nothing to do with fuckin’ me. That’s where he’s saying I fuckin’ programmed him or fuckin’, “He’s given me instructions.” I might have said it but – yeah, I did, to be true.
Q488: You did? - - - Yep. I’m not proud of it.
Q489: What did you actually - - - I said, “He’s still kicking.” That’s all I said. “Fuckin’ kill him.” It was drunken talk.
Q490: Okay. - - - True. And if that implicates me, I’m fuckin’ gone.
Q491: “He’s still kicking.” What did you just say without me going back to the tape? - - - “Kill him, he’s still kicking.” I’m not proud of it. I wasn’t doing it though, but I know it’s bad, to say that.
Q492: When you were yelling out, “Kill him, he’s still kicking,” what – what was your intention? What did you want Darcy to do? - - - Hurt him. Not an actual killing business. Why would I want that to happen? That’s fuckin’ shocking. The neighbours would have heard that too ‘cause I was pretty fuckin’ vocal about it but I said it probably once.
Q493: I put it to you that you did want Darcy McNamara to kill Nathan. - - - You put that to me?
Q494: Yeah. - - - Oh, no.
Q495: No? - - - We might have to fuckin’ finish here because you’re gunna fuckin’ – you’re putting words in me mouth.
Q496: No, I’m not putting words in your mouth. You told me that you yelled out, “Kill him, he’s still kicking.” - - - I didn’t want him dead, mate. That’s not the – fuckin’ not me, not me. You know. I’m not his mother or his father. I don’t fuckin’ tell him to do things, he does what he wants to do.
Q497: I put it to you that you were inside the house and you assisted in the assault against him. - - - No way known, no, nuh.
Q498: No? - - - Not true.
Q499: I put it to you that you – you helped dispose if his body. - - - Not true at all, nuh. No way.
Detective Towner told Mr Dunn that the body had been found buried in the garden, which Mr Dunn said did not surprise him (Q500). He again put it to Mr Dunn that he assisted in cleaning up the crime scene, which he denied (Q504). Detective Towner then asked about cleaning products and a shovel (Q505-511). He also put it to Mr Dunn that, when Mr McNamara asked for a shovel, Mr Dunn knew that Mr Day was dead, which he denied and explained that he thought it was all bullshit (Q512-513).
The questioning then returned to the assault on Mr Day:
Q514: Did you assault Nathan Day inside the premises of 1 of 11 Ryan Avenue, Wangaratta? - - - No, no.
Q515: Were you involved in the death or the murder of Nathan Day on or about the 26th of the seventh? - - - No, no. Might have put a bit of incitement into Darcy at the front door but I’m not proud of that, I might have said, “Fuck it, he’s still kicking.” I might have incited him. The neighbours would have heard that, I was fuckin’ loud as. I wasn’t running up and down the street fuckin’ chasing Day or anything. He was inside the fuckin’ flat and I was locked out the front.
Detective Towner then suspended the interview at 7:52 p.m.
At 8:36 p.m., Mr Dunn advised Detective Towner that he was not going to leave his cell or continue with the interview.
Autopsy
Dr Paul Bedford conducted an autopsy on Mr Day’s body on 6 September 2018. He noted that there had been some decomposition of the body. He found a largely horizontal incised wound to Mr Day’s right neck. The wound was about 90 millimetres long and was 20 millimetres deep at the deepest point. The wound had severed the carotid artery. This wound was the cause of death. There was some undermining on the superior aspect, indicating that the edged weapon had been angled slightly upwards (by the body’s orientation) at the time the wound had been inflicted.
There was also a fracture to the cornua of the right hyoid bone. This could indicate that there had been some strangulation, but it was also possible that the fracture was associated with the infliction of the incised wound.
No other injuries that could be associated with death, or caused at the same time, were found. No defensive injuries were found.
Blood samples were examined by toxicologist Kerryn Crump. Mr Day was found to have a blood alcohol content of 0.29 g/100mL, and 0.26g/100mL in his urine. These results indicate that Mr Day had some alcohol in his blood at the time of his death. However, because of post-mortem changes, it is not possible to ascertain what Mr Day’s blood alcohol content would have been at the time of his death.
Search of One Mile Creek
On 7 September 2018, Senior Constable Michael Littleford found a knife in a billabong at One Mile Creek, between the Vincent Street bridge and the Scout Hall. The knife had a wooden handle and a serrated edge. He felt around for a plastic bag and instead found another knife, very close to where he found the first one. This knife was all metal and had a serrated blade with two sharp points on the end. As S/C Littleford handed the knives to another officer, he saw a grey plastic shopping bag on the side of the river. The bag was also seized.
No DNA profile could be obtained from the brown-handled knife.
The silver-handled knife possibly had blood on the blade, but this could not be confirmed. A mixed DNA profile from three contributors was found on the handle. However, that result was such that it was more likely that none of Mr Dunn, Mr McNamara or Mr Day had contributed.
