R v Mustey
[2001] VSC 67
•16 January 2001
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1453 of 2000
| THE QUEEN |
| v. |
| SHANE MATTHEW MUSTEY |
---
JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 16 JANUARY 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 67 | |
---
CATCHWORDS: Admissibility of tape recorded conversation between accused and custodial officer – Whether accused was induced to make admissions – Voluntariness – Exercise of judicial discretion – Section 464 Crimes Act – Accused aware of his right to remain silent – McDermott v. The King (1948) 76 CLR 501; R. v. Lee (1950) 82 CLR 133; Cleland v. The Queen (1982) 151 CLR 1; R. v. Li [1993] 2 VR 80; R. v. Swaffield; Pavic v. R. (1998) 192 CLR 159 at p.210.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C. Hillman | Office of Public Prosecutions |
| For the Accused | Mr. I. Crisp | Victoria Legal Aid |
HIS HONOUR:
Prior to the empanelment of a jury in this matter, Mr Crisp of counsel, who appears on behalf of the accused man, objected to the introduction into the trial of evidence of the fact and substance of a conversation which took place in the Melbourne Custody Centre, on the night of Sunday, 5 September 1999, and which involved the accused and a custodial officer, Mr Peter Payne. Neither of those persons was called to give evidence before me, and I have considered the matter on the basis of the transcript of the evidence of Mr Payne given at the committal hearing and the audio tape recording of what transpired between the two men.
In support of this objection, counsel for the accused contended that Mr. Payne should be regarded as a person in authority with respect to his client and as having wrongly by his words and actions induced Mr. Mustey to make admissions causing his involvement in the death of the deceased. Accordingly, the argument proceeded, the statements made by the accused should be regarded as involuntary, or alternatively should be excluded in the exercise of judicial discretion either on the ground that their introduction would be unfair in the circumstances or contrary to public policy.
It appears from the available material that the accused became extremely alarmed when he received, at about 9 p.m. on that night, notice of an application to be made to the Magistrates' Court on the following morning for the opportunity to interview him in relation to the death of the deceased. As I understand the position, he had not been spoken to with respect to the matter at any earlier time and, until he received the Notice, as far as he was aware suspicion had not fallen upon him. This would seem to be reasonably clear from a part of the conversation in which reference is made to his lack of knowledge as to how the police attention may have been attracted to him and to the possibility that he may have left his fingerprints at the scene.
It also appears to be reasonably clear that the accused was unfamiliar with the provisions of s.464 of the Crimes Act and eager to learn whether an application of the kind of which he was given notice could be made.
Finally, in this context, it is significant, I consider, that the accused told Mr Payne in the course of the conversation that he had considerable difficulty sleeping following the death of the deceased. He was acutely conscious of the enormity of the legal and personal problems with which he was confronted and was possibly experiencing a sense of remorse arising from the death of Mr King. He indicated to Mr. Payne on more than one occasion that he was very scared and he spoke of the disappointments that he had occasioned to his adoptive parents, expressing the hope that they would not abandon him, once they became aware of what he had done.
Against that background, it is perhaps not particularly surprising that he decided that he wished to talk to someone about his situation.
I am satisfied on the balance of probabilities that the conversation which it is undisputed, was initiated by the accused man who, although aware of the potential detriment to himself in so doing, took place because he wanted to talk to someone as a consequence of his personal feelings and thought processes.
According to his evidence at the committal hearing, Mr Payne was mindful of his duty with respect to the care of persons in custody and, in particular, the need to pay close attention to the potential vulnerability and emotional instability of person who had not only received what would be reasonably regarded as alarming news, but who also expressed a high degree of personal anxiety. I have no difficulty in accepting his evidence on this aspect, particularly bearing in mind that he was the shift supervisor at the time. It is a matter of some notoriety in this community that deaths in custody in such situations are not unknown with the responsibilities of custodians having been the subject of at least one coronial inquiry.
Although I have been urged by counsel for the accused to conclude that the witness was not centrally concerned about that aspect, as I have indicated I am not prepared to reject the evidence which he gave at the committal hearing, and certainly not in circumstances in which it was not suggested by counsel that I should make a personal assessment of his reliability.
It is not inconsistent with this view to accept, as I do, that Mr Payne was appreciative of the possibility that the accused may have wished or been prepared to speak about the subject of the police investigation and that he was ready to engage him in conversation on that topic if the opportunity arose. In any event (and for more than one reason) Mr. Payne wanted to record what was said between the accused and himself without inhibiting the preparedness of Mr Mustey to speak to him.
Although unfamiliar with the provisions of s.464 of the Crimes Act, the accused, as his counsel has conceded and indeed argued, generally understood his rights under the law. Specifically, he knew that he had a right to remain silent and he appreciated the potential significance of any admission made by him to Mr. Payne. His statements and criminal history suggest that he had had some experience with the investigative process and that he was what might be termed "reasonably gaol wise". He was well aware of the position in which Mr Payne might find himself in the event that some incriminatory statement was made in the course of the conversation and recognised that he could not rely upon any communication between them remaining confidential. The accused made this evident, I consider, on more than one occasion, including the following exchange which appears almost at the very commencement of the conversation:
Payne: "Yeah. What, what's your big worry? Honestly I mean."
Mustey: "That I can't say."
Payne: "Well, but as I said."
Mustey: "No, because that makes you a witness."
Payne: "Well I mean, what this, well, well realistically we're only bloody talking amongst ourselves at the moment, all right? But what, all I'm worried about is you. Is it, is it going to be such a big problem for you talking about it, or not?"
Mustey: "I can't."
Payne: "You are obviously worried about the paperwork you got served on you."
Accused: "Yeah, really worried, mate."
