R v McCarthy

Case [2015] SASC 11

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Voir Dire (Murder))

R v MCCARTHY

[2015] SASC 11

Reasons of The Honourable Justice Blue

3 February 2015

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY

The accused, Mr McCarthy, was charged with the murder of Mr Varehov at a townhouse at Beaumont in the early hours of 8 June 2012. Before the commencement of trial, Mr McCarthy sought discretionary exclusion of evidence of conversations between Mr McCarthy and police officers who attended at the townhouse in the early morning of 8 June 2012.

Police received a 000 call at 4.10 am from a neighbour reporting screams emanating from the townhouse. Two uniformed police officers arrived at 4.35 am. They were informed by the neighbour and a second neighbour that they had heard screams, two women lived in the townhouse and they had left the townhouse in separate vehicles before the police officers arrived. The first neighbour said that there was a man still inside the townhouse, something really bad had happened and advised the police officers to be careful.

The police officers saw lights on and heard movement inside the townhouse but did not receive a response to their calls. Finding the front door unlocked, they entered the townhouse. They spoke to Mr McCarthy, who informed them that two women had been fighting in the garage, one cut her hand on a broken bottle, and they had left in a car. The police officers did not caution Mr McCarthy or make a contemporaneous record of their conversations with him. They gave evidence on the voir dire that they did not suspect that Mr McCarthy had committed an offence or specifically that he had committed an assault.

Later that morning, detectives had further conversations with Mr McCarthy on three occasions, the conversations being recorded on videotape.  This followed Mr McCarthy having been given a form of caution by a uniformed police officer that departed from the traditional wording and order in which a caution is given. Mr McCarthy told the detectives a similar story to that which he told to the uniformed police officers.

Held:

1.       Entry into the townhouse was not unlawful because the uniformed police officers could at common law enter under the preservation of life or property power (at [42]).

2.       No caution was required to be administered in circumstances in which at the time of the conversations the police investigation was at the investigatory and not the accusatory stage; the relevant police officers did not suspect, or have reasonable grounds to suspect, Mr McCarthy had committed an assault or other offence; and their questions were directed at locating and ensuring the safety of the two women rather than any offence committed by Mr McCarthy (at…

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Details
AGLC
R v McCarthy [2015] SASC 11
Case
[2015] SASC 11
Decision Date

CaseChat Overview and Summary

In the matter of R v McCarthy, the court was tasked with determining the admissibility of evidence obtained during police interrogations and whether it was lawful and fair. Mr McCarthy contested the admissibility of conversations he had with police officers, arguing that the evidence should be excluded due to alleged unlawful entry, lack of adequate caution, failure to provide details of the offence, and violation of his rights under the Summary Offences Act 1953 (SA). The primary legal issues the court needed to address were whether the entry into the premises was lawful, whether a caution should have been given, and whether the evidence obtained from the conversations was fair and admissible.

The court found that the entry into the townhouse by the police officers was lawful under common law authority for preserving life or property. It was determined that the officers did not suspect Mr McCarthy of committing an assault or any other offence at the time of the conversations. Consequently, there was no requirement to administer a caution as the investigation was in its investigatory stage. The court also ruled that Mr McCarthy was not apprehended within the meaning of the Summary Offences Act 1953 (SA) and therefore, section 79A of the Act did not apply. The court concluded that there was no basis to exclude the evidence obtained from the conversations with Mr McCarthy.

The court's reasoning was based on the premise that the police officers acted lawfully in entering the premises and that they did not suspect Mr McCarthy of any offence at the time of the conversations. Additionally, the court found that the officers were not required to provide Mr McCarthy with details of the investigation or to show him their notes. The court ultimately decided that the evidence of the conversations was admissible as there was no unfairness or impropriety in obtaining the evidence. The court rejected all grounds for exclusion of the evidence, confirming that it was properly obtained and admissible in the proceedings.

Orders

Orders of the court

1. Entry into the townhouse was not unlawful because the uniformed police officers could at common law enter under the preservation of life or property power (at [42]).

2. No caution was required to be administered in circumstances in which at the time of the conversations the police investigation was at the investigatory and not the accusatory stage; the relevant police officers did not suspect, or have reasonable grounds to suspect, Mr McCarthy had committed an assault or other offence; and their questions were directed at locating and ensuring the safety of the two women rather than any offence committed by Mr McCarthy (at [87], [124]).

3. By reason of the caution administered by the uniformed police officer, admission of the evidence of the detectives of their conversations with Mr McCarthy was not in any event unfair (at ([127]).

4. The police officers were not required to provide details of what they were investigating in circumstances in which this was self-evident and they did not have any relevant information beyond that known by Mr McCarthy (at [87], [128]).

5. There was no relevant unfairness to Mr McCarthy by reason of the manner in which the uniformed police officers made notes of their conversations and they were not required in the circumstances to show them to Mr McCarthy for verification (at [94], [98]).

6. The uniformed police officers did not at the time of the conversations suspect, or have reasonable grounds to suspect, Mr McCarthy of having committed an indictable offence and section 74D of the Summary Offences Act 1953 (SA) had no application (at [104]).

7. Mr McCarthy was not apprehended by the police officers and section 79A of the Summary Offences Act 1953 (SA) had no application (at [110], [131]).

