R v Pirimona, Lawrence Stuart (No 2)
[1998] TASSC 67
•26 May 1998
67/1998
PARTIES: R
v
PIRIMONA, Lawrence Stuart (No 2)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: C164/1997
DELIVERED: 26 May 1998
HEARING DATE/S: 18 and 19 May 1998
JUDGMENT OF: Slicer J
CATCHWORDS:
Criminal Law - Evidence - Confessions and admissions - Voluntary statements - Voluntariness - Generally - General principles.
McDermott v R (1948) 76 CLR 501, applied.
Aust Dig Criminal Law [466]
Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Police interrogation - Discretion to exclude confessional statements - Generally - Confession improperly procured.
R v Deverell [1969] Tas SR 106; Walker v Viney [1965] Tas SR 96, followed.
Cleland v R (1982) 151 CLR 1; Van der Meer v R (1988) 62 ALJR 656, applied.
Aust Dig Criminal Law [427]
REPRESENTATION:
Counsel:
Accused: In Person
Crown: J N Perks
Solicitors:
Crown: Office of Director of Public Prosecutions
Judgment category classification:
Court Computer Code:
Judgment ID Number: 67/1998
Number of pages: 22
Serial No 67/1998
File No C164/1997
THE QUEEN v LAWRENCE STUART PIRIMONA (No 2)
REASONS FOR JUDGMENT SLICER J
26 May 1998
The accused sought exclusion of evidence of an interview conducted by police officers in connection with an investigation concerning stolen property, which resulted in his prosecution for the crime of unlawful possession, contrary to the Criminal Code 1924, s258. The bases of the application were:
That the admissions were not voluntary in that they were made as a consequence of the combination of the effects of medication and the persistent nature of questioning by police.
That the admissions were not voluntary in that they were made as a consequence of prolonged and oppressive questioning which overbore his will.
That the admissions ought be excluded, in the exercise of discretion, in that they were not fairly obtained but were made as a consequence of prolonged and impermissible questioning which amounted to cross-examination.
The latter two bases are interlinked in that although the former relates to admissibility, and the latter to discretionary exclusion, the reasons for inhibiting or limiting permitted cross-examination relate to the requirement that confessions be freely made.
Background
On the evening of 27 February 1997, a three metre aluminium dinghy, a custom built trailer, and two outboard engines were stolen from a marine yard in New Town. It has not been suggested that the accused was a party to the thefts. On 15 March, at approximately 5.45pm, Detectives Pratt and Ghedini went to the residence of the accused at Middleton where they located the vessel, trailer and one of the engines. Prior to the visit, the officers had reason to believe that two other men were involved in the taking and possession of the vehicle, and that it had been removed to the accused's residence because a domestic dispute involving one of those men might have resulted in information being provided to police concerning the whereabouts of the missing vessel. In addition, the officers had information provided by a Middleton resident which linked the accused to presence at or on the vessel when it had been used some two weeks previous. The accused showed the officers where the boat was located, and, during an initial conversation with the officers, claimed that the vessel had been left at his premises a "couple" of weeks previous by a person named Greg, who was the driver of a green Datsun 200B sedan. Detective Pratt informed the accused that the vessel had been stolen. The accused accompanied the detectives to the Kingston Police Station, arriving there at approximately 6.55pm.
Interview
The primary aim of the investigators was to ascertain whether the suspect had knowledge of the status of the vessel. From their questioning, it is apparent that they possessed relatively comprehensive knowledge as to those responsible for the taking or earlier storage of the vessel and the circumstances giving rise to its movement to Middleton. According to the timing mechanism displayed on the tape, the interview commenced at 7pm and concluded at 8.05pm. Much of the questioning could be described as lateral, but, in general terms, was directed at the description and movement of other persons, the various locations of the vessel and the knowledge of the accused. The first tape concluded after some 45 minutes and there was a gap before the second tape commenced. There appears to be no procedure designed to ensure that nothing untoward occurs during an unrecorded period, other than a timing device displayed on the tape. Whether that is susceptible to manipulation is not known. There was no use made of any "zoom" or close-up filming of any of the persons in the interview room, and it is impossible to examine in detail the facial expressions, body movements, and the like, of the accused. That absence renders it more difficult for a "fact finder" to make assessment in cases such as this. Given that the Crown has the onus of proving that each confession is made voluntarily, any reservation held because of absence of detail, ought not disadvantage a suspect. The control of the recording machine remained solely with the officers. The duration of the interview was some sixty-five minutes. At its conclusion, the accused took part in an interrogation procedure conducted by a Sergeant Kline. The Crown neither called nor proofed his evidence, or made available to either the Court or the accused a copy of the register of persons interviewed. Neither did counsel attempt to lead the evidence on the voir dire, and it was left to the Court to enquire as to whether the procedure had been conducted. Counsel for the Crown, unencumbered by authority, contended that such evidence was neither relevant nor admissible. The absence of such evidence deprived the Court of the opportunity to hear from an officer independent of the investigation, who might have made observation of the condition of the accused.
Voluntariness and Intoxication
The accused did not give evidence on the voir dire. That he did not, might have been because of his belief either that the putting of questions to others concerning a claimed ingestion of tablets, or his assertion from the dock, was sufficient; or it might have been a tactical decision, although he had gone into the witness box at the earlier hearing of his application for stay. He relied on the evidence of a medical practitioner who confirmed that the medication Normison and Serapax had been prescribed regularly for the accused at the relevant time, and gave opinion evidence of the effect of Diazepam on consciousness, capacity for thought and tiredness. He observed portions of the video taped interview, following which he stated:
"WITNESS: Yes. I looked at the first five minutes and during that time he appeared alert, attentive to the questions, his responses seemed brisk, his speech was normal, and the motor control of his hands and moving glasses and signing the papers all seemed fairly normal to me.
...
WITNESS: I then look at the last five minutes and I think really his speech was slurred at times, he appeared to be slouching more. Apart from that I couldn’t detect any other gross changes except that his answers were slower but they were in response to questions that required more thought.
...
HIS HONOUR: Now you noticed - sorry, now you told me that his speech was slurred at times and that was one of the possible consequences of Serapax?
WITNESS: Yes.
HIS HONOUR: Before you looked at the video. Are you able to offer an opinion as to any possible link between the Serapax and the slurring as distinct from slurring through tiredness or would you just speculate.
WITNESS: No, I don't think I can distinguish.
HIS HONOUR: Right. The second, slouching, that’s just an observation you made, I presume.
WITNESS: Yes. That could be consistent with a long interview or just an accumulated effect of Serepax as well.
HIS HONOUR: And then his answers were slower but they were in response to questions which I presume required greater attention.
WITNESS: Yes.
