R v Hartwick (No 1)

[2002] VSC 422

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. C01021821 of 2002

THE QUEEN

V

JOHN DOUGLAS HARTWICK, LISA JANE HARTWICK AND CELIA KATHLEEN CLAYTON

Ruling No 1

JUDGE:	Smith J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2002
DATE OF RULING:	3 October 2002
CASE MAY BE CITED AS:	R v Hartwick & Ors (No.1)
MEDIUM NEUTRAL CITATION:	[2020] VSC 422

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Crime Practice and Procedure – Record of interview – Alleged breaches of Crimes Act s 464A, G and H – Deception – Bunning v Cross discretion.

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APPEARANCES:	Counsel	Solicitors
For John Douglas Hartwick	Mr J. Desmond	McNamaras
For Lisa Jane Hartwick	Mr S. Langslow	Stary Myall
For Celia Kathleen Clayton	Mr L. Hartnett	Patrick Dwyer
For DPP	Mr R. Gibson	Kay Robertson Solicitor for Public Prosecutions

HIS HONOUR:

1. Counsel for Lisa Hartwick has applied to have evidence of her interview by Detective Senior Constable McCaughey on 23 May 2001 excluded. Counsel submits that the obtaining of the evidence involved several breaches of s 464A Crimes Act 1958 which warrant exclusion under s 464H of that Act or in the exercise of the Bunning v Cross discretion.

1. The Crown seeks to have the evidence tendered as evidence of false denials admissible against Lisa Hartwick and as evidence of prior statements which are inconsistent with what she said in her later interview pointing to her lying on the first occasion and supporting an argument that she was lying in later interviews as well.  As to the false denials, it is put that her denials in the interview of any involvement or knowledge of the fatal incident reveals her consciousness of guilty involvement in the alleged crimes.

1. In considering the matters raised I note that no oral evidence has been placed before me through Detective McCaughey or the accused as to what transpired on that night at that interview.  Evidence has been placed before me through Detective Trichias as to the explanations for the failure to supply a copy of the tape of the interview within the prescribed time.  The issue has been largely argued on the basis of the documents that have been placed before me, comprising statements of the police officers concerned and the transcript of the interview itself.  On the basis of that evidence the following emerges:

(1)Detective Senior Constable Francis-Pester attended the Mornington Peninsula Hospital, Frankston at approximately 12.13 am on 24 May 2001.  "A short time later" he approached Lisa Hartwick in her room a short distance away from the room in which John Hartwick was lying.  He had a conversation with her in the course of which he cautioned her.  He left the room and while he was absent Detective McCaughey entered the room and spoke to her, obtaining her full name and address and information about where she had been that night and who else was there.  He also briefly asked her about John Hartwick.  She said that there was no-one with him when he came home.  She saw blood on his side.  He did not say how it happened.  She said that she did not ask him how it happened.  She said she couldn't make any sense out of him.

(2)Detective McCaughey then left the room and had a short conversation with Detective Francis-Pester.  During Detective McCaughey's conversation with Lisa Hartwick, Detective Francis-Pester had obtained a micro-cassette recorder from Senior Constable Stacke, activated it and concealed it in a folder.  He and Detective McCaughey then returned to the room and Detective McCaughey continued his conversation with Lisa Hartwick.  The transcript provided commences in the following way:

"Fr-Pester:I reckon that'll be recorded there.  You're not making a statement Lisa, is that right?

Hartwick:No because I don't know really.

McCaughey:     I'll try to remember that.  I'll just, well what.  Correct me if I'm wrong here.

Hartwick:Hum.

McCaughey:     What, Lisa was saying that she was at home filing papers with Leah Roberts from No 4 Fingal Drive?  …

Hartwick:Aha …"

McCaughey then moved into the questioning of Lisa Hartwick.  After some time, Detective McCaughey reminded her that she had been previously cautioned by Detective Francis-Pester and said that he probably should have repeated it before "we started".  He asked her to confirm that she had understood the earlier caution.  After some prevarication she agreed she had and then said she was pregnant and wished to go to the toilet, thereby terminating the interview.

1. I am satisfied that prior to the recorded interview, Lisa Hartwick had indicated that she did not want to make any statement and thus had indicated that she wanted to exercise her right to silence.  I am also satisfied that the inference should be drawn that the police officers decided that it was necessary to conceal the cassette recorder if they were going to obtain answers from Lisa Hartwick to any questions put to her.  Their concern was warranted bearing in mind that Lisa Hartwick terminated the interview shortly after being asked to confirm that she had been cautioned.  I am satisfied that the inference should also be drawn that they were concerned to avoid giving her the impression that they were engaged in any way in any sort of official questioning and to give her the impression that they were conscious of, and seeking to respect, her exercise of her right to silence.  These inferences arise from the opening recorded remarks and from their conduct.  Evidence has not been called to contradict those inferences.  At the same time I note that no evidence has been called on behalf of Lisa Hartwick to suggest that if the police had been open and frank she would have responded any differently.

