R v Mansell

[1990] TASSC 89

Serial No B12/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Mansell [1990] TASSC 89; B12/1990

PARTIES:  R
  v
  MANSELL, Jamie Edward

FILE NO/S:  145/1989
DELIVERED ON:  15 February 1990
JUDGMENT OF:  Wright J

Judgment Number:  B12/1990
Number of paragraphs:  11

Serial No N12/1990
List "B"
File No 145/1989

THE QUEEN v JAMIE EDWARD MANSELL

REASONS FOR JUDGMENT  WRIGHT J

(Judge's Ruling Given During Trial)  15 February 1990

1. Objection is taken to the admissibility of several categories of evidence of a confessional nature allegedly provided by the accused. In September 1988 as a consequence of a lengthy discussion with Constable Gilbert, one of the police officers involved in an investigation of the death of Darren Dalco, the accused swore an affidavit for the purposes of a coronial inquiry which had been instituted by one of Her Majesty's coroners for this State, Mr Fern. No objection is taken to the admissibility of that affidavit upon the present trial, and I myself perceive no basis for excluding it. The coroner having decided that the accused Mansell should attend the inquest and be examined upon his affidavit, directions were given for a summons to be issued to compel his attendance on the first day of the coronial hearing on 7 March 1989.

1. The accused who was not represented by counsel failed to attend the inquest on that date. Another summons was issued requiring his attendance on 2 May 1989. This summons was served by Constable Gilbert at the suggestion of the coroner's clerk, Sergeant Watkins and on the day of the resumed hearing, Constable Gilbert attended the accused's home and took him by police vehicle to the court. On the way, the accused told Constable Gilbert that part of his affidavit of 19 September 1988 was incorrect and that the fight between himself and the deceased which he had described in that affidavit, had taken place, not at the Charles Street Bridge, but at the Gorge. The facts recounted by me to this point do not appear to be disputed on the voire dire however there was some conflict in the evidence of witnesses as to some of the facts which followed and consequently I should say that my recitation of facts stated hereafter may be taken to be my findings of fact, including disputed facts, unless I specifically indicate the contrary. At the court, Constable Gilbert advised Sergeant Watkins of the accused's intention to change his version of events and the coroner and Miss Rigby, who were called to the coroner's office for that purpose, were also notified of the proposed change in his evidence. When the accused was sworn and commenced to give oral evidence he did not immediately make the correction to his affidavit which Constable Gilbert had been led to believe he would make. Instead he omitted any reference to a fight and said that after drinking some wine with the deceased in a tunnel adjacent to the Gorge footpath, he left him there and when he, the accused, had proceeded to the Gorge Bridge, he heard something go into the water. He then went back and found that Dalco was no longer there. He said he had not seen Dalco since that time. The accused was then examined extensively by Sergeant Watkins, was asked (inter alia) whether he would be able to take the police back to the spot where the wine cask had been consumed. The accused responded that he would. He was asked this question on two separate occasions during his evidence and he responded in a similar manner on each occasion. As his evidence before the coroner progressed, the accused gave yet another version of the evening's activities. He said that the deceased Dalco threatened to jump off the Gorge Bridge. He claimed to have done his best to dissuade him from this course but in the end he left Dalco on the bridge and returned to the Northern Boys' Shelter where he was then residing.

1. The accused was cross–examined by Miss Rigby representing the relatives of the deceased and in the course of that cross–examination, he admitted to her that he had been telling untruths. Her questioning of the accused was more vigorous than Sergeant Watkins and she asked several leading questions. However, it cannot be said by any stretch of the imagination that any of the questioning of the accused that day was excessive or unfair. Neither Miss Rigby nor Sergeant Watkins specifically put to the accused that he had been instrumental in causing the death of Darren Dalco, however, it must have been plain to all present, at least by the termination of Miss Rigby's questioning and possibly soon after the accused first embarked on his oral evidence as to the evening's activities, that the accused's apparent prevarication or unreliability was very suspicious and tended to indicate that he may well have been implicated unlawfully in Darren Dalco's death.

