R v Hill
[2005] VSC 503
•2 November 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1453 of 2005
| THE QUEEN |
| V |
| MARK JAMES HILL |
---
JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27, 28 October 2005 | |
DATE OF RULING: | 2 November 2005 | |
CASE MAY BE CITED AS: | R v Mark James Hill (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 503 | |
---
Evidence – Confessions and admissions made in record of interview - Whether made voluntarily – Whether should be excluded in exercise of discretion – Whether police obliged to terminate interview because accused giving “no comment’ answers – Application to exclude record of interview dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T Gyorffy | Solicitor for Public Prosecutions |
| For the Accused | Mr W Toohey | Victoria Legal Aid |
HER HONOUR:
The application
The accused, Mark Hill, was charged with murdering Adrian James Scholes on 27 May 2004.
These are my reasons for decision on an application by the accused for the exclusion from evidence of a substantial part of the video-taped record of interview, which members of the police force conducted with him at various times between 5.32 p.m. on 27 May and 3.54 a.m. on 28 May 2004. I heard evidence relating to the application on a voir dire held on 26 to 28 October 2005, before the jury was empanelled. On 2 November 2005, I refused the application and indicated that I would publish written reasons later[1].
[1]The trial proceeded after I refused the application and on 10 November 2005 the jury returned a verdict of guilty of murder.
The accused argues that:
(a) The admissions made by him after 1.30 a.m. on 28 May were made as the result of certain threats and inducements and were not made voluntarily;
(b) Alternatively, even if voluntarily made, those admissions should be excluded as a matter of discretion:
(i) On the ground of unfairness, because the accused had stated an intention to exercise his legal rights and to answer “no comment”; therefore the interview should have stopped no later than 7.30 p.m. on the 27th (after Q126); and/or
(ii) On the grounds of unfairness or public policy, because as at 1.30 a.m. on the 28th the accused had not been taken before a bail justice as required by s.464A(1)(c) of the Crimes Act 1958 (“the Act”) and was therefore being unlawfully detained.
General comments on credibility issues
I heard evidence on the voir dire from the accused, his father Ronald (“Ron”) Hill, his mother Anne Hill, the informant Detective Senior Constable Ryan, his partner Detective Senior Constable Tyler, and their supervisor Detective Acting Senior Sergeant Humphries. I make the following general observations as to matters of credit; specific credit issues will be discussed later in these reasons.
Clearly intelligent and articulate, on the voir dire the accused’s tone and demeanour was confident and argumentative. I have no doubt he understood the questions which were being asked of him. Some of his answers were simply inconsistent with each other[2]. Other parts of his evidence differed – sometimes substantially – from what had been put by his counsel in cross-examination of the police witnesses; in particular he made a number of serious allegations which had not been put to the police witnesses[3]. Whilst recognising that such discrepancies between evidence and puttage may be due at least in part to the conduct of his lawyers, they did not help establish the accused’s credibility in circumstances where, at times, he simply gave me the impression that he was making things up as he went along.
[2]A simple example is his contradictory evidence as to whether his solicitor had told him that the police could not use anything which he said off-tape. At T125-128, he variously answered “No”, “Yes” then “No” to essentially the same question.
[3]A few examples of claims which were made by the accused in his evidence in chief but not put to Ryan or Tyler: that in one of the early breaks in the interview, the police had made various criticisms of his “no comment” answers; that on the way back from his parents’ house, the police repeated their earlier threats to tear up the house looking for a weapon; that after arriving back at the station, but before commencing the long interview, Tyler had said ”So do you think you can show some remorse now?”.
Ron Hill was unimpressive in relation to the most critical part of his evidence, which dealt with matters alleged to have been said to him by Humphries[4].
[4] His evidence is discussed in detail below.
Mrs Hill also did not impress me greatly. Vague in her manner and the degree of detailed recollection in much of her evidence, she nevertheless purported to recall precisely what Humphries said to her husband and her husband to her son (although her evidence differed somewhat from that of her husband and son).
Even allowing for the fact that giving evidence in relation to such an important matter would have been a strange and intimidating experience for them, the Hills were not impressive witnesses. Defence counsel submitted that the accused’s parents were impartial witnesses; I commented at the time that my impression of them was that they seemed to be no more impartial than any other witness called on the voir dire[5].
[5]That initial impression of partiality was confirmed later on in the trial. During the evidence of the victim’s father and girlfriend, Mrs Hill was rolling her eyes, shrugging her shoulders and smirking to such an extent - even after my tipstaff asked her to desist - that I had to warn her she would be removed from the court if she continued to behave in that manner.
The evidence given by all 3 police officers was generally consistent, although there were some minor differences in their recollections. Ryan and Tyler’s behaviour on–camera was not intimidatory in terms of content or demeanour. They were scrupulous about reading the accused his rights and suspending the interview whenever he appeared to be confused or needing a break. Nevertheless, I am well aware of the possibility that police officers may behave one way on camera or in the witness box and another way “off the record”.