HIS HONOUR: Would that reduce[d] capacity, be consistent with Serepax use?
WITNESS: Be consistent with it, yes."
His evidence, given following the observation of the video tape, has bearing on other matters in issue, but does not assist the accused in relation to this basis on which it is sought to exclude the confession. There is no evidence that the accused ingested any medication prior to the interrogation. There is no basis warranting the conclusion that the evidence is inadmissible on this ground.
Voluntariness and Oppressive Questioning
A reading of the transcript does not afford a "real" perception of the manner and form of questioning and response. The transcript does not adequately convey pause, hesitation or confusion. A perception gained by textual analysis is heightened by direct observation. The Crown contention is that the reality of the questioning discloses prolonged evasion, whilst the accused claims that two answers claimed to constitute admissions were the product of fatigue and oppression. In order to provide some guide to the time spent on various areas and topics comprised in an interview, it should be noted that the length of the interview was some sixty-five minutes and the transcript occupies thirty-nine pages.
Much of the earlier part of the interview was taken up with the man "Greg", his relationship with the accused and the movements of Greg and others and the vessel. This occupied some seven pages of the transcript. This portion of the interview included questions such as:
"QRight, well it's reasonably important as you can imagine that you be pretty specific about dates and times and everything alright.
A Well, I don't want any of the [sic] this on my back.
QNo well I can appreciate that but unfortunately as we've already said in the notes and all that sort of thing, the boat is stolen ...
A Mmm.
...
QWhich is a problem for you of course, right so that's why I'm saying it's relatively important that you try and remember and be specific about the events, so do you know what the day is today?
ASun..., Sunday, yeah.
QSaturday.
ASaturday.
...
QSo you're not real good with times or dates?
ANo, I'd forget a bit.
...
QBut it's a bit of an odd time to, to arrive?
AWell I didn't know what time they were gunna arrive, they just landed there that time.
QYeah but don't you think it's an odd time to arrive?
AOh yeah definitely, yeah.
QIt didn't strike you as strange or anything like that?
AWell if he saying he coming down, well he's coming down, when he arrives well he arrives, that's the way I took it."
The second phase occupying five pages concerned the topic of why the vessel was left at the accused's premises, times of arrival, nature of vehicle used and the claim that a clutch had burnt out, which prevented the man from taking the vessel to his own residence. The questions explore the motives and reasoning process of other persons and include:
"QWhy didn't he tow it just straight home, why did he tow it back up to your place?
AI dunno, he just wanted it up there and said be alright if I leave it there till I get the car fixed, I said well it's out of the road there.
...
QSo why then go to all the trouble of towing the boat up your driveway when he could just as easily tow it back to his place on a basically level road, oh of course there's hills and all that but it's level compared to your drive, and take it back to his place?
AI can't answer that."
There is some incongruity between question and answer. The answers are consistent with evasion arising from guilt, desire to protect another, or confusion. At this stage (t15), Detective Pratt introduced his own view of the responses and commenced to point out the problems he saw in the account, as evidenced in the following exchange:
"QI say it's because there's more to the story and that you knew that the boat's stolen and that's why it was left down there at your place because it's out of the way isn't it?
ANo, no, I know when he, when he was s'posed to get the car fixed and s'posed to come back, well I haven't seen 'em yet and as far as I'm concerned the boat was just sitting' there, I can't do anything with it.
QYeah I, I'm not suggesting that you are going to do anything with it or have done anything with it, but what I'm saying is that the reason that it was left at your place is because the, they, they and yourself knew that the boat was stolen and that it was left at your place which is out of the way down there at Middleton for safe keeping?
ANah, no he had his clutch burnt out that bad, he just, he wouldna got it home.
QIf it was burnt out that badly, he wouldn't have even got it up your driveway would he?
AAnd she stank.
QI don't doubt it did but if it was burnt out that badly and he couldn't tow it to Hobart, he certainly wasn't gunna get it up your driveway.
AOh well, I can't help, I can't help to differ."
Returning to the identity of "Greg", he introduced the names of two males, adding:
"Q Why didn't you tell us that a minute ago?
A Well I didn't know what, what you knew, or what, you know.Q That's right, you don't know what we know.
A But when, when you say well then it's startin' to come back in.Q So did you hear his name mentioned as Christopher Allan?
A Not his full name....
QThis Greg Williams, I want to know more about him, I want to know where he lives, I want to, I want to go and speak to him, so how am I gunna find him?
A I dunno, wouldn' have a clue where he'd be.
QPut it this way Laurence, this Greg Williams, so you say, or if that's who he is, has dropped a stolen boat at your place ...
A Yeah I know that now.
Q What do you think about that?
A Not nice."
Shortly before halfway through the interview, Detective Ghedini took over the questioning, having asked at an earlier stage:
"QWell, you just told us a minute ago and earlier on in the interview that you'd known him for four or five years, surely you'd know whether he's got a job or not, he spent a night at your house?"
Before returning to questions concerning the placement of the vessel at Middleton, and directing the accused's attention to a third name, he also expressed disbelief in the responses, stating:
"QI don't mean to be rude or anything but I find this very hard to believe. Now Don Smith's his father, it was his boat, Don Smith lives at Mangalore, you went there to have a look at the boat. Did they offer it to you for sale did they?
ANo, no."
His questioning occupies five and one-half pages of transcript, at which stage, Detective Pratt resumed the questioning. He introduced the name of a women who was the partner of one of the men earlier mentioned and suggested that the boat had been moved from Mangalore to Middleton since the woman might have informed because of a domestic altercation, and, used argument to make the point, as the following exchanges show:
"Q Right, but he, he mentioned that he had a bit of a blue with her ...
A Yeah, something to that effect.QSo if he mentioned that to you, he would have mentioned the fact that because there'd been trouble, she would have told the police about the boat up there and he had to move the boat from his house wouldn't he?
A Mm.
Q Is that the case?
A Yeah, yeah I see what you're sayin'.Q Well is that the case?
A Well, yeah.QRight, so he told you the boat was stolen that night, at two o'clock, well about two o'clock in the morning didn't he? And that he had to bring it to your place because ...
ANo, no, no, he didn't tell me the boat was stolen, he said he was bringin' the boat down.
QYes.
AHe was bringin' the boat down and we'll go out fishin'.
QYeah but did he, alright, when he arrives at two o'clock in the morning, had he rung you to tell you he was coming down?
AYeah he said he'd be down but I didn't expect 'em that hour.
QRight when did he s.., when did he ring you to say he'd be down?
AOh in the afternoon.
...
QRight, did he then also tell you that he had to bring the boat down to your place because Teresa would have told the police that the stolen boat was up at his house?
A Nah.
Q And that's why he had to come down at two o'clock in the morning.
