R v KS & Said
[2003] VSC 418
•16 October 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1402 of 2003
| THE QUEEN |
| v |
| KS AND MAGID SAID |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14-15 OCTOBER 2003 | |
DATE OF RULING: | 16 OCTOBER 2003 | |
CASE MAY BE CITED AS: | R v KS & ANOR | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 418 | |
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Ruling – Admissibility of conversation recorded via listening device – "No comment" record of interview made by fifteen year old accused who was thereafter charged with the offence of murder and detained in a Juvenile Justice Centre – Installation of listening device in room occupied by accused pursuant to warrant – Evidence gathering exercise – Inmate placed in room with accused to stimulate conversation – Psychological pressure on accused to talk about offence – Fairness and public policy discretions enlivened – Conversation with inmate containing admissions excluded from evidence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | Kay Robertson Solicitor for Public Prosecutions |
| For the First Accused | Mr M. Taft | Robert Stary & Associates |
| For the Second Accused | Mr S. Grant | Lethbridges |
HIS HONOUR:
The accused, KS, and co-accused Magid Said face trial on a charge of murder. Application has been made by the accused KS for the exclusion of a conversation recorded via a listening device which conversation occurred at the Juvenile Justice Centre, Parkville, "the Centre" on 31 May 2002, with a fellow inmate, Robert Wilson.
An examination of the impugned material was undertaken by way of voir dire with both the prosecution and defence adducing evidence. Before considering the relevant law in this case it is desirable to summarise broadly the factual matrix in which it must be applied.
On 23 February the deceased, Roy Nicol, went to the home of the accused, KS and his mother, Debra Charles, at Unit 1, 479 Clayton Road, South Clayton. It was the Crown case that he was assaulted at that location by the accused, using a baseball bat for the purpose. Although substantially injured the deceased was still alive and remained at the garage of the South Clayton premises until 3 March 2002 when he was removed from the garage by friends of Debra Charles, and left in the driveway of the premises. Ms Charles then anonymously had an ambulance called through triple 0. Mr Nicol was later located by police in the intensive care unit of the Monash Medical Centre on 5 March. He remained unconscious until his death on 25 April 2002.
In the meantime on 26 February, the accused was the subject of a citizen's arrest while attempting to steal a motor car. He was charged with that offence and remanded in custody at the Juvenile Justice Centre.
It is not necessary to detail the ensuing events save to note that, pursuant to the granting by the Children's Court of an application brought by investigating police under s.464B of the Crimes Act 1958 "the Act", the accused was interviewed on 8 May 2002 by Homicide Squad members who were treating the death of Mr Nicol as a murder. Since the accused was aged 15 the various requirements of the Act pertaining to the interviewing of juveniles had to be observed. It is not suggested this was not done. In the event the accused, apparently acting upon legal advice, exercised his legal right to make a "no comment" record of interview which lasted about 30 minutes. It is not suggested that such interview could be admissible in any trial.
Following its completion the accused was charged with murder and returned to custody. To adopt this course the investigating police must have regarded themselves as possessed of sufficient evidence to mount a prima facie case against the accused. Indeed the police had evidence of the observations by, and admissions made to, at least one witness by the accused. However there were no recorded admissions by him as to his involvement in an assault upon Mr Nicol.
The material indicates that, at a time prior to the record of interview, the informant in this case, Detective Senior Constable Timothy Moreland, advanced the idea of installing a listening device in the room occupied by the accused at the Centre. The date in his notes is 1 May 2002, some seven days before the accused was interviewed. There is also reference to the need for a trustworthy person at the Centre, and it appears that a Mr John Corvan, the senior unit manager of the Centre fell into that category.
On 13 May, five days after the “no comment” interview, a listening device affidavit which would accompany an application to a Supreme Court Judge for the issue of a warrant, was being prepared by the informant. According to the informant’s note, on 17 May the location of the monitoring post was discussed, and a discussion also occurred with the technicians to be involved. Later, on 23 May, the actual times and movements of inmates was the topic of conversation with Mr Corvan.
Mr Moreland agreed that the chance of a conversation was better if the accused and the listening device were located in a two person room but maintained that these were matters for the technical support unit who installed the device, and the Centre management. What is clear from the evidence of Ms Evi Kadar, the chief executive officer of the Centre, is that there was discussion with police as to their preference for having the accused in a double room, and she deposed to giving instructions to this effect to John Corvan. It was he who dealt specifically with the police. (I interpolate that Mr Corvan has since taken up a position in Tasmania and was not called to give evidence.)
