R v Hutchison, Lee & Wilby
[2005] VSC 164
•26 April 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1484 of 2004
| THE QUEEN |
| v |
| BROCK HUTCHISON, LINTON LEE AND KURTIS WILBY |
---
JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 19-21 APRIL 2005 | |
DATE OF RULING: | 26 APRIL 2005 | |
CASE MAY BE CITED AS: | R v BROCK HUTCHISON, LINTON LEE AND KURTIS WILBY | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 164 | |
---
Criminal Law – Admissibility of police statement of first and third accused – Consideration whether accused were or ought to have been regarded as suspects – Admissibility of subsequent records of interview of first and third accused – Statements admissible as witness statements – Records of Interview excluded in the exercise of the fairness discretion.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Ryan | Stephen Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the First Accused | Mr S. Russell | Leanne Warren & Associates |
| For the Second Accused | Mr M. Tovey QC with Mr J. Dounias | Roberts Beckwith Partners |
| For the Third Accused | Mr S. Johns | White & Associates |
HIS HONOUR:
Applications are made by the accused, Brock Hutchison and Kurtis Wilby, for the exclusion of statements made to investigating police and subsequent audio‑tape records of interview. Each is charged, along with co‑accused Linton Lee, with culpable driving and reckless conduct endangering life.
These charges arise from an incident on 19 September 2002 when a Nissan Patrol 4 Wheel‑Drive vehicle, driven by the accused Lee, pursued a Holden Commodore driven by Shannon Gilliland, in the Karingal area.
It is the Crown case that in the course of this pursuit the 4 Wheel‑Drive deliberately rammed the Commodore in Ashleigh Avenue, Karingal, on two occasions. In attempting to escape the following vehicle, the driver of the Commodore lost control and struck an electricity pole. As a result of that collision, a passenger in the vehicle, Miss Catherine Stevenson, tragically died.
It appears that the motivation of those in the 4 Wheel‑Drive was to have the Commodore stop so as to confront some of the occupants about an incident that had occurred earlier in the evening. On that occasion, the accused Hutchison had been accosted by the driver and a passenger in the Commodore, Nicholas Coleman. Blows had been exchanged between Coleman and Hutchison. Subsequently, having been told of the earlier altercation, the three accused had agreed to travel in Lee's 4 Wheel‑Drive in an endeavour to locate the Commodore and its occupants and fight them.
The collision having occurred, Lee did not stop the 4 Wheel‑Drive vehicle but, after travelling slowly past the crash scene, drove to his parents' house in Pearcedale. After changing cars, the trio drove to the Karingal home of the accused, Hutchison, where there was discussion about what they should do and say about their conduct.
Ultimately, at about 9 p.m. that same evening, they presented themselves at the Frankston Police Station.
The eventual charges brought by the Crown against the accused Hutchison and Wilby, namely, culpable driving and reckless conduct endangering life, are founded upon the concepts of acting in concert or alternatively aiding and abetting. The particulars of the culpable driving alleged are the driving of the 4 Wheel‑Drive motor vehicle recklessly or negligently.
It is not within the compass of this ruling to assess the applicability of the legal concepts underlying complicity to those of recklessness or negligence, although I had cause to briefly examine this issue in R. v. WNT[1] in the context of manslaughter by gross negligence.
[1][2005] VSC 173
I am informed by counsel that no Victorian cases have been discovered in which complicity has been the foundation for liability for culpable driving but that, of course, is no impediment to prosecutorial innovation.
In any event, the issue of the viability of the prosecution case on the basis of complicity is not the issue presently before the court.
The first aspect of the challenge to the statements was that, since there had been a failure to comply with the provisions of s.464H of the Crimes Act 1958 ("the Act"), relating to electronic recording, the statements were inadmissible.
That section, so far as it is relevant, is in the following terms:
"(1)Subject to sub‑section (2) [which relates to exceptional circumstances], 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 in proceedings for an indictable offence unless –
…
(c)if the confession or admission was made before the commencement of questioning, the confession or admission was tape‑recorded ..."
It was not an issue before me as to whether the statements contained admissions (the latter including false denials) or whether the police involved were "investigating officials". The question for determination was whether the person making any admissions was suspected or ought reasonably to have been suspected of having committed an offence by the relevant investigating officials, here Sergeant Colin Schmidt and Senior Constable Jonathan Frank.
The law on this issue is relatively well settled. It was formulated in such cases as R. v. Heaney[2], and has subsequently been applied in R. v. Alexander[3], and R. v. Vollmer[4], to name but two examples.
