R v Kassulke

[2003] QDC 567

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Kassulke [2003] QDC 567
PARTIES:	R v KASSULKE, Gary Kenneth
FILE NO/S:	Indictment 299/03
DIVISION:
PROCEEDING:	Pre-trial hearing
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED ON:	27 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	BC Hoath DCJ
ORDER:
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – where accused confessed to medical doctor and medical student that he had fired shots into a Department of Transport building and a police station – where accused sought reassurance that confession would be confidential – whether a doctor is a “person in authority” as per s 10 Criminal Law Amendment Act 1894.
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - where accused confessed to medical doctor and medical student that he had fired shots into a Department of Transport building and a police station – where accused sought guarantees that confession would be confidential – where there is no doctor / patient privilege – whether the confession should be excluded by exercising the judicial discretion which takes into account all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction is unacceptable having regard to contemporary community standards.
Legislation
s 10 Criminal Law Amendment Act 1894 s 151 Weapons Act 1990 s 35 Medical Act 1939
Cases
McDermott v The King (1948) 76 CLR 501 at 511, considered.
R v Dixon (1992) 28 NSWLR 215 at 229, considered.
R v Burt (2000) 1 Qd R 28, considered.
R v AB (1986) 26 CCC (3rd) 17, considered.
R v Roadhouse (1933) 61 CCC 191, considered.
R v McKenzie (1956) 3 CCC 6, considered.
R v Wilband (1967) 2 CCC 6, considered.
R v Hodgson (1998) 127 CCC (3rd) 449, applied.
R v Schofield (1988) 37 A Crim R 197, considered.
Duchess of Kingston’s Case (1776) 20 State TR 355, considered.
R v Young (1999 46 NSWLR 681, considered.
R v Franklin, unreported, New South Wales Court of Criminal Appeal, 17 September 1990, considered.
R v McDonald (1991) Crim LR 122, considered. R v Lowe (1997) 2 VR 465, considered. Swaffiled & Pavic v R (1998) 96 A Crim R 96, applied.
COUNSEL:
SOLICITORS:

HIS HONOUR:

[1]    1. The accused, Gary Kenneth Kassulke, is charged with three counts of wilful damage and three counts of threatening violence at night. Those charges arise out of three separate incidents. The first incident occurred at approximately 3.30 a.m. on 22 February 2002 when 13 shots were fired into the Queensland Transport Office at Cleveland. The second incident occurred at approximately 1.15 a.m. on 22 April 2002 when 14 shots were fired at the Queensland Transport Office at McGregor. The third incident occurred half an hour later when 6 shots were fired into the Slacks Creek Police Station.

[2]    2. Approximately 12 hours after the third incident occurred, the accused, in company with his mother, girlfriend and girlfriend’s daughter, attended at the Princess Alexandra Hospital. After being assessed by a triage nurse the accused was referred to Dr. James Freeman, a resident medical officer at the hospital. In company with a medical student, Eleanor Loughhead, Dr. Freeman took the accused to a consulting room.

1. 3. On entering that room, Dr. Freeman’s evidence is that he said to the accused “This is a medical student. Her name is Eleanor. Do you mind if she comes in?” The accused said words to the effect “Is everything going to stay within these walls?” to which Dr. Freeman replied that as he was an assessing doctor he would have to tell his senior whatever was discussed and that the rules that applied to him as a doctor would apply to the student. The accused then said “Yeah, okay that’s fine.” Following that exchange, Dr. Freeman commenced to interview the accused.

2. 4. After being asked why he came to the hospital the accused said that the previous night he thought that he had done something that wasn’t something that sane people usually did, and then went on to tell Dr. Freeman that in the early hours of that morning he fired shots into a Department of Transport building and a police station. The accused said he had fired the shots because the police and the Department of Transport had been giving him trouble. He went on to say that earlier in the year he had fired some shots into a building.

[5]    5. The interview with the accused lasted between three quarters of an hour and an hour. At the conclusion of the interview Dr. Freeman spoke to Dr. Staib, a hospital registrar, who in turn spoke to Dr. Kay, the director of the Emergency Department at the hospital. Dr. Kay contacted the police who then attended at the hospital and arrested the accused. When the police attended the accused was abusive to Dr. Freeman, claiming that Dr. Freeman breached the trust he had placed in him. The accused subsequently declined to be interviewed by the police.