A Mmm.QAnd that's why he had to leave the boat at your place didn't he? Because he told you that the boat was stolen and it had to be left down at your place out of the way, because of all the trouble that was going on up at Mangalore or Bagdad or wherever?
AMmm.
QIs that the case?
AWell I, I don't know if it was hot, that's straight up, I don't know, and he said he would be down with the boat and we'd go fishin', well that, that's where I was."
Detective Pratt put his proposition or belief:
"Q Right, how did you tow the car, how did you tow the boat?
A On, on their car.QAlright, listen, just a second ago, in your last sentence, you told us that on last Tuesday you were up there and they were working on his car ...
A Mmm.
Q ... so the car wasn't fixed was it?
A Right....
QWell if the clutch hadn't fully gone, why didn't they tow the boat home with them on the first night?
A I don't know.
QYou do know because you know that the boat is stolen and that's why it's at your place isn't it, to be kept out of the way down there and this story about clutches going in cars, quite conveniently, is absolutely absurd. What you're saying just doesn't make sense.
AWell I can get somebody to verify that the clutch was stuffed.
QI don't doubt that they may have had trouble with the clutch, but it certainly wasn't stuffed to the extent that they couldn't tow the boat back to Hobart, because if it was that bad they wouldn't have dome down a weekend later, towed the boat back down, taken it out fishing and then taken it back up to your place, would they? Because you've already told us that your driveway is by far steeper than any other hill on the road between Hobart and Middleton?
AMmm.
QSee it doesn't make sense does it?
AI dunno. What, what is this all boiling down, is it, is it coming down on my shoulders or something."
The portion of the interview thus described occupied over forty minutes of the interview, or some thirty-three pages of a total of thirty-nine. Some of the questions could be said to be of the nature of cross-examination and might be permitted by virtue of the test applied by Zeeman J in R v Stewart A25/1993, at 5:
"What a suspect says during the course of an interview may be unacceptable to police officers but nevertheless the suspect is not required to say what is acceptable. It is permissible for police officers during the course of an interview to be reasonably robust. They are not required to accept the first explanation offered by the suspect. But it is important that what occurs is properly recorded. If police officers find it appropriate to use a fairly robust method of questioning then, if that is recorded, juries will be able to make up their own minds as to the reliability of the answers given."
It may be that until this point, the questioning remained within acceptable limits. The two detectives interchanged roles in questioning, and such might be relevant to the question of tiredness. However, at this stage the form of questioning altered. It is obvious that at the time of the arrival of the police, the accused was made aware of the status of the vessel and it is certain that he knew such to be the case at the time of the interview. The detectives were seeking to ascertain his knowledge held prior to their arrival. But the questioner commences to vary the tense of knowledge within each question.
"QWhat it boils down to is the fact that at your house you have a boat which is stolen and I believe that you know the boat is stolen, I'm not alleging or implying in any way that you had anything to do with the theft of the boat, but what I am saying is that the boat which is stolen is at your place and you knew it was stolen.
ANah.
QAnd I believe that because you're basically just running us around in circles by telling us different names, of different times, but this, like I say this story with the clutch in this car is absolutely fanciful, and I believe that you're just, like I said, running us around in circles because you know damn well that boat is stolen.
AIt that boat was stolen and ..inaudible.., it's his, it's his business, it's not my business.
QNo, like I said a second ago, right, not in any way am I implying or alleging that you stole the boat or had anything to do with the theft of the boat, what I am saying is the boat is at your house and you know that either Chris, Mary, whatever his name is, and possibly Wayne, had stolen the boat and that while the boat was at your place, you knew it was stolen property, that's what I'm saying.
AMmm.
QDo, do you follow what I'm saying to you?
AYeah I follow what you're saying.
...
QI'm not saying that you went out to Maynes Marines and stole the boat, I am not saying that at all, what I am saying is that the boat is at your place and you know that the boat is stolen and that you were just probably keeping it there for Chris and Wayne?
AWell it def..., it is sittin' there waiting for them to come and get it.
QYeah, but they're probably quite rightly so, but you know that the boat was stolen don't you?
AI know now.
QYeah but you knew before we turned up that the boat was stolen, you knew pretty well that the boat was stolen when they turned up at two o'clock in the morning?
AYeah I thought it was funny, that hour, I didn't expect that.
QAnd the reason that they turned up at two o'clock in the morning is, with it, was because the ..."
The mixing of tenses after some forty-five minutes of questioning might not have been deliberate, but the methodology was liable to confuse, and any affirmative response regarded as acknowledgment of prior knowledge. It was at this stage that the recording ceased. There is no way of verifying what might have occurred during the change over. The statement made by the officer immediately after resumption, "Right Laurence, we just had to stop that and change tapes over, do you agree that whilst we were doing that we did not discuss this matter at all?" meets some, but not all of potential dangers. In this case it matters little, since there is no suggestion of anything untoward occurring during the change of tapes. On resumption, Detective Pratt continued the questioning concerning the behaviour of the other persons and returned to the location of the vessel in the following exchange:
"QYeah and a few months ago, he didn't have this boat that was at your place up there did he?
ANah.
QThen ...
ANo well the first time I saw the boat was when he come up there, up to my place.
QYeah that's right.
AYeah.
QYeah so it wasn't up at his place when you were up there few months ago?
ANo.
QThen why would he have, all of a sudden, another boat?
AI dunno.
QYou didn't think that was strange either?
AWell I didn't ask questions.
QWhy didn't you ask questions?
ADidn't think.
QOr is a case of don't ask questions, you don't get the right answers?
AI didn't think to ask, possibly yeah, yeah I know, if you don't ask questions you won't get told no, no crap.
QThat's right, because you didn't want to hear any crap did you?
ANah.
QAnd why didn't you want to hear any crap?
AWell I don't want no troubles.
QThat's right, because you thought that the boat was stolen?
AYeah I s'pose, yeah.
QYeah and surely when you thought about it and you talked about it and he told you about the trouble with his wife, he told you that the boat was stolen didn't he?
A ... Yeah, yeah, when we went out fishin' yeah."
It is the last two answers on which the Crown relies as admissions. It should first be observed that the last answer was in response to a question which contained a number of propositions. It may be that the assent related to acknowledgment of having been told about the domestic altercation. But the questions and answers immediately following that exchange make it less certain that the claimed admissions were not a result of confusion and passivity produced by the length and nature of the cross-examination, since they indicate an assumption on the part of the questioner and a concession by the accused that he knew the vessel to be stolen only at the time of the arrival of police.
"QSo you would have got a fair shock when we turned up down there this afternoon?
AOh yeah, but it didn't worry me because there was, you know, like I said, it's got nothing to do with me, just the fact that it's there.