Ruling 1: Mr Dunn’s utterances to police on 30 August 2018
Introduction
I turn now to a summary of my reasons for each ruling. I shall not separately summarise the evidence given on the voir dire nor shall I refer to all of counsel’s arguments. Instead, I shall refer to the more important aspects of the evidence and the arguments as I address each ruling, commencing with Mr Dunn’s utterances to Detective Hill on 30 August 2018.
The impugned evidence
It will be remembered that Mr Dunn told police that (a) he had not seen Mr Day for over a month; and (b) he had not seen Mr Day since before he was locked up for ten days at Wangaratta (which would imply that Mr Dunn had not seen Mr Day since 8 July 2018). The Director seeks to rely on these statements as lies amounting to incriminating conduct. The Director also seeks to rely on Mr Dunn’s statement that he had run-ins with Mr Day, and that Mr Day had recently admitted to him that he had damaged Mr Dunn’s house, as evidence of motive.
Admissions
In the Dictionary to the Evidence Act 2008 (Vic), “admission” means a previous representation that is (a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and (b) adverse to the person’s interest in the outcome of the proceeding.
Given that definition and the uses to which the Director seeks to put the foregoing evidence, the evidence in question amounts to or contains admissions.
Not suspected by police
In order for provisions such as s 464A of the Crimes Act 1958 (Vic) (concerning, inter alia, the requirement to give a caution) or s 464C (the requirement to advise of rights to contact a friend, a relative or a lawyer) to apply, the investigating official must have suspected the person being questioned of having committed an offence.
However, while Mr Dunn may have been a person of interest on 30 August 2018, Detective Hill did not consider him to be a suspect in the disappearance of Mr Day. Ms Price did not challenge that evidence.
One who ought reasonably to have been suspected?
Nor, in my view, should he have been considered a suspect at that point. True it is that, having spoken to Ms Torney earlier in the day, Detective Hill had made a note to the effect that Mr Dunn had hit Mr Day on the head with a hammer a year earlier. But that information, together with other information in the possession of the police at that time, was insufficient potentially incriminating material to compel such a conclusion.
In those circumstances, I do not think that there was any impropriety, for the purposes of s 138(1)(a) of the Evidence Act, in failing to caution Mr Dunn or to advise him of his rights to a contact a friend, a relative or a lawyer.
Nor was there any obligation, pursuant to s 464H(1)(e) of the Crimes Act, to make an audio or audio-visual recording of the questioning and anything said by Mr Dunn, or to confirm the substance of any admission subsequently by an audio or audio-visual recording.
Unreliable?
Further, I did not understand it to be submitted that, pursuant to s 85 of the Evidence Act, the circumstances in which the admissions made by Mr Dunn were such as to make it unlikely that the truth of the admissions was adversely affected.
Unfairness?
I did, however, understand Ms Price to rely on the so-called unfairness discretion in s 90 of the Evidence Act to justify a decision to refuse to admit the evidence. Subject to one issue, I am not satisfied that, having regard to the circumstances in which the admissions were made, it would be unfair to Mr Dunn to use the evidence at trial.
The only unfairness that I can see concerns whether the fact that Mr Dunn may have been imprisoned previously is unfairly prejudicial to him. That particular aspect of the evidence may be a matter to be addressed by reference to s 137 of the Evidence Act. In particular, it may well be that that aspect of the evidence is such that its probative value is outweighed by the danger of unfair prejudice to Mr Dunn.
As I said earlier, however, there may be a way of leading that evidence that avoids reference to any period or periods that Mr Dunn may have spent in prison. This is an issue that should be the subject of further discussion between the parties.
Failing agreement, I shall rule on the matter after hearing further submissions.
Ruling 2: Mr Dunn’s signed handwritten statement to police on 1 September 2018
Introduction
I turn now to the written statement taken from Mr Dunn by Detective Hill two days later, on 1 September 2018.
As is apparent from the summary of this statement set out earlier, it contains admissions on which the Director seeks to rely, including those going to motive and others going to incriminating conduct.
Differences in state of police information as at 30 August and 1 September 2018
There were some important differences in the state of police knowledge at the point when Detective Hill spoke to Mr Dunn on 30 August 2018 and when the written statement was taken two days later.
Chief among those differences was this. At 3:20 p.m. the same day, Detective Hill spoke to Mr Gottschling. The detective’s notes reflect that Mr Gottschling told him that one night Mr Dunn came over to his house just after midnight; that he had blood all over his hands and jeans, and on his shoes; and that he said he “had done something really bad” and that the body was at Mr McNamara’s place. Mr Dunn also took a pair of Mr Gottschling’s shoes and disposed of his own shoes in a wheelie bin.
Such was the potential significance of this information that Detective Hill spoke to mental health worker Peter Humbly to ascertain whether Mr Gottschling’s mental health would affect his reliability. He was advised that Mr Gottschling does not usually present with false stories, was getting his medication and was not presenting as psychotic.
Later that day, Detective Hill compiled an information report listing as persons of interest in Mr Day’s death Mr Dunn and Mr McNamara and then detailing Mr Gottschling’s account.