Application to a Supreme Court Judge was made on 28 May pursuant to s.15(1) of the Surveillance Devices Act 1999 for the issue of a warrant authorising the use of a listening device. The criteria for such an application are that the law enforcement officer suspects or believes-
“(a)that an offence has been, is being, is about to be or is likely to be committed; and
(b)that the use of the surveillance device is necessary for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of that offence or the identity or location of the offender.”
The matters a Court must have regard to are listed in s17(2) of the Surveillance Devices Act. It is not necessary to set them out. It is sufficient to note that the Supreme Court Judge was satisfied upon whatever affidavit material was presented to the Court that a warrant should be issued. That material was not, of course, before this Court. The warrant was in fact issued on 28 May 2002 and a second warrant was obtained on 29 May in which the number of persons eligible to use the listening device under the warrant was expanded. The warrant specified "Any cell or visitor's booth occupied from time to time by [KS]" as the listening device locations at the Centre.
The evidence points to the installation of the device on 29 May in room 12/13 at the Centre. Prior to that time the accused had been in that double room but, according to the evidence, by himself. He was in fact removed from it by Centre authorities to enable the installation of the listening device and was absent from it on both 29 and 30 May. On 31 May the accused was moved back into room 12/13 and an inmate, RW, was deliberately located in the room by the Centre authorities. The listening post log records a conversation with RW at about 8.30 p.m. in which the accused discussed his role in assaulting Mr Nicol. Although 24 hour monitoring continued until 10 June, and other juveniles replaced RW as the accused's room mates, no further admissions were recorded through the listening device.
It is clear from my summary of events that the listening device warrant was applied for by investigating police using the appropriate legal procedures and the device itself was installed subsequent to the lawful granting of a warrant to do so by a Supreme Court Judge. It was also clear that the Centre authorities cooperated with the police to facilitate the installation of the listening device in room 12/13. They could hardly have done otherwise, faced with a warrant issued out of the Supreme Court.
As I have indicated, the administration's cooperation apparently extended to the placing of another inmate, RW, in room 12/13 in order to stimulate conversation. Whilst there is no evidence to suggest that this inmate was specifically chosen or briefed or instructed about the accused's situation, or that he was directed to attempt to elicit admissions from the accused about the offence for which he was charged, he certainly set about doing so.
The audible portion of the transcript begins:
“RW: … Who’d ya knock? Tell me.
KS: Ha.
RW: Who’d ya knock?
KS: My Mum’s boyfriend.
RW: Tell me.
KS:Nah, I don’t want to talk about it man. I can’t talk about it. I can’t talk about it.
RW:It’s me man I won’t tell a soul. If I tell the coppers you can break my nose…
KS: I’ll break your nose anyway… Nah you’ll tell someone.
RW: No I fucken won’t. I won’t mate, fucken hell…”
Among the subsequent assertions of the accused is that he tied the deceased up and that he broke every bone in his body. These claims are not borne out by the evidence although the subsequent medical examination did reveal a linear fracture of the skull, and fractures to the left forearm and right kneecap.
KS gave evidence on the voir dire indicating his displeasure at being placed with another inmate by the Centre authorities and his initial refusal to comply. This was never put to Ms Kadar, but in any event, I have already indicated my view that his placement with another inmate was done by the Centre authorities to assist the investigating police.
The accused indicated that he had previously seen RW around the facility, but it is clear that they were not friends. He told the court that he was reluctant to speak to RW about the incident, but he agreed that ultimately he spoke to RW, being aware that he might tell someone about it.
On the basis of the recorded conversation it could not be argued that what the accused said was involuntary, (in the legal sense of the term), and Mr Taft, who appeared on behalf of the accused, did not suggest otherwise. Rather, he advanced arguments based upon the exercise of the fairness and public policy discretions.
As a preliminary point it was submitted that the warrants themselves should be regarded as invalid on the basis that they used the term “cell” as one specified location for the listening device, whereas the area in which the inmates are kept at the Centre are referred to by staff as “bedrooms”. In my view there was nothing in this point. Whether the room in which an inmate is housed is given the nomenclature of cell or bedroom, the clear meaning of the warrant is that the device was to be placed in the room occupied by KS from time to time.