In assessing the credibility of the police, I have also borne in mind that giving evidence is not a foreign experience for them. I do not regard the police witnesses as any more impartial than the accused and his parents. In assessing their evidence, I accept that they had an interest in solving the crime and would have been keen to obtain a confession or admissions.
In areas of evidentiary conflict, I would generally prefer the evidence of the police officers to that of members of the Hill family. In fact, it is not necessary for me to resolve many of the factual disputes which arose, as the accused’s evidence in relation to them – even if it were accepted – would not lead to the exclusion of the interview.
Voluntariness
A statement is voluntary if it is made in the exercise of a free choice whether to speak or remain silent.
“If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made…. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority.”[6]
[6]McDermott v R (1948) 76 CLR 501 at 511 per Dixon J, later approved by the High Court in R v Lee (1950) 82 CLR 133 at 144.
In relation to inducements, that common law rule has to be read in the light of s.149 of the Evidence Act 1958, which provides that:
“No confession which is tendered in evidence shall be rejected on the ground that a promise or threat has been held out to the person confessing, unless the judge … is of opinion that the inducement was really calculated to cause an untrue admission of guilt to be made …”
The issue of voluntariness having been raised, the Crown bears the onus of establishing on the balance of probabilities that the admissions were made voluntarily[7].
[7]Wendo v The Queen (1963) 109 CLR 559.
In considering the issue, the inquiry focuses on all of the circumstances which might have borne on the mind of the accused, and requires a practical, common sense assessment of the effect of any verbal or non-verbal conduct of the police on the mind of the accused[8].
[8]Collins v R (1980) 31 ALR 257 at 308-9.
The following matters were raised by the accused as being relevant to the question of voluntariness. I have considered the likely effect of them – individually and collectively – on the mind of the accused, and am satisfied that the admissions were made voluntarily.
The commencement of the investigation
On Thursday, 27 May 2004, at approximately 6.35 a.m., Adrian Scholes was located in a semi-conscious condition, partially submerged in a dam on a rural property at Bungower Road, Somerville. Paramedics attended shortly thereafter but, despite their efforts, Mr Scholes died some time between 8.30 and 9.00 a.m.
At 8.27am the police were called to attend at Bungower Road. During the course of the morning, Humphries, Ryan and Tyler attended the crime scene. Humphries was in charge of the overall investigation.
Shortly before noon, Ryan and Tyler arrived back at the Hastings police station and took statements from Julie Francis and her mother, Shirley Francis. Julie Francis was the victim’s girlfriend and the accused’s former girlfriend.
Ryan and Tyler left Hastings around 3.00 p.m., and arrived at the accused’s home at Rosebud. The accused was not there, so they drove to his parents’ home at Dromana. They arrived there at 4.00 p.m. and met the accused and his parents. The accused agreed to accompany the police back to the station for questioning.
The initial car journey
There is a dispute as to whether the police identified that they were from the Homicide Squad before or after the accused got into the car. There is also a dispute as to whether the police cautioned the accused in the car before he made certain admissions to them.
What is not disputed is that the accused voluntarily got into the police car and agreed to accompany the police back to the station. He said that he did so because he wanted to be calm in front of his parents and “it saved me the trouble of heading down to the police station to face any sort of assault charges myself.”
Nothing turns on whether the police told him that they were from the Homicide Squad before or after he got into the car. What is clear is that the accused knew before he was arrested and made any admissions in the car that the police were investigating the death of Adrian Scholes.
The accused does not allege that any threats were made or inducements proffered on this journey. The alleged remarks by Ryan that “we know where you were last night” and “we know what you were up to last night” go nowhere, even if they were made.
Even if the police failed to read the accused his rights in the car, as he alleges, nothing turns on that. No admissions made by the accused in the police car would ordinarily be admissible unless he confirmed them on tape[9]. When the police put those matters to him on tape (Q40-41), he answered “no comment” and did not confirm them. The Crown does not seek to rely on any admissions made in the car.
[9]Section 464H(1) and subject to s.464H(2) of the Act.
The early parts of the interview
Ryan, Tyler and the accused arrived back at the Hastings station around 5.00 p.m. The video-taped interview commenced at 5.32 p.m. Ryan was conducting the interview, Tyler was his corroborator. Ryan read the accused his rights. The accused expressed confusion as to whether or not he should speak to someone; the police said they would suspend the interview and arrange for him to speak to a solicitor. The interview was suspended at 5.35 p.m. for that purpose.
The accused spoke to a solicitor on the phone for approximately 15 minutes. He then asked the solicitor to come and speak to him in person. The solicitor did so, and the accused spoke to him at the station for another 5 minutes or so[10].