Further, on the morning of 31 August 2018, Detective Hill spoke with Detective Hamilton of the Missing Persons Squad in Melbourne. Detective Hamilton’s notes indicate that Detective Hill said that the “situation was escalating” following information provided by a credible source (namely, Mr Gottschling). Detective Hamilton named Mr Dunn as a person of interest. Later that day, Detective Hamilton, Detective Towner and other members of the Missing Persons Squad participated in a video conference with Detective Hill and members from the Wangaratta Police Station. At the conclusion of this meeting, it was agreed that the Missing Persons Squad would take over the investigation, but members from Wangaratta would continue the investigation over the weekend until the squad could attend Wangaratta on 3 September 2018.
Still not a suspect
Despite that additional information, while Mr Dunn was regarded as a person of interest on 1 September 2018, Detective Hill still did not consider him to be a suspect in the disappearance of Mr Day. Again, Ms Price did not challenge that evidence.
In those circumstances, and contrary to Ms Price’s original submissions, I do not think that either s 464A of the Crimes Act or s 139 of the Evidence Act was engaged.
One who ought reasonably to have been suspected?
Neither conclusion, however, necessarily compels the view that there was no impropriety for the purposes of s 138(1)(a) of the Evidence Act in failing to caution Mr Dunn before questioning him.
In my opinion, it is plain that Mr Dunn ought reasonably to have been suspected of having committed an offence connected with Mr Day’s disappearance at that stage.
In coming to that view, I recognise that Detective Hamilton was desirous of confirmation or corroboration of Mr Gottschling’s account even after that point. Moreover, Detective Hamilton, I thought, made an arguably powerful forensic point in his evidence when he noted that it may well seem unlikely that Mr Dunn would walk from his own home to Mr Gottschling’s home, in full view of any passer-by or other observer, while allegedly having blood on his hands and clothing as a result of being involved in a murder or the like.
But, having considered all of the evidence carefully, I am persuaded that, despite those points and others, any police officer — and Detective Hill in particular — ought reasonably to have suspected that Mr Dunn had committed an offence connected with Mr Dunn’s disappearance immediately prior to taking his statement on 1 September 2018. Mr Gottschling’s account of Mr Dunn’s admissions and behaviour, when coupled with the information concerning Mr Dunn’s animus towards Mr Day, and the fact that he had been missing for over a month, compelled that conclusion.
The next question is whether that failure amounts to “impropriety” for the purposes of s 138(1)(a). That term is not defined in the Evidence Act.
In R v FE,[4] a fifteen-year-old girl had presented herself to police in respect of a murder investigation. The police officer questioning her failed to administer a caution. The accused made admissions. Justice Adamson found that, had the police officer considered the evidence available to police against the accused, he ought to have formed the belief that the evidence was sufficient to establish that the accused had at least committed the offence of affray. Her Honour noted that, while such a finding did not fulfil the requirements of s 139(5)(a) of the Evidence Act 1995 (NSW), if the police officer ought to have formed such a belief, she would have concluded that the evidence of the admission was improperly obtained within the meaning of s 138(1) and excluded it in any event.
[4]R v FE [2013] NSWSC 1692 at [100] (per Adamson J).
While the circumstances in R v FE were distinguishable from the present (not least because FE was a child and she was under arrest), it is nevertheless a powerful indicator of the breadth of the notion of impropriety.
On the other hand, it might be said that a failure to caution in the particular circumstances would not amount to a failure to observe the “minimum standards which a society such as ours should expect and require of those entrusted with the powers of law enforcement”.[5] Moreover, it might be argued that such conduct amounts to no more than a blurring of those standards or a contravention in a minor respect, and is not such as to be “clearly inconsistent with” those standards.[6]
[5]See, for example, Robinson v Woolworths Ltd (2005) 64 NSWLR 612 at 618-619[23].
[6]See, for example, Robinson v Woolworths Ltd (2005) 64 NSWLR 612 at 618-619[23] (per Basten JA); Hills v The Queen [2011] VSCA 364 at [18] (per Warren CJ, Nettle JA and Beach AJA).
In the end, it is unnecessary to decide the matter, as I consider the statement to be inadmissible on another basis, to which I now turn.
Obligation to record, or confirm, by audio or audio-visual means?
In my opinion, given that Mr Dunn ought reasonably to have been suspected of having committed an offence, there was, in any event, an obligation on Detective Hill, pursuant to s 464H(1)(e) of the Crimes Act, to make an audio or audio-visual recording of the questioning and anything said by Mr Dunn, or to confirm the substance of any admission subsequently by an audio or audio-visual recording.
This provision is not ousted by s 86 of the Evidence Act, which allows documents detailing admissions if they are acknowledged by the accused by a signature. This is because s 8 of the Evidence Act provides that the Act does not affect the operation of the provisions of any other Act. Thus, even though the statement taken by Detective Hill was signed by Mr Dunn, s 464H(1)(e) of the Crimes Act still applies in the present case.
The statement is therefore inadmissible unless the Director satisfies the Court, on the balance of probabilities, that the circumstances (a) are exceptional; and (b) justify the reception of the evidence. But I can see nothing exceptional about the circumstances. True it is that the statement was written and signed. But the whole point of s 464H is to avoid arguments about what was said by having an audio or audio-visual recording of the questioning and anything said by the person questioned when it is alleged that admissions or confessions are made. Further, I am not satisfied that there is anything in the circumstances that justifies the reception of the evidence.
