R v. Kinsella

[2004] QSC 72

[2004] QSC 072

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

BYRNE J

Indictment No 165 of 2003

THE QUEEN

v.

MICHAEL JOHN KINSELLA

BRISBANE

..DATE 18/03/2004

JUDGMENT

HIS HONOUR:  The accused seeks the exclusion of two classes of evidence: first, confessional; secondly the recounting of statements by Ingrid Lester, with whose murder the accused is charged.

The facts pertinent to the application emerged from the depositions, which constitute the only evidence adduced.

On the afternoon of 22nd November 2002, the accused was informed by Detective Sergeant Hodgins that he was under arrest for the murder of Ingrid Lester, that he was detained for questioning, and that Hodgins intended to take him to the Kingaroy Police Station for that questioning.

Hodgins also told the accused that he, Hodgins, would not be speaking to him about the death of Ingrid Lester before they arrived at the police station.

The interview at Kingaroy commenced at 3.15 p.m. that day.  It was recorded electronically.  In it, the accused gave an account of having been to see the deceased, paying her a social call shortly before she was found dead.  He said that when he had left the property, he had waved goodbye to her as he drove away.

This interview concluded at 5.48 p.m.  Just before it ended, Hodgins asked the accused to confirm - which he did - that, after he was arrested, Hodgins had told him that he had no intention of speaking to him on the drive back to the police station about the death, that in fact there was no such discussion on the trip, and that the accused had been warned both before and during the recorded interview that he did not have to say anything unless he wished to do so.

After the interview, body matter was taken from the accused to obtain a sample of his DNA.  He was then placed in the police vehicle and, accompanied by Detective Senior Constable Smith and Constable Klaassen, set off for Maryborough where he was to be further interviewed.

On the way, Smith and the accused conversed.  They spoke about such matters as growing lucerne, winter bale of the crop, and its price. 

The vehicle stopped at Goomeri for a short break.  About 10 minutes after the three men had set off again, the accused asked Smith, "What's DNA?"  Smith replied that it was a human fingerprint and asked the accused if he watched CSI or other police shows.  The accused said no.  Smith proceeded to explain that everyone has their own unique DNA, which can be found in blood, saliva and other body fluids.  He told the accused that "everything that you touch you leave your DNA".

After a period of silence for a number of minutes, Smith and Klaassen discussed between themselves horseracing, greyhound racing and having being "at one of the pubs".

Afterwards, there was more silence in the vehicle for a while.  Then the accused spoke, asking, "It's not an excuse to be poor; is it?"  Smith said, "What do you mean?"  The accused replied, "Jim offered me 10 grand to get rid of her."

Hodgins then said to the accused, "Michael, hang on, you are aware of the original caution given to you by Detective Hodgins.  I have to warn you that you still have the right to remain silent and that anything you say can be recorded and used in a Court; do you understand that?"  The accused replied, "Yeah".

Smith then said, "What did Lester say to you?"  The tape‑recording commences at that point, Klaassen having activated the tape-recorder.  The accused is heard saying, "He's about to lose everything and he'd give me 10 grand if I got rid of her."

Shortly after that, the accused told Smith that he had spoken to Lester, husband of the deceased, about a fortnight earlier by phone, and that Lester had said that he would pay the accused $10,000 "to do it".  The accused said he was in considerable debt and that his initial response to Lester was to say that he would think about it: that is to say, the killing.  Afterwards, he proceeded to say that he had used a knife to kill Ingrid Lester, which he had later thrown into the river; and that he had purchased the knife for $11.50 not long before he went to see the deceased.

In the interview, he speaks of having stabbed her in the lounge room of her house, and of cutting her throat.

At the Maryborough Police Station, an electronically recorded interview with the accused began at 9.15 p.m.  It took about three quarters of an hour.  Again, the accused was warned that he was not obliged to answer questions or to make a statement, and that anything said might be used at evidence.  He was informed of his rights in relation to arranging for the attendance of a friend, relative or lawyer.  He was asked to confirm that, while travelling in the vehicle, he had spoken of having no money and "excuse".  He acknowledged that he had said in the car (i) that Jim Lester had offered him $10,000 to get rid of Ingrid; and (ii) that he had stabbed Ingrid Lester.