[10]In his oral evidence, the accused variously said 15 or 10 minutes on the phone and 5 minutes in person. Ryan and Tyler said he spoke to the solicitor for about 20 minutes on the phone and about 10 minutes in person.
The interview recommenced at 6.21 p.m. Ryan read the accused his rights again and asked him whether he wished to exercise them further. The accused responded “No. My confusion is gone and we’re fine now. Let’s proceed.”(Q28) Ryan asked the accused 3 questions (Q36-38) about his contact with the solicitor and the police visit to his parents’ house, to which the accused responded “no comment.”
The police put to him their version of what he had said at his parents’ house and in the car coming to the station, to which he responded “no comment” (Q40-41). After receiving “no comment” answers to the next 4 questions, the police suspended the interview at 6.28 p.m. in order to make further enquiries. They told the accused they would recommence it later. The Crown does not seek to rely on this part of the interview.
The accused alleges that during this second break in the interview, Ryan said to him “That looked pretty stupid, what you just did.” The accused says Ryan then left the interview room, and Tyler said something about “showing remorse and how stupid that would look in a court to a jury, watching someone just answer No Comment, to continue with questioning like that.” Such comments, even if made[11], did not make the 1.30 interview involuntary, for reasons I shall explain later.
[11]These allegations were not put to Ryan or Tyler. What was put to them was that they had made similar statements on the way back to the station after executing the search warrant; however, they denied that and the accused gave no such evidence, despite being asked several times by defence counsel what was said in the car on that return journey.
The forensic procedures
The interview recommenced at 7.06 p.m., for the purpose of discussing various forensic procedures. Ryan read the accused his rights again. Ryan explained the procedure for taking a buccal swab and conducting a physical examination. He informed the accused that if he refused to undergo the procedures, which were defined as compulsory procedures, the police could apply for a magistrate’s order authorising the conduct of the procedures (Q63-64, Q76-84).
The accused said he wanted to help the police as much as he could (Q65) and initially said that he consented to the procedures (Q66). He then spent some time reading and discussing the consent form, before saying that he wanted some time to think about it (Q88-90). The interview was suspended again at 7.15 p.m., to enable the accused to consider whether he wanted to consent to the forensic procedures.
I accept the accused’s evidence that the solicitor had not given him any advice about what he ought to do about the various forensic procedures. However, the accused did not ask to speak to the lawyer again about whether he should consent to the forensic procedures; at the time, he felt comfortable making that decision himself.
The interview recommenced at 7.24 p.m. After his rights were read again, the accused consented to those forensic procedures (Q99). He was then asked if he was willing to be fingerprinted; he was told that if he refused to do so voluntarily, a member of the police force may use reasonable force to obtain his fingerprints (Q103-106). He gave his consent (Q112-113). He also agreed to accompany Ryan and Tyler to execute a search warrant (Q114).
The accused alleges that during the break between 7.15 and 7.24 p.m., Tyler spoke to him alone and said “It doesn’t matter if you sign this DNA document, anyway, because we’ll just get a court order to force you to do it, anyway.”
Even if such a statement had been made, it went no further than the matters which had already been put to the accused in the recorded interview and which were spelt out in the consent form[12]. It was an accurate summary of the legal position. It would not have been an improper statement to have made.
[12]Both of which complied with the requirements of s.464S(2)(a) of the Act.
Co-operation and assistance
Tyler then put to the accused some matters that had been discussed during the most recent break in the interview; in general terms, they related to his desire to assist the police in clearing the matter up. Towards the end of this part of the interview, asked if he was prepared to tell the police what happened in relation to Adrian Scholes he said “Not at this time.” The police did not press the matter at that time.
The precise details of what the accused said and meant about assisting the police will be discussed later, as it relates primarily to one of the discretionary grounds.
Between 7.30 p.m. and 10.40 p.m.
The interview was suspended again at 7.30 pm. It took several hours for the police to prepare affidavits and obtain search warrants for the properties of the accused and his parents and his car. During this time, the accused was not asked any questions. He remained in the interview room and was not placed in a holding cell. He was provided with tea and cigarettes, whenever he requested them.
Around 10.00 p.m., a medical practitioner arrived at the station and examined the accused and obtained forensic samples.
Ryan, Tyler and the accused left the station around 10.40 p.m., to execute the search warrant at the parents’ house at Dromana.
Further legal advice
The accused says that as they were leaving the station, Ryan came into the interview room on his own and said to him “It doesn’t matter what you decide to say to us or help us, we’re going to charge you with murder later on this evening.” Even if such a statement was made, it hardly constitutes pressuring the accused to speak, quite the opposite.
The accused says that he replied “should I speak to a lawyer again about what’s occurring?” The accused says that Ryan told him that the lawyer wasn’t going to come back and help him again.