1. 6. Dr. Freeman states that as a result of what he was told by the accused he had concerns about the accused’s safety, he was concerned greatly that the accused had access to a gun and concerned over whether the accused intended to use that gun on anybody else. During the course of the interview the accused did tell Dr. Freeman that he did not intend to use the gun on anybody else and that he had in fact given the gun to a friend.

[7]    7. Although there is some circumstantial evidence linking the accused with the offences that he is charged with, it is acknowledged by the Crown that without the evidence of the admissions made to Dr. Freeman, which can be confirmed by the evidence of the medical student Eleanor Loughhead, the Crown would not have a case against the accused in respect of any of the six counts.

1. 8. The Crown accepts that before any admissions were made by the accused, his question “Is everything going to stay within these walls” specifically raised the question of confidentiality and that without Dr. Freeman’s acknowledgment of confidentiality, the accused would have been unlikely to make the admissions that he did.

2. 9. On this application brought pursuant to s 592A of the Criminal Code, the accused seeks a ruling that the admissions allegedly made to Dr. Freeman should not be admitted into evidence on the accused’s trial.

3. 10. Mr. Wilkin, who appears for the accused, stated that the objections to the admissibility of the evidence are:

1. (1) the admissions were brought about by a

threat, promise or inducement; and/or

2. (2) the admissions were not voluntary;

and/or

3. (3) the admissions were obtained by false

representation or the like; and/or

4. (4) that in all the circumstances it would be unfair to the accused and in the exercise of the discretion the admissions should be excluded; and/or

5.         (5) the admissions are so unreliable that in the exercise of discretion they should be excluded.

1. 11. Mr. Wilkins’ submissions as to the admissibility of the statements allegedly made to Dr. Freeman can be reduced to two substantive grounds. Firstly, that the admissions were involuntarily or in breach of s 10 of the Criminal Law Amendment Act 1894 and secondly, that having regard to all the circumstances it would be unfair to the accused to admit them into evidence.

2. 12. Section 10 of the Criminal Law Amendment Act 1894

   provides:

   “No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown”.

3. 13. Section 10 is a statutory enactment of the common

   law rule 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.” See McDermott v. The King (1948) 76 CLR 501 at 511."

4. 14. It is not suggested that any statement made to Dr. Freeman was as a result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure. In those circumstances the application to exclude the statements made to Dr. Freeman whether on the statutory or common law basis falls to be determined on whether such statements were preceded by an inducement held out by a person in authority.

[15] 15. The first question that arises is whether Dr.

Freeman is a person in authority. Whilst “a person in authority” typically refers to persons formally engaged in the arrest, detention, examination or prosecution of an accused, an examination of the authorities reveals it can take on a broader meaning.

1. 16. After reviewing a number of authorities Wood J in

   R v. Dixon (1992) 28 NSWLR 215 at 229 concluded:

   "I would accordingly hold that a person in authority includes any person concerned in the arrest, detention or examination of the accused, or who has an interest in respect of the offence or who is otherwise seen by the accused by virtue of his position as capable of influencing the course of the prosecution or the manner in which he is treated in respect of it.”

2. 17. That statement was adopted and followed in R v.

   Burt (2000) 1 Qd R 28.

[18] 18. The statement by Wood J is consistent with a

summary of principles, referred to in a number of Canadian cases that can be of assistance in determining who is a person in authority.

1. 19. That summary first appeared in the judgment of Cory JA in R v. AB (1986) 26 CCC(3rd) 17 and is as follows:

   “1. As a general rule a person in authority is someone engaged in the arrest, detention, examination or prosecution of the accused. When the word examination is used, I believe it refers to interrogation by police officers, detention or security guards and members of the Crown Attorney’s office.

   2.  In some circumstances the complainant in a criminal prosecution may be considered to be a person in authority.

   3.  The parent of an infant who is the injured party or complainant in a criminal prosecution may be a person in authority. Such a conclusion would, I suggest, depend upon the factual background.

   4.  An inducement made by one who is not in authority but made in the presence of persons in authority who do not dissent from it may be deemed to have been made by a person in authority. In those circumstances the person making the inducement can be considered as the agent of the person in authority. To put it another way, by the presence of those in authority, the person not in authority is clothed with that authority. As a result such a statement is suspect for the same reasons as statements made in response to an inducement offered by a person in authority would be.

