R v El-Ahmed, Parsons & Stocker
[2002] VSC 160
•13 May 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1472 of 2001
| QUEEN |
| v |
| BELAL EL-AHMED DONNA MARIE PARSONS ANDREW FRANZ STOCKER |
---
JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19-21 November 2001 | |
DATE OF RULING: | 21 November 2001 | |
DATE OF REASONS: | 13 May 2002 | |
CASE MAY BE CITED AS: | R v El-Ahmed, Parsons & Stocker | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 160 | |
---
Criminal Law – Ruling – Evidence of oral statements and written statement to police and interview by police – voluntariness – fairness – probative/prejudice discretion
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Horgan S.C with Mr C Winneke | Office of Public Prosecutions |
| For the Accused El-Ahmed | Mr I Hayden | Victoria Legal Aid |
| For the Accused Parsons | Mr M Scarfo | Marshalls & Dent |
| For the Accused Stocker | Mr G Silbert | Anthony Isaacs |
HIS HONOUR:
These are my reasons for ruling against an application made on behalf of the accused Donna Parsons. She and two others, Belal El-Ahmed and Andrew Stocker, were charged with the murder of Paul Parsons, the husband of the accused Parsons, at Werribee on 15 September 2000. The application was for the exclusion by me of certain evidence which the prosecution proposed to lead at the trial. Before receiving submissions from Mr Scarfo of counsel for the accused Parsons, I heard evidence upon the voir dire from four detectives, and from the accused Parsons. Three detectives, Barry McIntosh, Philip Shepherd and Kelvin Gale, were members of the Homicide Squad. The fourth detective, Lorie Stein was stationed at Werribee.
On Friday 15 September 2000, Detective Stein answered a call to go to the home of Paul and Donna Parsons at 5 Lachlan Court Werribee. She arrived there around 8.30 p.m. She checked out the scene. She saw the body of the deceased. She spoke to Anthony Thomas from 4 Lachlan Court. Around 9.00 p.m., Detective Stein spoke with the accused Parsons on the porch at 4 Lachlan Court. She told the accused Parsons that her husband was dead. Detective Stein went on to say that the circumstances were suspicious. She then sought the aid of the accused Parsons in the provision of information aimed at finding out who had killed the deceased. She asked the accused Parsons a number of questions. Some questions were as to the deceased and his interests, and his associates, and his movements that day. Some questions were as to the accused Parsons and her interests and her movements that day. The accused Parsons answered the questions. She provided information including: that she was a professional wrestler; that she and the deceased had had problems with a man in the wrestling scene named Dominic Care from Coburg; that she drove a white Rodeo utility; that she had left home at 2.30 that afternoon: that she had visited a Paul Giacobbe and then a Kerry Davie; and that she arrived home that evening about 8.30 p.m.
After that conversation, Detective Stein left the accused Parsons and spoke with others at the scene. In the course of making further enquiries, Detective Stein learned that the utility of the accused Parsons had been seen in Lachlan Court around 6.30 p.m. The 6.30 p.m. time was different from the 8.30 p.m. time that the accused Parsons had given to Detective Stein. Detective Stein decided to have that matter clarified. She spoke again with the accused Parsons. Initially, the accused Parsons repeated that she had come home at 8.30 p.m. When asked if she was sure, she said that she had come home at 6.30 p.m. Detective Stein spoke with members of the Homicide Squad when they arrived. Detective McIntosh asked Detective Stein to ask the accused Parsons whether she would go to the Werribee Police Station. There were good reasons, partly welfare and partly investigatory, for that to happen. The police station represented a better environment in which to talk, and the two children of the accused Parsons were being cared for. From the police viewpoint, it was desirable that information, and ideally a statement, be obtained as quickly as possible. On being asked, the accused Parsons agreed to go to the police station. She was driven there, and taken into an office there.
Around 11.30 p.m., Detectives Gale and Shepherd, who had gone inside the Parsons home, left Lachlan Court and drove to the Werribee Police Station. There, with Detective Gale doing most of the questioning, they spoke with the accused Parsons, taking notes as they did so. A lot of territory was covered. The position as to Dominic Care was covered at length. The accused Parsons told the detectives of other matters possibly of interest. One such matter was as to an incident when the brake lines on the car of her husband had been cut when he was attending a meeting. Another was as to an incident when her husband had been pushed off his motorcycle. After a period of hours answering questions, the accused Parsons was asked to make a statement, and she agreed to do so. Detective Gale worked with her on a computer to prepare the statement. When the statement was printed, she signed it. That was about 7.20 a.m. on the morning of Saturday 16 September. Nearly eight hours was taken up with the answering of questions and the preparation of a statement.
