R v Mitchell and Brown
[2005] VSC 42
•2 March 2005
| Do Not Send For Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1450 of 2004
| THE QUEEN |
| v |
| JEFFREY KEVIN MITCHELL AND GAVIN JAMES BROWN |
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JUDGE: | WHELAN J | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 2 March 2005 | |
CASE MAY BE CITED AS: | R v Mitchell and Brown (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 42 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Ryan | Solicitor for the Office of Public Prosecutions |
| For the First Defendant | Mr I. Crisp | Geoffrey Tobin Pty |
| For the Second Defendant | Mr D. Whitchurch | Kieran S. Cox |
HIS HONOUR:
In this matter I have been asked to rule on the admissibility of a taped conversation between the accused Jeffrey Mitchell and his former de facto wife, Leanne Brown. Mr Mitchell is accused of murdering one Andrew Preston on 29 April 2002. Ms Brown’s brother, Gavin Brown, is charged with being an accessory to that murder.
At the request of investigating police, Ms Brown wore a listening device on an occasion when she met Mr Mitchell for the purpose of collecting their children for an access visit.
Evidence in relation to the circumstances of the recording of the conversation was given on a voir dire. An audio CD of the conversation was tendered as Exhibit A. A transcript of the conversation appears in the depositions at pp.762-775.
At the time of the alleged murder, Ms Brown and Andrew Preston had been living together in a caravan at the Pine Hill Caravan Park in Lilydale.
The first witness on the voir dire was the informant, Sergeant McWilliam. At the relevant time, Sergeant McWilliam was a detective senior constable with the Homicide Squad. Sergeant McWilliam said that he first became involved in this investigation on 1 January 2003. He said that, at that time, police held statements from Gavin Brown, Leanne Brown and notes of a conversation with Mr Mitchell. The position as it appeared at that time was that Mr Preston had left the caravan on Saturday 27 April 2002 and had not been seen again. Sergeant McWilliam said that a record of interview was conducted with Gavin Brown on 29 April 2003. The interview was interrupted whilst Gavin Brown spoke to his sister, Leanne Brown, by telephone. When the interview resumed, Gavin Brown gave an account of the killing of Mr Preston by Mr Mitchell near Powelltown, after he and Mr Mitchell had gone to the caravan and left in the company of Mr Preston on Monday 29 April 2002. Sergeant McWilliam said that Gavin Brown had taken them to locations in Powelltown, in an attempt to locate the body, but that no body had been found. Sergeant McWilliam said that the police then approached Leanne Brown. He said they had conflicting stories and no corroboration of Gavin Brown’s record of interview of 29 April 2003. He said at that stage the police were still investigating the matter and trying to corroborate what Gavin Brown had told them.
Sergeant McWilliam said that he was present when Leanne Brown was given instructions in relation to use of a recording device prior to a meeting with Mr Mitchell on 19 May 2003. He said that he told her that the police could not tell her specific questions to ask but that she should simply speak to Mr Mitchell about Andrew Preston. The recording device malfunctioned on that occasion.
Sergeant McWilliam was not present when Ms Brown was given recording equipment and instructions prior to another meeting with Mr Mitchell on 23 May 2003.
In cross-examination, Sergeant McWilliam agreed that Leanne Brown was a suspect at the time the conversations were taped, but he said he was not sure what the offence would be. He disagreed with the proposition that he had enough evidence at that time to charge Gavin Brown. He agreed that there were inconsistencies between the account given by Gavin Brown in his record of interview and the account given in the taped conversation, and in particular the suggestion in the taped conversation that Mr Preston had been killed using syringes to inject air was inconsistent with Gavin Brown’s account.
Evidence was also given by Detective Senior Constable Narelle Fraser. She was present both on 19 May and 23 May when Ms Brown was given the recording equipment and was given instructions. She said that Ms Brown was told that the police could not tell her what to say and that they wanted her to speak to Mr Mitchell about what had happened to Mr Preston. She agreed in cross-examination that the asking of specific questions in these circumstances was “not the way it’s done”.
