R v Sullivan
[2011] NTSC 66
•31 AUGUST 2011
R v Sullivan [2011] NTSC 66
PARTIES:THE QUEEN
v
ANTHONY JAMES SULLIVAN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21025927
DELIVERED: 31 AUGUST 2011
HEARING DATES: 27 JULY 2011
JUDGMENT OF: MILDREN J
CATCHWORDS:
CRIMINAL LAW – admissibility of evidence – confessions and admissions – cross examination of person in custody – whether prejudicial value outweighed any probative value
Evidence Act, s 26L
Chamberlain (No 2) (1984) 153 CLR 521; Gibson (1999) 110 A Crim R 180; Kilby v The Queen (1973) 129 CLR 460; Murphy v The Queen (1994) 62 SASR 121; Pitkin (1995) 80 A Crim R 302; R v Bloomfield [2003] NTSC 9; Smith v The Queen (1957) 97 CLR 100; The Queen v Bankowski (1971) 18 FLR 179; Tugaga v The Queen (1994) 74 A Crim R 190; referred to
REPRESENTATION:
Counsel:
Plaintiff:M Stoddart
Defendant:D Woodroffe
Solicitors:
Plaintiff:Office of the Director of Public Prosecutions
Defendant:North Australia Aboriginal Justice Agency
Judgment category classification: B
Number of pages: 21
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINR v Sullivan [2011] NTSC 66
No 21025927
BETWEEN:
THE QUEEN
Plaintiff
AND:
ANTHONY JAMES SULLIVAN
Defendant
CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 31 August 2011)
The accused is charged on indictment with three counts. The first count is unlawful aggravated entry into a building with intent to commit the crime of indecent assault. The second count is an aggravated unlawful assault upon KS. The third count is an act of gross indecency upon KS without her consent or being reckless as to a lack of consent. Each of these offences is alleged to have occurred at the Jabiru Clinic house in the Northern Territory on 30 July 2010.
There seems to be some duplication between counts two and three which are not pleaded in the alternative, but no issue has yet been taken to those counts on the indictment.
Upon these counts the accused has pleaded not guilty. A voir dire hearing has been conducted pursuant to s 26L of the Evidence Act for the purposes of determining the admissibility of certain evidence to be given at the trial.
The Crown case is that the complainant was a nurse at the Jabiru Community Health Clinic. She was living in a house next door to the clinic with her de facto partner, WP.
On the evening of Thursday 29 July 2010, after finishing her work the complainant went to the Jabiru Social Club where, amongst other things, she consumed alcohol and played pool with various people and socialised generally for quite some time. Eventually, she started to feel affected by alcohol and decided to return home. It is alleged that the complainant went to sleep in one of the rooms and that WP was asleep beside her. During the night, it is alleged that the accused entered the premises. It is alleged that the accused took the complainant into a spare bedroom and committed the offences which are the subject of counts 2 and 3 on the indictment. The complainant was able to struggle free and the perpetrator left the premises. The complainant then woke up WP who went outside where a scuffle ensued between WP and an Aboriginal male who had told WP that his name was Anthony. The Aboriginal male was able to avoid apprehension by WP and left the premises.
In the meantime, the complainant had returned to the room and located a baseball cap which she believed to be similar to one which had been worn by a person she had earlier seen at the Jabiru Social Club. The police were notified and investigations continued during which a number of persons who had been at the Social Club were interviewed.
A few days later on 4 August 2010, a record of interview was conducted by police with the accused at the Jabiru Police Station. The principal police officer in charge of the recording of the interview was Detective Senior Constable Grieve. The accused was not under arrest. He was appropriately cautioned and the interview was recorded in accordance with the requirements of the Police Administration Act. There is no issue about the voluntariness of the record of interview; nor is there any complaint that the police failed to comply with the Anunga Rules or with any of the relevant instructions issued by the Commissioner of Police for the interrogation of suspects.
Counsel for the accused has submitted that I should reject certain parts of the record of interview in the exercise of my discretion. There was also a photoboard identification carried out by WP which I have also been asked to exclude on the basis that its prejudicial effect outweighs its probative value.
During the course of the record of interview the accused gave an account of his whereabouts on the night in question. He was told only that the investigation related to an attempted sexual assault upon a female that occurred in the early hours of Friday 30 July 2010. He was not told where exactly the assault is said to have occurred; nor was he told the identity of the female.