During part of the time when those events were taking place, Detective McIntosh had gone to the home of Kerry Davie. Kerry Davie was the friend of the accused Parsons to whose home the accused Parsons had gone before arriving home that evening. Detective McIntosh spoke with Kerry Davie about matters potentially relevant to the police investigations. Those matters included her knowledge of the Parsons family, whether there had been some strain in relations between the accused Parsons and her husband, and what the movements of Kerry Davies had been on 15 September.
On the Saturday morning, back at the Werribee Police Station, Detective Stein started her Saturday shift, having finished her Friday shift after leaving Lachlan Court. She was told by Detective Gale that the accused Parsons had told him of her movements on the Friday, after she left the home of Paul Giacobbe. He noted that the accused Parsons had spoken of receiving a call from, and later visiting a female friend, the call before, and the visit after, Parsons visited Kerry Davie. The accused Parsons had told Detective Gale that she preferred not to name the female friend. Detective Gale asked Detective Stein if she would speak with the accused Parsons, and she agreed to do so. The accused Parsons told Detective Stein that she had lied about the female friend. The accused Parsons said that she had actually gone to her home and then had gone back to the home of Kerry Davie. Detective Stein relayed to Detective Gale what she had been told. The accused Parsons then herself told Detectives Gale and Shepherd that she had lied as to receiving a call from and visiting a female friend. The accused Parsons was then asked from whom she had received the call if not from a female friend. She said she believed the call was from a Bill Williams, and that it was a call about wrestling.
The accused Parsons remained at the police station, while Detectives Gale and Shepherd went back to 5 Lachlan Court. In the white Rodeo utility parked there, Detective Shepherd located a black address book. Detective Shepherd took a note of telephone numbers under “Bill”. That led to him speaking to a person who proved to be Belal El-Ahmed, also known as Bill. On returning to the police station, Detective Shepherd spoke to the accused Parsons about El-Ahmed. Around 11.30 a.m., the accused Parsons was driven from the police station to Lachlan Court. Her purse and mobile telephone were still in the utility in the court. She took them back with her to the home of Kerry Davie. Shortly after that, Detective Stein came to the home of Kerry Davie. Detective Stein collected Ami, one of Parsons’ two daughters, to make some enquiries at a video shop.
Around 1 p.m., Detective Stein came back to the home of Kerry Davie. She had been asked to collect the clothes that the accused Parsons had been wearing the previous day. Detective Stein spoke with the accused Parsons about calls made from the latter’s mobile telephone. The accused Parsons told Detective Stein that she had wiped off numbers of calls made on the previous day. Detective Stein went back to the Werribee Police Station. There, she told Detective Gale what the accused Parsons had said about wiping off numbers of calls from her mobile telephone.
During the course of that Saturday, the Dominic Care, of whom the accused Parsons had spoke to the detectives, was interviewed. The conclusion was drawn by the interviewing detectives from answers given by Dominic Care that he could be eliminated as a suspect. By that time in the afternoon on the Saturday, the investigating detectives had obtained pieces of information that by then could be seen and were then seen to amount, to grounds for a belief that the accused Parsons should be treated as a suspect. They included: that some things said by the accused Parsons to the police about her movements were not accurate; that relations between her and her husband had been strained to some extent; that the accused Parsons had spoken of wiping numbers of calls from he mobile telephone, and that Dominic Care had been eliminated as a suspect.
During the morning of Sunday, 17 September, Detective Stein took a statement from Kerry Davie. Around 2 p.m. that day, Detectives Gale, Shepherd and Stein went to see the accused Parsons at the home of Kerry Davie. Detective Gale, in the presence of the other two detectives told the accused Parsons that she was suspected of killing her husband. He cautioned her and explained her rights. The detectives then asked her if she would show them certain things linked to her account of events. One was as to whether she could locate in the garage the cut brakes lines to her husband’s car. Another was as to whether she could show them where her husband had been knocked off his motorcycle. She assisted the police in those matters. She was taken to the office of the Homicide Squad. There she was interviewed. The interview was tape recorded. At the end of the interview she was told that she may be charged with murder. She was taken back to the home of Kerry Davie. On 18 September, Belal El-Ahmed was interviewed by the police. After the interview, he was charged with the murder of Paul Parsons. On 19 September, the police came again to the home of Kerry Davie. On that occasion, the accused Parsons was arrested and charged with the murder of her husband.