Leanne Brown then gave evidence. In relation to the conversation on 23 May 2003 she said she met police at McDonald’s. She said that the police told her to ask Mr Mitchell about Andrew Preston. She said that they did not tell her how she should ask the questions. She identified the voices on the audio CD as her own and Mr Mitchell’s.
In cross-examination, Ms Brown agreed that she had been a drug addict. She agreed that at the time of the taped conversations she was under pressure, and she believed herself to be a suspect. She said she was not afraid of being charged. She said she knew she could be charged. I interpolate here that she was not asked what she knew she might be charged with. Having considered all the material, I proceed on the assumption that she was, and believed herself to be, suspected of an accessory offence.
Ms Brown agreed with all or substantially all of the suggestions put to her by Mr Crisp, counsel for Mr Mitchell, in cross-examination. She agreed that her purpose was to get evidence against Mr Mitchell, to obtain admissions, and to obtain details of what had happened. She agreed that in the conversation on 19 May 2003, where the tape recording failed, she had pushed Mr Mitchell for answers but that he had not made any admissions. In respect of the taped conversation of 23 May, she agreed that she pressed Mr Mitchell to get him to admit he was at fault. She also agreed that she had a secret desire to recover her children who were at the time of the conversation in the custody of Mr Mitchell. She denied that it had occurred to her that if Mr Mitchell was “out of the picture” it would be easier for her to “get her kids back”.
Mr Crisp’s submissions in support of exclusion of the taped conversation focussed on what he said was the unreliability of the admissions made. He referred in this respect to Mr Mitchell’s agreement to the proposition suggested to him by Ms Brown in the taped conversation that he had killed Mr Preston by injecting him with air (see pp.765 and 772 of the depositions). Mr Crisp submitted that this was inconsistent with Gavin Brown’s record of interview, but, more importantly, was inconsistent with the evidence given by Dr Ranson, a forensic pathologist, at the committal hearing. I have read his evidence. The effect of it is that he is of the view that it is unlikely that Mr Preston was murdered by the injection of air. Mr Crisp also pointed to the absence of corroborating evidence in the form of a weapon, a body, or any forensic evidence. Mr Crisp relied on R v Swaffield; Pavic v R[1] and upon R v Carter[2]. He adopted the submissions made by counsel for the accused in R v Carter, summarised at paragraph 34 and following of the judgment. He submitted that it was unacceptable for a police agent to ask leading questions, to seek to elicit specific information, and to pursue questioning to extract admissions or evidence which would assist the police. He submitted that Mr Mitchell had received no warning or caution and that the effect of the conversation was to interrogate Mr Mitchell. He submitted that it was improper to use Ms Brown in the way in which the police had. He said Ms Brown was tainted as she was biased against Mr Mitchell, was herself a suspect, had a hidden motive to implicate Mr Mitchell, and had gone beyond the instructions given to her by the police. He submitted that she had interrogated Mr Mitchell and that this circumstance, coupled with the demonstrated unreliability of the confession, meant it was extremely dangerous and highly prejudicial and unfair to the accused to admit this confession.
[1](1998) 192 CLR 159.
[2](2000) 1 VR 175.
The prosecutor, Mr Ryan, relied upon the same authorities as were relied upon by Mr Crisp. He submitted that what was in issue here was the “unfairness” discretion. He said the relevant admission was to the effect that Mr Mitchell had killed the deceased in concert with Leanne Brown’s brother. He submitted that “latching on” to the means of death referred to in the taped conversation did not indicate unreliability because:
-there was other evidence consistent with details in the confession;
-the issue of unreliability was to be judged by reference to the means used by the police, not the contents of the admission;
-what Mr Mitchell had said was not fanciful, as given the relationships involved Mr Mitchell was at pains to ensure that he emphasised the active involvement of Leanne Brown’s brother in the crime;
-Mr Mitchell’s admission that he had killed Mr Preston was reliable, even if some details were untrue;
-in so far as Dr Ranson’s evidence was concerned, a distinction had to be made between the issue of whether air had been injected and whether air injection was the cause of death; and
-the submissions of counsel for Mr Mitchell invited the Court to assume a role that was properly that of the jury, namely to assess the facts of the case.
