R v Higgins
[1988] TASSC 33
•5 July 1988
Serial No 23/1988
List “A”
CITATION: R v Higgins [1988] TASSC 33; A23/1988
PARTIES: R
v
HIGGINS
TITLE OF COURT: SUPREME COURT OF TASMANIA
FILE NO/S: 79/1988
DELIVERED ON: 5 July 1988
JUDGMENT OF: Underwood J
Judgment Number: A23/1988
Number of paragraphs: 26
Serial No 23/1988
List "A"
File No 79/1988
R v HIGGINS
REASONS FOR JUDGMENT UNDERWOOD J
5 July 1988
Objection was taken to the admission into evidence of the following confessional material.
1Admissions made to police officers in a car travelling from the house of the accused to the Campbell Town police station.
2 Admissions made to police officers at the Campbell Town police station, and
3 Admissions in a record of interview taken at the Launceston Police Station.
It was conceded that all the confessions were made voluntarily but submitted that I should exclude them in the exercise of my discretion upon the bases that:–
1 Their prejudicial value outweighed their probative value.
2 Their admission into evidence would be unfair to the accused.
3 The obtaining of the confessions was tainted by illegality.
The third basis forms part of the second basis as well as standing alone.
As the submission seeks to invoke the discretion vested in a trial judge presiding at a criminal trial the onus falls upon the accused to establish, on the balance of probabilities, that the material should be excluded. See R v Lee 82 CLR at pp 152 – 153; Wendo v The Queen 109 CLR at p 565; MacPherson v The Queen 147 CLR at pp 519 – 520; Cleland v The Queen 151 CLR at p 19.
Turning first of all to the third basis for the submission, counsel for the accused claimed that, at the time all the confessional material was obtained, the accused was in unlawful detention. From the evidence given on the trial so far and the evidence taken on the voir dire it appears that at about 11 pm on the 27 February 1988, at Campbell Town, the accused shot and immediately killed the deceased by firing shot gun pellets into his chest at short range through an open window in the accused’s bedroom. At the time the shot was fired the deceased was about to, or in the process of, getting through the window.
Sergeant Miller, the officer in charge of the Campbell Town police station, and Constable Dabrowski were the first police officers to arrive at the scene. They arrived at 11.27 pm and found the accused at his house and the deceased just outside the bedroom window. The accused immediately admitted to these officers that he had shot the deceased. Sergeant Miller directed Constable Dabrowski to take the accused into immediate custody, warn him, note any conversation and secure any firearms. Constable Dabrowski took the accused by the arm and led him back into the house, only releasing him upon ascertaining that the firearm was on the bedroom floor. Sergeant Miller made arrangements for the attendance of CIB officers. The accused remained with Dabrowski for about an hour before these officers arrived. During this time he made self incriminating statements to Constable Dabrowski and Sergeant Miller and said to the sergeant, "Take me away and lock me up Sarge". No submission was made with respect to these admissions.
Sergeant Powell and 1C Constable Hine of the Launceston CIB arrived at the accused's house about midnight or shortly thereafter. After a preliminary briefing from Sergeant Miller, Powell and Hine took the accused from his home to the Campbell Town police station. In order to do so, Sergeant Powell said to the accused, "I'd like you to come with us to the police station", to which the accused responded "Alright cobber". Sergeant Powell made it clear that he did not consider that he then was arresting the accused although he conceded that if, at any time thereafter, the accused had attempted to get away he would have detained him. Sergeant Powell said that his purpose in taking the accused, firstly to the Campbell Town police station, and later to the Launceston CIB office, was to question him. He also made it clear that, from the information in his possession at the time he took the accused to the Campbell Town police station, he believed on reasonable grounds that the accused had committed murder or some other serious crime, which had caused the death of the deceased.
In the police car on the way to the Campbell Town police station the accused made certain admissions to Sergeant Powell and 1C Constable Hine. He was detained at that police station for about an hour where he made further admissions, some to both Powell and Hine and some to Hine alone.
From Campbell Town the accused was taken to the Launceston police station where a typed record of interview was taken in which the accused made further admissions. The record of interview commenced at 3.05 am and concluded shortly before 5.28 am. He was then taken to another officer for the purpose of completing the register of persons interviewed. The accused signed the record of interview and it was not suggested that the police officers ill treated him in any way.
All of the material to which objection is taken was furnished between about midnight and 5.27 am the following morning. All of this time the accused was in the custody of the police. It was submitted that such custody was unlawful because there had been a failure to effect a lawful arrest and the purpose of detention by Sergeant Powell was for questioning the accused. Counsel expressly eschewed any suggestion that there was a failure to bring the accused before a justice as soon as is practicable or without undue delay.