QBut you knew it was sto..., when we turned up and we asked you about the boat, I mean, fine you took us to it, you took us, showed us straight to the boat ...
A Mmm.
Q... but you knew that when you showed us to the boat that the boat was a stolen boat?
AWell it was there and it was obvious.
QHow do you mean it was obvious?
AWell everything was there, to what you wanted, numbers and everything.
QBut you knew it was stolen?
AWell I'd heard, yes.
QYeah.
AYeah.
QDid you um, you didn't think of ringing the police or anything like that to say ...
ANah.
Q... I've got a stolen boat here?
ANah.
QWhy didn't you do that?
AOh I dunno, just, oh I dunno, I've got that twen.., that many things on me mind that everything doesn't fit.
QYeah, fair enough. So bearing in mind you knew it was stolen, what was the arrangement, were you gunna keep it down there for a while or ...
ANo he was gunna come back and pick it up."
The onus remains with the Crown to show that the confession was voluntary. The test remains that laid down by the High Court in McDermott v R (1948) 76 CLR 501, namely that:
"At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary." (Dixon J at 511.)
It is not necessary in this case to consider the question of whether the loss of will must result from the conduct of the second person (Sinclair v R (1946) 73 CLR 316; Morris v R (1987) 163 CLR 454 at 464 - 465, and generally Law of Evidence in Australia 2nd ed (1991) at 543 - 544), since any tiredness, confusion or loss of will could be said to have been caused by the extent and form of questioning. Examination of the transcript and viewing of the video tape indicates persistent denial by the accused of prior knowledge, confusion in many areas of questioning and an eventual passive acceptance of the force of the arguments put by both interrogating officers. Those officers were determined to pursue the matter until the desired result had been achieved. An example of the lack of preparedness to allow the accused to put a contrary view is illustrated in the following exchange occurring during the interview:
"Q Listen who do we know this person as, Greg or Wayne?
AWayne, Wayne Greg, now I've had, I've had the same thing happen to me over in Bruny Island this afternoon, right.
Q What happened to you at Bruny Island this afternoon?
AOh went across over there and we just sittin' over there having a few beers on, on the side of the road there, on the corner, ... inaudible ... police come down on us, we're only over there for a bit a fun, you know, goin' down the pub there and all that.
QYeah, well ...
ASo we sorta got shunted out of there, had to come home.
QFine, I'm, to be perfectly honest I'm not really interested in what happened this afternoon, alright, this person that you drink with at the Russell, or you drunk with at the Russell Hotel and said he was coming down to go fishing, who is he, what's his name?
AOh it's Greg, Greg Williams."
The import of the exchange can be seen when the matter was raised by the accused during the voir dire:
"Another question I would like to ask is, on the video there I did mention something about being on Bruny Island? ... Yes, that’s correct.
Now you weren't interested but I am interested because Greg Williams spoke to the Police and the Fauna Board, his name was given as Greg Williams, what am I to do or what am I to say to that?
MR PERKS: Your Honour I don't think the witness can answer this question, if it is a question?
MR PIRIMONA: Your Honour I am trying to state that I know the man as Greg Williams and ---
HIS HONOUR: Yes, well I understand that. The Crown they'll object to you asking questions which may have some impact on their case I suspect so I will hear the objection first.
MR PERKS: Well the objection is ---
HIS HONOUR: Is it to the form of the question, is it to the relevance of the question?
MR PERKS: I didn't understand - the form of the question, I didn't understand, I didn't understand the question, it was prefaced by a statement 'I'm interested in it' and then Constable - Detective Pratt was asked to express an opinion about something of which he has no personal knowledge. That seemed to be - that's the basis of my objection. It may well be cured by rephrasing the question, but it's a Voir Dire. If your Honour is content that the witness can answer the question I withdraw the objection.
HIS HONOUR: No I'm not asking you to withdraw your objection, you have made an objection. Mr Pirimona, the Crown has objected to that question, can you put it in a different form, please?
MR PIRIMONA: Yes, your Honour. When we were on Bruny Island that day his name, licence was Greg Williams, this is all I am trying to state as to the case, sir.
HIS HONOUR: All right. Do you object to that question, Mr Perks? You do?
MR PERKS: With respect, your Honour, it is not a question.
HIS HONOUR: I suppose the difficulty is that if I understand what he's getting at and I intervene we're going to have another objection by the Crown because I dare to ask a question of a Crown witness.
MR PERKS: I don't think that's fair, your Honour. If your Honour understands what Mr Pirimona is getting at I'd be quite content if your Honour asked the question.
HIS HONOUR: Thank you, Mr Perks.
HIS HONOUR: Constable Pratt, do you agree that this man attempted to tell you something about events on Bruny Island that afternoon?
WITNESS: Yes, he did.
HIS HONOUR: Would you agree he attempted to tell you or commenced a story about being intercepted or having some meeting with Parks and Wildlife?
WITNESS: Certainly police and I think, from what he just said then, Fauna Board, I think he referred to.
HIS HONOUR: And would you agree that you cut him off?
WITNESS: No, I would disagree to that.
HIS HONOUR: You would disagree. All right. Well we’ll find it and I’ll read it to you. You’re probably right and I’m probably wrong. My memory seems to say you said you weren't interested but I might be wrong.
WITNESS: Page 23 of the interview, your Honour.
HIS HONOUR: I wasn't looking at 23, I was looking at 24 where it says 'To be perfectly honest I’m not really interested in what happened this afternoon.' Did you say that?
WITNESS: Yes, I did.
HIS HONOUR: I thought you just told me that you didn't say that you weren't interested.
WITNESS: No. I believe that I was asked if I cut him off and I said I don't believe that I cut him off.
HIS HONOUR: Now the point that the witness is attempting to put to you is this, assuming that he was - sorry, I'll start again. Your line of inquiry was basically that you didn't believe this Greg Williams story.
WITNESS: That's correct.
HIS HONOUR: And what the witness [sic accused] is putting to you is had you been aware that on that afternoon he had been intercepted by police officers and there was a person present who had given his name to police officers as Greg Williams, might that have affected your inquiry? Is that what you're after, Mr Pirimona?
MR PIRIMONA: Yes, sir.
HIS HONOUR: Yes, I understood the question. What do you say about that?
WITNESS: I believe that the way the answer was being given it was more about a complaint that as to what had occurred on Bruny Island rather than the accused trying to establish that he was with Mr Williams, or Greg Williams, at the time.
HIS HONOUR: But you didn't let him continue did he?
WITNESS: That's his point.
HIS HONOUR: And the reason you didn't let him continue because you had tunnel vision you wanted the answers you were going to get and nothing was going to stand in the way, that's the point that he is putting to you?
