R v Morgan & Tamme
[2002] VSC 573
•19 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1531 of 2001
| QUEEN |
| v |
| NATASHA LISA MORGAN EMMA-JAINE TAMME |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 October - 9 November 2002 | |
DATE OF RULING: | 21 October 2002 | |
DATE OF REASONS: | 19 December 2002 | |
CASE MAY BE CITED AS: | R v Morgan & Tamme | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 573 | |
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Criminal Law - Ruling on admissibility of police interview – voluntariness – unfairness and public police discretion
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Elston | Office of Public Prosecutions |
| For the Accused Morgan | Mr D Allen | Amad & Amad Lawyers |
| For the Accused Tamme | Ms F McNiff | Yianoulatos Lawyers |
HIS HONOUR:
These are the reasons for a ruling that I made prior to the trial for murder of Natasha Morgan and Emma Tamme. They and Michelle Jackson were charged with the murder of Katriana Smyth at Little River on 16 February 2001. Before the trial commenced, I had sentenced Michelle Jackson for manslaughter arising out of the killing of the deceased. Mr Allen, counsel for Natasha Morgan (‘the accused”), applied to me to make a ruling excluding significant parts of videotaped interviews of the accused by the police. Relative to that application, I heard evidence on the voir dire from two members of the Homicide Squad, Detective Senior Sergeant Hubbard and Detective Senior Constable Stewart, from a police videocamera operator, Senior Constable Jeffrey Sear, and from the accused.
The deceased was killed in the early hours of the morning of Friday 16 February at Little River. The police received no information about the killing during 16 or 17 February. On Sunday 18 February, the body of the deceased was found. At about the same time, Michelle Jackson was arrested by police. That night, she was interviewed by the police. She was very co-operative. She provided the police with information, including as to the accused. She could not say where the accused then was.
During the night of 18 February, the accused had travelled by bus from Melbourne to Adelaide. In evidence on the voir dire, she gave an account of her movements. She said that she left Melbourne around 8 p.m. on the Sunday. She did not sleep on the bus. She said that her anxiety prevented her sleeping. She had plans to meet up with a friend in Adelaide but those plans did not work out. She then decided to travel to the home of her mother in Red Cliffs, back in Victoria. She learned that the next bus from Adelaide to Mildura did not leave until the next day. She decided to stay near the bus station. She slept sporadically and briefly overnight on a hard bench. She had breakfast near the bus station. She travelled by bus to Mildura. From Mildura, she took a taxi to her mother’s home in Red Cliffs. There, she spoke with her mother and had a swim. She was offered food, but declined it. She telephoned her sister, Amanda and her father, John.
Detectives had contacted Amanda and John Morgan during the morning of Monday, 19 February. Amanda Morgan had provided a signed statement. John Morgan had been interviewed by Detective Sergeant Jenks from the Homicide Squad. Both provided information of assistance to the police in their enquiries. When telephoned from Red Cliffs by the accused, her father told her that he had spoken with the police. He asked her to ring Detective Jenks. At about 7.25 p.m., she did so. She told Detective Jenks where she was. He told her that he proposed to get someone to speak with her. She said she wanted to co-operate and tell the police everything. He arranged for a Detective Mailes from Mildura to go to the Red Cliffs address. Detective Jenks also arranged for Detectives Hubbard and Stewart to go by plane to Mildura. After speaking with Detective Jenks by telephone, and before Detective Mailes arrived, the accused rang a solicitor. The solicitor that she rang said that he had been asked to represent Michelle Jackson. He gave her the number of another solicitor, Andrew Fraser. The accused telephoned Andrew Fraser and sought his advice. At about 8.55 p.m., Detective Mailes arrived at the Red Cliffs address, identified the accused, told her she was under arrest, cautioned her and told her of her rights. She asked to speak with her lawyer. Detective Mailes agreed to that taking place then. She spoke with Andrew Fraser again. Andrew Fraser asked to speak with Detective Mailes. The two men spoke. Andrew Fraser said that he would be available on that telephone number all night. Detective Mailes asked the accused about her arm, which was bandaged. She said: “No comment”. He conveyed her to the Mildura Police Station. At 10 p.m., he commenced a tape recorded interview. He again cautioned her and told her of her rights. She said that she understood. He asked her questions as to her welfare. In response, she said that she had telephoned her lawyer, had had a drink, had been to the toilet and felt OK. Asked again about her arm, she again said that she wished to make no comment.