Next it was argued that the poor quality of the recordings made it difficult to give context to the conversation, and the inaudible passages could give rise to speculation. There is no doubt that the quality of the recorded material is poor, but it is not suggested that much of it cannot ultimately be deciphered, albeit initially only with the assistance of the transcript made of it. In relation to those portions which remain inaudible, appropriate directions could be given to a jury.
It was further argued that it would be unfair to admit the recorded conversation because of the lack of reliability demonstrated by it. In particular, the exaggeration by the accused of the extent of the injuries inflicted by him on Mr Nicol. It is true that his description is largely contrary to the findings of the pathologist, Dr David Ranson, for example about the number of bone fractures sustained by the deceased. However, as was pointed out by Mr Gyorffy, who appeared on behalf of the prosecution, the purpose of the material is to provide evidence of the accused's participation in the assault on the deceased, not as to the details of that assault, which may represent bragging or big-noting or, alternatively, may simply represent the belief of the accused as to the damage he had inflicted.
Of course, it would always be open to the defence, as a forensic exercise, to seek to diminish the reliability of any admissions by reference to discrepancies between the accused's account and the objective evidence of Dr Ranson. However, I would not regard it as unfair on the basis of unreliability to allow the conversation to be admitted into evidence for the limited purpose which the Crown seek to utilise it.
Putting these matters to one side, the principal submissions of Mr Taft were twofold. The first related to what may be described as the unfairness deriving from what was argued to be the circumvention of the accused's procedural rights; specifically his right to silence. Secondly it was argued that the use of a listening device in the Centre, and the placement by the Centre authorities of an inmate in the accused's cell to facilitate the potential production of confessional material, should be regarded as contrary to public policy.
In this regard, emphasis was placed upon the youthfulness of the accused at the time, and it was argued that such young persons are "vulnerable, immature, unwary and subject to peer pressures", and consequently required protection from the type of conduct here embarked upon by the authorities.
There are now an increasing number of cases relating to the eliciting of admissions or confessions from accused persons by the use of agents acting on behalf of the police or indeed undercover police officers. Many have considered the question of whether evidence garnered in this fashion infringes the requirements of s.464 ff. of the Act and, if so, whether the fairness and public policy discretions are thereby enlivened.
It is abundantly clear that each case turns on its individual facts and fine distinctions and questions of degree abound. However, among the propositions which emerge are the following. The fact that an accused has given a “no comment” record of interview does not, of itself, provide a reason for ruling inadmissible subsequent admissions elicited by a third party[1]; nor does the fact that the accused was in custody at the time that such admission were made necessarily render them inadmissible[2], although it may result in exclusion depending upon the circumstances[3].
[1]R v Swaffield and Pavic (1998) 192 CLR 159
[2]R v Davidson (1996) 92 A Crim Rep 1; R v Lewis (2000) 1 VR 290; R v Franklin (2001) 3 VR 9
[3]R v Pfennig (No.1) (1992) 57 SASR 507; R v Smith and Turner (1994) 63 SASR 123; R v Roba (2000) 110 A Crim Rep 245; R v Dewhurst (2001) 122 A Crim Rep 403; R v Juric (2002) 4 VR 411
Further, the investigation or indeed the gathering of evidence of criminal activity is not embargoed once a charge has been laid. If this was so, gaol yard confessions, not all of which are unreliable, would never be permitted to be adduced in evidence by the Crown.
As I have indicated, most of the cases, (and in particular the Victorian decisions), relate to the circumstances and method by which the impugned material has been elicited by a third party, be it undercover policeman or police agent.
The use of listening devices and their relationship to the right to silence statutorily enshrined in the Act has not, as far as I am aware, been the subject of consideration by this Court. Certainly the evidence before me was that this was the first occasion that a listening device had ever been placed inside a Juvenile Justice Centre.
A number if the major authorities on what may be termed the “eavesdropping cases” have been gathered and reviewed by Olsson J in R v Burns and Ors[4].
[4] SASC 493 (18 November 1999) paras 149-151
The thrust of these cases is to the effect that admissions recorded by way of electronic device will be admissible in evidence in the absence of subterfuge or other improper behaviour by the investigating authorities, and where such authorities have played an essentially passive role. The mere fact that the incriminatory material is obtained subsequent to the exercise of a right to silence is not an impediment to admissibility.