An arrest is an act or words or both which deprives an individual of his liberty. In Alderson v Booth [1969] 2 QB 216, Lord Parker CJ said at pp 220 – 221:–
"There may be an arrest by mere words, by saying, 'I arrest you' without any touching, provided of course, that the defendant submits and goes with the police officer. Equally, it is clear, as it seems to me, that an arrest is constituted when any form of words is used which in the circumstances of the case [my emphasis] were calculated to bring to the defendant‘s notice, and did bring to the defendant's notice that he was under compulsion and thereafter he submitted to that compulsion".
In that case His Lordship opined (obiter dicta) that a request to come to the police station could, depending upon the context, constitute an arrest. See also Campbell v Tormey [1969] 1 WLR 189. Whether or not there has been an arrest is a question of fact. See R. v Inwood [1973] 1 WLR 647 where the court said at p.653:
"There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man".
See also R. v Jones ex parte Moore [1965] Crim LR 222.
In the circumstances of the present case I am satisfied that the accused was arrested by Constable Dabrowski and thereafter was deprived of his liberty. All the police officers intended that the accused be deprived of his liberty. From the obvious evidence of the shooting, the invitation by the accused for Sergeant Miller to lock him up, the direction of Sergeant Miller to Constable Dabrowski in the presence of the accused, and the conduct of the police, I am satisfied that the police conveyed their intention to the accused and he submitted to their detention.
Was the arrest lawful? In my view it was. Section 27 of the Code makes it lawful for a police officer to arrest a person if he believes on reasonable grounds that one of the crimes set out in Appendix A has been committed and believes, again on reasonable grounds, that the detainee committed the crime. Sergeant Powell entertained such beliefs and, I infer, so did Sergeant Miller and Constable Dabrowski. Christie v Leachinsky [1947] AC 573 is authority for the proposition that it is the duty of an arresting officer to inform the detainee of the reason for the arrest but that compliance with that duty is satisfied "if the circumstances are such that he must know the general nature of the alleged offence for which he is detained". (p 587) In the present case the accused was plainly aware of the general nature of the alleged offence for which he was detained and his counsel did not contend to the contrary. The fact that the accused was requested by Sergeant Powell to go to Campbell Town and later to Launceston, and that he complied with that request, does not affect the fact that the accused had been arrested and was in police custody. However, it was submitted that, as Sergeant Powell‘s express purpose was to question the accused, the detention and/or the act of arrest which marked the commencement of the period of detention was unlawful. Reliance was placed on Williams v The Queen (1986) 161 CLR 278 in which all of the Justices expressed the view that it was unlawful to arrest for the purpose of questioning a suspect. In the present case the arrest and detention was not merely for the purpose of interrogation. The initial act of detention, the arrest, was justified in law by virtue of s.27 of the Code and properly executed. William’s case is not authority for the proposition that a lawful detention becomes unlawful because the officer intends to use the period of detention for questioning. The ratio decidendi of the case is that, immediately following arrest, there arises a duty to bring the detainee before a justice as soon as practicable in compliance with the Justices Act 1959, s34A(1) and the Code, s303(1). If there is a failure to comply with that duty, and none is suggested in this case, the detention thereafter becomes unlawful. As Mason and Brennan JJ said at p 292:
"The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. The issue in this case is the extent of the power of the police to detain in their custody for questioning a person who has been lawfully arrested."
I find that the accused‘s personal liberty was taken away lawfully by virtue of the provisions of the Code, s27 and as there is no suggestion that the subsequent period of detention was a breach of the duty to bring the accused before a justice as soon as practicable, the intention of Sergeant Powell to use the period of detention for questioning was not unlawful.
I turn now to the other bases upon which it was sought to invoke my discretion. The accused did not give evidence on the voir dire but evidence was adduced from Dr Williams, a clinical psychologist and Dr Sale a psychiatrist. The thrust of Dr Williams’ evidence was that, from psychological tests he conducted and a history taken from the accused, which included the fact that for 30 years or more the accused had consumed intoxicating liquor to excess, he formed the opinion that:
1 His IQ was 86, in the mid dull–normal range.
2 He had a poor capacity for abstract thinking.
3 His vocabulary was at or near normal levels.
4 His verbal and non verbal memory skills were impaired.
5 There was a suggestion of confabulation.
6 There was some evidence of perseveration, and retroactive inhibition.
Dr Williams said that all of these factors were consistent with alcohol related brain damage. After taking into account the evidence of blood analysis, an assumption (not fully established by the evidence) that the accused had been asleep between 9 pm and 11 pm Dr Williams opined that extreme caution should be exercised in accepting as true, the account given by the accused to the police. He was not able to say that confabulation had occurred, merely that his testing disclosed a tendency to do this and, given all the other factors, which he found to be consistent with alcohol related brain damage, great care should be taken before accepting the confessional statements as true.