Mr Ryan submitted that the conversation was not an interrogation. He compared the facts here with the facts in R v Carter and said that the position here was “well below that”.
Mr Ryan conceded that Ms Brown was relevantly an agent of the police. He submitted that there was no impropriety in the conduct of the investigation. He submitted that the potential motives of Ms Brown were irrelevant because her conduct was what was important and that could be judged from the tape itself.
The three judgments in R v Swaffield; Pavic v R adopt differing approaches. In R v Carter, Charles JA, with whom Chernov JA and Hedigan AJA agreed, analysed the High Court judgments in the following terms:[3]
“In the High Court, Toohey, Gaudron and Gummow JJ in a joint judgment, and Kirby J separately, held that the admissibility of confessional material turns first on the question of voluntariness, next on exclusion based on considerations of reliability, and finally on an overall discretion taking account of all the circumstances (including the means by which any admission was elicited and whether unfair forensic disadvantage may be occasioned by admission of the evidence) to determine whether the evidence was admitted or a conviction obtained at an unacceptable price having regard to contemporary community standards. Brennan CJ said that the conduct of law enforcement officers should be considered under the public policy discretion except where that conduct makes the reliability of the confession dubious, in which case the unfairness discretion can be invoked.”
[3](2000) 1 VR 175 at [42].
No issue as to voluntariness was raised here. I proceed on the basis that the admissions were made voluntarily.
The primary focus of Mr Crisp’s attack on the admissibility of the conversation was the question of reliability. There is no doubt on the authorities that reliability may be a touchstone of what is referred to as the “fairness” discretion, although the High Court has made it clear that it is not to be the sole touchstone (Swaffield’s case, at paragraph 54).
In my view, the circumstances under which this conversation was recorded do not relevantly impugn its reliability, notwithstanding Mr Crisp’s submission about Dr Ranson’s evidence. In this respect I essentially accept the submissions put by Mr Ryan. The medical evidence that death by injection of air was unlikely does not mean that the admissions made by Mr Mitchell are necessarily unreliable. Mr Mitchell’s statements seem to me to be explicable, and to be reliable in the relevant sense, by reference to a desire to emphasise the role of Leanne Brown’s brother’s. Further, a belief on Mr Mitchell’s part that death was caused by the injection of air is not necessarily inconsistent with Dr Ranson’s evidence. Dr Ranson’s evidence does not mean that Mr Mitchell did not inject air into Mr Preston, and it does not mean that Mr Mitchell may not have held the belief that that was what caused his death.
Mr Crisp’s further submission was that what occurred here was an interrogation, constituted by specific questioning on Leanne Brown’s part, with the object of eliciting admissions. The judgment of Toohey, Gaudron and Gummow JJ in Swaffield’s case, and the judgment of Charles JA in R v Carter, refer to Canadian authority suggesting in this context that conversation in the nature of an interrogation is to be contrasted with conversation that “flows naturally” (Swaffield’s case at paragraph 88 and R v Carter at paragraph 40). In R v Carter, Charles JA quoted a passage from the Canadian case, R v Broyles. [4] The passage quoted referred to two sets of factors. The first concerned the nature of the exchange. In this respect, the relevant issue was put in these terms:
“Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informant to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.”
[4][1991] 3 SCR 595.
The second set of factors identified in the quoted passage concerned the nature of the relationship between the state agent and the accused, and in particular whether any obligation or vulnerability existed between them, and whether there had been any exploitation of trust or other characteristic of the relationship.
It is not suggested here that the police officers engaged in any illegality. Nor did I take Mr Crisp to be suggesting that the police officers themselves engaged in any impropriety. The focus of his submissions was on the conduct of Ms Brown.