The accused was asked whether he was willing to run the police officers through again what had happened and the circumstances surrounding the killing.  He agreed to, and did do, that, elaborating on the account he had given in the police car, restating the substance of what he had then said and also providing some additional detail about why and how he had intentionally killed the deceased. 

Exclusion is sought of that portion of the conversation in the Maryborough-bound vehicle which was not recorded.

It is also contended that the omission to record that portion renders the balance of the conversation, which was recorded, tainted by unfairness requiring exclusion of all that was recorded, not only in the car but also subsequently at the Maryborough Police Station. 

Three bases for exclusion of these three pieces of evidence were mentioned in the written outline of argument. First, it was suggested that the exclusion would accord with principles stated in the R v. McKinney 171 CLR 461. Secondly, considerations of unfairness were invoked. Thirdly, reference was made to Bunning v. Cross on the footing that the failure to‑record the entire conversation or else by allowing the accused to continue to speak in circumstances where the conversation was not being recorded speaks of such deliberateness, "On the police behaviour to render it quite improper."

In oral argument, however, unfairness was the ground upon which exclusion of the these three pieces of evidence was sought to be supported.  It is said that it would be unfair to use the unrecorded confessional material for several reasons:

1.  because no later than when the accused asked about poverty not being an excuse, one or other of the accompanying police officers could (and it is suggested) should have told him to stop speaking, or at least told him to wait until the tape‑recorder had been activated so that there would be an electronically recorded version of whatever it was he was about to say;

2.  because in the subsequent, recorded part of the conversation in the car mention was made of a "letter of comfort" by Smith, which is said to have formed an inducement to the accused to speak;

3. because the non-recording of the unrecorded portion contravenes section 263 of the Police Powers and Responsibilities Act 2000.

Unless the omission to record Smith's inquiry of the accused, "What do you mean?" and what immediately followed constitutes a contravention of section 263, there was no impropriety in the omission to begin the recording earlier.

Hindsight reveals that it would have been better if the tape‑recorder had been activated as soon as the accused mentioned DNA.  For that inquiry was, as should have been apparent, almost certainly related to the investigation.
Thereafter, however, the only conversations in the car, until mention was made by the accused of poverty and excuse, concerned matters unrelated to Ingrid Lester's death.

The accused, it seems, did not participate in these conversations about racing and pubs but the police officers knew that he had previously been cautioned and more than once concerning his right to silence and that he had nonetheless responded by speaking to deny an involvement in the killing.

It is therefore not altogether surprising that Smith, as it seems, did not realise that the accused's reference to "poverty" and "excuse" may have been related to the killing.

As things transpired, it would, of course, have been better if Smith's "What do you mean?" had been postponed until the tape-recorder was activated to cater for the possibility that the accused's question about poverty could have been connected with the investigation.  But the question was a spontaneous response to a puzzling inquiry that might well have been unconnected with incrimination in the death.

The omission to engage the tape-recorder before Smith posed his question about what the accused meant by referring to poverty and excuse was an understandable, prompt error of judgment rather than misconduct.
The police later sought to address the difficulty associated with the gap.  In the interview recorded at Maryborough not long after the unrecorded conversation in the car occurred, the accused was asked about what had been said during that segment.  His electronically recorded reply substantially accords with the police account of what was said.  There is therefore an electronically recorded version from the accused, expressed by him shortly after the unrecorded exchange, in which the accused's recollection is stated.

There is, I should add, no suggestion that any of the statements for which exclusion is sought - recorded or unrecorded - is not a truthful, reliable account, which is an important consideration in deciding whether it would be unfair to the accused to use the unrecorded material against him.

The omission to record the unrecorded segment would not of itself justify exclusion on grounds of unfairness in the circumstances of this case.