1. The accused is 20 years of age, 19 at the time of his appearance at the inquest. Evidence was given on the voire dire, based upon subjective observation and assessment and in reliance upon unconfirmed historical material provided by the accused himself, by Dr Ian Sale, a consultant psychiatrist. Dr Sale said that whilst the accused suffers no formal psychiatric illness, he is an alcohol abuser and is "of low intelligence, probably in the range of what we call borderline intellectual retardation and that he was somewhat immature to a degree and almost child–like in person". Whilst Dr Sale had the benefit of perusing a copy of a record of interview between the police and the accused which took place on the afternoon of 2 May 1989 and to which I will hereafter refer, he did not have the benefit of seeing a transcript of the proceedings from the coroner's court nor of hearing the audio tape of those proceedings. I have had the benefit of both seeing and hearing those pieces of evidence during the course of the voire dire. I should record that I found nothing in that material to indicate that the accused was unable to understand the questions which he was asked or that he was unable to give a responsive answer to those questions. Whilst he exhibited a certain obvious naivety or foolishness in changing his story in such a fundamental way on more than one occasion, I do not think that this places him in a category of mental incompetence of such a kind or degree as to render him incapable of expressing himself as he wishes or intends so to do. Nor do I think that he would be unable to exercise free–will in choosing between several alternative courses of conduct which may be open to him. The accused did not give evidence upon the voire dire and he has not yet taken any active part in the trial, so I must rely for my assessment of him entirely upon his recorded conversations and the impression which he has created upon those witnesses who have attempted to evaluate his character and capabilities. It has been argued that I should exclude evidence of the accused's oral examination at the inquest.

1. It has been submitted firstly that the accused's oral evidence before the coroner has not been shown by the Crown to have been voluntarily made. Alternatively, it is submitted that I should exclude such evidence in the exercise of a McDermott/Lee type of discretion or even a Bunning and Cross/Clevens type of discretion. The threshold question arises as to whether the rules which govern the admissibility of admissions made to persons in authority, such as police officers, also applies in a situation in which the confessor has been sworn as a witness in the course of judicial proceedings and makes the admissional statements during the course of his oral evidence. Reference was made by counsel to cases such as Hammond v The Commonwealth of Australia & Ors (1982) 152 CLR 188 and Sorby & Anor v The Commonwealth of Australia & Ors (1982) 152 CLR 281. Whilst those cases provide a most interesting and useful discussion of the historical development of the right of a suspected person to decline to give evidence which may incriminate or tend to incriminate him, and whilst they also provide valuable authority in cases where there is statutory compulsion to provide answers to questions or produce documents even though there may thereby arise a tendency to incriminate the witness, they are not direct authority in relation to the present problem. Although there is no direct acknowledgment of this in the cases referred to and whether or not it may properly be called a privilege or a constitutional right of some kind as contended for by Mr Slicer, and whether or not it may be a statutory provision of the kind embodied in s101 of the Evidence Act 1910, it seems to me that the creation of the guarantee against self incrimination as a rule of law, presupposes that subject to that right, whatever a witness says in the course of a judicial proceeding will normally be admissible upon his subsequent trial for an offence. If, therefore, we take the case of a witness who is aware of his right to decline to answer questions which may tend to incriminate him and he chooses not to exercise that right, he has no basis for complaining or resisting if upon giving an answer which has had that effect, it is used against him in later proceedings. In such a situation he has made a free choice and consequently, his answers may be regarded as voluntary in the sense in which that adjective has been used in the cases dealing with voluntary confessions. It seems to me that the High Court approached the question of admissibility in Wendo's case, (1962–3) 109 CLR 599 on a not dissimilar basis. The text books and some of the older cases suggest that there is no legal obligation upon a presiding judicial officer to warn a witness that he had the right to refuse to answer incriminating questions and that the responsibility for making such a claim rests upon the witness himself. (See Archbold 42nd Edn para12.1 and Cross on Evidence, 3rd Australian Edn paras13.1,8 and 13.1,9). Reference was also made by counsel to S v Lwane [1966] 2 SASR 433 which contains a very useful discussion of the principles now at issue. The conclusion which I have reached as to the appropriate approach in Tasmania, is very much in accordance with the attitude as expressed by Ogilvie Thompson JA at pp440–441 in that judgment where he said this:

"The abovementioned duty resting upon a judicial officer is no mere 'technical' rule as suggested by Wigmore but – as was correctly noticed by Curlewis J, in the above–cited passage – nor is it, in my view, an absolute duty in the sense that its non–observance will always and inevitably render the witnesses' incriminating statement inadmissible against him in subsequent proceedings. For example, a trained lawyer giving evidence could hardly legitimately complain that he had received no caution, even though a conscientious judicial officer might nevertheless elect to administer a caution even to such a witness.