Unfairness?
Finally, I understood Ms Price to rely additionally on the fairness discretion in s 90 of the Evidence Act to justify a decision to refuse to admit the evidence. In view of the foregoing conclusions, however, it is unnecessary to determine whether, having regard to the failure to caution Mr Dunn, it would be unfair, in the sense required by s 90, to use that evidence against him.
Conclusion
Accordingly, the statement is rendered inadmissible because of the failure to make a recording of its contents and related questioning in accordance with s 464H(1)(e).
Ruling 3: VROI between police and Mr Dunn on 5 September 2018
Introduction
I turn now to the question whether the VROI between police and Mr Dunn conducted on 5 September 2018 at Wangaratta should be excluded, wholly or partly. This, in my view, is a far more difficult and finely-balanced question than the others in these applications.
While, chronologically, I might have dealt with admissibility of the utterances made to police when Mr Dunn was arrested for being drunk at Benalla before dealing with this much later interview, I find it convenient to deal with the latter first.
I should indicate as well that Mr Dickie made it clear that he will not be leading either what was said by Mr Dunn at his arrest at about 6:40 p.m. in the cells at Benalla Police Station on 4 September 2018 or the failed attempts at interview at 8:00 p.m. the same day (Q1-51) and at 12:35 p.m. the next day (Q52-114). As already pointed out, Mr Dickie also abandoned any attempt to lead the conversation between Detective Carroll, other police and Mr Dunn at Benalla Police Station on 4 September from about 12:45 p.m.
I have set out the major portions of the admissions contained in the VROI earlier, and shall not repeat them here.
As I understood Ms Price’s submissions, the VROI conducted from 6:30 p.m. on 5 September 2018 should be excluded on any or all of the following bases:
(a) pursuant to s 138(1)(b) of the Evidence Act, on the basis that this evidence was obtained in consequence of improprieties — principally, those arising from the conduct of the interview the previous day when Mr Dunn was in custody at Benalla Police Station for being drunk, was in fact drunk, and was not cautioned or given any of his rights;
(b) pursuant to s 90 of the Evidence Act, on the basis that, having regard to the circumstances in which the admissions in the VROI were made, it would be unfair to Mr Dunn to use that evidence; and
(c) pursuant to s 464H(1)(d) of the Crimes Act, on the basis that the partly covertly recorded questioning at Benalla and the VROI at Wangaratta formed part of the same questioning.
There were also subsidiary arguments based on s 464B of the Crimes Act, which I need not rehearse.
In short, while it is a very close-run thing, and as I indicated earlier, I am not satisfied that the whole of the VROI conducted from 6:30 p.m. on 5 September 2018 should be excluded. I am, however, satisfied that it should be excluded from question 482 until the conclusion of the interview. While there may be some questions and answers beyond that point that could be severed from the rest, that looks doubtful to me. I shall hear the parties on that point should they wish to be heard.
My summary of reasons for those conclusions follow.
Impropriety at Benalla?
It is necessary first to say something more of the goings-on at Benalla Police Station once Mr Dunn was taken into the interview room on 4 September 2018.
I acknowledge that the very experienced detective overseeing the investigation at that point, Detective Hamilton, was still not of the view that Mr Dunn was a suspect in the disappearance of Mr Day at the time he was arrested for being drunk. Indeed, Detective Hamilton did not regard Mr Dunn as a suspect until he was briefed by Detective Carroll after the latter’s conversation (or interview) with Mr Dunn in an interview room.
However, while that evidence was not challenged by Ms Price, as I indicated earlier, I am persuaded that, on the strength of the material possessed by police three days earlier, Mr Dunn ought reasonably to have been suspected of such an offence back at that time. Nothing that occurred in the meantime suggested that that conclusion should be qualified come the point of his arrest for being drunk on 4 September 2018.
Detective Hamilton made some important — and entirely proper — concessions in his evidence about the propriety of police speaking to Mr Dunn after his arrest for being drunk. It was of major concern to him that Mr Dunn was drunk. He contemplated that police would simply put him in the cells and wait for him to sober up before anything else occurred. At the same time, he would have expected officers to note or record anything he told them of his own volition. But he certainly did not contemplate or request that any interview should be conducted or that any statement should be taken.
As it happened, contrary to Detective Hamilton’s expectation, that is exactly what Detective Carroll did. While Detective Carroll appeared quite friendly — even avuncular — in the course of the interview, it was an interview none the less. It was not just a listening exercise. On the contrary, Detective Carroll asked numerous questions of Mr Dunn, and built upon the answers given with yet further questions. While they appeared to take Detective Carroll’s lead, both S/C Jones and F/C Thompson asked questions of their own as well. None of this should have happened.
