R v Kallis

[1993] QCA 324

IN THE COURT OF APPEAL [1993] QCA 324

SUPREME COURT OF QUEENSLAND

C.A. No. 200 of 1993.

Brisbane
[R v. Kallis]

BETWEEN

T H E Q U E E N
v.
WILLIAM KALLIS

Appellant

________________________________________________________________

_

Pincus J.A.
Ambrose J.

White J.

________________________________________________________________

_

Judgment delivered 06/09/1993.
Separate reasons of Pincus J.A., Ambrose J. and White J, all concurring as to the order made.
________________________________________________________________

_

APPEAL DISMISSED
________________________________________________________________

_

CATCHWORDS:	CRIMINAL LAW - unlawful possession of a motor vehicle - whether parts of the record of interview consisting merely of prejudicial comments by police should have been excluded - application to trial judge for exclusion declined - whether Crown case so strong that the proviso to s. 668E(1) of the Criminal Code should be applied - whether no substantial miscarriage of justice has actually occurred.
Counsel:	Mr S Herbert Q.C. with him Mr S Di-Carlo for the appellant. Mr P Rutledge for the respondent.
Solicitors:	Baker Johnson & Partners for the appellant. Director of Prosecutions for the respondent.
Hearing Date:	20 August 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 200 of 1993.

Brisbane

Before Pincus J.A.
Ambrose J.
White J.

[R v. Kallis]

T H E Q U E E N
v.
WILLIAM KALLIS

Appellant

REASONS FOR JUDGMENT - PINCUS J.A.

D elivered 6 September 1993

I have had the advantage of reading the reasons of Ambrose J and what follows is based on his Honour's explanation of the issues in the case, which I do not repeat. It appears to me that the learned primary judge was in error in declining to delete from the record of interview those parts of it which consisted merely of prejudicial comments by the police. In some instances such a comment may evoke from the person being interviewed an important response which cannot be properly understood if the comment is excluded. But in the present case that consideration did not present a problem; much of the material to which Mr Herbert QC drew our attention could and should have been edited out.

There may be room for argument as to the extent to which it is proper for police, in the course of questioning a suspect, to provide information or express opinions. In Riley (1908) St.R.Qd. 141, an interview beginning with a statement by a police officer: "You have not told me the truth about the murder of Martyer" was admitted. The point taken on appeal was merely that confessions made to the police were not voluntary, but it is noteworthy that the statement quoted produced no adverse comment from the Court. In Howarth [1973] Qd.R. 431, a police interview containing material of similar character was admitted: see p. 434D. There, one of the statements made by the police officer to the appellant attributed to another person information which incriminated the appellant, and that appears not to have been disapproved: 435A.

On the other hand, Ireland (1970) 126 C.L.R. 321 at 332 is clear authority for the proposition that a statement of opinion, expressed to a suspect, that the suspect was present at a time and place when an offence was committed is inadmissible, whether or not it is prejudicial. It should be noted, however, that the Court held that the fact that information has been conveyed to a suspect may be admissible in some circumstances.

Problems of this sort have been discussed in two South Australian cases, Harris and Daly (No. 2) (1975) 12 S.A.S.R. 270, especially at 272, 273, and O'Neill (1988) 48 S.A.S.R. 51.

Both of these decisions support the view that the inclusion in an interview with a suspect, later accused, of incriminating information allegedly received by the police from other sources does not necessarily make the interview, or any part of it, inadmissible: see per King C.J. at p. 55, 56 in O'Neill.

In the light of these authorities it cannot be said that there is any absolute rule that the putting to a suspect of information obtained by the police, which is said to be inconsistent with the suspect's version of events, is unfair and inadmissible. Nor is it as clear as one would expect it to be that expressions implying disbelief of all or part of the suspect's story cannot fairly be included in a record of interview placed before a jury. In the present case, however, and whether or not all of what was objected to was strictly inadmissible, the judge should, in my opinion, have exercised his discretion in favour of deleting much of it. It was, with all respect, undesirable to let in as his Honour did, evidence including a considerable amount of merely argumentative material. The result was that, as counsel for the appellant submitted, the jury had before it not only the account which the appellant gave to the police, but also, contained in the same record of interview, persistent submissions against acceptance of that account.

I am in agreement with the view of Ambrose J as to the application of the proviso and with his Honour's proposal that the appeal should be dismissed.