“’You’ve had your chance to speak with him. He’s at home.’ And I replied to Detective Ryan, I said ‘Why wouldn’t he do that?’ And he said ‘Well, he’s gone home, thinking he’s done his good deed for the day, why’ – that’s not exactly what he said, Your Honour, but it was along those lines.
Was anything said about what the lawyer might be doing at home? --- That he’d be having dinner with his wife and kids, sitting in front of the fire; that sort of indication. Once again it’s not exactly what he said, Your Honour, but it was along those lines.
Why did you ask that question, should you see a lawyer again? --- I was confused about the search and because the detectives had been speaking to me about how things would look stupid and how – it was a combination of things that had been said off camera to me.
What was your thinking at the stage where you’d asked – you’d mentioned seeing the lawyer again and having had that said to you, what were you thinking at that stage? --- I was thinking maybe I should just ask about what had just occurred with the forensic procedures, whether I should have done that or not, and also ---
… about the legal ramifications, of what was occurring and about whether I should go on a search with the police officers.”
Ryan denies that any such conversation occurred. I prefer his evidence to that of the accused, for several reasons.
The police had been scrupulous about reading the accused his rights at the commencement of every stage of the interview. It was they who took the initiative and arranged for him to see a lawyer at the start of the interview, when he showed some initial confusion about his position. At later stages in the interview, they gave him breaks to consider whether he wanted to co-operate with the forensic procedures and to take part in a re-enactment. Apart from this alleged conversation, the accused does not suggest that the police failed to comply with any of his requests or to accord him his rights.
When they returned to the station after executing the warrant at Dromana, the police read the accused his rights again. Asked if he wanted to exercise them, the accused said “Not - no, not now.” His tone and demeanour on that occasion did not convey any sense of doubt or concern that the police would let him see his lawyer again if he wished to, such as might support his allegation that he had previously been denied access to the lawyer. He could easily have repeated on tape his request to see a lawyer, safe in the knowledge that nothing he had said off tape in the interim could be used against him.
Even if I accepted the accused’s evidence about this conversation, his evidence was that he wanted to speak to the lawyer about the forensic procedures (which he had already undergone) and whether he should accompany the police on the search warrant. He did not say he wanted further advice about how he should answer questions when the interview recommenced. He had already been clearly advised to answer “no comment” to any questions asked of him on tape.
The search for a weapon
The accused says that on the way from Hastings to Dromana, Tyler said to him a number of times that there must be a weapon at his parents’ house and they wanted the accused to tell them where it was. The accused says that he told them there was no weapon there, to which Tyler allegedly replied:
“When we get there we’re going to start tearing your parents’ house apart to find what we’re looking for, and we’ll start tearing the floorboards up and making a complete mess of the place.”
The accused gave evidence that he was terrified that they would ransack his parents’ house, looking for a weapon. He said he feared for how that would impact on his relationship with his parents.
Even if such a threat had been made, which Ryan and Tyler deny, the threat was in no way carried out. None of the witnesses suggested that the police acted in anything other than an orderly or proper manner in searching the premises over the course of more than an hour that the accused was there[13]. There is not a shred of evidence that they sought to rip up any floorboards or engage in any other conduct which might be described as “tearing the place apart.”
[13]I do not accept the evidence of the accused and his mother that he was only at his parents’ house for 10-15 minutes; it simply does not fit in with the unchallenged police evidence about the departure and arrival times at Hastings and Dromana.
It is common ground that during this visit to his parents’ house, the accused showed Ryan and Tyler four mats which had been removed from his car for cleaning, and the 44 gallon drum in which he had burnt the stick used in the incident and the jumper he had been wearing at the time of the incident. However, there is a dispute as to what was said that prompted the police to look at the drum.
Ryan and Tyler both gave evidence that when the accused was first arrested, he had told them that he had burnt the stick used in the incident at his parents’ house. They said that when they arrived back at Dromana with the search warrant, the accused pointed out to them the drum in which he had burnt the stick.
The accused denies making any such admission. His evidence was that all he said to the police was the rather cryptic remark: “If I had a weapon, don’t you think I would have gotten rid of it over there?” – pointing at the drum.
Whichever version is accepted, it is clear that Ryan and Tyler inspected the drum and found the remains too badly burnt to identify any particular stick.
Even if such a threat had been made on the way to Dromana, given the above matters, I am satisfied that any such threat was no longer operative at the time of the recommencement of the interview at 1.30 a.m. I also note that the alleged threat was not that his parents’ house would be damaged if he did not answer questions in the record of interview, merely that it would be damaged in the search for a weapon if he did not tell them where the weapon was.
In answer to a question from his counsel as to what conversation occurred in the car on the way back to the station, the accused said that Tyler had said:
“Do you know what we’re going to do to your parents’ house if we don’t find what we’re looking for? Do you know what your parents and you are going to go through if you don’t start helping us?”