WITNESS: I can see that, that I do not believe is the case. As I said the way his answer was running I did not believe that it actually related to Greg. Williams, it appeared to me to be more a complaint about what had happened at Bruny Island in relation to the Police and National Parks.
HIS HONOUR: But he didn't get to finish did he?
WITNESS: I'm sorry your Honour?
HIS HONOUR: I'm sorry, you didn't wish to answer my question.
WITNESS: Sorry, I didn't believe there was a question.
HIS HONOUR: Right, thank you. Mr Pirimona you go on with your questions.
MR PIRIMONA (Resuming): A question, why weren't you interested in finding out what had happened to me during the day? ... I was conducting an interview with you in relation to the boat. At the time in the interview there was some discussion between, over whether it was actually Greg Williams or it was Wayne Maxwell Smith. You started going on or talking about in the interview about an event that had occurred on Bruny Island. I was not of the belief at that time that it had anything to do with the thrust of the interview of what we were talking about.
No more said.
HIS HONOUR: Had you been aware that there was a man Greg Williams who had given his name as such to the Police at Bruny Island on that day would that have affected you?
WITNESS: If Mr Pirimona said at the time that I was with a Greg. Williams at Bruny Island.
HIS HONOUR: Let’s go back to look at what page were you dealing with?
WITNESS: I believe the reference to Bruny Island starts on page 23 and then continues across onto 24.
HIS HONOUR: You see the question is, 'Listen, who do we know this person - whether it's Greg or Wayne, Wayne, Greg, Wayne Greg. Now I’ve had the same thing happen to me over at Bruny Island this afternoon.' Do you see that answer? ... Yes, I do.
Well on one approach - that answer - because he'd had the same problem about a mixture of names Wayne and Greg and that had occurred that very afternoon, that's - - - ... That is correct.
And he starts - you say, 'What happened?' He commences it and then you say you're not really interested. That's the point that Mr Pirimona has made. ... Yes, but when I say, 'What happened to you at Bruny Island this afternoon?' That is obviously trying to establish what did happen there from his statement or from his answer to the question before. Then he goes on to say, 'Oh, I went over there, we were just sittin' over there havin' a few beers on the side of the road there, on the corner. The police come down on us, we were only over there for a bit of fun, you know, goin' down the pub there and all that.'
And then you interrupt, 'Yeah, well' - - - ... I took that to be a fair length of an answer that appeared to be more a complaint about the way they had been treated or more of a comment on what had happened over there in relation to the police rather than him saying, 'Well I was with Greg Williams, he gave that name to the police this afternoon.'
Well if you'd found that out it might have affected you? ... It might have been but when I asked him what happened there on Bruny Island this afternoon there was no answer as such, 'Well Greg gave his name to the police as Greg Williams.'
No, you didn’t let him finish did you? ... Well - - -
Anyway, Mr Pirimona, any other questions you want to ask?"
The exchange illustrates both the difficulty occasioned by the Crown not making allowance for the less than perfect skills of an unrepresented person, and of the investigating officer pursuing a fixed idea. It would appear that during the interview, the accused was attempting to say that the man he referred to as Greg (and whom the officers believed to be Wayne) had provided such name (falsely or otherwise) to police or Parks and Wildlife officers and that such could be verified.
The persistence of the questioning produced an alteration in the manner of response on the part of the accused. On that issue, the evidence of the medical practitioner, already referred to, is relevant. He noticed an altered state on the part of the accused, possibly caused by tiredness. The detectives alternated the questioning and each time the accused failed to make answers satisfactory to the officers, a new line of attack, topic or argument was launched. The effect of that could be said to have produced an acceptance or passivity resulting in two answers which themselves cannot be considered in isolation. The Court is not satisfied that the answers were not given by a person whose will to make answer had been overborne by oppressive questioning. The Court is not satisfied that the Crown has proved that the statements made in the latter part of the interview were made voluntarily. The Crown does not seek to have a portion of the interview admitted, and contends that all or none should be admitted.
It is for these reasons the Court ruled that the evidence ought not be admitted on the trial.
Discretion
Had the evidence been admissible on the basis of voluntariness, it ought nevertheless be excluded in the exercise of discretion. The inter-relationship of the Judges' Rules and the discretionary exclusion of evidence in criminal trials has been analysed by Crisp J in R v Deverell [1969] Tas SR 106. In his words, at 109:
"... these Rules are not rules of law - they are merely prima facie and general guides to fair conduct. They are not to be invoked as shibboleths, repeated as empty ritualistic formulas. Some meaning has to be sought for them in the particular context of the case in which they are invoked."
The relevant rule is r7, which states:
"(7) A prisoner making a voluntary statement must not be cross-examined, and no questions should be put to him about it except for the purpose of removing ambiguity in what he has actually said. For instance, if he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week and day of the month which do not agree, or has not made it clear to what individual or what place he intended to refer in some part of his statement, he may be questioned sufficiently to clear up the point." (Halsbury 3rd ed 472.)
The accused was a person in custody, although he had not been placed under arrest (R v Amad [1962] VR 545). Police officers ought afford such a person fair conduct, either by reason of administrative instructions contained in standing orders, or because the law permits the rejection of evidence attained by unfair or illegal means (R v Ireland (1970) 126 CLR 321, Cleland v R (1982) 151 CLR 1). Although a breach of the Judges' Rules does not, of itself, result in the exclusion of evidence (Walker v Viney [1965] Tas SR 96):
"... where there is a clear breach of an unambiguous provision in the Judges' Rules, it is the duty of the trial judge to exercise his discretion and, in exercising it, to bear in mind that to admit inculpatory evidence in the face of a clear breach of the Judges' Rules is largely to stultify the purpose of the Rules." (R v Whitford and Widdowson [1980] Tas R, Everett J at 100.)
The import of r7 is linked with the requirement that a confession ought not be the product of a will which has been overborne by oppression. Lengthy and complex cross-examination of a suspect alone and in custody, by experienced investigators working in tandem, might well produce passivity or helplessness resulting in the interrogators being told what they wish to hear. The problem has long been recognised (R v Histed (1898) 19 Cox CC 16). As Zeeman J said in R v Stewart (supra), the rule does not preclude robust questioning where there is proper recording, nor does it prevent further probing and testing within reasonable bounds, but it ought not be permitted in circumstances where:
"... it was carried to unreasonable lengths and zealousness overrode discretion." (R v Lavery (1979) 20 SASR at 460.)
As Williams J observed in McDermott (supra) at 517:
"But the mere asking by the police of a question which would only be asked in cross-examination at the trial does not, in my opinion, amount to cross-examination ... A cross-examination for this purpose would be an examination intended to break down the answers of the accused to questions put by the police to which they had received unfavourable replies."