This is an appeal against the conviction of the appellant upon two counts of possession of a motor vehicle without the consent of the person in lawful possession, with the intent to deprive him of that possession permanently. Each charge was brought pursuant to s. 408A(1)(b) of the Criminal Code. The appeal essentially is based upon the failure of the learned trial Judge to exclude parts of a recorded interview between police officers investigating the offences and the appellant, on the grounds that those parts were inadmissible and/or their prejudicial effect exceeded their probative value. The Crown contends that even if parts of the record of interview ought to have been excluded, nevertheless the Crown case was so strong that the application of the proviso is called for upon this appeal. It is convenient to state briefly the nature of the Crown case. In respect of the first count, the owner of the vehicle gave evidence that it was stolen on 2nd October 1991. At the time of theft, it was registered in his name with the Main Roads Department. The vehicle, the subject of the second count, was stolen on 17th October 1991. That vehicle also was registered with the Main Roads Department in the name of the owner. In the course of cross-examination of police officers, counsel for the appellant elicited the fact that at some time between the theft of the vehicle in the second count on 17th October 1991 and the date of a police search made of the appellant's panel beating workshop on 30th October 1991, a former employee of the appellant informed police that there were two stolen vehicles to be found on the appellant's premises. It was this information that initiated the investigation and search by the investigating police officers of the appellant's premises on 30th October 1991. In fact counsel for the appellant pressed one of the police officers in the course of his cross- examination to admit that in a statement taken from this informer subsequent to the police search of the appellant's premises, he had volunteered the information that he had heard the appellant, in discussions with some other person, indicate that he knew the two vehicles were stolen. In fact that former employee was indicated by the Crown as a possible witness but it seems clear looking at the record that the Crown did not open his evidence as part of the Crown case. One of the police officers indicated in the course of his evidence that he had seen that witness at court on the day of the trial. It emerges from the record that counsel for the appellant insisted on eliciting this information from the police officer called to give evidence; for obvious reasons the police officer concerned exhibited a degree of reticence in agreeing with the matters so insistently put to him by counsel for the appellant as to what precisely the former employee had informed the police in the course of discussions he had with them. On the morning of 30th October 1991, the two investigating police officers arrived unannounced at the appellant's panel beating workshop and made a search of it. They located two motor vehicles stored in the workshop, each bearing registration number plates. By car radio, they checked the registration numbers against a list of stolen motor vehicles and learnt that each of the motor vehicles had been reported stolen. One of the employees at the panel beating workshop was seen to make a telephone call and shortly afterwards the appellant arrived at the workshop where, in the course of discussions with the police officers, he agreed that the motor vehicles "might be stolen". Upon inspection the motor vehicle, the subject of the first count, was found to be stripped of many removable parts. On the floor of the passenger compartment located where the front passenger seat would have been fixed prior to its removal, there was a green slip of paper from the Main Roads Department containing details of that motor vehicle and the name of its registered owner. Each of the motor vehicles, specified in the counts, had its ignition lock tampered with. It seems that each had had a hole bored into it. The condition of each lock was consistent with the vehicles having been started by the use of a screwdriver after the ignition lock had been bored out. In fact the appellant explained, in his recorded interview, that that is the way he actually started the engine of one of the vehicles which he said he had discovered parked outside the front of his premises. The investigating police officers had some discussions with the appellant at his panel beating workshop and then arranged for him to come to the police headquarters building in Roma Street, Brisbane, where they conducted with him an interview which was video-taped. It was in the course of this interview that various comments and observations were made by the police officers which the learned trial Judge declined to exclude from consideration of the jury and it is to this material which I will now turn.	Judgment delivered 06/09/1993 given a warning, traditionally given to such persons in accordance with the Judges' rules. This was a matter adverted to before the trial Judge but no application was made to exclude the interview from the consideration of the jury on this ground.	An application was made at the trial to exclude those parts of the interview but the learned trial Judge ruled that they were admissible and declined to exclude them in the exercise of his exclusory discretion.
In fact the interview contained denials on the part of the appellant of criminal responsibility and explanations as to how the two stolen vehicles came to be stored in his panel beating workshop. It seems that counsel for the appellant concluded that it was not contrary to the interests of the appellant to have most of the recorded interview placed before the jury. It was however to his interest to have certain comments and observations by police officers in the course of that interview excluded.
No explanation was given by the Crown for the failure of the investigating police officers in conducting the video- recorded interview with the appellant to give him the traditional warning. Although no objection to this failure was taken either before the learned trial Judge or indeed before this court, it should be observed that a departure from the time hallowed practice of giving warnings to accused persons in accordance with the Judge's rules at the commencement of a formal video-recorded interview concerning their involvement in a criminal offence under investigation, ought not be departed from if it is intended later to use that record as evidence upon trial. This case should not be regarded as a precedent for the reception into evidence of a record of interview taken in the absence of any warning. Because no point was taken either before the learned trial Judge or before this court, I will refrain from making further comment on this unusual aspect of the case.
The video-recording, the transcript of which has been placed before this court, commenced at 2.38 p.m. in the interview room at Brisbane City Criminal Investigation Branch and concluded at 3.38 p.m.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 200 of 1993