[2][1992] 2 VR 531
[3][1994] 2 VR 249
[4][1996] 1 VR 95
For the purposes of this ruling it is not necessary to slavishly set out those principles in an endeavour to demonstrate scholarship. Every case will depend on its own facts.
The starting point for an examination of this issue is to determine the state of knowledge of the police officers at the time the statements were taken.
I interpolate that, prior to the typewritten statements, conversations were had with each accused by Sergeant Schmidt. These conversations were recorded by way of handwritten notes, made by Schmidt himself and by Mr Frank, in whose presence the conversations occurred. Although argument was directed to the typewritten statement, no distinction was drawn between the two modes of eliciting information and it was not suggested that there were any significant differences in the material provided.
The involvement of Mr Schmidt commenced with his attendance at the scene of the collision about 8 p.m. on 19 September. By that stage, according to notes in Mr Schmidt's Day Book, he was aware of allegations from occupants of the Commodore that they were rammed by a 4 Wheel‑Drive vehicle which had left the scene. There were differing allegations as to the number of times the Commodore was rammed. The name "Linton Lee" is recorded as a possible driver and at 8.25 p.m. there is a notation of Lee's friends, including Brock Hutchison. At 9 p.m. it was noted that Lee and two others had handed themselves in at the Frankston Police Station and at 9:05 p.m. it is recorded that the 4 Wheel‑Drive vehicle had been located at Pearcedale.
Having gone to the Frankston Police Station, Mr Schmidt spoke to Brock Hutchison at 9:35 p.m. and Kurtis Wilby at approximately 10 p.m., on each occasion, as I indicated, in the presence of Mr Frank.
In essence, Hutchison described the 4 Wheel‑Drive striking the Commodore once in the context of that vehicle suddenly braking. Wilby, in his version, went further. He described chasing the Commodore and effectively conceded the ramming of it by Lee on one occasion, after which it took off with the driver eventually losing control.
Subsequently, at 10:20 p.m., there was information received from a Senior Constable Perrett that the initial impact between the two vehicles was 200 metres from the collision with the pole. This distance had been revised and extended to 330 metres shortly after midnight.
The statement from Hutchison, taken by Mr Schmidt, commenced at 12:20 a.m. and concluded, after a number of interruptions, at 2:50 a.m., whilst that of Wilby, taken by Mr Frank, commenced at 11:20 p.m. and finished at 1:20 a.m.
Following these statements, both young men left the police station.
In assessing the material, it is important not to be influenced by hindsight. At the relevant times the police officers had conflicting accounts of what had precisely occurred from parties who were antagonistic to one another. Not only were the accounts conflicting between the groups but also within the groups. The evidence from the scene that any impact between the vehicles had occurred a considerable distance from the collision with the pole, added to the confusion and, on its face, raised possible questions of causation.
What is clear is that the police were initially faced with an apparent hit/run accident with the driver Lee failing to stop at the scene of the collision and failing to render assistance.
In the circumstances I have set out, it would, in my view, have been entirely appropriate for the investigating police to treat Hutchison and Wilby as witnesses when they arrived at the Frankston Police Station. The distinction between their status and that of the accused Lee is exemplified by an examination of the approach taken by the investigating police towards him.
At 11:43 p.m. Lee was subjected to a formal record of interview with the standard caution. He was informed at question 5, "Okay. I intend to interview you in relation to a collision that occurred today - this evening, in Ashleigh Avenue, Frankston, and your driving in relation to that collision, your driving - how it relates to the death of a person that was involved in that collision. I must inform you that you are not obliged to say or do anything but anything you say or do may be given in evidence. Do you understand that?" The response was, "Yes".
A similar statement to Lee was made shortly after midnight and Lee thereafter remained in custody. He was not extensively interviewed until 8:27 a.m. on 20 September 2002.
I reiterate that at the time of taking the statements from Hutchison and Wilby the events of the evening were still confused. Had there been an intentional ramming by Lee? Had this caused the ultimate collision? And could a case be made out for culpable driving or even homicide? These were matters that needed clarification before any concept of complicity, novel as it was in relation to culpable driving, could be considered by investigating police.
Some cross‑examination was directed to Mr Schmidt's understanding of complicity but it was never directly or unambiguously put to him that he was contemplating the criminal liability of Hutchison and Wilby on that basis at this time in the investigation. Moreover, the statements themselves are not directed to that end.
In my view there is no basis for concluding that the accused ought reasonably have been suspected of having committed an offence at this time.