Having stated the background facts above, it is appropriate that I now provide a summary of claims made by the accused Parsons in her evidence before me on the voir dire. She claimed: that, on 15 September, when asked by Detective Stein if she would go to the police station, she said that she did not want to go, and was told that she had to go; that at the police station she had photographs taken of her face and hands in the presence of Detectives Gale and Shepherd; that at the police station she was offered something to drink, but no food or place to sleep; that the detectives asked her questions without explaining the reasons for doing so; that she asked four times to be able to go to be with her children and was told that she could not go; that she asked the detectives to make contact with the parents of her husband and was brushed off; that when she signed her statement she did not understand what she was doing; that, after signing the statement, she had no conversation with Detective Stein about a female friend as stated by Detective Stein; that what Detective Stein said about the deletion of numbers on her mobile telephone at the home of Kerry Davie was not correct; that, when the detectives came to see her on the Sunday, she was not cautioned, nor told of her rights; that she protested to no avail that she did not want to go to her garage to look for the brake lines when asked if she would do so by the detectives; that she protested to no avail that she did not want to go when then asked to go to the Homicide Squad office; that she was not given a caution before being taken to the Homicide Squad office; that she was not given a caution at the Homicide Squad office before the recording of the interview commenced; that Detective Gale told her before the recording commenced that she would be cautioned but that she need not worry about it because she was only helping the police with their inquiries; and that she only proceeded with the interview because she did not want the detectives to keep coming back to her.
When cross-examined, what the accused Parsons said included: that what she said in the 16 September statement she prepared with Detective Gale was accurate, save as to the reference to her visiting a female friend; that what she said in the 17 September interview was essentially accurate; that what she said in both the statement (with the one qualification) and in the interview represented exactly what she wanted to say; that she did not complain during the 17 September interview of matters affecting her when the 16 September statement was being taken; that she was not able to remember having the chance to complain to an independent officer on 17 September.
It is apparent that there are many discrepancies between what the detectives said occurred and what the accused Parsons said occurred. Before me, she was effectively making multiple complaints about the way that the detectives had acted towards her. The multiplicity of the complaints alone was a factor pointing to the complaints being hollow. If I were to accept what she claimed, the detectives behaved very badly indeed. I am quite unable to accept what she claimed. Put shortly, I believe that the account of the detectives was reliable and that her account was very unreliable. In making my findings as to the facts, I have had regard to information from sources, including: the oral testimony from the four detectives and the accused Parsons given on the voir dire; statements made by all five and by other persons contained in the depositions; the transcript of evidence given at the committal hearing; the contemporaneous notes made by detectives Stein and Gale; and the videotape record of the interview of the accused Parsons. I viewed the videotape of the record of interview. That meant watching what took place during over a period of over four hours. There was no question that her demeanour was consistent at times with a level of distress. At other times of heavy breathing and sighing, I had major reservations as to the authenticity of the apparent distress. That was particularly so when she spent lengthy periods talking in a critical way about various people. It would have been possible to view her demeanour as that of the grief-stricken distress of a woman who had just lost a loved one. It would also have been possible to view her demeanour as that of a person acting out a role. I was troubled by, but yet reluctant to read too much into the measures she took to hide her face, to keep her head down and to put her hand in front of her face. Save for one period, it seemed to me that Detective Gale conducted the interview in a fair and balanced way. I will come back to the period in question. Detective Gale enquired as to the welfare of the accused Parsons from time to time. She indicated that although she was tired, she wanted to continue or that she would appreciate a drink.
I was troubled about the reliability of her account when she gave it before me for reasons that went beyond her demeanour, and the implausibility of the extent of her claims of lies and irregularities on the part of the police. Her claims were lacking in corroboration. Further, she had opportunities to make at the time of the interview, the complaints that she made in her evidence before me. She had those opportunities both when being interviewed on videotape, and when being asked afterwards by the supervising police officer whether she had any complaint. That she did not take those opportunities is contraindicative of there being a basis for the complaints. A further consideration was her general acceptance of the reliability of almost all of what she had said both in her statement made on 16 September and in the recorded interview.
I turn from the accused Parsons to the detectives. They were faced with a familiar dilemma. To what extent should priority be given to pursuing needed investigatory work involving an individual in the face of competing concerns linked to the physical and mental state of that individual? The police have a duty to carry out the investigatory work as soon as possible. Leads are best obtained and followed up promptly. Delay can mean that possible evidence can be lost or destroyed. In almost every homicide situation, the state of close relatives is likely to be such that a balance must be struck. In a situation of exhaustion, or severe distress, or fatigue, investigatory priorities must suffer. Only in exceptional circumstances should a request by an individual to see a doctor or to have a sleep be ignored. I am satisfied that, in the circumstances of this case, the detectives acted responsibly in how they treated the accused Parsons during the night of 15 September and thereafter. I am satisfied that the accused Parsons conducted herself in a way that indicated to the detectives that she was both upset at the death of her husband and concerned to cooperate with them to maximise the prospect that his death was properly investigated.