I do not accept that any such threat was made in the car on the return journey. It was never put to either Tyler or Ryan that such a threat was made after they and the accused left Dromana. The repetition of such a threat also seems inherently improbable given that there was simply no evidence that the police were in fact still looking for a weapon by the time they left Dromana; on the contrary, all the evidence is that they accepted that the accused had burnt the stick in the 44 gallon drum.
Humphries speaks to the parents
Ryan, Tyler and the accused arrived at Dromana shortly after 11.00 p.m. Humphries and several other police officers arrived at the parents’ house shortly before the accused did. There is no dispute that Humphries spoke to Ron and Anne Hill before Ryan, Tyler and the accused arrived. There is a dispute as to what was said by Humphries to the parents at this time.
Defence counsel put to Humphries that he had told the parents that their son had been saying “no comment” and:
“He needs to show remorse. It’ll be better for him in the long run to answer questions.”
Neither of the parents gave evidence in quite those terms. Mrs Hill said that:
“[Humphries] apologised for being late and he wanted – told me that he had charged Mark with murder and that he wasn’t saying anything, and wanted us to tell Mark to show remorse for what he had done because the judge will go kindly with him if he showed remorse.”
Defence counsel asked Ron Hill a number of questions as to whether Humphries had spoken to him about certain matters. After clearly removing some initial confusion as to exactly which time he was being asked about, the following exchange took place:
“Prior to your son being brought into the house at that stage, before that, did you have any conversation with Humphries? --- No.
Did you ever have any conversation with Humphries? --- No.
Just pardon me for a moment. Did you have any conversation with any police officer prior to your son being brought into the house? --- No.”
Defence counsel appeared to be getting increasingly (and understandably) frustrated at the witness’s failure to give the expected answer. There was nothing ambiguous about a question such as “Did you ever have any conversation with Humphries?” It was only after Ronald Hill saw defence counsel glaring intently at him that, after the third “No” answer, he apologized and asked if he could clarify that remark. He then gave the following evidence:
“He asked – he said that my son had been arrested for – had been charged with murder and that I should talk to him and get him to try to show remorse.
Can you tell us as much of that conversation as you can recall? --- That was the main part of the conversation that he said show remorse for what he done. That was the main part of the conversation.”
Ron Hill gave no evidence to the effect that Humphries had said that any consequences – good or bad – might flow if the accused did or did not show remorse.
Humphries agreed that he told the parents that the accused was giving “no comment” answers to questions. Defence counsel conceded that there would be nothing improper in Humphries telling the parents that fact.
Humphries said he told the parents that their son might be charged with murder. Humphries was well aware that the accused had not been charged with murder or anything else at this stage. I doubt if an experienced officer such as Humphries would have told the parents (as they allege) that their son had in fact been charged with murder; he knew the true position and no reason was offered as to why he might have misstated that position.
Humphries categorically denied telling the parents that it would be better for their son if he answered police questions or that he needed to show remorse.
Ron Hill talks to the accused
It is common ground that a conversation took place between the accused and his parents in the living room, at which Ryan, Tyler and Humphries were all present. There is a dispute as to what was said.
Defence counsel put to all three police officers that Ron Hill had said:
“Mark, it would go better for you if you co-operate or help. You need to show remorse for what has happened because it will go better for you to show remorse. You need to tell them what happened.”
The accused gave evidence that his father told him:
“You’re in a lot of trouble Mark. How come you’re not speaking to the police and helping them out? You’ll have to show some sort of remorse or else things are going to be a lot worse for you I’ve been told.”
The accused also gave evidence that his father said “I think you should help the police.”
Ron Hill said that he told his son that the police had told him he needed to show remorse for what he had done. Ron Hill gave no evidence of having told his son that there would be any consequences of not showing remorse – either in terms of things going better or worse.
Mrs Hill said that her husband told the accused:
“The police want you to show remorse for what you have done and the judge will take kindly on you.”
Tyler agreed that the father suggested to the accused that he should help or assist the police, but did not recall exactly what was said. He said the father was very upset “and there was an indication that he wanted his son to assist with whatever inquiries we had.”
The police witnesses denied that the father said that the police wanted the accused to co-operate or show remorse or else suffer consequences.
The police all say that the accused gave his parents a short version of what had occurred with the deceased. The accused agreed that he had acknowledged that something had happened the previous night, but did not agree he went into as much detail as alleged by the police.
The police officers and the accused (but not his parents) agree that the accused and his father broke down in tears, the accused hugged his parents and Ron Hill told his son he would love him no matter what.