He said with reference to the record of interview, after referring to alcohol, tiredness, distress, agitation, and mental impairment:
"I think it raises the possibility that there are inaccuracies in there but I mean I can't say what is and what isn't."
Dr Sale's evidence was to much the same effect although he was less tentative in the opinions he expressed. Dr Sale diagnosed alcohol related brain damage. With respect to the confessional material, especially the record of interview, he said that there would be a question mark over the reliability of what the accused said to the police. Both experts were clearly of the opinion that, as the accused had not consumed liquor for some considerable time when they examined and tested him, his then mental condition would be superior to that on the night of the shooting.
It is neither necessary nor desirable that I express any view with respect to the weight that I consider should be attached to the expert evidence. The confessional material, if accepted by the jury, would clearly entitle the jury to be satisfied to the requisite degree that the accused committed the crime with which he is charged.
Counsel for the accused submitted in the first place, that I should exclude the material upon the basis that its prejudicial effect outweighed its probative value. As I understand it, the submission was based upon the proposition that the expert evidence was such that I should be satisfied that the admissions are so unreliable that they should be excluded. As Dixon J put it in Sinclair v The Queen 73 CLR at p 333:
"[It should be withheld from the jury] on the ground that there is too much danger in their taking into consideration matter which by reason of its source or provenance is prima facie dubious and untrustworthy".
The expert evidence, even if accepted in its entirety does not, in my view, support this ground. That evidence does no more than raise the possibility that some of the admissions may be untrue; made as a result of impaired memory or defective cognative thinking or as a result of confabulation.
The approach taken by the court in Sinclair's case, expressed in a passage from the judgment of Dixon J at p 337 – 338 and approved in Morris v The Queen 75 ALR is apposite in the present circumstances. Dixon J said:
"Boyd Sinclair's mental state did not disable him from observing, appreciating, recollecting and recounting real occurrences, events or experiences. The fact that his mind, in its schizophrenic state, may have been stored with imaginary episodes ... would ... make it impossible to place reliance upon his confessional statements as intrinsically likely to be true ... but it is to be noticed that his condition did no more than make it possible that the source of any confessional statement made, lay in these tendencies. His was not a case in which it could be said that the higher probability was in favour of his confession of such a crime being the product of imagination. Reason suggests that in such circumstances it is for the tribunal of fact to ascertain or verify the factual basis of the statements of a man in such a mental condition". [my emphasis]
Although it is not clear whether his Honour was there referring to rejection of evidence in the exercise of a judicial discretion or by operation of law, in the present case I am satisfied that the evidence does not warrant the conclusion that the circumstances attendant upon the obtaining of the confessional material were such as to so seriously question its reliability that, in the exercise of my discretion, it should be excluded.
If I am not persuaded to exclude the material on the basis that its prejudicial value outweighs its probative value counsel for the accused submitted that it was unfair to put the material before the jury. See McDermott v The King 76 CLR 501; R. v Lee (supra) p 133. The basis of unfairness was said to be that, having regard to the mental condition of the accused as deposed to by the expert witnesses, his state of sobriety, distress and tiredness, it would be unfair to him to let this material be taken into consideration by the jury. I am not persuaded that this submission should be upheld. The expert evidence did no more than raise a possibility that some unspecified answers may be the product of impaired memory or confabulation. That evidence did not reach the stage where it could be said that such a possibility was so high that to leave the assessment of the weight of the confessional material to the jury would be unfair to the accused.
In conclusion I would add that even if I am wrong in failing to hold that, at the relevant time, the accused was in unlawful detention I would not exercise my discretion to exclude the material on that basis because either, together with the other matters urged upon me by counsel for the accused it would be unfair to the accused or, because it would be contrary to public policy. There was no evidence to suggest that the police acted with any impropriety or, that the accused was excessively tired or so affected by alcohol that admission into evidence of the material would be unfair to him. The unchallenged evidence of the officer who completed the register of persons interviewed was that the accused said, "I’ve been treated good". He was sufficiently alert at the time his fingerprints and photograph were taken to complete, without prompting, a card setting out his personal particulars. The handwriting on that card does not lend one to think that he was then affected by fatigue or drunkenness. Further, I would not consider this to be one of the exceptional cases as is referred to by Brennan J. in Collins v The Queen 31 ALR at p 317 and Dawson J in Cleland v The Queen (supra) at p 35 where public policy would require the rejection of the material upon the grounds that, when it was obtained, the accused was in unlawful detention.
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