Brisbane
Before Pincus JA.

Ambrose J.

White J.

[R. v. Kallis]

THE QUEEN

v.

WILLIAM KALLIS

(Appellant)

REASONS FOR JUDGMENT - AMBROSE J.

It is unnecessary to consider in detail all the matters to

Without attempting to deal in detail with the explanation
given by the appellant, he said in essence that an unknown man
who gave his name as "J. Henderson" brought the motor vehicle in
count 1 to him one day and said that he had lost his car key,
and that he required the ignition lock which had a hole bored in
it to be replaced and other locks also to be replaced. The
appellant contended that shortly after the first meeting, the
unknown man had asked to have the vehicle re-painted and to this
end he and one of his friends had come one day, in the absence
of the appellant, and stripped much material from the vehicle
and removed it from the premises.
The appellant said that he recorded the name and telephone
number the unidentified man gave him but when he attempted to
make contact on that telephone number, discovered that nobody
bearing that name or having any connection with the motor
vehicle left with the appellant lived there. Police officers
who checked these particulars allegedly recorded by the
appellant arrived at the some conclusion.
The appellant said that this motor vehicle had been
delivered to him on 3rd October 1991. It is clear upon the
evidence that this was the day after it had been stolen.

The type written transcript is contained within just over

12 pages.

which objection was taken. according to the appellant, was discovered by him one morning when he arrived at work. It was parked outside the entrance to his panel beating workshop with no indication as to who owned it or why it had been left there. The appellant told the police officers in the interview that he assumed that it had been left there by the same person who had given the name "J. Henderson".

He said he thought that it might have been a vehicle owned by another member of that person's family. Upon examination, the appellant found that this second vehicle had also had a hole bored into the ignition switch, and the appellant put a screwdriver into the hole and this allowed him to start the engine of the vehicle which he then drove into his panel beating workshop. The appellant said that he expected to hear something from somebody about the motor vehicle, but pressure of work had caused him to forget about it. Both this vehicle and the other one that had been partly stripped, were parked together towards the rear of the appellant's workshop in a darkened area, removed from the area in which employees of the appellant did panel beating and spray painting work on vehicles on a daily basis.

Although the police officers upon search found no registration papers in this motor vehicle, it also had a registration number plate attached.

The appellant gave no explanation as to why he did not make enquiries of the authorities as to the names of the registered owners of the motor vehicles. Those names, one might think, would have been readily available to anybody having the registration numbers of the vehicles.

It was in the course of the long recorded interview in which this version of events emerged from the appellant that the police officers made various observations, indicating that they did not accept his version of events. I will refer only to some of those matters. The following observations were made in the course of the interview:

"Alright Bill. To me that doesn't really seem to ah seem gel that a vehicle just turns up without any explanation with the ignition barrel damaged again and um you just presume that the owner of the vehicle lost the keys. Well that doesn't ..."

After recapitulating the version of events given by the appellant, this observation was made:

"Well your line there has got to be very tenuous at the best because you got absolute no communication or contact with anyone about the second vehicle and you just leave it sit there."

Subsequently a further interchange took place:

"Kallis: Well. Well. The way that he turned up right. The blokes turned up with the car right. Now he said to me he said, 'Mate, I lost my keys'. He said, 'I had to break break the ignition lock to start it. Can you fix it?' I said, 'Alright'. Now another one clocked up like that and I said to myself, 'Well', just automatic I wasn't thinking, I said to myself, 'It must be this bloke's. Must be this bloke's car cos it must be his wife's car or something. He's done the same thing. He's lost the keys again.'