An exhortation to tell the truth is not itself objectionable, but if it is coupled with the rider that it would be better for the accused to do so, that may well constitute an improper inducement[14]. But, as the Court of Appeal noted in R v Su[15], the critical issue is what effect such words, if said, had upon the accused. And as Eames JA has commented on several occasions:
“It is sometimes the case that an accused person has had a statement made to him which was capable of inducing the person to confess, but at the same time the person is conscious, for his own part, of the hopelessness of his position and the benefits which might flow to him, or perhaps to others, such as his family, if he were to make a clean breast of the affair. … Where there has been, both, possible inducements offered and also reasons why the accused might decide (without the inducements having caused him to decide) to make a confessional statement, it is necessary to carefully evaluate the evidence in order to determine whether the Crown has discharged the onus to prove the voluntariness of the confessions. In other words, in the whole circumstances, including the circumstance that inducements were given to him, did the accused make the statements in the free exercise of his own will?”[16]
[14]See DPP v Ildiko Starr [1999] VSC 143 per Eames J and the authorities referred to therein at [30].
[15][1997] 1 VR 1 at 52-3.
[16]DPP v Kyu Hyuk Kim, ruling 8 August 1997, quoted in R v Ildiko Starr op cit at [30].
I assume for present purposes that an exhortation to show remorse may be equated with an exhortation to tell the truth[17]. I also proceed on the basis that a statement made by the accused’s father on behalf of and in the presence of the police could be considered to be a statement by a person in authority.
[17]Although it was not entirely clear to me what the Hills understood by the concept of remorse.
But, even if I broadly accept the defence evidence, what was the relevant threat or inducement? In order to consider the application of s.149 of the Evidence Act, it is first necessary to identify what the relevant threat or promise was. According to Ron Hill and Tyler, Ron Hill did no more than exhort his son to show remorse; something which would not be objectionable in itself. According to Mrs Hill, Ron Hill told the accused that the police wanted him to show remorse, so the judge would take kindly on him. According to the accused, his father told him that if he did not show remorse, (unspecified) things would get worse for him.
Even if I accepted the accused’s evidence as to what was said, given his later evidence about the issue of remorse[18], I would not accept that this statement by his father in fact induced him to make admissions in the 1.30 interview.
[18]Discussed at [93] below.
The 1.30 a.m. part of the interview
At 12.50 a.m., Ryan, Tyler and the accused left Dromana and drove back to Hastings.
Ryan, Tyler and the accused arrived back at the police station at 1.15 a.m., and the interview resumed at 1.30 a.m.
Even if, before the interview re-commenced, Tyler asked the accused “So, do you think you can show some remorse now?”[19], that would not of itself constitute a threat or inducement, although it might constitute an aggravation of any earlier threat to show remorse or suffer the consequences.
[19]Yet another allegation which was not put to the police witnesses.
The accused was read his rights again and agreed that he understood them. Asked if he wanted to exercise any of those rights before the interview proceeded he said: “Not – no, not now.”
Ryan commenced by taking the accused through what had happened during the execution of the search warrant at the parents’ house and then moved on to asking the accused to explain about the incident and its background. The accused answered questions and made numerous admissions over the next couple of hours. He did not give any “no comment” answers the long interview. Even when he was invited to simply give his account, he did so at great length. Indeed, he spoke at such length that on some occasions the police had to interrupt him to ask other questions.
In general terms, the accused explained that on the night in question, he was drunk and upset that the victim, and not he, had spent Julie Francis’ birthday with her. He admitted to having followed the victim in his car for up to half an hour in the early hours of the morning, and starting a fight outside the victim’s home at Bungower Road. The accused was keen to downplay his role in the fight and his perception of the seriousness of the victim’s injuries when he left him after the fight; he repeatedly stated that he had not intended things to go as far as they did and could not believe that the victim was dead.
At 3.21 a.m., the interview was suspended to allow the accused time to consider whether or not he was willing to take part in a crime scene re-enactment with the police. After the interview resumed at 3.37 a.m., the accused became upset and started crying when the topic of a re-enactment was raised again. The police did not persist with that request.
The interview concluded at 3.54 a.m. and the accused was charged with murder.
Asked why he decided to talk to the police in the 1.30 a.m. interview, the accused answered only in the most general terms. He said that when he got back to the police station:
“I decided that because of everything the police officers had been saying to me and because of the threats to my parents’ property, that they had made, and obviously threats to my relationship with them which would incur from that, I decided maybe I should start talking to them.”
A few pages later on, he was asked what he had meant when, at the start of the 1.30 interview, he answered “Not – no, not now”. Once again he answered in only the most general terms:
“After all the threats and intimidations and advice that the police had given me, I basically crumbled, Your Honour, and started – under –cracked under the pressure and started talking to the police and answering their questions.”
I do not accept this evidence, for several reasons. I have already explained why I do not accept that there were any threats to his parents’ property (and consequent threats to his relationship with his parents) still operative as at 1.30 a.m. With the possible exception of any threat that he should show remorse or else suffer unspecified consequences (which I will discuss shortly), I have also explained why none of the other matters raised by the accused constitute “threats and intimidations” or pressure such as might have caused him to crack.