8. There was no basis to exclude evidence of the conversations (at [111], [132]).

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr McCarthy did not challenge the relevance or admissibility as such of the conversations, but contended that evidence of them should be excluded in the exercise of the Court’s discretion.Evidence on the voir dire Senior Constable Milligan gave evidence on the voir dire that he and his partner, Constable Lyons, received a tasking from police communications at 4.15 am on 8 June 2012 to attend at the address of the townhouse in relation to a disturbance and a report that screaming had been heard from that address. Senior Constable Milligan’s evidence in this respect was corroborated by tender of the police communications record. Upon arrival at the townhouse at 4.35 am, they were approached by a neighbour who opened the passenger side door of the police car and told them that he had telephoned police communications, said that something really bad had happened and advised them to be careful over there. Another neighbour separately approached and spoke to Constable Lyons. Senior Constable Milligan recalled Constable Lyons informing him that the second neighbour had said similar things to the first neighbour. Senior Constable Milligan gave evidence that there was a light on by the front door and he saw light inside the downstairs garage. He heard noises of movement coming from within the garage. He announced that they were police, knocked on the garage doors and asked that the door be opened. He then proceeded upstairs to the front door, where he knocked and made a similar request. He could still hear noises inside. He tried the door, found it unlocked and entered the townhouse. He said that he entered under common law authority on the ground that he believed that a breach of the peace was occurring. Police communication records show that he entered at 4.39 am. Senior Constable Milligan gave evidence that, as he entered, he caught a fleeting glimpse of a person possibly wearing a skirt or dress passing behind an internal door. Senior Constable Milligan went over to the door and saw that it lead to a staircase down to the garage. He yelled out to the person to present themselves and a male person appeared. This transpired to be Mr McCarthy, who was wearing a T-shirt and a towel around his waist. Mr McCarthy appeared to be highly agitated, hyper alert, sweating and a bit shocked to see police. Senior Constable Milligan had a conversation with Mr McCarthy (the first conversation). He asked Mr McCarthy whether there was anyone else present in the house and what was going on. Mr McCarthy told him that he was the only one left in the house; there had been two women in the house fighting in the garage but they had left in a car. Senior Constable Milligan gave evidence that he observed blood on Mr McCarthy’s right hand and asked him how he got that. In the meantime, Constable Lyons had gone downstairs to the garage and on her return reported that she had seen a small amount of blood equivalent to a nose bleed. Mr McCarthy explained that one of the girls had been holding a bottle of red wine which she dropped, cutting her hand. He broke the fight up and got blood on his hand in doing so. He was cleaning up the blood in the garage when the police officer knocked on the door. On being asked for the women’s names, he gave their first names and said that he had known one of them since she was a little girl. They had met that day as a group, drinking at hotels and returning to the house to party. On being asked where the women had gone, Mr McCarthy said that more than likely they had gone to hospital or were going to return.

Decision

Reasons for decision

After the fourth conversation, Senior Constable Milligan asked Mr McCarthy to remain in the lounge while he made enquiries and surveyed the scene. I address the question whether this amounted to an apprehension below when dealing with the conversations between the detectives and Mr McCarthy.Conclusion There was no basis to exclude the evidence of Senior Constable Milligan and Constable Lyons of their conversations with Mr McCarthy.Conversations with Detectives Gourd, Cullinan and Minchenberg Mr McCarthy sought the exclusion, in the exercise of the Court’s discretion, of the evidence of Detectives Gourd, Cullinan and Minchenberg of their conversations with him on the following grounds:1.the conversations followed and were a consequence of an unlawful entry onto the premises by Senior Constable Milligan and Constable Lyons;2.no adequate caution was given to Mr McCarthy in circumstances in which the detectives suspected on reasonable grounds that he had committed an assault or worse;3.Mr McCarthy was not given any details of the offence or potential offence the police were investigating;4.no information of rights or warning was given to Mr McCarthy in contravention of section 79A of the Act in circumstances in which he had been apprehended by the police.Unlawful entry Mr McCarthy contended that the conversations with the detectives should be excluded in the exercise of the unlawfulness discretion because they resulted from the unlawful entry by Senior Constable Milligan and Constable Lyons of the premises. I have concluded that the entry by Senior Constable Milligan and Constable Lyons was lawful, and therefore it followed that I rejected this ground of challenge.No cautionRequirement for caution Detectives Gourd, Cullinan and Minchenberg each received briefings about the investigation before they spoke to Mr McCarthy. While there were variations in the content of the briefings, in general terms the detectives were relayed the information that had been learnt by Senior Constable Milligan and Constable Lyons. Detectives Gourd and Minchenberg gave evidence that, immediately before and while they were speaking to Mr McCarthy, they did not suspect him of having committed an assault. They gave evidence that their focus was upon locating the two women and in ensuring their welfare. Detective Minchenberg gave evidence that he did not turn his mind to Mr McCarthy having committed the offence of assisting an offender. Detective Cullinan gave evidence that Mr McCarthy was not a suspect and she did not suspect him of having committed an assault. However, she suspected that he had information relating to the events that had happened at the address, that he either had knowledge that an assault had taken place or he was involved in an assault that had taken place at that address involving the women. She suspected that Mr McCarthy knew more about what had taken place than what he had conveyed to the police to that point. Each of Detectives Gourd, Cullinan and Minchenberg were cross-examined on the circumstances known to them. It was put to them that their evidence that they did not suspect that Mr McCarthy had committed an assault or a serious assault was false. I found each to be a credible witness and accepted their evidence that they did not reasonably suspect that Mr McCarthy had committed an assault, although they did suspect that he had more information concerning an assault committed by another person or persons than he had so far conveyed. In particular, I found that Detective Cullinan did not suspect that Mr McCarthy himself had committed an assault; rather she suspected that he had either been told about an assault or had witnessed it and had attempted to break it up.

Ratio Decidendi

Legal Principle Established

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