Trezise?: Do you think that's likely?
Kallis: Yeah. Yeah.
Trezise: Do you think it's likely the same person
would lose their two keys in two weeks?

Kallis: Well. He sounds like a bit of a - bit of a dumb arse. I mean I get 'em coming through all the time.

Trezise: Bill, we got - we got the same guy losing two sets of keys to two different vehicles in the space of just over two weeks. The second vehicle he hasn't even bothered to contact you. He just drops it in and you see nothing suspicious in that at the time.

Kallis: No, I never actually.
Trezise: You don't. What Bill - what ah does it - what can it mean when those ignitions are drilled out like that?
Kallis: Well, it can mean a couple of things but -
Trezise: Well, what's one of the obvious things that

it can mean?

Kallis: Oh. A stolen car."

Later on, after further discussion with the appellant, the police officer, Trezise, observed:

"Mm. Well you know Bill. The fact is that ah something is up and the whole things looks very suspicious. Ok? And you're expecting us to believe, Detective Paton and myself, that you, you've been working completely in good faith in relation to these vehicles and the fact that this guy has given you a false name, false phone number, he's shown you no identification, he's dropped off two vehicles ... One of which had a registration paper in it and you say you didn't even see it but one which has a registration paper sitting in plain view which is different to the guy's information that he gave to you."

Later on the police officer observed:

"Trezise: Ok. Now but furthermore you also want us to believe that the guy contacted you the next day and he wanted a complete change in colour even though there was nothing wrong with the colour of the vehicle. Now as you say, plenty of people just on a whim want to change the colour of their vehicle ..."

Eventually one of the police officers, Paton, observed:

"I'm afraid your story doesn't really wash at all."
Later in the interview:

"Trezise: Well, I'm inclined to think that it's highly unlikely the same person would lose two sets of keys in a fortnight.

Kallis: Well, there's some arses around.
Trezise: There certainly are but I think you're

asking for a very big coincidence to be drawn there."

Later in the interview the following interchange occurred:

"Trezise: Alright. And you're asking me to believe that it's reasonable for you not to have known they were stolen.

Kallis: I'm telling the truth. The way - dead set -
I'm telling the truth.

Trezise: You've been in the business for fifteen years. You've got two vehicles within two weeks with their ignitions drilled out and you believed and you're asking us to believe that the person simply lost the keys.

Kallis: Mate, I've had it before ..."

I will assume, for the benefit of the appellant's argument, that the video-recording taken of the interview containing the portions to which I have referred and the recording of the tone of voice of the police officers making the comments to which objection has been taken, would demonstrate the police officers' disbelief of or incredulity at the explanation given by the appellant.

For the Crown it is contended that the interview of the appellant by the police officers concerning his knowledge or suspicion of the fact that the two vehicles found in his possession were stolen, was relevant to the issue of his guilt of the offences charged, and that, although parts of the interview to which objection was taken, examined in isolation may be thought unduly prejudicial to the appellant, they must really be viewed in the context of the whole of the interview which, in essence, was so conducted as to give the appellant every opportunity and indeed stimulation to elaborate on and explain what, to most people, would seem rather incredible explanations for his being found in possession of the stolen vehicles.

For the appellant, it is contended, in essence, that it is only his inculpatory admissions and exculpatory assertions that are relevant to the issue of his guilt, and that the observations made by police officers in the course of the interview indicating disbelief of those explanations, cannot be inculpatory of the appellant.

It is unnecessary in my view to analyse separately each part of the questioning of the police officers recorded in the interview with the object of determining whether what has been said is strictly speaking "admissible" evidence against the appellant. If one accepts that the interview itself was admissible in evidence, it does not follow logically that every prejudicial observation made by police officers in the course of that interview which did not in fact stimulate the appellant into changing his version of events or into making inculpatory admissions, could be considered as in any way inculpatory. In my view this is a case where even if having some marginal or peripheral relevance to the issue of the appellant's guilt of the offences charged, the observations made by police officers in the course of the interview, the most obnoxious of which I have set forth have no probative value whatever on that issue.

The appellant in this case did not give evidence. Any consequent advantage that he may have obtained from his right to reply to the prosecutor's address to the jury, became largely illusory when the jury took with them into the jury room the video-recording of the police interview containing all the critical observations of the police officers on the appellant's version of events which no doubt had been stressed by the Crown Prosecutor.