At about 11.10 p.m., Detectives Hubbard and Stewart arrived at the Mildura Police Station. At 11.29 p.m., there was a short interview, with questions being put by Detective Hubbard and answered by the accused. He cautioned her and told her of her rights. She said she did not wish to exercise them. To two questions as to the murder of Katriana Smyth, she gave a no comment response. She confirmed that she had contacted a solicitor. Detective Hubbard told her that he proposed that she be interviewed in Melbourne. She said she was happy with that arrangement. He asked her if she wanted to say anything at that stage and she said no. They went by plane back to Melbourne. She was taken to the Homicide Squad offices. She asked the detectives to contact her father. She was told that he was coming in to the offices. At the Homicide Squad offices, she telephoned, and spoke for the third time with, Andrew Fraser.
At 2.53 a.m., a videotaped interview commenced. The accused answered all questions relating to formalities, welfare and rights and the like. Involved were questions 1 to 7, 104 to 110, 214 to 218, 322 to 334, 467, 468, 478 to 484, 543 to 557. She gave positive responses to questions 8 to 13, 15 to 25, 27 to 43, 54 to 71, 77, 78, 80 to 85, 111 to 114, 121 to 124, 133 to 136, 138 to 141, 156 to 210, 219 to 321, 335 to 466, 469 to 477, 485 to 542 . She gave a no comment or like answer to questions 14, 26, 44 to 53, 72 to 76, 79, 85 to 103, 115 to 120, 125 to 132, 137. 142 to 155, 211 to 213. A listing of questions by numbers, as I have just done conveys little. This was an interview where matters like sections, breaks, and stages of the interview have to be distinguished. The interview proceeded in four distinct sections with three breaks in between. The interview was all conducted on 21 February. It started at 2.53 am, with the first break at 3.17 a.m. It resumed at 3.51 a.m., with the second break at 5.26 a.m. It resumed at Little River at 7.29 a.m. with the third break at 7.46 a.m. It resumed at 9.06 a.m. and finished at 9.26 a.m.
Independently of the four sections of the interview, the questions and answers can be broken up into what I will treat as stages. Stage 1 was from the start of the interview to question 43. After questions as to formalities and rights, the accused was asked about her movements on 20 February, about Michelle Jackson, and about her driving a car. She answered most questions. At questions 14 and 26, she declined to answer. Stage 2 was from question 44 to question 53. There were questions about the accused and her legal advice. She said she had been advised not to say anything. Stage 3 was from question 54 to question 73. There were questions about her car driving and her movements on 15 February. She answered most questions. She declined to answer questions 72 and 73. Stage 4 was only questions 74 and 75. For the first time, Detective Hubbard put to the accused information given to him, and sought a comment from her. She declined to comment. Stage 5 was from question 76 to question 85. There were questions mainly about clothing worn on 15 February, most of which were answered. Stage 6 was only three questions, 86, 87 and 88. Again, Detective Hubbard put to the accused information available to him, and sought a comment from her. She declined to comment.
Stage 7 was two questions. They were:
Q89: Are you able to tell me anything about an incident that occurred in bushland in that general area past Werribee?
A89: No, I’m not
Q90: Do you wish to make any comment in relation to that matter at all?
A90: No, I don’t. I wish to seek advice from my lawyer before I say anything.