Payne: "M'mm."
Accused: "Really, really am, yeah, right."
Payne: "Well, you're going to have to talk to someone about it at some stage, you know that, don't you?"
Accused: "I do, yeah, and I don't want to get you into court either."
Payne: "Oh, well, no, that's, that's not likely."
Accused: "And that turns against me."
Payne: "Well, that's not likely to happen, is it?"
Accused: "And if they did interview you." Payne: "Well, you know."
Accused: "You have to be honest, don't you?"
Payne: "Well, that's one thing, I mean, but the other thing is, it's a matter ---."
Accused: "And these cameras have got all the view of everything."
Payne: "Oh, yeah, well, I mean, the cameras, they only, they only take a picture. They don't record what's actually said, or anything like that."
Accused: "But they see you and me sitting here talking."
It appears to me that Mr Mustey encompassed the prospect that whether or not the conversation was recorded, a situation could arise under which Mr Payne might be called to give evidence against him. The fact of a conversation having taken place could then be corroborated by playing the video recording.
In a similar vein, the accused made the following statements:
Mustey: "Yeah, they want to make you a witness but mate".
Payne: "Hum".
Mustey: "Because everything that I've said is going against me."
At this stage, it should be noted that whilst the relationship between the accused and Mr. Payne was relatively cordial, both were aware of its setting and character. There is nothing to suggest that any bond of trust existed between them or that the circumstances or nature of the relationship could be regarded as calculated to create any pressure upon the accused to speak.
There are other references in the conversation to the appreciation by the accused that what he was saying might ultimately be used against him.
At one point Payne asked:
"That's not the bloke though, they reckon that got stabbed or some bloody thing. Whether they found him a week after he'd ---. Is that the one that was in the paper or some bloody thing?"
Accused: "Yeah, paper. I don't know whether to say too fucking ---.
Payne: "No, it'll, it's entirely up to you. I'm not pushing you or anything like that. I'll leave you to it if you'd prefer it, as I said, it's entirely up to you."
I am confident that the accused was well aware that this was the situation and that whether or not he spoke further on the subject was his personal choice.
Mr Mustey clearly distinguished between what he perceived as the situation of the witness and that of a medical practitioner to whom he made disclosures:
Mustey: "And I'm basically, I couldn’t get to sleep so."
Payne: "Haven't been able to sleep since. The trouble you might have of course, is before the nurse will be able to get you to, get you anything stronger, is he would, he'd probably have to get you in to see the doctor and get the doctor to prescribe it. And you'd probably have to tell the doctor why you want something stronger, and why you can't sleep."
Mustey: "I can't tell him that."
Payne: "Hey?."
Mustey: "Because you can tell the doctors, confidentiality and things like that."
Payne: "Yeah. Hum, that's right."
Mustey: "They can't be called in as a witness."
Payne: "Hum".
Mustey: "Because they're breaking confidentiality, they're breaking the practice rules."
Payne: "Hum."
Mustey: "And they can't do that. And he can give me the shot too."
Finally, in this context, I note the following passage:
Accused: "I just don't want to get you in trouble, mate."
Payne: "Yeah, well, if I'm in trouble, we're in trouble together by the sound of things."
Accused: "You might go for accessory."
I would also mention that the accused was sensitive at the time of the earlier conversation with the undercover agent to the possibility that the cell in which they were situated may have been monitored, for it seems that the only statements that he made which could be regarded as incriminatory were uttered in a whisper, in contradistinction to the other parts of the conversation which took place.
The question of voluntariness must be considered against the background of principles laid down in a string of cases, including McDermott v. The King[1], R. v. Lee[2], Cleland v. The Queen[3], and R. v. Li[4].
[1](1948) 76 CLR 501
[2](1950) 82 CLR 133
[3](1982) 151 CLR 1
[4][1993] 2 VR 80
I am well satisfied that the accused, who was aware of his legal situation, as a consequence of the provision to him of information that he had been identified as a suspect in relation to the death of the deceased in the exercise of a free choice to speak or remain silent, chose to talk to Mr Payne about his situation.
As earlier mentioned, it was also submitted that the evidence should be excluded in the exercise of discretion on the basis that it would be unfair, as that term is understood by the law, that the words of the accused man should be used against him. In substance, it was contended that Mr Payne deliberately misled the accused into believing that no recording of the conversation would be made and that he induced the accused to speak when he otherwise would not have done so.
It is, I consider, reasonable in the circumstances to accept that the accused was misled with respect to the recording of the conversation to the extent that the camera in the cell in which the conversation took place did not produce an audio record. However, he was, at the same time, as I have pointed out, aware of the possibility that evidence of what was said between them could be given against him and corroborated, to some extent at least, by the television monitor which could establish that a conversation did in fact take place. This was not a situation, accordingly, in which he was concerned about the protection of his right to silence, but whether or not what he said in the conversation could be established by means of a recording.
In a situation of a clearly voluntary conversation, the substance of which has in fact been recorded, thereby rendering it less likely that there could be misunderstanding or misstatement of what transpired, and which contains no suggestion of unreliability, bearing in mind the cautionary remarks of Kirby, J. recently uttered in the High Court in R. v. Swaffield; Pavic v. R.[5], I do not consider that the proper exercise of judicial discretion requires the exclusion of the evidence on the basis of the principle of unfairness enunciated by the High Court in R v Lee (supra), and in a number of later authorities.
[5](1998) 192 CLR 159 at p.210
Nor is it my view that the evidence should be excluded in the exercise of judicial discretion on the basis of the public policy considerations addressed by the High Court in Cleland v. The Queen. There was no illegal conduct, abuse of power or other factor present in this situation that would call for such a response.
---
4
0