In mounting an argument that the accused were, nonetheless regarded as suspects, attention was drawn to the use of the Attendance Register and the fact that Hutchison and Wilby were isolated within the Frankston Police Complex, the former apparently in a locked room. However, there is no evidence that the manner of treatment of these young men immediately after their arrival at the police station was done at the behest of the investigating police. Even if there were such evidence, there was nothing sinister about this course of action in the circumstances. Here the investigating police were faced with three youths who told Frankston police that they had been in the 4 Wheel‑Drive vehicle at the time of these events. Their arrival at the police station after a delay of at least two hours raised the spectre of possible collusion. Consequently, it was not surprising that they were separated. Of course, suspicion of their truthfulness is not the same thing as suspicion of their criminal involvement in the substantive events of the early evening.
The Attendance Register itself, apparently compiled by a Sergeant Downie, contains contradictions. However, it records both Hutchison and Wilby being informed that they are not under arrest and not compelled to remain at the police station. What is clear is that each went voluntarily to the police station in order to make a statement about the events of the evening and ultimately did so.
In any event, I am not persuaded by the use of the Attendance Register that Hutchison and Wilby were regarded as suspects.
Another matter raised by the defence was the entry in Schmidt's day book, "I/V [being interview] other occupants. "S'ment" in inverted commas [being statements] to tie them down to a story at this stage". This was apparently a directive from a Senior Sergeant Bourke. It was argued that the use of the word "s'ments" [being statements in inverted commas] indicated that they were, in effect, "Clayton" statements rather than genuine witness statements. The policeman's interpretation, some two and a half years later, was that this described witness statements.
It may be that the term is used in contradistinction to "IV" (that is, "interview") since there was to be no formal interview. I note that the term "statement", (written "s'ment") is not in inverted commas when referring to the role of Senior Constable Frank in Mr Schmidt's notes. Whatever, the reason for this notation, it is not, in my view, capable of supporting the inference contended for by defence counsel.
There is, of course, nothing sinister about tying a witness down to an account of events. It is frequent police practice.
There was evidence from Mr Schmidt that he informed both accused that they were witnesses, that they did not have to make a statement and could seek legal advice if they wished. This was not recalled by Senior Constable Frank, but it is not necessary for me to determine this issue to arrive at my conclusion. Certainly the accused believed themselves to be witnesses at all times.
Attention was drawn to the notation of Sergeant Ronelle Quin in her notes of Senior Constable Frank informing her of "three offenders" being at Frankston Police Station. The witness indicated that was her understanding of what was said, although Senior Constable Frank doubted he would have used that terminology as he did not treat Hutchison and Wilby as suspects.
On the state of evidence I am not satisfied that Frank did use that description, albeit this may have been Ms Quin's understanding of what he said.
When Schmidt left the Frankston Police Station in the early hours of 20 September it is doubtful whether he had even read the completed statement of Wilby. Certainly he had no memory of doing so. Indeed, he returned to the police station next morning intending to interview Lee. The decision to treat Hutchison and Wilby as suspects appeared to have emanated from Senior Sergeant Bourke and was communicated to Mr Schmidt about 8 a.m. According to Mr Schmidt he was informed by Mr Bourke that they should be treating the other two occupants in the vehicle as principals.
Senior Sergeant Bourke having since died, the Court does not have before it the basis of his reasoning, but presumably it arose from a detailed analysis of the two statements. In any event, the fact that a subsequent examination of the statements may have led to the conclusion that these accused should be treated as suspects does not mean that the same conclusion ought to have been reached prior to the taking of such statements.
On the evidence, which I have not sought to set out in great detail, I am satisfied that the investigating police did not treat the accused as suspects at the time these statements were made and as I indicated earlier in these reasons, I am also satisfied that they ought not to have been reasonably suspected of having committed an offence by the investigating police.
It follows there was no breach of s.464H of the Act.
It was submitted that it would, nonetheless, be unfair to permit a statement made by a witness to be used against such person in the capacity of an accused. The short answer to that proposition is that such a use is frequently made of witness statements, assuming they contained admissions or false denials. In the present case the statements were freely volunteered by persons who went to the police station for that express purpose. In my view, no ground has been made out for their discretionary exclusion.
Accordingly, I rule the statements to be admissible. I turn to the records of interview.
It is not necessary for me to analyse the basis of the police decision, taken on the morning of the 20th September, to treat the accused Hutchison and Wilby as suspects. That decision having been made, police were sent to retrieve them from their homes and return them to the Frankston Police Station. It was Mr Schmidt's impression "that they were going to be interviewed in relation to the circumstances surrounding the collision, their involvement in it, and whether they had possibly committed any offences themselves or could be charged"; (p.55 of the transcript).