Stage 8 was from question 91 to question 105. Again, Detective Hubbard put to the accused information given to him, and sought a comment from her. She declined to comment. The interview was then suspended. Stage 9 was from question 106 to 110 and was as to formalities and rights. The accused was again told of her right to contact a lawyer. She indicated that she understood but did not wish to exercise any rights. Stage 10 was from question 111 to 120. The questions were about the accused driving her father’s car. The accused declined to answer the last six questions. Stage 11 was from question 121 to 146. The questions were mainly about the accused’s sister, with three referring to the accused’s father. The accused declined to answer most of the questions. Stage 12 was from question 147 to 153. The questions referred to the accused’s father. She declined to answer them. Stage 13 was only two questions, 154 and 155. They were about the deceased. The accused declined to answer them. Stage 14 was from questions 156 to 210. The questions were about the deceased and Michelle Jackson and Emma Tamme. At question 156, Detective Hubbard produced photos of the deceased. All questions at Stage 14 were answered. Stage 15 was three questions, 211 to 213. The questions were about events on 15 February. A denial was sandwiched between two no comment responses.
Stage 16 was as I now set it out from the transcript:
Q214: Did you see any person remove a knife from the premises where you reside?
A214:…..
Q215: And that – and the premises I’m referring to is unit 3, number 58 Lynch Road?
A215: To be completely honest, I did – I did see – I did hear – I’m just going to basically tell you what I know, because I just can’t sit here and do this any more.
Q216: Now, you just mentioned that you want to be – you want to be honest, is that right?
A216:Yep
Q217: Now, you’re fully aware of the rights that you’ve been…
A217: Yes, I know…
Q218: Made aware of…
A218: I’ve been told to – been told to make no comment, but I don’t see how that’s going to help me
Q219: Well, I’ll leave it to yourself. You can explain to me what had occurred…
Q220: Okay.I’ll tell you basically how it started……
What is apparent from the taped interview is that there is a marked change in the demeanour of the accused at stage 16. Until then, she appears composed and analytical. During stage 16, she is emotional. She cries. She moves her hands demonstratively. Stage 17 was from question 220 and from then on. The accused gave a detailed account of events from the morning of 15 February and answered questions as to details.
I turn from the interview itself to what happened during the first break in the interview. That break was between 3.17 and 3.51 a.m. Three police officers had played a part in the questioning. Only Detective Hubbard had asked the questions. Detective Stewart was present in the interview room. Senior Constable Sear operated the videocamera. The accused, in her evidence on the voir dire before me, claimed that during the break, certain things happened that made her feel more scared that she would otherwise have been. One was that Detective Hubbard said to her words to the effect that her dad was a good bloke, that he had not been charged, but that he might be charged if she did not co-operate. Another was that, contrary to what he claimed, Detective Stewart had not made an offer to get her a telephone book to call a solicitor. Another was that Senior Constable Sear said to her, at a time when both he and she were smoking cigarettes: “You’ve got some nerve”.
Her claims were refuted. Detective Hubbard said that, when the break was taken, he left it to Detective Stewart to look after the accused. He went to his desk and read through statements and notes. He accepted that he could have spoken with the accused about the further aspects of the interview process. He said he thought it unlikely that he had spoken to her about her father, but possible as it had been arranged that the father would come to the Homicide Squad offices. He denied that he said anything to the effect that her father might be charged if she did not co-operate. Detective Stewart said that, when the break was taken, he took the accused to another room so that she could smoke. He got her a cup of tea. He asked her if he should get her a telephone book so she could ring the solicitor. When she said not to worry, he went to his desk. There, he made further notes, including as to the discussion about the telephone book. Before the interview was resumed, Detective Hubbard spoke with Detective Stewart, who said that the accused had told him she did not want to contact a solicitor.