   5.  The question as to whether the statement was made to a person in authority will be viewed subjectively, that is to say, from the point of view of the accused person who made the statement. The proper test is that given in Kaufman, Admissibility of Confessions in Criminal Matters, 3rd ed., 1979, at p.81: ‘Did the accused truly believe, at the time he made the declaration, that the person he dealt with had some degree of power over him.

   6.  A person who is to be a witness for the prosecution will not, as a general rule, be deemed to be a person in authority.

   7.  As well, it has been determined that a psychiatrist, even when examining an accused to determine if he is a dangerous sexual offender, will not be considered to be a person in authority, nor will a doctor who has examined the accused.”

2. 20. There are a number of Canadian cases where it has been held that psychiatrists who have examined accused persons were not persons in authority. See R v. Roadhouse (1933) 61 CCC 191; R v. McKenzie (1965) 3 CCC 6; R v. Wilband (1967) 2 CCC 6.

3. 21. Apart from the police and other law enforcement officers, there is no class of persons who are automatically considered to be persons in authority. A person’s status alone or the fact that they may wield some personal authority over an accused is not sufficient to establish them as persons in authority. It must be shown that the person the accused made the statement to was associated with the prosecution authorities and could influence the investigation or prosecution against them and the accused believed that to be the case. See R. v.Hodgson (1998) 127 CCC (3rd) 449.

4. 22. Mr Wilkin has submitted that Dr Freeman’s position went further than authority over medical assessment and assistance in respect of the accused. He was in fact, Mr Wilkin has submitted, in a position of authority by reason of the provisions of s 151 of the Weapons Act 1990 which provides that if a doctor or psychologist is of the opinion that a patient is an unsuitable person to possess a firearm because of the patient’s mental or physical condition, or because the patient may be a danger to the patient or another person, the doctor or psychologist may inform the Police Commissioner of his or her opinion and give the Commissioner any relevant information about the patient’s condition and identify.

[23] 23. Section 151 does not require a doctor or

psychologist to inform the Police Commissioner of confidential information obtained from a patient. It permits him to do so without being criminally or civilly liable.

1. 24. Section 151 does not make Dr Freeman a person associated with the prosecution or a person who could influence the prosecution. Like any other witness a doctor may bring a matter to the attention of the police but is not like an employer, property owner or victim of the offence who is the actual complainant or the parent of a young child who stands in the place of the actual complainant. It is in that context that the reference to being “within his or her power to place the wheels and a prosecution in motion” in R. v. Schofield (1988) 37 A Crim R 197 at 200 should be understood.

2. 25. In addition to the person being able to influence the prosecution it must be shown that the accused believed the person was capable of influencing the prosecution.

3. 26. In cases other than police officers, where the inference could readily be drawn, the evidential burden to raise that belief rests on the accused. In this case the accused has given no evidence of having such a belief and there is no evidence from which it can be inferred that he had such a belief. It may be different if an accused was detained or in custody and the authorities arrange for the doctor to examine him.

[27] 27. The accused’s question “Is everything going to

stay within these walls” after being introduced to the medical student does not raise, as submitted by Mr Wilkin, any inference that the accused had a belief that Dr Freeman was capable of influencing the prosecution.

[28] 28. In this case not only was the doctor not

associated with the prosecuting authority and was in no better position to influence the course of the prosecution then any other prospective witness but there is in my view, no evidence, either from the accused or by inference that the accused believed that the doctor was capable of influencing the prosecution.

1. 29. In those circumstances it cannot be said that Dr Freeman was a person in authority, and accordingly there is no basis to find that the statements made to Dr. Freeman were involuntary or in breach of s 10.

[30] 30. Mr. Wilkin has submitted that even if the

statements were made voluntarily they should, in the exercise of my discretion, be excluded on the grounds of unfairness or public policy.

1. 31. When patients attend a doctor they generally have an expectation that statements made by them to the doctor for the purpose of the consultation will be kept confidential. That expectation of confidentiality is no doubt fostered by the Australian Medical Association Code of Ethics which, as at February 2002, provided:

   “Keep in confidence, information derived from your patient, or from a colleague regarding your patient, and divulge it only with the patient’s permission. Exceptions may arise where the health of others is at risk or you are required by order of the court to breach patient confidentiality.”

2. 32. Despite the Code of Ethics and any expectation that a patient may have, at least since the Duchess of Kingston’s Case (1776) 20 State TR 355, the common law has never recognised any privilege akin to that which exists between solicitor and client in the case of doctor and patient: see Spigelman CJ R v. Young (1999) 46 NSWLR 681 at 699.