The accounts of the four detectives were relatively consistent. I also had available in the depositions a copy of the notes kept by Detectives Gale and Stein. The notes seemed to me to be relatively comprehensive. To the extent that I could compare the notes with their accounts, it seemed to me that those notes were substantially supportive of what they said, and contra-indicative of what was claimed by the accused Parsons. I am satisfied that the accounts given by the four detectives were substantially accurate. There were some inconsistencies in those accounts, but they were such as I would have expected. Where their accounts differed from that of the accused Parsons, both generally and specifically as to matters like the giving of a caution, I accepted theirs. I was impressed with what all the detectives said as to how they acted and as to the reasons they gave for so acting.
Mr Scarfo put to me that all of the material objected to should be excluded from going into evidence on the ground of the lack of “voluntariness”, or alternatively “unfairness”. In short, it was put that the early admissions had not been voluntarily obtained, or alternatively had been obtained in circumstances that it would be unfair to permit the material to be introduced into evidence, and that the lack of voluntariness or the unfairness had infected material obtained later. As to the principles applicable as to “voluntariness”, and as to “unfairness”, the position was reviewed in R v Swaffield [1998] 192 CLR 159. I refer to what was said as to voluntariness at paras 10 to 13 by Brennan CJ , and as to unfairness at paras 53 to 56 by Toohey, Gaudron and Gummow JJ. Taking the view of the evidence which I have taken, I am quite unable to accept that the will of the accused Parsons was overborne at any time. Further, save as to a limited part of the interview, I am unable to accept that it would be unfair to use against the accused Parsons any of the oral statements, the signed statement, or the videotaped interview.
Mr Scarfo submitted that Section 464 H (1) of the Crime Act should apply so that all of the material not videotaped should be excluded. Under that sub-section “ evidence of a confession or admission made to an investigating official by a person who- (a) was suspected; or (b) ought reasonably to have been suspected - of having committed an offence is inadmissible as evidence against the person … unless…the questioning and anything said by the person was video-recorded … and the … video-recording is available to be tendered in evidence.” I find that the accused Parsons was not in fact suspected of having murdered her husband until the time on the Saturday when the detectives claimed that she was so suspected. Ought she reasonably to have been suspected earlier? Cases where the issue of whether the interviewee ought reasonably to have been suspected has been considered include R v Heaney [1992] 2 VR 531 and R v Alexander [1994] 2 VR 249. In R v Alexander:, from what was said at 255 to 256, my concern should be with the state of mind of the interviewer arrived at upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created. I allow for the narrowing focus of hindsight. I have readily concluded, after hearing the testimony of the four detectives, that no such apprehension ought to have been reached. I have taken into account that, at the committal hearing, the crime scene expert, a Mr Stephens, said that he was told on the night by a Homicide Squad detective that the accused Parsons was a suspect. Mr Stephens could not say which detective. The individual detectives denied saying any such thing to Stephens. They explained to my satisfaction why at the time in question, they could not have had grounds for a belief that she was a suspect. The Homicide Squad detectives and Detective Stein went on to explain to my complete satisfaction, why they did not have had grounds for a belief that the accused Parsons was a suspect until during the afternoon of 16 September.
Mr Scarfo also argued that I should exercise my discretion to exclude evidence which he claimed had little probative value but was highly prejudicial. That evidence was that which concerned the admitted lie by the accused Parsons as to having visited a friend. It was put that to allow in that evidence would unfairly prejudice the accused. Evidence could be prejudicial if the jury was likely to give the evidence more weight than it deserves. In my assessment, the evidence of the admitted lie has probative value which is potentially considerable. I do not accept that there would be unfair prejudice in the relevant sense provided the principles applying as to the way in which a deliberate material lie can have probative value are explained to the jury.
Mr Scarfo also submitted that I should exclude a significant part of the tape-recorded interview on the basis that it consisted of inappropriate oppressive cross-examination. As noted earlier, I have listened and watched the replaying of the tape. I have read again what was said in R v Pritchard. [1991] VR 84, particularly at 91 and 93. Questioning of a particular kind can be characterised as unfair. One may have concern as to unfairness if there is in the questioning elements of disbelief, derision, incredulity, ridicule, scorn, sneering, or the like. There is likely to be a greater risk of that occurring when matters inconsistent with the account of the accused are being put to the accused for comment. I am unable to accept that those features exist generally in the questioning of the accused Parsons. With one area of reservation, it seemed to me from reading the statement as to conversations not tape recorded , and from listening to and watching the recorded interview that, generally speaking, the detectives went about the questioning in a way that indicated that their focus was primarily on eliciting further information. The possible exception is to be found in questions put by Detective Gale late in the interview. Put shortly, there are some indications of disbelief in some of the questions, and I would propose to hear argument as to the exercise of the unfairness discretion as to a number of questions and answers.
0
0
0