Senior Constable Jeffrey Sear was attached to the Forensic Science Centre. He operated the video camera for the interviews of Natasha Morgan. He said that he had done hundreds of videotapings. As a result, they all tended to blend into one. He said that he had been a cigarette smoker on and off. He may have been smoking in February 2001. He mostly smoked outside. He sometimes, but infrequently, smoked on the stairs near the car park. He said he had no recall of speaking to Natasha Morgan. Nothing stood out about the interview. He had a vague recall of doing the video work at Little River. He said that it was his practice to explain the use of microphones, and like matters. It would be most unusual for him to speak to an interviewee, save as such matters. His duties did not extend to looking after the welfare of an interviewee. He said that: “You’ve got some nerve” was not an expression that he used.
I turn to the submissions of Mr Allen. He put to me that the answers from 219 onwards should be excluded as not voluntary. Alternatively, they should be excluded in the exercise of the judicial discretion as to unfairness or public policy. He argued that the accused had made her will very clear. It was that she wished to exercise her right to remain silent. She had answered some peripheral questions. She chose not to answer other questions. By their actions, the police had created a greater risk of her will being overborne. They had acted in ways calculated to undermine her decision to rely on her right to remain silent. These included some matters that could be seen on the tape and some that could not. The detectives had persisted with their questions in the face of no comment answers. The detectives had not given the accused the opportunity to contact her solicitor again. The police had broken the accused’s rhythm in suspending the interview. The police had asked a further round of questions similar to those asked before the suspension. The police had unfairly placed in front of her, photos of the deceased. The police had undermined her confidence with the comment by Senior Constable Sear and with the threat by Detective Hubbard as to her father. The conduct of the police had to be seen against the further background of matters indicating that the accused was in a highly stressful situation. Those matters included: her lack of sleep; her lack of food; the rigours of her having travelled long distances in a short time; her anxiety; her inexperience with police questioning; and her being made aware that her sister and father had been spoken to by the police. Mr Allen argued that I should not be satisfied that the interview was voluntary. If I was, then I should exercise my discretion to exclude the evidence. He argued that it was important, as a matter of public policy, that the courts recognised the right to silence. Unfairness here arose from the conduct of the police in not recognising that right. If they had not conducted themselves as they did, no confession would have been made. It was unfair of the police to continue questioning the accused as they did. Mr Allen did not submit that there had been any breach of the statutory provisions as to questioning. Nor did he submit that there was unfairness linked to any unreliability in the account which the accused gave.
As to voluntariness, the onus rests on the prosecution to prove on the balance of probabilities that the confession was voluntary: Wendo v The Queen (1963) 109 CLR 559. A statement is not voluntary if it is not made in the exercise of free choice whether to speak or remain silent: Cleland v The Queen (1982) 151 CLR 1. It does not matter by what means a person has been overborne. If the statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary: McDermott v The King (1948) 76 CLR 501, Van der Meer v The Queen (1988) 62 ALJR 656. The inquiry as to voluntariness focuses on all of the circumstances which might have borne on the mind of the accused, and requires a practical, common sense, assessment of the effect of any verbal or non-verbal conduct of the police on the mind of the confessionalist: Collins v The Queen (1980) 31 ALR 257.
As to the exercise of the fairness and public policy discretion, the onus is on the accused to establish that it would be unfair to use the answers against her: Wendo, Van Der Meer, R v Pritchard [1991] VR 84. I have noted the somewhat different positions taken as to the fairness and public policy discretion in Swaffield v The Queen (1998) 192 CLR 159. I have noted what was said in Swaffield at 189. It included, and I paraphrase: Unfairness is concerned with the accused’s right to a fair trial. That right may be jeopardised if a statement is obtained in circumstances which affect the reliability of the confession. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. Once considerations other than of an unreliability are introduced, the line between unfairness and policy may become blurred. My concerns include whether it would be unfair to the accused to use her statements against her, and whether her right to a fair trial has been prejudiced by the obtaining of the statements in circumstances which affected its reliability, and indeed the prior question of whether any statements would have been made at all. Duke v The Queen (1988-89) 180 CLR 508.