This was such a case. In the words of Mason CJ in Van der Meer v R (1988) 62 ALJR 656 at 661 - 662, the cross-examination:
"... infringed the principles which are designed to preserve the suspect's right to silence and it subjected the applicant(s) to the kind of pressure to speak which the law strives to prevent."
The questioning under consideration by the High Court in Van der Meer was not dissimilar to that conducted here (see Deane J at 671) and also involved the putting of questions based on the conduct and perception of others. In Van der Meer, Deane J, at 673, regarded such form of questioning as constituting:
"... disregard of the right to silence; persistent hostile (and sometimes demeaning) cross-examination, persistent (and sometimes misleading) selective use, in the course of such hostile cross-examination; of allegations asserted to have been made by others; persistent requests to explain why others would make such allegations; ..."
Some of those characteristics are present here, such as reference to the domestic discord existing between two named persons which resulted in the transfer of the vehicle.
The conduct was in the nature of cross-examination, it was in breach of the principles of permitted interrogation and it ought be excluded in the exercise of discretion.
Stay of Proceedings
When the ruling was pronounced that the confessional evidence would be excluded, the Crown tendered no evidence on the trial, and, accordingly, the jury returned a directed verdict of acquittal. Had the evidence been admitted, or the Crown decided to proceed in the absence of such evidence, the Court would, nevertheless, of its own motion, have ordered that further proceedings be stayed. It is appropriate that reasons for this foreshadowed decision be given, since they might prove of assistance in future cases involving unrepresented persons. Counsel for the Crown declined an opportunity to make submissions on this question.
The accused was unrepresented, and, in judgment R v Pirimona 49/1998, the Court gave reasons why, at that stage, proceedings should be allowed to continue. Much was said during the course of that hearing about the capacity of the Court to afford procedural fairness, and of the willingness and ability of the Crown to ensure that it did not receive advantage by reason of imbalance, or cause prejudice to the accused by its own conduct. Regrettably, such has proved not to be the case. On 11 May 1998, the Court attempted to ensure that the accused had all necessary documentation, was aware of the nature of the case, and was able to procure the attendance of his witness or witnesses. Counsel for the Crown was aware of the difficulties facing both the Court and the accused in the impending trial. A number of matters arose before and during the trial which cause concern for the conduct of future trials of this nature. They include:
No jury list was provided to the accused. The Criminal Code, s328, provides:
"Upon the application of a person against whom an indictment has been filed the Crown law officer filing such indictment shall supply such person, 2 clear days at least before the day of trial, with a copy of the indictment and a copy of the jury panel free of charge; and shall permit such person, upon his trial, to inspect, free of charge, all depositions taken against him and forwarded to the Attorney-General."
It is true that the accused made no such application. The Court had provided him with an extract of the Criminal Code, s258, but not s328. To that extent, the Court was remiss. But an officer of the Crown ought not rely on the absence of an application to comply with the spirit of a statutory obligation. As it turned out, the accused was only provided with a copy of the jury panel immediately before the first juror was called, and then only after enquiry had been made by the Court.
Immediately after the making of an opening statement, counsel for the Crown tendered, through a forensic witness, a set of photographs depicting the scene of the premises and the location of the stolen property. The photographs were relevant to the question of whether the property was hidden, and, during the course of the trial, the accused attempted to make something of this issue. The photographs were provided to the accused some minutes before the trial commenced. No explanation was given, other than oversight, as to why the material had not been earlier provided to the accused. That failure had the potential to disadvantage the accused.
A record of prior convictions of the accused was included in the Crown papers provided to the Court. The purpose of this practice remains unclear, but it warranted, in this case, a similar provision to the accused. Had he put character in issue, counsel for the Crown would have been entitled to cross-examine the accused on his record. The accused was entitled to know in advance the contents of such a record so that he could consider potential risk, check accuracy and prepare any response to questions based on that record. The documentation was not provided until Court intervention during the trial.
On 11 May, the Court made enquiry as to whether the accused had received a copy of the video tape of the interview between detectives and himself. The accused had, in an affidavit sworn on 27 April in support of his application to stay proceedings, deposed that prior to the interview he had taken medication which impacted on his capacity to make rational answers to police questioning. Such was said to be relevant to the issue of the admissibility of the interview. The accused was cross-examined by the learned Director of Public Prosecutions on the contents of that affidavit. The Court was subsequently told, in the presence of counsel for the Crown, that the accused intended to call, as a witness, a medical practitioner. The events depicted on video, as distinct from transcribed answers, were relevant to the case of both parties. The Crown made an offer limited to inspection, to be arranged by a Crown clerk, at its offices, basing its objection to the provision of a copy on the ground of policy. Faced with a possible stay of proceedings, counsel for the Crown agreed to make a copy available to the accused. The reasons for such requirement ought to have been obvious. It afforded the accused opportunity to view his behaviour and mannerisms, and permit him to have the recording viewed by his medical practitioner. On 11 May, the copy tape was provided to the accused, but at that time, he was required to sign an undertaking in the following terms:
"I Lawrence Stuart Pirimona being charged with receiving stolen property hereby request on loan a copy of the video tape of the interview with the Police relating to the above matter and acknowledge that the tape and its contents shall remain at all times the property of the Tasmania Police Force.
I hereby undertake:
(a)To use the tape only for briefing with my counsel and any material witnesses;
(b)To retain the tape in my possession at all times and not to copy or in any way reproduce electronically the material which is recorded on the said tape;
(c)To return the tape to Craig Coad at the conclusion of the criminal proceedings commenced against me or at the request of the Office of the DPP.
L S Pirimona
Date:11/05/98"
The existence or requirement of that undertaking was not made known to the Court by counsel for the Crown at any time prior to the commencement of the trial. Before the trial commenced, counsel for the Crown required of the accused the return of the tape. Not only was the requirement to return the tape in breach of the undertaking, signed by the accused (par(c)), but it amounted to a presumptuous interference with the capacity of the accused to conduct his own trial, and ignored a clear statement by the Court that a copy of the tape be provided. Failure by counsel for the Crown to inform the Court of its actions precluded ongoing monitoring of the fairness or otherwise of the trial process. Again, the matter only came to light after the inquiry was made by the Court. Central to the voir dire was the issue of whether the questioning was oppressive. The recording of the interview itself was a significant matter going to that issue. Deprivation of a copy of the exhibit by Crown counsel prior to trial was prejudicial to the capacity of the accused to conduct his case.
