R v McDonnell

[1994] QCA 273

IN THE COURT OF APPEAL [1994] QCA 273

SUPREME COURT OF QUEENSLAND	C.A. No. 175 of 1993
Brisbane [R. v. McDonnell]

T H E Q U E E N

v.

ROY WILLIAM MCDONNELL (Appellant)

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FITZGERALD P. MCPHERSON J.A.

DAVIES J.A.

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J udgment delivered 02/08/1994

REASONS FOR JUDGMENT - THE COURT
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APPEAL DISMISSED.
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CATCHWORDS:CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - appellant convicted of offence of murder - videotaped interview with police contained confessional statements - failure of the police to tell appellant that victim was dead, or that he was being interviewed in respect of murder charge - failure of police to answer appellant's enquiry as to how deceased was - whether otherwise voluntary confession should have been excluded.

Counsel:Mr S.E. Herbert Q.C. for the Appellant

Mr B. Butler for the Respondent

Solicitors:Legal Aid Office for the Appellant

Director of Prosecutions for the Respondent

Date(s) of Hearing:28 July 1994

R EASONS FOR JUDGMENT - THE COURT

Judgment delivered 02/08/1994

The appellant was convicted of murder on 13 April 1994. He appeals against that conviction on the ground that the learned trial judge should have excluded from evidence a videotaped record of interview which contained confessional statements by the appellant.

On 9 May 1993 the appellant shot the deceased, Christine Joan Moroney, with a shotgun at close range. He and the deceased had previously had a close relationship. Those facts were uncontested. There was evidence that, at the time he shot her, they were estranged and he harboured some anger towards her. Evidence was given by eyewitnesses to the shooting that he had previously threatened the deceased and that in the course of an altercation which occurred immediately prior to the shooting the appellant said to the deceased: "I'm going to shoot you."

There was therefore an uncontradicted case for the Crown that the appellant shot the deceased and a very strong one, based on eyewitness evidence,that he intended to kill her. The confessional evidence was not a major part of the Crown case. On the other hand, although its admission was objected to, it was very much relied on by the defence, after it had been admitted into evidence, as raising a number of defences in point of law.

The objection to admissibility of the confession was on a number of grounds, some of which are not pursued before this Court. The only bases on which the learned trial judge's decision to admit the videotaped interview into evidence is now contested rely on the fact that, when it took place, the appellant did not know that the deceased was dead.

The first of these bases was that, given the seriousness of the offence and the fact that the appellant did not realise he was being interviewed in respect of a charge of murder, the police had an obligation to inform him, before asking him questions which resulted in his confession, that the deceased was then dead or that they were interviewing him in respect of a murder.

The second and alternative basis is that by failing to answer responsively his enquiry as to how the deceased was, the police misled him into thinking that the deceased was or might still be alive.

When first apprehended and asked if he would be prepared to come to the CIB office to be interviewed, the appellant asked: "How is the lady?". The police officer who apprehended him did not answer this question or a subsequent question by the appellant: "How is she? Is she going to be alright?" He was then taken to the police station where the video recorded interview took place. At the commencement of that interview and before he made any confession, an appropriate warning was given and he responded by saying that he knew it was going to come out in court anyway and that he was not there to lie. He said: "I done it, so it was my fault."

No authority was cited to us in support of the first basis upon which it was said that the confession ought to have been excluded. It amounted to a proposition that, at least in a charge in respect of a very serious offence, a confession which is otherwise voluntary should be excluded if the police, before obtaining it, do not volunteer to the accused all of the material facts within their knowledge relevant to his guilt of the offence. Such a proposition cannot be sustained. It may be accepted for present purposes that the dictates of fairness may require police, in some cases, to explain to a suspect the nature of the crime about which he is to be interrogated. But this was plainly not such a case. It must have been clear to the appellant that this was a case of the utmost seriousness involving either death or grievous bodily harm to the victim.

There is nothing to suggest that he did not realise that the offence concerning which he was questioned was, or might be, murder. In view of what he had said and done, that must have appeared to him to be a very real possibility.

As to the second basis, we do not think that the failure by the police to answer the questions referred to above amounted to conduct which rendered admissibility of the confession unfair. That failure did not amount to a false representation or trickery or other impropriety. Nor was it asserted by the appellant that he would have acted differently in relation to the interview had he been informed that the deceased was dead.

Finally, it is extremely difficult to comprehend how the exercise of the trial judge's discretion to admit the evidence operated to the appellant's disadvantage. It added little, if anything, to the Crown case but was essential to the matters relied on by the appellant in exculpation.

The appeal must therefore be dismissed.