It is appropriate to assess the character of the questioning, prior to and during the making of the statements. Questioning may be unfair if it is designed so as to break down the answers of the accused which had been given to earlier questions and which the police knew were unfavourable to their purposes: McDermott v The King (1948) 76 CLR 501. Questioning may be unfair if there are repeated expressions of disbelief or questions designed to obtain admissions by misleading the interviewee: R v Amad [1962] VR 545. Questioning is not unfair just because it is persistent and because the police do not accept the first account as being correct: R v Smith [1964] VR 95, Pritchard [1991] 1 VR 84, Tiplea (unreported VSCCA, 12 April 1995). On occasions there can be a strongly expressed wish to terminate the interview as in R v Robinson [1998] 1 VR 570. To choose to selectively answer questions is not to so clearly express a desire to remain silent, such as was contemplated in Harris v Samuels (1973) 5 SASR 439.
I did not find credible what the accused has claimed as to how the three police dealt with her. Each of Detectives Hubbard and Stewart and Senior Constable Sear gave accounts that I found credible. While I was not disposed to treat the accused as generally lacking in credibility, on critical issues, I concluded that she was disposed to adjust and suppress to advantage. There were some instances when that was somewhat more obvious. As when in examination in chief, she spoke of her possibly knowing why the police would want to speak with her, and then, in cross-examination, she changed to her probably knowing that. She spoke as if she had a clear positive recall of the comments by Detective Hubbard and Senior Constable Sear comments, and of Detective Stewart not having offered to provide a telephone book. Yet she was vague as to many other matters. Detective Stewart had in his notes a record of having offered to get a telephone book for the accused. That represented strong confirmation of his having done so, and a strong basis for preferring his recollection to hers. As to the other two claims, the only basis for concluding that the police had made inappropriate comments to the accused was her word, which I was not prepared to accept. Further, the accused did not complain on tape of what she claimed to have been said to her. Further, Detective Hubbard was questioned at the committal as to aspects of the interview. It was not put to him then that he had made a comment during a break in the interview about a possible charging of the accused’s father.
I turn to matters going to the pressures affecting the accused at the time of the interview. I accept that the accused was in an anxiety-provoking situation. Almost everyone being interviewed by the police will feel stressed. Sometimes there is added pressure from a combination of circumstances. Sometimes that added pressure is such as to warrant the conclusion that the interview should never have proceeded. That will usually be apparent from the distressed state of the interviewee. One of the benefits of being able to view the taperecording is that one can make a relatively reliable assessment of the interviewee’s demeanour. My assessment was that she was able to cope much better than most, and I have seen a few. I accept that the accused would have been anxious at the interview. The accused had had limited contact with the police before. She had never been in police custody before. On the tape, she does not look anxious. She presents there in a way which is not unlike how she presented when she was in the witness box before me. In the witness box, she presented as confident and composed. She listened to the questions attentively. She answered questions quickly and confidently.
I accept that, when she was being interviewed, she was tired. But signs of tiredness, like yawning, were not apparent from the videotape. She did not complain on tape of being tired. She did not seek a break. She did not say that she wanted to stop the interview, or that she was not going to answer any more questions. The accused was still at an age when sleep deprivation seems to have less adverse consequences. Moreover, the pattern of her life was such as to mean that she was accustomed to a disrupted rather than a regular sleep routine.
The interview continued over some hours, but it was not, in my assessment, an unnecessarily long one by comparative standards. . Nor would I assess the manner of questioning as inappropriate. It seemed to me that the police were following the same routines so often seen in this court on videotapes. That routine is essentially as follows: The interviewing detective has on hand the statements or information from other sources. From those statements or sources, items to be the subject of questions are extracted. Questions based on those items are formulated. When a positive response is forthcoming, further details are sought. When there is no positive response, another item is extracted. When items from one statement or source are exhausted, items from another statement or source are extracted. How long the questioning continues depends on the number of statements or sources, the number of items therein, and the number of positive responses.