The accused’s account was that he arrived in Jabiru from Twin Falls sometime on the Thursday. Before leaving that area he had consumed probably three Tooheys Extra Dry beers. On arrival at Jabiru he rang a person called Rocky to come and pick him up as he was going to shout him a few drinks at the Jabiru Social Club. His memory of the events was pretty hazy because he had a lot to drink. He was unsure of where he went next, but he recalled being with Rocky and meeting up with a person called Porridge. At some stage, they purchased a carton of Tooheys Platinum beers from the Golf Club. He recalled having a few beers at Porridge’s place, but from there they went to the Jabiru Sports and Social Club. He recalls playing the poker machines at the club. After leaving the Social Club, he ended up back at Porridge’s. He recalled eating a meal there and then having an argument with Porridge. He then left that place intending to go to Rocky’s place, but instead saw a person called Linda Miller. He recalled talking with her and after that knocking at the door of Paddy Cahill who was Rocky’s older brother. His next memory was waking up later that morning at Porridge’s place. He said that he was “pretty blind that night and just remember bits and pieces about being at the club”. He also recalled playing pool at the Jabiru Sports and Social Club and sitting down and talking to a few people. He was asked what he was wearing that night and he described his clothing. He was asked whether he was wearing anything on his head. He said that he had a grey coloured cap (although he was not too sure of the colour), which he had borrowed from one of his nephews about a week prior to that. He was asked if there was any writing on the cap and he said that he didn’t think it had any writing on it. He also said that when he went to sleep at Porridge’s place, he slept on the couch and Porridge was asleep on the floor. He said that he woke up at about 9:00 or 10:00 am on the Friday morning. Porridge was not there at that stage, but there was another person called Lowey who was staying there and who was sitting on the lounge when he woke up. He later clarified that Porridge was sleeping on a mattress on the floor of the flat. It is not entirely clear, but it would seem from the record of interview that the mattress was in the same room as the lounge on which the accused had been sleeping.
The evidence concerning the hat
Subsequently, the accused was asked if he had ever been to the health clinic. He said that he had and that he knew a person called Stella and a male nurse called Adrian. He was asked if he had ever met a nurse there by the name of the complainant. He said that he was not too sure, he did not think so.
He was asked if he knew whether there was a house next door to the health clinic that was “sort of attached to it”. The accused said he remembered something like that. He was asked if he had ever been into that house and he said that he “did not think so, no”.
It was at this stage of the record of interview that he was asked to look at some photos of the hat which had been located by the complainant:
GRIEVE: I’m going to show you some pictures, if I could.
SULLIVAN: Yeh, that was the hat I had on
GRIEVE: Was the hat you had on?
SULLIVAN: Yeh
GRIEVE: Yep
SULLIVAN: Yeh
GRIEVE: Ok, how how, how do you know that was the hat that you had? Just for the, just for the record
SULLIVAN: Just looking at it
GRIEVE: Hang on for a tick Anthony I’ll just
SULLIVAN: Sorry
GRIEVE: Just for the tape, I’ll I’ll just say that I’ve just shown Anthony a, 2 pictures of a of a, darkish, blackish, greyish hat, with the letters FOX written on it, so sorry Anthony go ahead you were saying that’s the hat you had on
SULLIVAN: I’m pretty sure that’s the hat yeh
GRIEVE: Yep, why are you sure?
SULLIVAN: I don’t know, just that the shape of the hat and how it sort of looks like, (inaudible) got it off my nephew
GRIEVE: Yep, ok. Alright, no worries. So you’re pretty sure that that’s the hat that you were wearing?
SULLIVAN: Yep, pretty sure, yeh
GRIEVE: Ok. So just for clar, clarification, when, when were you wearing that hat?
SULLIVAN: I’ve had it on, when I took it out to Twin Falls
GRIEVE: Yep
SULLIVAN: think I had it on that night
Subsequently, the accused asked where the hat was found. The question was not answered and Grieve asked:
GRIEVE: Ok, do you know where this hat is at the moment?
SULLIVAN: Nup
GRIEVE: No. Do you recall losing the hat?
SULLIVAN: Nup
GRIEVE: No. Were you aware that you lost the hat, prior to me showing you the pictures?