In my view this was a case in which the learned trial Judge ought to have exercised his discretion and excluded from consideration of the jury at least those observations of the interrogating police officers to which I have referred.

It would be a very undesirable practice for interviewing police officers to incorporate in a video-recording, obviously taken to be used in evidence upon trial of the person interviewed, observations of the sort to which objection is taken in this case. It is not the function of police officers to express opinions as to the guilt or innocence of accused people, either directly when giving evidence before a jury, or indirectly when conducting an interview of such persons which is being video-recorded for the purpose of placing it before a jury upon trial of the persons interviewed.
In this case there were in truth no inculpatory admissions obtained from the appellant in the course of the interview. Perhaps that explains why no objection was taken by his counsel to the admission of the video-recording in evidence in the light of the failure of the investigating police officers to give the appellant any warning that he need not answer questions.

It was perfectly proper of course for the police officers to interview the appellant with a view to obtaining his version of events and his explanation for his possession of the two stolen motor vehicles. It was perfectly proper for the Crown to place that explanation before the jury. To my mind the explanation is so incredible that no reasonable jury properly instructed would have accepted it for a moment. The learned trial Judge indeed in the course of his summing up, commented to the jury that:

"You might think that in the month of October 1991 the accused must have been one of the unluckiest men in Brisbane. Not once but twice in that month some villain brought a stolen car to his premises. Each car had the ignition barrel drilled out. In respect of the first car left there the Pajero the employees of the accused were silly enough to allow this man to come back and strip the Pajero and take parts away. On the second occasion the Nissan Pulsar was left outside his premises with the ignition barrel drilled out. Apparently the accused assumed that for the second time Mr. Henderson had lost the keys to a vehicle and he took the vehicle around the side and stored it behind closed doors. You might think he is a very unlucky man in the circumstances.

I will remind you of the submissions made to you by both counsel and I am not expressing an opinion. I am simply reminding you of the opinions or the submissions given to you on both sides."

Counsel for the appellant contended that although no specific complaint was made about the observations of the learned trial Judge to which I have referred, the effect upon the jury of the comments of the police officers in the video-recording of the interview taken with them into the jury room, must be considered in the light of the observations of the learned trial Judge to which I have referred.

Stated shortly, I accept the point taken on behalf of the appellant upon appeal that the learned trial Judge ought in the exercise of his discretion to have excluded from the record of interview with the appellant, the observations and comments of the police officers to which I have referred which to the extent that they are admissible at all have a prejudicial effect which far out weighs their probative value. There was no technical difficulty in excising the offending comments from the recorded interview. The failure to excise those comments had the effect that the exculpatory explanation offered by the appellant to the police officers was interspersed with their comments having the effect of highlighting the obviously inherent improbabilities in that explanation.

The question then is whether the proviso under s. 668E ought be applied on the basis that upon the evidence before the jury, no substantial miscarriage of justice has actually occurred.

For the appellant it is contended that if the comments and observations of the police officers had been excised from the record of interview placed before the jury, that jury may have had a reasonable doubt and may have acquitted.
Accepting that test, it is my view that even had the material been excised from the recorded interview, no fair minded jury upon the whole of the balance of the evidence placed before them and having regard to the explanations given by the accused in that interview, would have had a reasonable doubt as to his guilt.

I would apply the proviso to s. 668E(1) of the Criminal

Code and dismiss the appeal.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 200 of 1993

Brisbane
[R. v. Kallis]

BETWEEN:

THE QUEEN

- and -

WILLIAM KALLIS

(Appellant)

Mr. Justice Pincus
Mr. Justice Ambrose

Justice White

Judgment delivered 06/9/93

APPEAL

Counsel:	Mr. S Herbert Q.C., with him Mr S Di-Carlo for the appellant. Mr. P Rutledge for the respondent.
Solicitors:	Baker Johnson & Partners for the appellant. Director of Prosecutions for the

respondent.
Hearing Date: 20/08/93
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 200 of 1993

Brisbane
Before Pincus J.A.

Ambrose J.

White J.

[Re R. v. Kallis]

BETWEEN:

THE QUEEN

v.

WILLIAM KALLIS

(Appellant)

REASONS FOR JUDGMENT - WHITE J.

Judgment delivered 06/09/93 judgment of Pincus J.A. and Ambrose J. and agree with the reasons expressed therein and the order proposed.