Indeed, in my opinion, it was gravely improper even to commence such questioning while Mr Dunn was so drunk and in custody for being drunk, and when he ought reasonably to have been suspected of involvement in Mr Day’s disappearance. It was just as wrong, if not worse, to continue the questioning, without any caution or advice as to his rights, after it was obvious that he was making admissions against his interest about that very matter.
Lead-up to final part of VROI
As the chronology set out earlier shows, several hours after that interview, after being notionally released, Mr Dunn was immediately arrested again in the cells area of the Benalla Police Station at about 6:40 p.m., this time in respect of the disappearance of Mr Day. A caution of sorts was administered, but it was pointless, as Mr Dunn was obviously still drunk.
Similarly, when police tried their luck again at about 8:00 p.m., Mr Dunn again was still in no fit state to be interviewed. Any caution again had to be meaningless, or at least not fully understood. Mr Dunn also made it clear that he would not be interviewed without his solicitor beside him. Police indicated that Mr Dunn had spoken to a solicitor earlier, but that that solicitor had a conflict of interest. Instead, the first solicitor had to refer Mr Dunn to another solicitor, to whom he did speak as well.
Later that evening, Mr Dunn was transferred to Wangaratta Police Station, where he slept the night in the cells.
The next day, 5 September 2018, at 12:35 p.m., Detective Towner advised Mr Dunn that he had spoken to his (new) solicitor that morning and that she was waiting for a call from him. The detective indicated that he would suspend the interview to allow that to occur and to arrange an independent third person.
However, by the time the VROI resumed at 6:30 p.m., while the independent third person had been arranged, Mr Dunn had not been given an opportunity to speak to his (new) solicitor again. Mr Dunn confirmed that he had spoken to his former solicitor and his new solicitor the previous day, but they left him “high and dry”. Nevertheless, he agreed that he was happy to proceed with the interview. It seems that the only person other than police to whom he had spoken since the previous day was Ms Massey, the Salvation Army chaplain, who is a witness against Mr Dunn.
Ms Price’s submission
Ms Price’s principal submissions under s 138(1)(b) were as follows. The admissions in the VROI that followed were obtained in consequence of the impropriety involved in the interview with Detective Carroll and other police at Benalla Police Station the previous day when Mr Dunn was drunk. The reason the Missing Persons Squad decided to arrest and interview Mr Dunn was because of the information they received from the Benalla police officers. Further, the approach taken by the detectives in the interview and the questions they chose to ask Mr Dunn arose from the information they had received from those members. Both of these causal connections are strong and direct, in Ms Price’s submission.
Discussion
In my view, it is one thing to form, or confirm, a suspicion that a person has committed an offence based on information the person has imparted while rotten drunk and while in custody for the offence of public drunkenness; it is another to use that information when it was also obtained in improper circumstances, such as when the person should not have been questioned at all while in that state or in those circumstances, was not cautioned and was not advised of his rights. It is yet another step to arrest a person based on that information so obtained. But it is entirely another thing altogether to use that information to question the person about 30 hours later, having kept him in custody continuously since the original arrest on public drunkenness with only a notional release simply to be arrested again on homicide.
Having spoken to the police and made admissions to them while he was drunk, it would be surprising if Mr Dunn sought to depart from those admissions, to the extent that he remembered them, when being interviewed by police the very next day.
I am also troubled that, despite the promises made to Mr Dunn, he did not get to speak to his new solicitor again on the day of the impugned interview. This is all the more significant a failure when regard is had to the fact that he was still drunk or otherwise unfit to be interviewed when he spoke to his new solicitor the previous day. In other words, he did not have the benefit of independent legal advice, when sober, in circumstances that were highly unusual, to say the least. There was, arguably, no effective circuit breaker between the admissions he made when drunk and the formal VROI.
On the other hand, Mr Dunn made it clear, when sober at about 6:30 p.m. on the second day of his incarceration, that he wished to proceed with the interview.
Further, he was cautioned. (I should add that, while none of the cautions identified the offence in what I regard as an appropriate manner — indeed, murder was never mentioned, despite Detective Hamilton’s belief that it was — this has been the fashion at least since the Court of Appeal’s decision in R v Lancaster.[7] It is, I think, a point that should be reconsidered.)
[7]R v Lancaster [1998] 4 VR 550 at 557 (per Batt JA) (“Lancaster”). (See also Priest JA’s doubts — in dissent — about this aspect of Lancaster in Willis v The Queen (2016) 261 A Crim R 151 at 197[238], with which I agree.)
Further, despite the fact that there is, I think, arguably a strong causal connection between the admissions in the drunken Benalla interview and those in the formal VROI, the nature of the questioning in the earlier parts of that VROI was, in the main, open-ended, and Mr Dunn appeared content to answer most of those questions.
In those circumstances, I am satisfied, albeit only just, that, while all of the admissions in the interview were, in a sense, obtained in consequence of the impropriety at Benalla Police Station the day before, and that Mr Dunn was not afforded the opportunity to obtain legal advice in accordance with s 464C(1)(b) of the Crimes Act with a clear head, the desirability of admitting that earlier part of the interview outweighs the undesirability of admitting that part of the interview that has been obtained in the way it was obtained. This is because, by application of the various factors in s 138(3), the following things may be said:
(a) It can be seen that the probative value of the evidence is significant.