The Crown papers disclosed that the accused had completed an interrogation procedure conducted by Sergeant Kline. No proof of the evidence of Sergeant Kline or copy of the interrogation register (as is normally the case) was provided to the accused. During the course of the voir dire, counsel for the Crown stated that none had been provided because it was neither relevant nor admissible. Those answers were and remain unsatisfactory. The Crown had been aware since April that the central issue of the trial was the condition of the accused at the time of interrogation and claimed unfairness by persistent questioning. The purpose of an interrogation procedure is to afford some protection to suspects against improper conduct and to police officers against untrue allegations. An accused person, represented or otherwise, is entitled to know whether a witness independent of the investigation has recorded the making of a complaint or otherwise. An accused person is entitled to explore or test the observations of, such an officer as to the physical or emotional conduct of a person brought before him or her. Counsel for the Crown justified his approach in the following exchange concerning the applicability or otherwise of the principles stated in Jones v Dunkel and Another (1959) 101 CLR 298:
"MR PERKS: Well, your Honour - your Honour would have come [some] cause for concern if there had been the slightest suggestion from Mr Pirimona that he had made some complaint or other to the independent officer.
HIS HONOUR: I only go on the evidence that I've got, that's what Jones v Dunkel - and I don't have that evidence which was available to the Crown, the onus is with the Crown, the evidence wasn't proofed, wasn't called, but [I] know that it exists.
MR PERKS: Yes. Well -
HIS HONOUR: I'm simply giving you an opportunity to comment.
MR PERKS: Yes. No. Well in my submission it's clearly not a case where Jones v Dunkel had any application whatever.
HIS HONOUR: So I can just overlook the fact that the Crown does not bothered [sic ed] to put before the court on voire dire relevant evidence of an officer said to be independent or impartial of the investigation?
MR PERKS: Well in my submission, your Honour, I have difficulty in understanding the relevance of the evidence and the admissibility of the evidence.
HIS HONOUR: Admissibility?
MR PERKS: Yes. On what basis the evidence would be admissible.
HIS HONOUR: Evidence of the independent officer who interviews the accused has been admissible in this jurisdiction, I suspect, from the time that the Code came into force.
MR PERKS: Yes. But we now have a -
HIS HONOUR: And you’re now saying it's not admissible, that's a novel proposition.
MR PERKS: Your Honour, we now have a situation where police are required to conduct interviews on video and admissions made - if there are any admissions made to the interrogation officer or the person responsible for completing the interrogation register, those admissions would not be admissible. And aside from admissions made to the officer who conducts the interrogation register, in the light of the legislation dealing with recording of interviews, I fail to see whether it can be said that it was relevant unless it's sought be made relevant by the defence, in which case one would expect that there would be an assertion by the defence that a complaint of some sort had been made to the officer in charge."
Such does not accord with practice or the requirement of the Crown to make available relevant proofs of evidence. An examination of the Crown papers filed in trials and pleas conducted in the same sittings as that involving the accused disclosed that six files contained such proofs. Separate issues are raised by the response of Crown counsel. Whilst it may be correct that a person standing trial does not have a right to receive proofs and statements (R v Wesley A27/1990), and the prosecutor is not obliged to call all possible witnesses (Richardson and Another v R (1974) 131 CLR 116; Lawless v R (1979) 142 CLR 659), there is an obligation to provide notice, by statement or otherwise, of a credible witness who can speak to material facts which might tend to advantage the case of an accused (Dallison v Caffery [1965] 1 QB 348; see also Criminal Code, s328). The Court is not aware of whether or not Sergeant Kline could give evidence on the matter, favourable or otherwise, to the accused, but it was for the Crown to alert the accused to his existence, and, at the very least, include in the proofs a copy of the interrogation register. The second issue concerns the claim that such evidence would be inadmissible. It is a novel point. Connected with the second is the claim that it was not relevant because the accused had not raised the issue. It could be said that an unrepresented accused would be unlikely to raise the point unless notice of the existence of the witness had been given in the first place.
The reality of matters occurring or not occurring before trial did not accord with the statements made by the Crown in support of its opposition to a stay of proceedings. Matters did not improve during the trial. Central to the Crown case was the contention that the accused had knowledge of the status of the stolen property and had been present when the vessel was used. The Crown called as a witness a Middleton resident who claimed to have seen a man called Buck in the presence of two other men when the boat was brought ashore after a fishing trip. There was other evidence supporting the conclusion that the nickname of the accused was Buck. Counsel for the Crown led from the witness, without affording warning to the Court, that the man he saw was a Maori. How the witness knew such to be the case is unclear, although it might have been a belief gained through hearsay. The Court certainly does not presume to possess the capacity to determine ethnic origin in any but the most obvious case, and certainly this was not such a case. The problem is that the imagery conjured up by the use of a generic or racial description clouds the evidence and any real description is mixed with the stereotype. As it turned out, the accused did not contest presence, but did dispute, by questioning, that he was the operator of the vessel at the time of the claimed identification by the witness. Counsel ought not, in a case such as this, have attempted to lead such evidence. Its use might be objectionable and such questions can oblige a trial judge to ascertain the nature of the defence case in order to consider the propriety of the question. Once a trial judge is required to enter that domain, there is compromise to both the accused and the presiding judicial officer.
A second difficulty arose during the course of the voir dire. The Crown had been aware of this area of contest since April. Counsel for the Crown led evidence from two police officers about matters which had not been proofed. He claimed that he was not obliged to, his reasoning being shown in the following exchange with the Court:
"HIS HONOUR Is this Proofed?
MR PERKS: No it is not your Honour but it is led on the Voir Dire.
HIS HONOUR I’m sorry I've lost that. You are entitled to lead proof on - you are entitled to lead evidence on the Voir Dire which the Crown hasn't Proofed.
MR PERKS: Yes your Honour.
HIS HONOUR Is there an authority for that proposition?
MR PERKS: In my submission - well in my submission it is common practice to lead evidence on the Voir Dire in relation to the admissibility of interviews, that is not Proofed.
HIS HONOUR You may well be right, but I'm asking if there is an authority for it?
MR PERKS: I don't know.
HIS HONOUR See the Crown has an affidavit from this man. Just show me the Court file please? You see the Crown has an affidavit sworn by this man on the twenty-seventh day of April, 1998, where he sets out the matter of the taking of Serepax and the claim of feeling drowsy and the like. Now that affidavit has been in the possession of the Crown since one or two days after that and in fact he was cross-examined on the affidavit by the learned Director of Public Prosecutions. So the Crown has known at all times that the central thrust of his claim was going to be the effect of drugs. And during the course of the argument about whether there should be a stay of proceedings, the argument was that he would have difficulty in presenting his claim about the effect of Serepax and would have difficulty about meeting the thrust of the Crown case that the confession was regularly obtained. And the learned Director of Public Prosecutions said we could get round that by fairness. We could get round that by giving him some assistance during the trial, I think he even mentioned that the Crown would provide, if necessary, whatever assistance it could. So the Crown has had in its possession a claim by this man, has had in possession for some three weeks the issue of tiredness and has been well aware that the voluntariness or otherwise of the confession was in issue. The Crown is also aware that the accused was to go into his trial unrepresented and I would have thought that given the aim of the Court to afford him a fair trial that the Crown would have proofed the evidence it was going to lead on the voir dire in support of its contention that the confession was voluntary in the same way that he had indicated the basis of his foreshadowed contention. Now when I asked whether this has been proofed you told me you don’t have to because it's quite often done on the voir dire, and that, I must admit, comes as a tiny surprise to me but you're probably right . You have no authority on the proposition - you tell me that there is some but you are not aware of it so we go back to my question. Is it proofed? No -
MR PERKS: No.
