R v Jones
[2001] VSC 32
•13 February 2001
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1408 of 2000
| THE QUEEN |
| v |
| MICHAEL PETER JONES |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13 & 15 February 2001 | |
DATE OF RULING: | 13 February 2001 | |
CASE MAY BE CITED AS: | R v Michael Peter Jones | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 32 | |
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Criminal Law – Evidence – Confessions and Admissions – Unfairness – Discretion to exclude.
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APPEARANCES: | Counsel | Solicitors |
For the Prosecution | N. Parkinson | Office of Public Prosecutions |
| For the Accused | D. Brustman | Victorian Legal Aid |
HIS HONOUR:
Before the trial of the accused, Michael Peter Jones, on a charge of the murder of Rosemary Louise Gale on 4 April 1999, I was asked to make a ruling. These are my reasons for ruling, first in the exercise of my discretion to exclude on the basis of “unfairness”, that a record of interview of the accused by the police on 5 April 1999, not be led, and secondly to reject an application to exclude based on the claimed involuntary character of the interview.
I heard evidence on the voir-dire from four members of the police force (“members”) and from the accused. There were credit issues arising from that evidence. The accused gave an account of inappropriate treatment at the hands of certain members. Several complaints were made as to that treatment. They can be summarised as four. First, that a number of members ignored his request to allow him to contact his father. Secondly, that a number of members ignored his request to contact a lawyer. Thirdly, that one member ignored his request for methadone. Fourthly, that the same member succeeded in inducing him both to proceed with the interview, and to make no complaint of not being to exercise his rights, by withholding from the accused the opportunity to take methadone and to smoke a cigarette
In the late morning of 5 April 1999 the accused was arrested and taken to Nunawading Police station. There, shortly after arrival, he was interviewed. That seven minute interview was recorded on audiotape. He was later taken to the Homicide Squad Office where he was interviewed in three stages over a period of nearly 3 hours with two breaks amounting to totalling nearly an hour. That 3 stage interview was recorded on videotape.
The accused was spoken to at other times before and after the seven minute interview. Members included in their statements reference to other contacts made with the accused that were not recorded on audiotape or videotape.
Before the seven minute interview, the accused had been told by two members of his right to communicate with a relative, and with a lawyer. He told one member he wanted to see his children. He told that same member that he was on methadone, and that he had taken that day’s dose.
During the seven minute recorded interview, the accused said that he was losing his voice. He was told of his right to communicate with a relative, and with a lawyer. The accused said nothing as to wanting to see a relative. He did say that he wanted to see a solicitor, but when asked whether he had anyone in mind, he said no. He also said that he had a sore back, that he had been given a glass of water and that he would like a cigarette.
At 12.10 p.m., almost immediately after the seven minute interview, the accused said to the member to whom he had said that he had taken that day’s dose of methadone that he was wrong and that he had not taken any since yesterday.
At some time after 3.30 p.m., there was discussion between the accused and a member about contacting a solicitor. The member's recall of what occurred was that he contacted a solicitor, whereupon the accused declined to speak to the solicitor. The accused told me a different story. It was that he requested the member to contact the accused’s father, through whom a lawyer could be contacted, but the member ignored that request.
In the 3 stage interview the accused was again told of his rights to communicate with a relative and with a lawyer. He said he understood his rights and did not want to exercise them. The accused told me that immediately prior to the interview, inducements had been offered to him by the member who interviewed him, to proceed as he did.
After hearing the oral testimony, I had made a preliminary assessment as to the facts that warranted my taking a negative view of much of what had been said to me by the accused. Put shortly, as to almost every matter where there was conflict, I preferred the evidence of the members.