(b) The evidence is of considerable importance in the Director’s case against Mr Dunn.
(c) This is, after all, a murder trial.
(d) The gravity of the contravention is offset by the fact that proper cautions were administered, that Mr Dunn did in fact speak to a solicitor (albeit a day earlier) and that he appeared determined to go ahead.
These things are to be balanced against the fact that there is unlikely to be any sanction administered against police for this impropriety and that it would have been a simple thing to ensure that Mr Dunn had fully informed legal advice, and that there was a more significant break, between the impropriety and the VROI. Indeed, Mr Dunn could have been released, and then arrested and interviewed at a later date. Or police could have ensured that his solicitor was fully apprised of what had happened and given an opportunity to speak with him prior to the recommencement of the interview.
But, on balance, albeit only just, I think that those parts of the interview prior to question 482 should be admitted, subject to editing.
Exclusion of VROI from Q482 onwards
My reasons for concluding, however, that the VROI should be excluded from question 482 onwards are these.
First, question 482 itself misstated the evidence. It is apparent that Detective Towner either misunderstood the information that police had or relied on something that is not in fact going to be in evidence. Either way, it was an unfair question in and of itself.
Secondly, that question introduced for the first time in the interview a suggestion that Mr Dunn himself had uttered the words “kill, kill”. This had the unfortunate consequence of harking back to the drunken admissions he had made during the interview at Benalla the previous day, where he had admitted saying, “He’s still kicking, kill the cunt.”
Thirdly and moreover, in the very next question (Q483), Detective Towner asked, “Did you ever yell out to Darcy, ‘Strangle him, strangle him, kill him’?” Mr Dunn then made the admission that follows. Similarly, in question 487, the detective asked, “So is it possible that you were encouraging Darcy?” Again, these were clear references back to Mr Dunn’s admissions at Benalla that he had urged Mr McNamara to kill Mr Day, but coupled with his belief that Mr McNamara choked him.
(I should say at this point that I considered, but ultimately rejected, the possibility that this might be regarded as a reference back to the alleged admission by Mr Dunn to Mr Bodsworth that he and Mr McNamara “strangled and bashed” Mr Day. But there is no evidence that Detective Towner was aware of that assertion at that point. In any event, it is far more likely that, in Mr Dunn’s mind, these questions were references back to his drunken admissions to police at Benalla only the previous day.)
Fourthly, the same themes are explored and produce similar admissions in questions 488 to 492. Then the detective builds on those questions and answers by putting to Mr Dunn that he wanted Mr McNamara to kill Mr Day (Q493); that he assisted in the assault of Mr Day (Q497 and Q514); that he helped dispose of the body (Q499-513); and that he was involved in the murder of Mr Day (Q515).
In my opinion, it was profoundly improper to rely on that information to found those questions. It matters not whether it was done inadvertently or believing it was proper.
In the result, the admissions found at question 482 and beyond were plainly obtained in consequence of the impropriety involved in the drunken Benalla interview conducted the day before. This is because Mr Dunn’s mind was directed to these issues by the questions of the detective. Further, in my view, it is to be inferred that Mr Dunn felt that all he could do was answer in line with what he had said previously. Otherwise, for all he knew, he would look like — and be branded — a liar. Such an inference is well open, despite Mr Dunn’s failure to give any evidence on the voir dire. So much is clear to see from all of the materials, including listening to and watching the various recordings.
In my view, that evidence has come at too high a price. It is one thing to allow the earlier parts of the VROI (subject to editing) to go before a jury, where the questions tended to be more open-ended. I am prepared to excuse that behaviour given also the caution and Mr Dunn’s apparent preparedness to go ahead without further legal advice. But it is quite another to allow the admissions from question 482 onwards to go before a jury. The latter admissions were obtained so directly and flagrantly in consequence of the earlier — quite improper — interview that it would be quite wrong to admit that evidence at trial.
To return to the factors in s 138(3), I am not satisfied that the desirability of admitting that latter part of the interview from question 482 onwards outweighs the undesirability of admitting that part of the interview given the way in which it was obtained. True it is that the probative value of the evidence is significant; that it is of considerable importance in the Director’s case; and that this is, after all, a murder trial. But the gravity of the contravention is not neutralised or adequately offset by the fact that proper cautions were administered, that Mr Dunn did in fact speak to a solicitor (albeit a day earlier) and that he appeared determined to go ahead. In addition, there is again the fact that there is unlikely to be any sanction administered against police for this much more serious impropriety. Further, as I said earlier, it would have been a simple thing to ensure that Mr Dunn had fully informed legal advice, and that there was a more significant break between the impropriety at Benalla and the conduct of the VROI. Indeed, Mr Dunn could have been released, and then arrested and interviewed at a later date.
Thus, for these reasons, and despite the onus of persuasion being on the Director at this stage of the analysis, I am persuaded that the balance tips the other way at this point in the interview and compels exclusion.