HIS HONOUR: Why would you be permitted to lead evidence from this witness, unproofed, concerning the man's conduct pre-interrogation and post-interrogation without affording knowledge or notice to Mr Pirimona. That is my question. And I have a second question that follows from that.
MR PERKS: Firstly, your Honour, I hadn’t considered - simply had not considered the question of providing a supplemental proof in relation to this aspect. Your Honour will notice that it is the only aspect that, if you like, strays from the proof that is provided in the Crown Paper. Secondly, if I had attempted to provide a supplemental proof, no doubt your Honour would have complained about the Crown's late delivery of the proof.
HIS HONOUR: It certainly could [sic not] have been done yesterday but the point I was making was 27th of April isn't yesterday.
MR PERKS: Well, again, I have conducted numerous - or been involved in numerous voire dires in this jurisdiction, your Honour - never - at any stage - has the judge or has the defence objected to evidence led on voire dire because it hasn't been proofed. The whole purpose of the voire dire is to ascertain what goes on behind - what has gone on behind the scenes, much of which would be inadmissible in a trial - and as your Honour is well aware, witnesses, and particularly police officers, prepare proofs on the basis of the evidence they are going to adduce on the trial on the voire dire.
HIS HONOUR: Well, you and I have different experiences in the criminal law, Mr Perks. That has certainly not been my experience but, in any event, you are saying, I don't have to, we don't ordinarily do it and there was nothing different in this trial which would take it away from any other trial.
MR PERKS: Yes.
HIS HONOUR: I suppose that the fact that he is unrepresented doesn't really matter, does it?
MR PERKS: Not in relation to this aspect of the case, no, your Honour.
HIS HONOUR: Just lead whatever evidence you want to lead."
Discussion as to the novelty of the position adopted by Crown counsel can await another day. It would seem that there is a requirement, arising from the interests of the orderly administration of justice, that reasonable notice of intention to adduce additional evidence against an accused should be provided (R v Devenish [1969] VR 737). In many cases involving a voir dire, the area of evidence is not raised until cross-examination, but if the Crown has decided beforehand to raise additional material, it will ordinarily afford oral notice to opposing counsel or provide a short supplemental proof. In this case, the matter did not arise by way of cross-examination and the Crown sought to lead the evidence. Even accepting the proposition advanced by Crown counsel to be the case, the position adopted vis-a-vis an unrepresented party, was unfair. The accused disclosed the outline of his case during the course of his application for stay in accordance with the requirements set out in Dietrich v R (1992) 177 CLR 292. The Crown was entitled to meet the issue in its own preparation for the case and was able to lead additional evidence of matters occurring "outside" of the proofs of evidence, but claimed it was entitled to do so without notice. On that basis, an unrepresented person is doubly disadvantaged by the requirement of disclosure and lack of notice of factual material by the prosecution. In R v Marshall and Miles [1921] VLR 420, two accused requested, but were not supplied with, copies of depositions taken before the Court of Petty Sessions. They were convicted, and the Court of Appeal held that the failure of the Crown to provide depositions amounted to a "grave irregularity" (at 423), and that, as the court could not be satisfied that the inability of the accused to refer to the depositions had not contributed to the verdict, the conviction should be set aside and a new trial ordered.
There remain two further matters of concern. In the course of submissions made in support of the Crown's opposition to the exclusion of the evidence, counsel referred the Court to one authority only, namely that of R v Stewart (supra). The legal issues and case law, as may be seen in these reasons for judgment, required far greater attention and consideration. The Court is entitled to receive far greater assistance from the Crown in matters of law, in cases involving unrepresented persons. It ought be unnecessary to restate the position and duty of prosecuting counsel (R v Hay and Lindsay [1968] Qd R 459; R v Lewis [1994] 1 Qd R 613; McCullough v R [1982] Tas R 43). An apt summation of that duty has been described by the editor of Kenny's Outlines of Criminal Law 19th ed (1966) at 611 - 612:
"But the Crown counsel is a representative of the State, 'a minister of justice'; his function is to assist the jury in arriving at the truth. He must not urge any argument that does not carry weight in his own mind, or try to shut out any legal evidence that would be important to the interests of the person accused. 'It is not his duty to obtain a conviction by all means; but simply to lay before the jury the whole of the facts which compose his case, and to make these perfectly intelligible, and to see that the jury are instructed with regard to the law and are able to apply the law to the facts.' 'It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury. The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be known, and that justice should be done.'"
This description was approved by the Court of Criminal Appeal in McCullough v R (supra) at 57. That obligation might be made more difficult in the prosecution of an unrepresented party, but it remains.
The above matters would have caused the Court to stay further proceedings. But they might also serve as a practical illustration of the problems which can arise in an apparently simple prosecution, and of the need for a careful approach to be taken by the prosecution. Unless the problems are considered and met, the capacity of courts to ensure the fair conduct of trials will be imperilled. It may be that a set of protocols could be considered by prosecution authorities to ensure that procedural steps are taken to minimise unfairness.
The second matter of concern relates to the process whereby the accused stood his trial unrepresented. The contents of his affidavit indicate that on the basis of means he satisfied the test of indigency, and it is reasonable to assume that the denial of legal assistance was based on an assessment of merit. Even accepting that this decision is erroneous, it would not be presumptuous to state that its basis is at least arguable. In 1997, an accused person, Fisher, who had been denied the provision of legal assistance, was acquitted by a jury after a trial determined on the basis of conflicting testimony. In 1998, two appeals against sentence conducted by appellants in person (Midson v R 26/1998, Bernes v R 27/1998) were upheld by the Court of Criminal Appeal. In those cases, as in this, it could not be said that a jury, the Court of Criminal Appeal, or a trial judge were unmindful of the issue merits of a case. If proper effect is to be given to the principles stated in Dietrich v R (1992) 177 CLR 292, then attention should be given to protocols adopted by the Legal Aid Commission which involve an assessment of the merits of a litigant's case.
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