I accordingly, conclude that in our law the rigour of the rule of the English law as propounded in R v Coote [1873] LR 4 PC 599; 17 ER 587 is qualified by the established rule of practice in our Courts that it is the duty of the presiding judicial officer to inform a witness of his right to decline to answer any incriminating question. The effect of non–observance of that rule upon the admissibility in subsequent proceedings of an incriminating statement made by an uncautioned witness falls, in my judgment, to be determined upon the particular facts of the case. In any such enquiry, the nature of the incriminating statement and the ascertained, or presumed, knowledge of his rights by the deponent will always be important factors"

1. Despite the words of the Privy Council in Coote's case [1872–3] 17 ER 587 at 592, I do not think that it will involve "a plain rule in endless confusion" to assess the need for a warning by the presiding judicial officer according to the circumstances of individual cases. Furthermore, in light of the general trend of modern authority in the High Court, it seems to me that unless a witness is aware of his right to decline to answer questions which may tend to implicate him in a crime, it cannot be said that admissions which he has made have been made voluntarily. This is a view I have reached after having due regard to the fact that a witness in the position of the present accused, will have usually received a witness summons or a subpoena well before the date on which he is due to appear in court. In this situation, of course, he has plenty of opportunity to seek legal counsel or advice and has plenty of time to consider his position generally. In this sense he may be sharply contrasted with the suspect who receives an unexpected visit from the police and is interrogated by them without any real chance of obtaining advice or reflecting upon his predicament. However, notwithstanding the clear temporal advantage which a subpoenaed witness has in such instances as this his statements to the court under oath can hardly be characterised as voluntary unless with an awareness of his rights, he chooses to go ahead with his testimony and incriminate himself. In a very real sense he attends court under compulsion and also gives evidence under compulsion. It is no answer to say that in the present case it was not put to the accused directly that he had caused Dalco's death or that he gave answers to questions which he clearly desired to have an exculpatory effect. As pointed out in Sorby's case, it is the tendency of the evidence to incriminate which provides the justification for its non–disclosure. Although it is plain (and the Crown concedes) that the oral evidence by the accused at the inquest could not of itself incriminate him in any serious offence the area traversed by the questioning developed in such a way that the accused wove a web of inconsistency and contradiction of a potentially very dangerous kind. What he said then or subsequently on his first visit to the Gorge with Constable Gilbert and 1st Class Constable Hinds could not have provided a basis for his prosecution for a homicide, either of itself or coupled with the evidence of other witnesses.