1. I am satisfied that the questioning that occurred was questioning to which the relevant provisions of the Crimes Act apply in that what was involved was official questioning of a suspect who was in custody.  There was, however, no breach of s 464H(1) because the questions and responses were recorded.  There was, however, breach of other provisions.

(a)I am satisfied that there was a breach of s 464A(3) in that, on the evidence, the questioning was a new round of questioning which required a caution because the earlier caution was no longer operative. This was the consequence of the interruptions and breaks, however short, in the interviewing process, the circumstance that she had prior to the recorded interview made it clear that she did not want to make a statement and the police's apparent acknowledgment of that fact at the commencement of that interview. What occurred was a fresh attempt to question her.

(b)Next, there was breach of s 464G in that the caution originally given was not recorded as required by that section.  I am satisfied that it was practicable to do so as evidenced by the fact that a micro-cassette recorder was produced for the interview that occurred.

(c)Finally, there was breach of s 464H(3) in that the recording was not given to Lisa Hartwick or her legal practitioners within seven days of the interview.  I accept the evidence that there was no deliberate or wilful breach of that provision and in particular no conscious attempt to gain some advantage by the delay.  Rather, the delay resulted from a combination of factors including uncertainty on the part of the informant as to the precise status of the interview and, as a result, whether the section had to be complied with, a significant backlog in copying due to lack of resources that would prevent compliance and the pressure itself on the informant requiring him to prioritise his own activities.  A copy of the tape was received but not until last month.  Its availability was communicated to the accused's solicitors in July but I note that the Act places the obligation on the persons conducting the interview to give a copy to the accused.

1. The discretion that counsel invokes on behalf of Lisa Hartwick is one which requires "the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law."[1]

   [1]Bunning v Cross (1978) 141 CLR 74-5.

1. In weighing up relevant matters, I note and emphasise that the crimes charged are serious, in particular the accused is charged with murder.  As to the evidence itself, it should be noted that the Crown does not seek to tender evidence of admissions as such.  Rather it seeks to rely on the evidence indirectly to support its case.  It advances two bases – false denial showing consciousness of guilt and a prior statement inconsistent with the subsequent interviews showing the accused lying.  The weight of the evidence, however, is weakened by the fact that the police appear to have deliberately set out to mislead Lisa Hartwick into thinking that what was occurring was not a serious interview.  As to the consciousness of guilt argument, it does not seem to me that the argument is a strong one in that her behaviour is consistent with the position she subsequently took in her record of interview that she was at the scene but was not a participant.  The inference is open that her lying on this occasion was motivated simply by a desire to avoid being caught up in the investigation and being forced to give evidence as an observer of the crime.

1. As to the breaches of the legislation, that relating to the absence of caution might not be viewed as serious in view of the earlier caution but for my finding that the police involved deliberately mislead her as to the nature of the second interview and appeared, initially at least, to be respecting her choice not to make a statement.  The failure to repeat the caution stands in stark contrast to many of the interviews in this case where cautions are repeated after breaks in the interviews.  Also, to achieve their purpose, they concealed the tape recording.  As to the failure to record the earlier caution, the police at least recorded an admission that a caution was given and again, absent the misleading conduct, the breach might well not be viewed as sufficient to warrant exclusion of the evidence.  The failure to supply a copy of the tape is of some significance in that a reason for requiring delivery to the accused within seven days would be to give the accused and the accused's lawyers the opportunity to consider the accuracy of the recording at the earliest opportunity.  As I have indicated, however, I am satisfied that there was nothing wilful or deliberately underhanded in the non-compliance.

1. If the only evidence was that there had been the foregoing breaches, and there being no evidence as to whether the accused would have acted differently if there had been compliance, the competing considerations would in my view weigh in favour of admission and not exclusion.  The situation, however, is complicated by the fact that the breaches relating to the caution issue were accompanied by deliberate deception that appears to have been designed to get around Lisa Hartwick's stated intention to exercise her right to silence.  The police purported to recognise her wishes and purported not to be attempting to formally interview her and to do that concealed the fact that the interview was being recorded.  I have also come to the conclusion that it was no accident that she was not re-cautioned.

1. I accept that the investigation of crime is not a game "governed by a sportsman's code of fair play" and that "fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation …"[2]  In this instance, however, on the evidence before me, the police set about by deliberate deception to get around the accused's stated intention to exercise the fundamental right of all citizens, the right to silence.  This right is one which the Act expressly protects.[3]  In my view that is behaviour that the Court should be slow to condone.  Weighing up the competing public policy considerations, I am satisfied that the evidence should be excluded.

   [2]R v Swaffield 192 CLR 159, Brennan CJ at 185-6.

   [3]S 464J.

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