Furthermore, when one examines the video of the entire interview, including the 1.30 interview, the accused does not give the impression of having suddenly cracked. Rather, the distinct impression he gave throughout the entire interview process was of somebody who wanted to give his explanation of what had happened, but had initially felt constrained by legal advice not to explain things on tape.
As to the question of remorse, the accused’s counsel asked him what was his thought process in relation to the police request for him to show remorse. Interestingly, he did not give evidence to the effect that it had overborne his will or induced him to confess; rather, he gave the following answer:
“I was already in shock basically still at being told that the young man had died and my [thought] process was, if I was the cause of that, shouldn’t I show some sort of remorse for that, like, because – shouldn’t you – you shouldn’t – I didn’t want to be known as a cold-blooded killer or anything like that. You should be able to show some sort of remorse, should you not, if someone’s died maybe through the cause of your own hand.”
Although the 1.30 a.m. interview took place in the early hours of the morning, there is no suggestion that the accused was not sufficiently alert to protect his interests.
I am satisfied that the answers given by the accused in the 1.30 a.m. interview were given in the free exercise of his right to answer or not to answer. No doubt the accused would have preferred that the police had no reason to interview him, but given that the police did want to do so, I am satisfied that the accused decided that it was in his interests to advance an explanation which minimised his role and culpability in the incident.
I am satisfied that his free will as to whether he participated or not in the 1.30 a.m. interview was not removed by virtue of any conduct of the police, by way of undue pressure, overbearing of will or by any threat or inducement. The Crown has satisfied me that the 1.30 a.m. interview was voluntary.
Discretionary grounds
I turn then to consider the alternative argument that the 1.30 a.m. interview ought to be excluded on discretionary grounds.
The accused bears the onus of establishing on the balance of probabilities that the admissions ought to be excluded on discretionary grounds[20].
[20]Wendo v The Queen (1963) 109 CLR 559 at 565; Van Der Meer v R (1988) 82 ALR 10 at 662.
Continuing the interview after “no comment” answers
Counsel for the accused submits that the interview should have ended at 7.30 p.m., after Q126, because by that stage the accused had made it clear that he intended to exercise his legal rights and did not intend to answer any more questions. It is said to have been unfair for the interview to have continued thereafter.
After the accused had obtained legal advice, the interview proper commenced. The accused answered “no comment” to 10 questions (Q36 to Q45). The police suspended the interview shortly after Q45.
This was very early in the interview process and the accused had not evinced a clear intention to answer no further questions under any circumstances. Asked at Q39 whether he intended to answer “no comment” to every question that was asked of him, the accused had responded “no comment.”
It is not uncommon for an accused person to answer “no comment” to some questions and to answer others, or to change his or her attitude over the course of an interview. The police did not know at this stage whether or not the accused would in fact answer further questions.
The accused then freely participated in discussions about the forensic procedures. Later, after the accused had consented to the various forensic procedures, the following exchange took place between Tyler and the accused:
“Q115 … If I can just – just go through a couple of things with you just before we suspend, Mark. Is it correct to say that during the time of suspension when you were considering whether or not to sign that forensic procedure form you said a couple of things to us?
A Yeah, during – during the course of – yeah, considering the forms, yeah.
Q116 Yes. And you asked - - - ?
A Like, I was just – I don’t see why I shouldn’t co-operate with you to find out what occurred.
Q117 Okay. Now - now, bearing in mind that you are still being cautioned and that you don’t have to say or do anything, but anything you do say may be given in evidence, you – you fully understand that, so – and you have been explained your rights and that caution by your – that solicitor. Is that correct? I don’t want to go into it exactly what was said, but you - you fully understand that. Is that right?
A He cleared my confusion.
Q118 Yes. And so I just wanted to – to clear up a couple of matters that whilst the – we were suspended, you asked a couple of questions. Would you agree with that?
A I’m – like, I – I asked you questions about the forms.
Q119 Yes.
A Yeah.
Q120 And I will suggest to you that you also asked – or said to us that you wanted to clear this matter up. Is that correct?
A I want to help you clear this matter up.
Q121 Yes.
A Yeah.
Q122 And what did you mean by that?
A Exactly what I just said. I want to, like, you know – I want to help you clear this matter up. It’s simple as that.
Q123 And how do you want to do that?
A By co-operating with you.
Q124 Okay.
A How else can I do that?
Q125 Alright. I suggest to you that – well, are you prepared to tell us what happened or where you were in relation to the death of Adrian Scholes?
A Not at this time.
Q126 Okay. So you still want to maintain your – your “No comment” replies?
A Mm’m.”
The police then suspended the interview to execute the search warrants.
The accused said that he intended his answers to Q125 and Q126 to mean “No” or “I don’t wish to speak to you.” He suggested that his references to co-operation and clearing the matter up were only a reference to helping with the forensic procedures, even though they do not appear on their face to be so limited.