During the early stages of the interview, the accused answered questions selectively. She exercised her discretion as to when she would and would not answer. By providing positive answers at times, she was both providing more information and opening up the prospect that she would continue to do so. I formed the impression that she had above average intelligence. She appeared to make a calculated assessment of relevance when selectively answering questions. In evidence on the voir dire, she said that she had assessed each question put to her by Detective Hubbard, and considered whether it was relevant to a murder, or might implicate her in a murder. This case is but another example of the difficult dilemma which faces a suspect who is asked to answer questions, and must consider whether to answer all, none or some of the questions. A species of the same dilemma faces the lawyer who is called on to advise the suspect. There are advantages and disadvantages in each of the three options. Much will depend on the strength of two matters, of the evidence implicating the suspect, and of the exculpating information known only to the suspect. The way in which the questions were formulated appeared unexceptional. The accused accepted that she understood the questions.
In my assessment, there was nothing about the police approach to asking questions in this case that was either sophisticated or inappropriate. In my view, they simply followed a familiar path. Detective Hubbard persisted in putting questions, including at stage 7. His position was that any answers he could get could prove important. As the cases that I have referred to above show, it is not inappropriate for police to be persistent. Detective Hubbard opted to continue with his questions after the accused said that she wanted to speak with her solicitor. In the circumstances, that was not, in my opinion, an unreasonable course. The context in which the reference was made was not such as to make her position unambiguous. Further, she had already spoken with an experienced solicitor three times. Further, when she had the chance at the break to ring her solicitor she opted not to do so. I do not accept that, in the circumstances, the reference by the accused to a lawyer was such as required immediate action. The reference was not clearly a request to see a lawyer immediately or even promptly.
At times, Detective Hubbard went about his questioning along the lines of following what lawyers are used to refer to, relative to witness cross-examination, as the rule in Browne v Dunn. In the witness context, it means putting to the witness other evidence and inviting comment. In the police interview context, it means putting to the suspect the available information implicating the suspect, and inviting comment. Underlying the rule in Browne v Dunn as to witnesses, and the police interview approach as to suspects, is the notion of fairness. It is fair to put the other or implicating evidence. Information which is apparently adverse may be shown not to be so if further perspectives are provided. There is a potential for other consequences, not necessarily intended, to follow once the approach of putting the available information is used. The suspect has time to digest what the implicating evidence is. The suspect has time to digest where the implicating evidence comes from. The suspect has time to reassess whether it is preferable to answer rather than not to answer. In the context of this interview, it seemed clear to me that the approach of putting the available information to the accused was what brought about her change of heart at stage 16. Once she realised the strength of the evidence against her, she reassessed her position. She then made the assessment that it was to her advantage to add her perspective.
As to the change of heart at stage 16, it is apparent from the videotape, that the accused was emotional for a period of some minutes. The emotion could have been for more than one reason. My impression based on what I saw of the accused on the videotapes and in the witness box was that the accused was a person disposed to be polite and co-operative. The accused herself said in evidence that that was how she was brought up to be. The show of emotion was consistent with her having been torn between being co-operative to a limited extent and co-operative to a substantial extent. She had been advised to be the former. She was disposed to be the latter. She became emotional when coming to the point when she decided to follow her disposition rather than the advice.
The matter of the reliability of what the accused said in answer to questions put in the interview was not raised by Mr Allen as a consideration going to unfairness. I would note that I did have a reservation as to reliability as to certain aspects of the accused’s answers. It was linked to the accused’s express concern not to tell the whole truth, since that meant informing on others. I refer to her answer to question 323. What, to my mind, particularly distinguished her account from that of Michelle Jackson, was that the accused declined to name other people in the way that Michelle Jackson had done. Men named Terrence, Sam and Mohamed were referred to in Michelle Jackson’s account. They were not mentioned in that of the accused. It was not just that she opted not to identify them. She denied that they were present at times when Michelle Jackson had given details of their presence.
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