3. 33. Up until it was repealed in 2000, s 35(ix) of the Medical Act 1939 provided that a doctor who obtained information which indicated an attempted or completed crime and failed to advise the officer in charge of the nearest police station of that information by the most speedy way would be guilty of misconduct in a professional respect.

4. 34. Although there is no doctor / patient privilege excluding the admission of confessions to a doctor, the discretionary exclusion of admissions made to medical practitioners has been the subject of consideration both in Australia and England. See R v. Franklin, unreported, New South Wales Court of Criminal Appeal, 17.9.90, and R v. McDonald (1991) Crim LR 122.

5. 35. More recently the issue was referred to in R v.

   Lowe (1997) 2 VR 465 at 485:

   “The tension which exists between protecting the confidences of patients in the ‘doctor/patient’ relationship and permitting and/or requiring the divulgence of such confidences in the interests of public safety or the bringing of criminals to book has been the subject of much recent discussion in medical and legal circles: see, for example, Adler ‘To Tell or Not to Tell: The Psychiatrist and Child Abuse’ (1995) 29 ANZ Journal of Psychiatry 190 at 190-198; A. Abadee, ‘The Medical Duty of Confidentiality and Prospective Duty of Disclosure; Can They Co-Exist?’ (1995) 3 Journal of Law and Medicine 75; D. Mendelson, ‘Mr. Cruel and the Medical Duty of Confidentiality’ (1993) 1 Journal of Law and Medicine 120.

   In this state (Victoria) it is clear that both common law and statute law subordinate private confidence to the wider public interest; at least when it comes to disclosing information in the interests of prosecuting serious crime and – or protecting public safety: cf W. v. Edgell (1990) 1 Ch. 359 at 416-417 per Sir Stephen Brown; R v. Crozier (1990) 12 Crim. App.R. (S) 206. There are limited restraints imposed by statute: cf Evidence Act 1958 s.28(2); Mental Health Act 1986 s.120A; Health Services Act 1988 s.141.

   We are of the view that the learned judge was not in error in failing to exclude the evidence on the basis that the disclosure amounted to a breach of trust and confidence. A disclosure made in those circumstances would not, by itself, make it unfair to receive the evidence against the applicant. Although the common law misdemeanour of misprision of felony has now been abolished, it has not been and cannot be, suggested that health service providers are under a duty (in the interests of the patient) not to disclose confidential information if such disclosure will aid the protection of the public from a specific and identifiable threat.”

6. 36. In R v. Lowe, the person receiving the confession was an unqualified and self-styled psycho-therapist who was involved in counselling the accused. During that counselling she had, at all times, urged the accused to confront the truth and at all times indicated to the accused that their conversations were confidential.

[37] 37. The offences involved in that case were the

kidnapping and murder of a six year old child. No reference is made in the report to any of the authorities dealing with the test to be adopted for determining the discretionary exclusion of a confession to a medical practitioner.

1. 38. In the present case there is nothing to suggest circumstances giving rise to any question as to the unreliability of the statements made to Dr. Freeman. As a matter of common sense, in the absence of any apparent mental illness, a patient would have no motive to make false admissions to criminal offences. On that basis the approach I should adopt is to exercise an overall discretion which takes into account all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is brought at a price which is unacceptable having regard to contemporary community standards: see Swaffield & Pavic v R (1998) 96 A Crim R 96 at 122.

1. 39. The information disclosed by the accused to Dr. Freeman involved the discharging of shots into three separate buildings. There was an interval, on the accused’s account, of perhaps some months between the incidents. One of the buildings was occupied by several persons when shots were fired into it. Within a short time prior to speaking with Dr. Freeman the accused had been in possession of a firearm. Dr. Freeman was concerned for the accused’s safety, and greatly concerned as to whether the accused intended to use the gun on members of the community.

2. 40. Whilst there is a real public interest in persons who may have some form of mental disorder seeking medical treatment and for there to be confidentiality between patient and doctor, and bearing in mind that in this case the accused was specifically advised that what was said would be confidential, I am of the view that in this case those considerations are outweighed by the public interest in the investigation and prosecution of what are serious offences involving the repeated use of a firearm. Accordingly I am not persuaded that I should exercise my discretion to exclude the admissions allegedly made to Dr Freeman.