I have listened to the audio CD and have read the transcript. Ms Brown engages Mr Mitchell in discussion about the incident by portraying to him concern about the position of her brother. There was no suggestion to me that that concern was not genuine. There was also no suggestion to me that Ms Brown misled Mr Mitchell in any relevant respect, save of course in relation to the subterfuge inherent in wearing a listening device.
The first possible admission made by Mr Mitchell appears to me to occur at p.764 of the transcript in the depositions. Ms Brown is expressing concern for her brother and says that this concern arises out of the fact that he was a witness to a killing. Mr Mitchell says: “Yeah, I know, we’re both. Both as much as each other.” A little later the following exchange occurred:
“Leanne:
I believe Gavin.
Jeff:
Yeah, but we’re both in on it the same as each other really.
Leanne:
So you’re saying he killed him too.
Jeff:
Yeah well he helped.”
Shortly after that exchange Ms Brown says: “So you just injected him with air?”, to which Mr Mitchell replies, “Yeah”. It can certainly be said that Ms Brown asked a leading question in relation to the injection. It seems to me, however, that the admissions begin before then and begin in a context where Ms Brown is conducting an apparently normal conversation as the sister of a person who may be implicated in a serious crime. Whilst she then asks a direct and leading question, in my view that part of the conversation is not the functional equivalent of an interrogation.
Ms Brown similarly asks questions that might be characterised as being leading and specific in relation to Mr Preston’s jacket. She says at one point: “And you’re saying you killed him and so did he?”, to which Mr Brown replies, “We both”. Again, whilst it could be said that certain specific questions approach cross-examination, taking the conversation as a whole it seems to me that Ms Brown is conducting a naturally flowing conversation given the relationships involved and that her conduct is consistent with the accused’s belief as to her role.
I have considered the factors that were characterised as significant or not significant in R v Swaffield; Pavic v R and R v Carter. I have also considered Osborn J’s analysis of the issue in R v Alipapa Tofilan. [5] It seems to me that the following matters are relevant .
[5][2003] VSC 188.
(a) There had not been any prior express refusal by Mr Mitchell to answer police questions. In this respect, the position here is unlike both R v Swaffield, where the evidence was excluded, and Pavic v R, where it was nevertheless not excluded. The police here were not attempting to circumvent such an express refusal.
(b) There was no taking advantage of any vulnerability of the accused created by custody here. Section 464A of the Crimes Act 1958 did not apply.
(c) Ms Brown did, in a sense, use her pre-existing relationship with the accused to facilitate the relevant conversation. There is, however, in my view no basis for concluding that Mr Mitchell was relevantly vulnerable to Ms Brown or overborne by her.
(d) For the reasons already explained, the conversation seems to me to flow naturally and to be consistent with the apparent roles of the parties to it. Unlike the other cases, in a sense Ms Brown was not in fact playing any “role”, in the sense of adopting or creating a false relationship with the accused. Whilst she at times asks leading and specific questions, the discussion does not appear to me to be the functional equivalent of interrogation.
(e) The matter was still at the investigation stage. It had, in this respect, not developed to the point reached in R v Swaffield or Pavic v R, although it had progressed further than the point reached in R v Carter, as Mr Mitchell was here truly a suspect.
(f) The crime under investigation was most serious, being murder. It seems to me that the means adopted were not disproportionate to the problem confronting the police.
(g) There was no relevant misleading of Mr Mitchell, save for the subterfuge inherent in a secret recording. In this respect, the position here differs markedly that in R v Carter, where the evidence was nevertheless not excluded.
In all the circumstances it seems to me that I ought not to exercise my discretion to exclude the taped conversation. The conversation was voluntary. I do not think there is unfairness to the applicant if the tapes are admitted. In the circumstances, it does not seem to me that this evidence was obtained at a price that is unacceptable having regard to prevailing community standards.
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