1. However, once he had made an admission that he pushed Dalco over the railing at the Gorge, his testimony at the inquest became capable of taking on a much more significant and sinister hue and could produce the effect of confirming in the jury's mind the view that he was at first trying to escape detection by wildly inventing improbable explanations. During the course of the debate that has attended this voire dire there has also been some discussion as to whether or not the evidence given by the accused at the inquest was admissional material of the kind contemplated by the general rule that a confession is not admissible unless voluntarily made. The evidence given may be said to have had the plain purpose of exculpating the accused from suspicion rather than admitting his involvement in criminal activity. Varying views have been expressed upon this issue in the reported cases but care must be taken in placing unqualified reliance upon some of those decisions as they involve questions of statutory interpretation which are not apt in determining the breadth of the common law principle. Views expressed in R v McKay [1965] Qd R 240 at p242; R v Coats [1932] NZLR 401 at p405 and Attorney–General of New South Wales v Martin (1909) 9 CLR 713 at p734 per Isaacs J, tend to suggest that only statements intended by a speaker to implicate himself in a crime come within the rule. For my part however, I prefer the approach expressed by Warren CJ in Miranda's case in the passage reproduced in Cross on Evidence 3rd Edn para17.117 at p857, which seems to me to derive some support from what was said by Taylor and Owen JJ in Wendo v The Queen (1962–3) 109 CLR 565. It may be said, of course, that the accused has given no evidence to me claiming to be unaware of his right to decline to answer incriminating questions and it may therefore be said that he may well have been aware of the existence of such a right. However, the onus being on the Crown, in the circumstances of this case, I would need to be satisfied of such knowledge by some affirmative evidence before I could be satisfied that the accused answered the questions at the inquest in a voluntary way. In my opinion, unless so satisfied, I should hold that the oral evidence he gave at the inquest after he identified his affidavit was not admissible. It was not submitted that the evidence of the accused's conversation with Constable Gilbert on the way to the inquest was inadmissible or should be excluded on any discretionary basis. In my view that evidence is admissible. However, I am of the view that the oral evidence which he gave at the inquest, beyond the point at which he identified his own affidavit, is not admissible because of the absence of a warning. I am not satisfied that the rest of his evidence thereafter was given voluntarily. It is unnecessary to consider whether such evidence should be excluded upon discretionary grounds, of course, but for completeness I think I should say that in my opinion it would be unfair to the accused to allow such evidence against him in this trial in the absence of a specific warning having been given to him as to his entitlement to refuse to answer incriminating questions. Had he been given that warning, he may well have simply refused to answer further questions rather than constructing a flimsy and unconvincing series of possibly false stories to explain his situation. Mr Bugg asks rhetorically at what stage of the inquest the coroner should have advised the accused of his right to refuse to answer questions with a tendency to incriminate. He submits that the tendency to incriminate could not have been foreseen during the inquest itself and is now only discernible with the aid of hindsight, that is, with the knowledge that the accused has made a subsequent confessional statement to the police. In my opinion it is unnecessary to see plainly that a confession is imminent before warning a witness of his rights. In my opinion the necessity for warning should have been apparent at the outset of Mansell's evidence in the coroner's court. Once it was known that he proposed changing his evidence in a fundamental way as to the place and circumstances in which he last saw the deceased, the alarm bells should have rung and, in all the circumstances, a warning became necessary. Without that warning the accused's evidence at the inquest cannot be regarded as having been given voluntarily. I intend no criticism of Mr Fern, the coroner, when I say that if a legally qualified coroner had been presiding at the inquest, he would probably have appreciated the need to advise the accused of his right to refuse to answer incriminating questions. If anything, this is a fault of the system which apparently enables the appointment of lay coroners without adequate instruction in some of the legal problems or niceties which they may encounter in the discharge of their duties.

1. Mr Slicer also contends that evidence of the accused's first visit to the Gorge with the police and the photos which were then taken should be excluded. Having carefully considered the evidence, I have concluded that although the coroner did not specifically instruct Constable Gilbert to take the accused to the Gorge in terms which unequivocally indicated that he was, in effect, placing the accused in the custody of the police officer, his directions were capable of being understood in that light and almost inevitably would have been so understood by the accused particularly in light of Sergeant Watkins' questions of the accused to which I have already referred in which he asked him would he be able to show the relevant spot in the Gorge to the police. It is not without significance that Sergeant Watkins and Constable Gilbert understood that this was to be done. However, I do not accept Mr Slicer's additional contention that the accused would have, or must have, understood that the coroner's refusal to excuse him meant that he was to remain indefinitely at the disposition of the court. In my opinion, the only likely understanding that the accused would have had from the final brief discussion between Miss Rigby and the coroner and the coroner's instruction to him, was that he was to return to the court again if and when required so to do. In light of the principles already discussed, I think it cannot be said that the Crown has established that evidence of what the accused said whilst he was with the police at the Gorge on the first occasion, is admissible. Without that evidence, it would be difficult for any sense to be made of the photographs which were then taken, and therefore, without any in any way deciding that by taking the accused to the Gorge, the police officers were acting unlawfully (as was submitted by Mr Slicer), I think it would be unfair to allow those photographs to go to the jury. In this connection, I refer to Ireland's case (1970) 126 CLR 321. Consequently, those photographs will be excluded.

1. The accused returned to the Launceston Police Station with Constable Gilbert and 1st Class Constable Hinds. He was taken into Constable Gilbert's office at about 12.30pm. I should say, however, that although Constable Gilbert described himself as "taking" the accused to that office, I do not interpret that as meaning he placed him under any physical restraint of any kind whatsoever. Shortly thereafter, Constable Gilbert reminded the accused that he had given a number of different versions as to how Darren Dalco met his death. He asked the accused, "Did you have a fight with him before his death?" The accused then replied, "Yes, look it's been worrying the guts out of me since it happened". Constable Gilbert said, "What did happen?" The accused replied, "The truth is I punched him in the mouth and he backed onto the rail and then I shoved him in the chest, over the rail". He was then immediately warned by Constable Gilbert but despite that clear warning, he continued to answer further questions asked by Constable Gilbert and agreed to take part in a record of interview, at the commencement of which he was again warned, and at the conclusion of which he signed the resultant document after it had been read to him by Sergeant Young. During the course of this procedure, 1st Class Constable Hinds was present. The record of interview, in effect, confirms and amplifies the oral admissions to the police shortly before the record of interview was embarked upon. The accused also agreed to accompany the police back to the Gorge where further photographs were taken in the vicinity of the cave, showing the accused demonstrating how he pushed the deceased over the railing.

