R v Kageregere

Case [2011] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v KAGEREGERE

Criminal Trial by Judge Alone

[2011] SASC 154

Judgment of The Honourable Justice Kourakis

26 September 2011

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER

Criminal trial by judge alone – accused charged with murder and arson – accused pleaded guilty to arson of home unit which caused death and proffered plea of guilty to manslaughter – manslaughter plea not accepted – defence case that accused thought victim already deceased at time of lighting fire – whether accused guilty of common law murder – whether accused guilty of murder pursuant to s 12A Criminal Law Consolidation Act 1935 (SA).

Held – accused guilty of common law murder and murder pursuant to s 12A Criminal Law Consolidation Act 1935 (SA) – accused knew victim still alive at time of lighting fire – arson was an intentional act of violence – no reasonable explanation for totality of evidence other than guilt of the accused.

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY

Criminal trial by judge alone – application by accused to exclude record of interview – whether admission of statement procedurally unfair – whether discretion requires exclusion.

Held – in the circumstances the continued questioning of the accused was calculated to undermine his procedural right to silence – it would be unfair to admit the evidence of the record of interview – record of interview excluded.

Criminal Law Consolidation Act 1935 (SA) s 12A, s 24, s 85(1); Criminal Code (Qld) s 302, referred to.
R v Swaffield (1998) 192 CLR 159; R v Bueti (1997) 70 SASR 370, applied.
R v Van Beelen (1973) 4 SASR 353; R v CMM (2002) 81 SASR 300; R v Butcher [1986] VR 43; Stuart v The Queen (1974) 134 CLR 426; Hughes v The King (1951) 84 CLR 170; Thabo Meli v The Queen [1954] 1 WLR 228, discussed.
R v Church [1966] 1 QB 59; R v Radalyski (1899) 24 VLR 687; R v Dowdle (1900) 26 VLR 637; DPP v Beard [1920] AC 479; Ross v The King (1922) 30 CLR 246; R v Carlos [1946] VLR 15; R v Brown [1949] VLR 177; R v Ryan [1966] VR 553; R v R (1995) 63 SASR 417; R v Serne (1887) 16 Cox CC 311; Appleby v The King (1940) 28 Cr App Rep 1; R v Jarmain [1946] 1 KB 74; R v Maurangi (2000) 80 SASR 295; R v NJA [2001] SASC 342, considered.

R v KAGEREGERE
[2011] SASC 154

Criminal

  1. KOURAKIS J:                   Ettiene Murekezi and his wife Stephanie Misago fled civil…

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AGLC
R v Kageregere [2011] SASC 154
Case
[2011] SASC 154
Decision Date

CaseChat Overview and Summary

In R v Kageregere, the accused was charged with murder and arson following a fire in a home unit that resulted in the death of the victim. The accused pleaded guilty to arson but contested the murder charge, proffering a plea of guilty to manslaughter, which was not accepted. The defence argued that the accused believed the victim to be deceased at the time of setting the fire. The central legal issues were whether the accused was guilty of common law murder and murder under section 12A of the Criminal Law Consolidation Act 1935 (SA). The court needed to determine if the accused's actions constituted an intentional act of violence and whether there was a reasonable explanation for the evidence other than the accused's guilt.

The court held that the accused was guilty of both common law murder and murder under section 12A. It was determined that the accused knew the victim was alive at the time of the arson, which was an intentional act of violence. The totality of the evidence pointed to the accused's guilt, with no reasonable alternative explanation. The court found that the continued questioning of the accused by police was calculated to undermine his procedural right to silence, making it unfair to admit the evidence of the recorded interview. Consequently, the record of the interview was excluded.

The court acknowledged Professor White's expert evidence on the effects of intoxication but emphasised that it must be weighed against the accused's conduct and functioning at the relevant time. The accused's objection to the admission of the evidence from the recorded interview was upheld due to the circumstances surrounding the questioning, which the court deemed procedurally unfair. The accused had initially been escorted by police across Anzac Highway, where he was placed in a police car without being given a choice, and was then questioned without consideration of how his son, Joseph, should be cared for. This conduct by the police was found to have undermined the accused's procedural right to silence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I accept Professor White’s evidence about the effects of intoxication. However, his opinion, which is necessarily general in nature, must ultimately be considered against what is known of the accused’s conduct and functioning at the relevant time.Exclusion of evidence of recorded interview I earlier referred to the accused’s initial contact with Officer Schatto.[3] The accused was also spoken to by Detective Osborne in a car park adjacent to Anzac Highway. The accused told Detective Osborne a story about repelling intruders who had forced their way into his unit and later awaking to find the unit on fire. The accused was questioned later at length in a recorded interview at Sturt Police Station. In that interview the accused embellished his false story. I received evidence of that interview subject to the accused’s application to exclude it in the exercise of my discretion. For the reasons which follow, the accused’s objection to the admission of the evidence should be upheld.[3] See [27]. After the accused and his son Joseph were examined by paramedics, Officer Schatto escorted the accused across Anzac Highway to a car park on the opposite side to unit block 445. The accused and his son were then offered a seat in the back of a police vehicle. The accused testified that he thought he had no choice but to accompany the police across Anzac Highway. He said “No, I found that was very important for me to go with them”. The accused’s landlord, Dr Masika, had been alerted to the fire by his children and he quickly made his way to unit block 445, which was a short distance from his home. He saw the accused standing on the footpath next to a female police officer, probably Officer Schatto, who was sitting down with Joseph. Dr Masika accompanied the woman police officer and the accused across Anzac Highway where they were met by a group of other officers who had walked to the median strip from the opposite side of Anzac Highway. Dr Masika testified that he was asked for, and produced, some identification. He and the accused were then directed to a police car on the other side of Anzac Highway. A police officer informed Dr Masika that police had “a few questions to ask”. Dr Masika gave evidence that the police “put Luka and the son into the back seat of the car”. According to Dr Masika the accused was left in the back of the car for some time before it was opened by police who questioned the accused about what had happened. The accused complained to Dr Masika that “they should give me somewhere to sleep and not keep asking the questions”. According to Dr Masika he communicated that information to a nearby ambulance officer. At one point when Dr Masika was speaking to the accused Detective Osborne noticed that the voices of both the accused and Dr Masika became raised and the conversation rapid. He raised his hands, gestured to both of them, and asked them to stop speaking. He told Dr Masika that he would speak to the accused and Dr Masika separately. When Detective Osborne decided to question the accused, Joseph was left in a police car. Officer Schatto spent much of her time caring for Joseph whilst other police spoke to the accused. Detective Osborne did not ask the accused how he wanted Joseph cared for and did not give him any choice in the matter before he embarked on his questioning.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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