R v Streets
[1990] TASSC 131
•2 August 1990
Serial No B54/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Streets [1990] TASSC 131; B54/1990
PARTIES: R
v
STREETS, L G
FILE NO/S: C305/1989
DELIVERED ON: 2 August 1990
JUDGMENT OF: Zeeman J
Judgment Number: B54/1990
Number of paragraphs: 12
Serial No B54/1990
List "B"
File No C305/1989
THE QUEEN v L G STREETS
REASONS FOR JUDGMENT ZEEMAN J
(Ruling During the Court of Trial) 2 August 1990
In the course of the trial of the accused on an indictment charging him with one count of assault, the Crown has sought to tender a signed record of an interview on the part of a police officer of the accused. Objection was taken to the admission of that document upon the basis that it constituted confessional material which was not voluntary on the part of the accused. In the alternative, I was asked to exclude that material in the exercise of my discretion upon the basis that it had been unfairly obtained.
I heard evidence on the voire dire as to these issues from a number of police officers, and from the accused. I should observe that I would have expected the accused to call one, and possibly two, other persons who might have been expected to have been able to corroborate the accused in certain respects. However, it became apparent that the failure to call those witnesses was the result of a misunderstanding on the part of counsel for the accused. In those circumstances, counsel for the Crown very fairly disclaimed any reliance upon the failure to call those witnesses, and asked that I draw no adverse inference from the failure to call them.
The basis of the assertion that the admissions recorded in the record of interview were not voluntary was that it was said that prior to the record of interview commencing, one of the two police officers present during that interview (and the accused was unable to identify which) had threatened to assault the accused.
The evidence from the accused was as follows:
"Q Now you remember last September you were asked to go with the police to the police station in Georgetown?
A Yes.
Q What happened then?
A They asked me if I assaulted two girls.
Q And what did you say?
A No, I never.
Q And then what happened?
A They didn't believe me.
Q And what happened then?
A One of them said if you don't tell me the truth I'll hit you.
Q Were you hit?
A No.
Q What did you do then?
A I got nervous and I started shaking."
A little later the following exchange occurred:
"Q Now when was this threat to hit you made?
A In the interview room when they was taking down me statement."
During cross–examination, the following somewhat inconsistent exchange occurred:
"Q When you were at the police station, when exactly was this threat made?
A Before the interview was taken down.
Q And was there only the one threat made?
A Yes.
Q Can you recall which officer made that threat?
A No, I don't remember much more.
Q I see. And where exactly were you when the threat was made?
A In the interview room.
Q And was that before or after you agreed, or you admitted, it was you that was involved?
A Before.
Q And were both police officers present when the threat was made?
A I think so, I'm not quite sure now.
Q And apart from this threat, there was only the one threat made?
A Yes.
Q And apart from that threat, did the police officers treat you well?
A Yes.
Q Did they get you a cup of tea?
A Yes.
Q In fact did they get you two cups of tea?
A I think so.
..........
QAnd did one of the police officers warn you that you didn't have to say anything if you didn't want to?
A Yes.
Q And did you understand what he meant by that?
A Yes.
Q Did you understand that you could speak or in fact you could remain silent?
A Mm.
Q You understood, you understood that?
A Yes.
Q And you decided to speak, did you?
A Yes.
Q And why did you do that?
A Because I was scared.
Q And why were you scared?
A Just in case they did hit me."
The two interviewing officers gave evidence. Each was asked whether, prior to the formal record of interview commencing, any threat was made to the accused. Each denied it. Dr Martin, a psychiatrist, was called by the accused but I derive little assistance from his evidence.
The Crown carries the burden of proving on the balance of probabilities that the confession was made voluntarily. Having seen and heard the witnesses, I do not exclude the possibility that a threat such as that described by the accused was made. However, applying the relevant evidentiary test, namely proof upon the balance of probabilities, I am affirmatively satisfied that no such threat was made. There was no other attack on the voluntariness of the confession, and it is therefore admissible.
I turn now to the question as to whether or not I should exclude the confession in the exercise of my discretion.
It has been submitted to me that the confession was unfairly obtained because when first speaking to the accused on the day that he interviewed him, Detective Sergeant Robin Dawtrey made a misleading statement in the following terms:
"The girls had described the person who pointed the firearm at them in Arnold Street at that time and the description fits you in that the bike, the rifle, the clothing, hair, your glasses, suggest that you are the person we are looking for. Do you still deny that you are that person?"
Sergeant Dawtrey was cross–examined as to what he had been told by the two girls who were the complainants in this matter. It may be that as to some insignificant detail, there was a slight divergence from the description conveyed by Dawtrey to the accused and that what he had been told by the girls. However, it is plain to me that, in substance, Dawtrey accurately conveyed what he had gleaned from the girls by way of a description of the person who had allegedly assaulted them. Had Sergeant Dawtrey significantly misrepresented his state of knowledge I might have excluded the confessional material. However if there was a divergence between what Sergeant Dawtrey had been told and what he said to the accused it was of no significance and did not operate unfairly.
I see no reason why I should exclude the evidence in the exercise of my discretion. The record of interview will be admitted, with the exception of questions 70 – 74 inclusive and the answers thereto. The Crown is not seeking to tender that portion of the document. I would, in any event, have been inclined to exclude that portion for other reasons.
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