On the other hand, I was troubled about evidence as to the mental and physical health of the accused on the day in question. I was not disposed to reject the general thrust of the evidence of the accused that he was unwell during the 3 stage interview. That was only in small part because he said so. It was also in part because of what had been said as to the accused by other witnesses who had seen him before he was arrested. It was also in part based on an uneasiness which I had formed on first reading the transcript of the 3 stage interview. What troubled me most was what I saw (my emphasis) when I came to view the videotaped record of the 3 stage interview
There were only relatively minor matters raised by the accused as to his health in that interview. He said he had been on methadone for six years. He also said he had pain in his back.
On the other hand, there were a number of what I took to be clear signs of significant health concerns. From a point soon after the start of the 3 stage interview, the accused made a number of references to the effects on him of having taken drugs and of having little or no sleep. What he said included: that in the previous few days, he had taken speed and ecstasy and pot and alcohol; that he had been bingeing on drugs; that he had taken heroin because he felt sick from the speed; that he was still feeling the effects of drugs he was not used to; and that there were things that he could not remember. In addition to what was said, what is obvious from watching the video is: that the accused is generally either whispering or speaking quietly in a croaky voice; that he is relatively inanimate; and that he is generally looking down rather than making eye contact with the interviewer. Further, the position worsens towards the end of the three hours, when the accused has his arms folded and adopts almost a foetal position on his chair. Moreover, there are many times when what the accused says is incomprehensible. I cannot recall seeing as many gaps in a transcript of the kind which reflect the inability of whoever was responsible for transcribing what is said to pick up what the accused has said. Further, there are many times when the accused gives unresponsive answers or covers together more than one matter not obviously related in time.
All of those signs pointed to the accused being a man who was suffering from a condition materially affecting his ability to think and speak, whether related to the continuing effects of the recent consumption of drugs or to withdrawal symptoms or otherwise. The police did arrange for the accused to be seen by a doctor, but that was not done until the Wednesday morning, the interviews having taken place on the Monday. The doctor noted that she was told by the accused that he was withdrawing from methadone and ached all over.
I consider that the interviewing police members erred in not calling in a doctor before proceeding through the 3 stage interview. I acknowledge the benefit of hindsight to some extent in making that assessment. I have, as they did not, details of what the witness Rachael Morton was to say about the accused having taken amphetamines and heroin. I also acknowledge that the accused did not, before or during the interview, either ask to see a doctor or make any major complaint of a medical problem. I also recognise that, being nearby, the members would have been able to hear matters that I found incomprehensible because they were not adequately picked up in the recording.
On the other hand, before the interview, a member, although not one of the interviewing members, had been told by the accused that he had not had his methadone that day. More importantly, the matters which I have listed above as being of major concern to me from watching the video had to be the more apparent to them. Perhaps their perceptions were significantly different and they treated what I took to be symptoms of ill-health to be instead, indications of embarrassment, or evasiveness, or blame shifting or the like.
In passing I note that it has been my experience that, in circumstances where an interviewee is affected by intoxicating liquor, the police have usually preferred to permit him or her time to become more sober, before proceeding with the interview. Allowing time to pass is not so clearly appropriate when the interviewee is suffering the increasingly adverse symptoms of withdrawing from a drug like methadone.
In exercising the discretion to exclude evidence in the exercise of my unfairness discretion, I have applied the principles reviewed in paragraphs 53 and 54 of Swaffield v The Queen (1998) 192 CLR 159. In short: the purpose of the discretion is to protect the rights and privileges of accused persons; I must evaluate all the relevant circumstances; I must not focus only on whether the police have acted unfairly; I should have regard to the risk that the accused might be improperly convicted; and the unreliability of the evidence may be a touchstone of unfairness, but is not the sole one.
After reviewing all the circumstances, I had no reservations as to the voluntariness aspect of the 3 part interview. On the other hand, I was left with major reservations as to its fairness. More particularly, I was concerned as to the fairness of the police proceeding without having the accused seen by a doctor if not before the interview started, then not long after it got underway. Further I was left with reservations as to the reliability of what was said by the accused. I was satisfied that if I permitted the interview to go into evidence, there was a risk that the accused might be improperly convicted. For these reasons, I ruled that it be excluded.
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