Care must be taken in approaching the few authorities cited, since the factual situations vary greatly and the legal context in which they were decided may be regarded as different from that governing the operations of investigating officials in Victoria.
In the circumstances of the present case, it cannot be argued that what the police investigators did in having a listening device installed was illegal. Indeed, they had proceeded correctly in obtaining the warrant of a Supreme Court judge to do so. The admissions themselves were not involuntary and on the evidence before this court, a finding cannot be made that they were obtained by any form of interrogation conducted at the behest of the investigating police.
However I do not regard that as an end to the matter. The cases cited by Olsson J all involve adult offenders. In this case, the offender was a diminutive 15 year old juvenile. He had expressed the wish to investigating police to exercise his right to silence, and had done so when interviewed on 8 May.
It appears from the material that, as early as 1 May, the police were preparing the ground to utilise a listening device as a “fall back” position. Having obtained no admissions directly from the accused, that course was pursued. It was pursued effectively in contravention of the right to silence accorded to the accused by legislation.
Since the accused had already been charged with the offence of murder – a procedure that could only lawfully had occurred if at least a prima facie case existed against him – the attempt to gain admissions must be seen not as an investigatory imperative, but as an exercise in evidence augmentation.
Not only had the accused been charged with murder, he was being held in custody and was totally under the control of the Centre authorities. At the behest of the police those authorities placed a second inmate in the accused’s room for the specific purpose of stimulating conversation and, in particular, possible conversation about this offence which would be electronically recorded. To that extent this was not a passive exercise by the police involving the mere installation of a listening device.
Both the legislature, (by the enactment of such provisions as s.464ff of the Act), and the Courts, have recognised that protection is to be accorded to juveniles who lack the maturity and judgement of adults. These are qualities which might enable adults to remain silent about matters which are to their disadvantage.
Having exercised his right to silence under the legislation, the accused may well have continued to do so had the authorities not required him to share his room with another inmate. It is perhaps trite to observe that there will inevitably be great psychological pressure on an individual to talk to, and establish an accord with, inmates with whom that person is forced to co-exist within an institution. That imperative is likely to increase if that inmate is one with whom a room must be shared. These are psychological pressures to which a juvenile is likely to be particularly vulnerable.
In R v Heaney and Welsh[5], I endeavoured to analyse the current application of the fairness and public policy discretions. I remarked (at p.644):
“Putting aside the issue of voluntariness, the current approach of the majority of the High Court to the exclusory discretions seems to be as follows. The fairness discretion encompasses considerations of the effect of the conduct of law enforcement officers upon the reliability of the impugned material. The term 'law enforcement officers' may be regarded as including persons acting as their agents. The fairness discretion will also come into play where some impropriety by law enforcement officers or their agent has eroded the procedural rights if the accused, occasioning some forensic disadvantage. Those procedural rights include the right to choose whether or not to speak to the police. Importantly, the method of eliciting the admission or confession will clearly be relevant in determining whether or not it would be unfair to an accused to admit it into evidence.
The discretion to exclude evidence on the grounds of public policy may be enlivened where no unfairness to the accused is occasioned, but nonetheless, the method by which the confessional evidence has been elicited is unacceptable in the light of prevailing community standards. This broad discretion will involve a balancing exercise.”
[5] (1998) 4 VR 636
In my opinion the procedures embarked upon by the police in conjunction with the authorities at the Juvenile Justice Centre ultimately had the effect of subverting the accused’s procedural rights. Moreover, the forensic disadvantage occasioned is such that the impugned material should not be admitted into evidence.
Insofar as the public policy discretion is concerned, there are good public policy reasons for ensuring the protection of young persons placed in Juvenile Institutions from the course of conduct undertaken by the investigators and custodial authorities which ultimately resulted in the eliciting of the admissions.
Even taking into account the seriousness of the offence, the fact that the police and the Centre authorities acted in good faith, and that the process of gathering evidence is not governed by any equivalent of the “Marquis of Queensberry rules”, the balance falls in favour of excluding this material.
I reiterate that each case must be considered on its merits and questions of degree will always be involved. In the present case such consideration has led to the conclusion that the conversation recorded through the use of the listening device should not be admitted into evidence.
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