1. Mr Slicer objects to evidence of unrecorded admissions at the police station, the record of interview and evidence of the second visit to the Gorge and the resultant photographs. It was submitted that the accused was at all relevant times in the unlawful custody of the police. In my opinion there is nothing of substance in the evidence to suggest that the accused was in the custody of the police, much less that such custody was in any sense unlawful during these procedures. There is no reason to suppose that he believed himself to be at the police station pursuant to the coroner's direction at that stage or that at that stage he was obliged to answer any questions if he chose not to do so. Although closely linked in time with the inquest and the first visit to the Gorge, that phase of the day's events had, in my opinion, plainly concluded. The accused gave no evidence to suggest that he believed he was under compulsion when he entered the police station and began to talk to Constable Gilbert in his office or that he had been given grounds by the police for believing and was caused in fact to believe that if he wished to leave he would be unable to go. See Reg v Amad [1962] VR 545; Smith v The Queen (1956–7) 97 CLR 100 at p129 per Williams J, and Van Der Meer v The Queen (1988) 82 ALR 10 at p18 per Mason CJ, at p34 per Deane J. In my opinion, his confessional statements to the police were made voluntarily and there are no discretionary grounds for excluding the statements or the photographs from the jury. Although not set out seriatim, I have considered and rejected each of the propositions put forward by Mr Slicer in his written submissions, as amplified by his oral submissions to me. I have also considered the proposition that this material should be ruled inadmissible or rejected as an exercise of discretion. Apart from the specific matters raised in relation to the questioning procedure itself, I have considered also the more generalized factors mentioned by Mr Slicer in his written submissions. I adhere to what I put to Mr Slicer in the course of his argument as to the accused's Aboriginality. Furthermore, I do not see there was a breach of Standing Order No. 144 nor indeed that there is any reason for rejecting all or any of the evidence objected to on that account. I should also say that I do not accept Mr Slicer's submission that to admit the confessions made at the police station and during the second visit to the Gorge having rejected the evidence given at the inquest and the conversations and photographs taken on the first visit to the Gorge, it would be unfair to the accused. All the points of objection raised by Mr Slicer in relation to this issue can in my assessment be overcome by cross–examination of relevant witnesses or possibly by a statement of agreed facts prepared with the co–operation of the Crown. That, however, remains to be seen after counsel confer if they see fit to do so. The commencement of the record of interview can obviously be edited without doing violence to its meaning or content by covering up the passage commencing, "you have given various accounts to" and ending with the words "over the rail into the Gorge". Any other specific questions and answers which appear objectionable in themselves may also be covered and I will give counsel an opportunity to address me as to that, that is, if there are any particular or individual questions and answers which are objectionable on some discrete basis.

1. I rule that the evidence of the conversation at the police station may be given in such a way that no mention is made of the claim that the accused had told three different versions as to how Dalco met his death or the giving of different versions at the inquest. Evidence may also be given of the record of interview with the alteration already mentioned. I think that there is clear and, as yet, uncontradicted evidence that the record of interview was read over to the accused accurately by Sergeant Young and that he agreed that the statement read was correct and signed it. Accordingly, the document is, in my opinion, admissible in accordance with the decision of the Court of Criminal Appeal in Curtis v The Queen [1972] Tas SR 21 and I respectfully record my own agreement with the decision of the majority of the court in that case. Evidence may also be given of the accused's involvement in the Interrogation Register procedure and conducted by Inspector Krushka but I think that Mr Bugg is correct in suggesting that the evidence by the Inspector does not enable a finding to be made that the Register document was read over to the accused and adopted by him and consequently, again in accordance with Curtis' case, I propose to disallow that document in evidence. Evidence may also be given of the accused's second visit to the Gorge with the police, the discussions and events which then occurred and the photographs which were then taken. I am indebted to counsel for the very useful submissions put to me in connection with these interesting questions and, in a way, I regret that I could not have an opportunity to consider the questions in greater detail. However, they are my rulings.