While it is not necessary to my conclusion, it is to be noted that, in the course of these impugned questions, Mr Dunn did indicate a desire to conclude the interview and asserted that the detective was putting words in his mouth, which was denied (see Q495). Also when the interview was suspended, Mr Dunn refused to come out of his cell and continue it. This is all set against a background of Mr Dunn effectively seeking an assurance in the drunken Benalla interview to the effect that, “I’ll tell ya exactly what I’ve seen, but don’t bring it back on me.” He said a similar thing when arrested at 6:40 p.m. — namely, “I can go through it with youse on me own but don’t stitch me up.”
These factors suggest to me that Mr Dunn felt that he had been unfairly treated by police bringing up things he had said at an earlier stage. If indeed he thought that, I agree with him. But, as I say, this is not necessary to my conclusion under s 138(1)(b).
Unfairness
I am also persuaded that there is a grave unfairness, within the meaning of s 90 of the Evidence Act, in leading the whole of the VROI against Mr Dunn. This is because, in order to make any argument to a jury about how it is that he was induced to make these admissions from question 482 onwards, the earlier improperly obtained evidence at Benalla would have to be placed before the jury in some form. That, of course, would be forensic suicide.
On the other hand, I do not think it would be so unfair to lead the VROI in the case of the admissions made prior to question 482. This is because those admissions were made in what I regard as a wholly voluntary way in response to open-ended questions. Put another way, the causal link between the earlier impropriety and the later admissions is not quite as strong. Further, in my view, that he was under caution and had a determination to go ahead despite the absence of further legal advice adequately offsets any such unfairness, albeit only just.
Accordingly, I have reached the same result under s 90 as well.
Section 464H(1)(e)
Finally, I turn to s 464H(1)(d) of the Crimes Act.
Ms Price relied on the reasoning of the High Court in Heatherington v The Queen[8] to submit that the questioning which led to the admissions at Benalla and those that formed the VROI in Wangaratta the next day were all, in truth, part of the same questioning. If correct, the consequence would be that the whole of the VROI would have to be excluded because not all of the Benalla interview was recorded.
[8]Heatherington v The Queen (1994) 179 CLR 370.
As I understood him, Mr Dickie, on the other hand, submitted that, while there were similarities, there was simply too great a separation in time, place and circumstances to justify a finding that the two distinct periods were in fact just parts of the one overall period of questioning. Further, he submitted that the failure of the recording device at Benalla was inadvertent and would amount to exceptional circumstances justifying the reception of the VROI.
In my view, the point fails at the threshold. While separation in place is not to defeat arguments about s 464H(1)(d),[9] I accept Mr Dickie’s submission that, as much as there was an overlap in the issues about which questions were asked, the differences in time and circumstance were such that it is not open to conclude that both periods were in fact part of the one period of questioning.
[9]See Pollard v The Queen (1992) 176 CLR 177.
I should add that it does not necessarily follow that, because I have accepted that there was at least an implicit harking back to the improper Benalla interview in the questioning of the subsequent interview, which engages s 138(1)(b), there will be a like conclusion to be drawn when considering whether the two distinct tranches of questioning are to be considered but the one period for the purposes of s 464H(1)(d). While they raise similar notions, they are distinct statutory provisions governed by different considerations.
It follows that this aspect of the application fails. It is therefore unnecessary to decide whether the circumstances are exceptional and justify the reception of the evidence within the meaning of s 464H(2) in any event.
Conclusion
In the result, the VROI will be admitted from question 114 up to and including answer 481 (subject to further editing) and excluded from question 482 onwards.
I did consider whether some of the questions and answers after question 481 might be saved, as not all contain direct or implicit references to admissions made in the drunken Benalla interview. In the end, however, I considered it too difficult to achieve, as the context would be lost once the offending questions and answers were removed. That said, as I indicated earlier, I am prepared to hear further argument on that question, should the parties wish to take up that matter.
Ruling 4: Mr Dunn’s utterances around time of his arrest for being drunk
Introduction
Earlier, I set out the evidence of what Mr Dunn is alleged to have said around the time of his arrest for public drunkenness and also what he is alleged to have said once back at the custody counter at Benalla Police Station. That is the evidence impugned under this application.
As I understood her submissions, Ms Price relied on both s 85 and s 90 of the Evidence Act in support of her arguments for exclusion of this evidence.
Unreliability
Relevantly, s 85(1)(a) provides that the provision applies only in a criminal proceeding and only to evidence of an admission made by an accused to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence. It seems clear enough that the admissions relied on are caught by those requirements both when the uniformed police approached Mr Dunn for being drunk and when he was spoken to at the custody counter and any time in between.
Then s 85(2) provides that evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
Section 85(3) goes on to provide that, without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and (b), if the admission was made in response to questioning, (i) the nature of the questions and the manner in which they were put; and (ii) the nature of any threat, promise or other inducement made to the person questioned.
Ms Price relied on Mr Dunn’s drunken state as engaging this provision. In her submission, the circumstances in which the admissions were made — namely, his extreme state of inebriation — could not be said to be such as to make it unlikely that the truth of the admission was adversely affected. Further, he was so drunk that he was unable to make a clear and rational decision as to whether to discuss the disappearance of Mr Day with police.
