R v Sablic

[2002] VSC 451

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1461 of 2002

QUEEN

v

ANTON SABLIC

---

JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 - 8 October 2002
DATE OF RULING:	4 October 2002
DATE OF REASONS:	21 October 2002
CASE MAY BE CITED AS:	R v Anton Sablic
MEDIUM NEUTRAL CITATION:	[2002] VSC 451

---

Criminal Law – Ruling – Application to exclude police interviews on grounds of unfairness linked to the state of intoxication of the accused rejected

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Horgan S.C.	Office of Public Prosecutions
For the Accused	Mr A Shwartz	Victoria Legal Aid

HIS HONOUR:

1. The accused, Anton Sablic, is charged with the murder of Hugo Angel at Footscray on 13 October 2001.  During the course of the trial, Mr Shwartz, representing the accused, sought to have excluded evidence of police interviews of the accused.  I ruled that the evidence not be excluded.  These are my reasons for my so ruling.

1. The accused and the deceased were drinking at the Footscray Hotel in the early morning of 13 October 2001.  They were not drinking together, but they did leave the hotel at the same time.  That is apparent from a security videotape which shows them leaving.  It also shows an incident outside the hotel.  The deceased is seen to be punched and kicked by the accused. The accused is seen to return inside the hotel.  The deceased is seen to lie on the footpath for some time. These events occur shortly after 1 a.m.

1. The accused was spoken to by police at the hotel shortly after 2 a.m.  He was then still drinking alcohol.  He was arrested and cautioned and taken to the Footscray Police Station.  There he was interviewed on audiotape just after 6 a.m.  The interview was conducted by Detective Sergeant Barry McIntosh from the Homicide Squad.  The interview was suspended so that the accused could be examined by a doctor.  Photos were then taken of the accused’s hands.  A blood sample was taken from the accused shortly before 7 a.m.  The accused then went with Mr McIntosh to the hotel.  Mr McIntosh further interviewed the accused on videotape from around 7.15 a.m.

1. The blood sample taken around 7 a.m. was later tested.  The result was shown to be .133 grams of alcohol per 100 millilitres of blood.  I did not have the usual evidence before me, so often given by Professor Drummer, as to the matters potentially affecting blood alcohol levels, and as to the potential for significant differences as between individuals.  I was prepared to accept that the blood alcohol level of the accused around 1 a.m. was likely to have been somewhat higher than .133.

1. The application to exclude the police interviews was made in the course of the trial, not before the trial commenced.  On the second day of what was always going to be a short trial, Mr McIntosh was called to give evidence.  Before the luncheon adjournment, he spoke of the circumstances of his interviewing the accused and he identified tapes of the interviews.  The tapes were not then played because it was close to 1 p.m.  At 2.15 p.m., Mr Shwartz said to me that he had received instructions that the accused was of the view that at the time when he was interviewed he was so intoxicated  that he was unable to do justice to himself.  I was asked to exercise my discretion to exclude the interviews.  I gave leave to Mr Shwartz to cross-examine Mr McIntosh in the absence of the jury.  In the course of that cross-examination, part of the videotaped interview was played in the courtroom.  Mr Shwartz asked me to exercise my discretion to exclude on the basis of unfairness. He urged me to conclude that the accused was intoxicated at the time of the police interviews, and that Mr McIntosh should have seen that and accordingly that it would be unfair to allow what the accused had said to Mr McIntosh to be used in evidence against the accused.  In R v Swaffield and Pavic (1990) 192 CLR 159 at 189 it was said, amongst other things, as to the exercise of the unfairness discretion, that unfairness was concerned with the accused’s right to a fair trial, with the risk that the accused might be improperly convicted.

1. I am unable to accept that the accused was so intoxicated that to admit the evidence would operate to create unfairness in the relevant sense.  I am unable to accept that the later-known blood alcohol result of .133 should be treated as transcending other evidence.  Mr McIntosh was pressed to, but would not, accept that he had failed to take account of the state of intoxication of the accused.  Mr McIntosh explained that he acted on how the accused presented and interacted.  I was impressed by his explanation.  But there were several other considerations.  I had listened to evidence from two policemen who spoke with the accused shortly after 2 a.m. It was implicit in what they had said that the accused was not drunk.  It was not put to them that he was drunk. They were not recalled.  I had listened to the evidence of the publican Ignatius Mihailidis.  It was not put to the publican that the accused was drunk.  He was not recalled.  The accused, when interviewed by Mr McIntosh, said he was not drunk.  The accused was not called to give evidence to the contrary on the application to exclude the interviews. The doctor who saw the accused when the interview was suspended was not called.  I viewed the security video of the incident shortly after 1 a.m.  The accused did not seem to me then to be showing signs of being intoxicated.  I viewed the video of the interview shortly after 7 a.m.  The accused did yawn a number of times, but did seem to answer questions appropriately.

1. I was satisfied that there was no proper basis for excluding from evidence the tape recordings of the interview of the accused on 13 October 2001.