I turn to the suggested inducement.  During the drive to Maryborough, Smith did speak of a "letter of comfort".  He did this shortly after asking the accused whether he was willing to supply a statement in relation to Lester's offering money to kill the deceased.  But the reference to a letter of comfort was not an inducement to speak.  Smith made it plain, as the recording of what he said reveals, that he could not promise that there would be some assurance at the time of sentencing that the accused had cooperated with the investigation.

The accused continued to speak despite Smith's having explained to him in clear terms that he could not expect to derive some benefit by doing so. 

There is no substance in the "letter of comfort" point.

The only remaining question concerning the confessional material relates to section 263 of the Police Powers and Responsibilities Act. This required "questioning" of a "relevant person" to be, if practicable, electronically recorded.

When Smith asked the accused, "What do you mean?", that question could practicably have been electronically recorded, simply by the posing of the question being postponed for the few seconds needed to activate the handy, working tape‑recorder. If therefore "What do you mean?" was "questioning" within the meaning of section 263, subsection 3 required the exclusion of at least the unrecorded response.

It is not suggested that Smith had anticipated that his inquiry, "What do you mean?", might have prompted a relevant admission. Yet the response actually made demonstrates that, in the result, the question proved to be one of a "suspect" that revealed "his ... involvement" in the killing: cf the Schedule 4 definition of "question". But that the accused's response was incriminatory does not of itself establish that the question was "about" the accused's involvement in the death. And unless section 263 "questioning" extends to any inquiry or conversation which, however unexpectedly, occasions an admission, "questioning" ought to be confined in its reach to conversations or other modes of engaging an accused person "about" - to adopt the word from the definition of "question" - a suspect's involvement in an offence under investigation.

Here there is no reason to suppose that Smith, in asking "What do you mean?", either intended to make an inquiry in connection with the investigation or considered that this question in immediate reaction to the accused's puzzling comment might well elicit an incriminatory response.

In the circumstances, Smith's question had so little apparent prospect of occasioning a response related to the death of Ingrid Lester that it was not "questioning" triggering a duty to comply with section 263.

But if I am wrong about that, and the unrecorded response is required to be excluded by section 263, there would not be a sufficient justification for excluding the subsequently recorded admissions. For one thing, as I have said, there is nothing to suggest that those admissions do not accurately state the true facts concerning the circumstances of, and surrounding, the death of Ingrid Lester.

The remaining issue concerns the admissibility of a statement of Alistair Morrison that, shortly before Ingrid Lester died, she spoke to him by phone and said that, "One of the cow cockies has just turned up", stopping in for a cup of coffee. If relevant, the statement is admissible pursuant to section 93B of the Evidence Act.

It is said to be relevant on the footing but Morrison would say at the trial that "cow cockies" was an expression the deceased used exclusively in reference to two people, namely the accused and his brother.

Morrison, who had known the deceased well for some time, was questioned at the Committal concerning her use of the expression "cow cockies".  He said that it was her "nickname" for the accused and his brother, that she always referred to them as the "cow cockies", that he had known her to do so at least half a dozen to a dozen times, and that she used the expression only in reference to the two brothers.

If Morrison testifies to the same effect at the trial, there will be material enabling the jury to infer that it is highly probable that the reference to "cow cockies" in the telephone call made shortly before the death was a reference to a class of people, only two in number, one of whom was the accused.  If so, Morrison's recounting of her assertion that one of the "cow cockies" had arrived shortly before the death is relevant and admissible.

If I reached this conclusion, I was invited to exercise a discretion to exclude the evidence of the reference to "cow cockies" on the footing that its probative is slight but prejudicial effect considerable.  That, however, is not an appropriate characterisation of the evidence.  Rather, its prejudicial effect derives from its probative tendency. 

In the result the application fails and is refused.

...

HIS HONOUR:  Then the trial will commence in Maryborough on Monday at 2.30.

‑‑‑‑‑