Mr Dickie submitted that it is not every case in which a drunken admission by an accused must be excluded on the basis of unreliability. On the contrary, it may be said that alcohol lessens inhibitions and is a truth serum of sorts.
Conclusion
In my opinion, Ms Price’s submissions are to be preferred.
Mr Dunn was in no fit state to be relied on about any serious matter. As Detective Carroll put it in his evidence, Mr Dunn was “absolutely hammered”. He also accepted that “you wouldn’t hang a brown dog on him [because he was] rotten drunk”.
In the result, I do not accept that the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admissions was adversely affected. On the contrary, their truth and reliability was highly likely to be affected adversely.
Accordingly, that evidence will be excluded.
In those circumstances, it is unnecessary to deal with Ms Price’s further submissions in reliance on s 90.
Ruling 5: Mr Dunn’s alleged threats to kill Mr Day
Introduction
Finally, I turn to Ms Price’s application to exclude evidence of alleged threats by Mr Dunn to kill Mr Day.
This evidence is not summarised earlier. In substance, Mr Gottschling says that he had heard Mr Dunn threaten to kill Mr Day on a number of occasions.
Ms Price’s submissions
In Ms Price’s submission, the probative value of this evidence is low, and the unfair prejudice high, as the threats are not sufficiently particularised. She relies on the exclusionary provision in s 137 of the Evidence Act.
Mr Gottschling participated in a VARE on 4 September 2018. While his answers are somewhat confusing, he seems to say Mr Dunn said to him that he was going to kill Mr Day, or that Mr McNamara was going to kill Mr Day. Mr Gottschling says that Mr Dunn said this whilst intoxicated every second day or so. Despite careful questioning by police, Mr Gottschling was not able to offer any details about the circumstances in which he heard these threats. At the committal hearing, he said he heard Mr Dunn say that he and Mr McNamara were “gunna get” Mr Day about a month “before it all happened”. Otherwise, the dates, locations and circumstances of the alleged threats are unknown.
Mr Dickie’s submissions
Mr Dickie made the following submissions.
Mr Gottschling’s evidence in his VARE and at the committal hearing is that he heard Mr Dunn threaten Mr Day’s life and said that he and Mr McNamara were going to kill Mr Day. He said this happened a few times, including a month before 26 July 2018.
In his VARE, Mr Gottschling initially referred to one occasion of a threat, which the police then referred to as “the time” and “that day” that he heard the threat, with Mr Gottschling referring to a specific day. Later, he said he had heard this a few times at different times. Mr Gottschling did not say that Mr Dunn made these threats every second day. Rather, Mr Gottschling referred to Mr Dunn saying “something like that” every second day. Such remarks, in addition to others, are proposed to be edited out of Mr Gottschling’s VARE.
Contrary to the defence submission, Mr Dickie submitted that the probative value of this evidence is very high. The Director alleges that Mr Dunn acted together with Mr McNamara in murdering Mr Day. Part of the likely defence is that Mr McNamara acted alone. For the reasons outlined above, the jury ought to be provided with the full and accurate picture in terms of animosity towards Mr Day. The evidence of Mr Gottschling is of particular probative value because it shows not only that Mr Dunn was going to get Mr Day, but that he expected to do so with Mr McNamara. Without this, the jury will primarily hear about Mr McNamara and Mr Dunn fighting after the killing. This is also in the context of a jury that will hear evidence of threats and hostility from Mr McNamara towards Mr Day (and possibly others).
In Mr Dickie’s submission, there is no suggestion that Mr Gottschling’s evidence is unreliable. Mr Gottschling was not cross-examined by counsel for Mr Dunn on these matters at the committal hearing. However, when cross-examined by counsel for Mr McNamara about the threats, Mr Gottschling’s evidence appeared clear and intelligible. When asked when it was said, Mr Gottschling said the threats were made about a month before it all happened. This, in Mr Dickie’s submission, is sufficiently particularised.
Conclusion
In my view, Mr Dickie’s submissions are persuasive and are to be preferred.
I am satisfied that the way in which he proposes to lead the evidence shows that it is sufficiently particularised.
I also accept that the evidence has significant probative value. As Mr Dickie points out, it goes to the question of Mr Dunn’s animosity towards Mr Day.
On the other hand, I do not accept that the evidence shows — or ought to be allowed to be left as showing — that “Mr Dunn was going to get Mr Day”. That is to take it too far. That risk, however, could be the subject of a direction to the jury about the limits of the use of the evidence.
There is also probative value in Mr Dunn’s allegedly saying that he may act in company with Mr McNamara.
Overall, I am not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to Mr Dunn.
Accordingly, I do not intend to exclude the evidence.
That said, while I do not say that Mr Gottschling is unreliable at this point, it is obvious, from the history of this matter, that there is a risk that his evidence may differ from its present form. It may well be that, once Mr Gottschling’s evidence is heard (which, I understand, will be done by way of pre-recording), it becomes necessary to revisit this issue, depending upon how the evidence falls.
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