However, asked by his own counsel what he intended when he gave “no comment answers”, the accused said:
“Any question directed towards me on camera, I was just simply going to say ‘No comment’”.
That clearly left open the possibility of him co-operating with or assisting the police off-camera. Indeed, that is precisely what he subsequently did during the process of executing the warrant at Dromana.
Even if the accused had subjectively intended the answers to Q125 and Q126 to mean “absolutely not” or “in no circumstances” (which I do not accept was in fact the case), read in the context of the previous questions and having regard to both the content of the words and how they were spoken, the reasonable listener[21] would be unlikely to conclude that they meant “absolutely not”. Such a listener could well assume – as Ryan and Tyler did - that “not at this time” meant exactly what it said, and left open the possibility that the accused might be willing to answer further questions at a later time (for example, during or after the execution of the warrants, a process in which the accused had agreed to participate).
[21]Defence counsel conceded that in exercising my discretion on the grounds of fairness, I should have regard to what the words objectively conveyed.
At the completion of this part of the interview, the accused had not said in unequivocal terms that he would answer no further questions under any circumstances.
Even if, contrary to the above finding, the accused had said in unequivocal terms that he did not want to answer any further questions after Q126, he could always change his mind thereafter. The police are not obliged to immediately cease an interview just because an accused says he does not wish to answer any further questions.
In fact, what happened was that the accused made certain admissions to the police during the execution of the search warrant. It was perfectly proper for the police to put those matters to him on tape when they returned to the station; their conduct was in accordance with the relevant police manual, which provides that after any suspension of an interview, the police should detail on the record any conversations or activity that occurred with the suspect during the break.
There is also no substance to defence counsel’s related argument that it was unfair that Q364 was not put to the accused earlier in the 1.30 a.m. interview. Question 364 asked the accused to confirm that, whilst they were in the police car, the accused had told the police that he wanted to say what happened and not to answer “no comment”.
Ryan was conducting the interview. He said he did not put Q364 to the accused, because he had no recollection of the accused having said that. What he quite properly did was put to the accused the matters which he recalled having occurred since the interview had last been suspended.
When Ryan had finished asking his questions, he asked Tyler, the corroborator, whether he had any questions to ask. It was in that context that Tyler put Q364, one of a number of questions about what had occurred since the last suspension of the interview. It might have been preferable for Q364 to have been asked earlier in the 1.30 a.m. interview, but no unfairness has been demonstrated by reason of its timing.
In these circumstances, I am not satisfied that there was any unfairness in the continuing of the interview after Q126, or that it would otherwise be unfair to the accused to use his subsequent admissions against him.
Alleged unlawful detention
The accused argues that as at 1.30 a.m. he was being unlawfully detained, because he had not been taken before a bail justice as required by s.464A(1)(c) of the Act. Defence counsel says that if he had been afforded his rights, the 1.30 interview “may not even have taken place.” Accordingly, it is said that I should exclude that part of the interview in the exercise of my discretion.
Section 464A(1) requires that every person taken into custody must be (a) released unconditionally; (b) released on bail; or (c) taken before a bail justice or the Magistrates’ Court, within “a reasonable time” of being taken into custody. Section 464A(4) sets out a long list of matters which may be considered in determining what constitutes a reasonable time.
The accused was taken into custody shortly after 4.00 p.m. The interview proper did not begin until 6.21 p.m., after the accused had obtained legal advice. Further time was taken obtaining his consent to the forensic procedures. It took some 2½ hours after the suspension of the interview at 7.30 p.m. to arrange for the forensic procedures to be undertaken and the search warrants obtained. Travelling to and from Dromana to execute the search warrant took another couple of hours. I am satisfied that all of these steps formed a necessary part of the investigation and were done in an efficient and reasonable manner. I agree with the concession by defence counsel that the detention of the accused up until 1.30 a.m. was reasonable.
I do not agree with defence counsel that, upon returning to the station around 1.15 a.m., the accused should have been immediately taken before a bail justice. As I have already held, it was entirely reasonable and proper for the police to seek to record on tape what had happened during the execution of the search warrant and any other matters which had been discussed since the recorded interview had last been suspended. That is what they then did.
The accused spoke freely to the police for the next 2½ hours. The interview concluded at 3.54 a.m., at which time the accused was charged with murder. Arrangements were then made for a bail justice to attend; the bail justice arrived at Hastings at 5.00 a.m.
In all the circumstances, I am satisfied that the accused was taken before a bail justice within a “reasonable time” and that his detention was not unlawful.
Conclusion
I am satisfied on the balance of probabilities that the admissions were voluntarily made and that there is no basis for excluding the 1.30 a.m. interview on discretionary grounds.
For these reasons, the application to exclude the record of interview must fail.
---
0
3
0