However, what was emphasised in the briefing held prior to retrieving Messrs Hutchison and Wilby related to what were called by police witnesses, for example, Mr Frank and Senior Constable Roslyn Wilson, "inconsistencies" and "discrepancies" in their signed statements.
Each of the accused gave evidence of their belief that the purpose of returning to the police station, which each agreed to do, was to provide further information in their capacity as witnesses. I accept that evidence.
I do not accept the evidence of Senior Constable Wilson, from which she largely resiled, that Hutchison was told that he was a suspect, cautioned and given his rights. Ms Wilson had no record of this having occurred. Indeed, there is no independent documentation or reference in the subsequent records of interview of any earlier caution being given to the accused by the officers who collected them.
Nothing specific was said prior to or during either record of interview to indicate their changed status from witness to suspect. Indeed, to a considerable extent, the interviews were conducted with reference to their written statements, a procedure which served to reinforce the perception of the accused of their position as witnesses. Nor was the caution given to each accused adequate to alert them to their situation of jeopardy.
In the case of Hutchison it is found at questions 7 and 16.
Question 7:
"I intend to interview you in relation to a fatal motor vehicle collision which occurred last night. Before continuing I must inform you that you are not obliged to say or do anything but anything you say may be given in evidence, do you understand that?" "Yes."
Question 16:
"I intend to interview you in relation to a fatal motor vehicle collision which occurred in Ashleigh Avenue in Frankston last night. Before continuing I must inform you, you are not obliged to say or do anything but anything you say or do may be given in evidence, do you understand that?" "Yes".
Of course, it is not said (and nor should it be) "given in evidence against you", but in the circumstances the blandness of the expression did nothing to disabuse the accused of his belief that he was still a witness.
In relation to Wilby the following was said at question 8:
"Kurtis, I intend to interview you in relation to a motor vehicle collision that occurred yesterday afternoon on 19 September."
These statements may be contrasted with the information provided to the accused Lee which I have already quoted.
In these circumstances, it is little wonder that neither accused chose to exercise either their right to silence or their right to contact a legal practitioner. Indeed, Wilby was given no opportunity whatever to do so when he was initially informed of his rights and he was provided with an inadequate confirmation of those rights later in the interview by a Sergeant Exton, whose interviewing technique may be regarded as inappropriate. It is not necessary, however, to descend into the minutiae of that interview for the purposes of this ruling.
Insofar as compliance with the provisions of the Crimes Act relating to interrogations is concerned, there has, in my view, been a failure to comply with s.464A(1), notwithstanding that the requirements as to the amount of information to be provided to a suspect necessarily varies with the factual circumstances; see R. v. Lancaster[5].
[5][1998] 4 VR 550
In the instant case any criminal liability of the accused realistically depended on complicity in Lee's actions in driving the 4 Wheel‑Drive vehicle. The existence of such liability may initially appear startling to a lay person and it was essential that, at the very least, the accused were alerted to their potential culpability for causing the fatal collision. This was particularly so when they had previously been categorised as witnesses.
Moreover in assessing the state of mind of these accused, regard must be had to their lack of prior convictions, their lack of experience in a police station and, in Mr Wilby's case, his general level of understanding and intelligence.
Of course, as the cases make clear, the breach of such a provision as s.464A(1) does not automatically render a record of interview inadmissible, just as the judicial discretion as to the admissibility of a record of interview is not confined within the framework of these provisions of the Act; see R v Vollmer & Ors[6].
[6](ibid)
In the present case, however, the conduct of the records of interview in the context of surrounding events render their introduction into evidence unfair. The conduct of the interviewing police, albeit not wilful, has in each case had the effect of eroding the procedural rights of the accused and occasioning significant forensic disadvantage; see, for example, R. v. Heaney & Welsh[7], applying Swaffield and Pavic v. The Queen[8].
[7][1998] 4 VR 636 at 644
[8][1997] 192 CLR 159
As I indicated earlier in this ruling, had the true situation of the accused been made clear, the right to communicate with a legal practitioner and the right to silence could have become meaningful options.
On the facts there was no deliberate impropriety on the part of the interviewing police such as would enliven the public policy discretion. Nor does the case fall within the ambit of voluntariness as discussed in R v Li & Anor[9]. Here participation in the records of interview stemmed not from any perceived compulsion to do so, but from a misapprehension by the accused as to the capacity in which their answers to police questions were being provided.
[9][1993] 2 VR 80
In the event, I rule that, in the exercise of the fairness discretion, each of the records of interview should be excluded from evidence.
---
0