SULLIVAN: Nup, I don’t, yeh
GRIEVE: Alright. Ok, Anthony that hat was found, in the residence attached to the health clinic
SULLIVAN: Oh, right
GRIEVE: In one of the bedrooms, that particular bedroom, is the location where, the attempted sexual assault took place, on a lady by the name of [the complainant]
SULLIVAN: Yeh, I’m not too sure. No I don’t recall any of it, like I don’t know how that hat got there
GRIEVE: Well, I suppose that’s the question isn’t it?
SULLIVAN: Yeh
GRIEVE: You’ve already stated that, you you certainly believe that that’s the hat you were wearing
SULLIVAN: Yeh, I recognise it, yeh
GRIEVE: Yep. And, the question I’m asking you, if how did that hat get into that bedroom
SULLIVAN: I do not know, like I said can’t remember, I don’t remember going from Linda’s to Paddy’s (inaudible) do I don’t know, how that hat got there. And that was found there?
GRIEVE: Found there
The evidence of Detective Senior Constable Grieve was that the original hat was not shown to the accused during the record of interview because it had already been taken to Darwin for forensic examination. Nevertheless, the photos which were shown to the accused are quite clear. The hat appears to a brownish colour rather than grey in the photos (Exhibit P6 on the voir dire). On a part of the hat there is emblazoned the word “Fox” in quite large letters although the word is quite hard to see. Otherwise, there is nothing particularly unusual about the hat or cap. The evidence is that the cap was examined forensically, but attempts to extract sufficient DNA for identification purposes were unsuccessful.
Mr Woodroffe’s argument was that the accused’s identification of the hat in the record of interview should be excluded on two grounds. First it was submitted that the accused did not positively identify the hat. Secondly, it was put that the manner in which the hat was shown to the accused in the record of interview was unfair because: (a) the accused was not told that the hat had been found in the house where the offending occurred; and (b) the accused was not given the opportunity to see the actual hat itself.
In support of these submissions, Mr Woodroffe said that there was nothing particularly special about the hat which would make identification of it by photographic means reliable, particularly as the accused had only had the hat for about a week.
It is to be noted that the accused said that the hat was grey in colour and that he did not believe that there was anything written on the hat which he had.
Further, it was submitted that the prejudicial nature of an ambiguous identification of a hat found at the crime scene and worn by the assailant to the complainant outweighed any probative value given that there was no DNA evidence which could either inculpate or exculpate the accused.
Mr Woodroffe referred to the observations of the High Court in the case of Pitkin.[1] That particular case dealt with evidence given by a witness who had been shown some photographs and said that certain of the photographs looked like the accused. The Court said that this did not amount to a positive identification of the accused and that in circumstances where the Crown case against an accused rested solely on a witness’ purported identification of him through photographs in a police station, the identification needs to be clear and unambiguous.
However, that is not quite the same situation which I am dealing with as the identification in this case was made by the accused himself and not by someone else. True, it is that the accused says he was “pretty sure” that that was the hat that he had been given by his nephew and which he had been wearing. In R v Bloomfield,[2] when dealing with an objection to the reception of photoboard evidence, Bailey J ruled that the witness’ reference to being “pretty sure” were “words which are reasonably capable of being understood as consistent with an absence of positive identification”.
However, the identification of the hat is not the only evidence which the Crown intends to rely upon at the trial. It is one piece of evidence of a circumstantial nature which together with other evidence which the Crown intends to lead will be relied on as circumstantial evidence that the accused was the perpetrator. I consider that the evidence is admissible, notwithstanding that it is doubtful whether the identification could be said to be unambiguous. The jury will have to be warned that they are not to convict the accused based on that evidence alone unless they are satisfied beyond reasonable doubt that the hat belonged to the accused.
I do not think that there was anything improper in not telling the accused where the hat was found before he was asked to identify the hat. On the contrary, it could be suggested that providing information of this nature might lead to a false admission.
I decline to exclude the evidence concerning the identification of the hat in the record of interview in the exercise of my discretion at this stage. I may review this ruling once I have seen the actual hat at a later time.
Photographic identification
Objection was taken to the admissibility of a photographic identification by the witness WP.
On 10 August 2010, the witness participated in a photograph identification at the Palmerston Police Station. He was shown 12 photographs of Aboriginal men all with relatively similar facial appearances. He was told by the police that the person involved in the incident may or may not be amongst the photographs, that the facial hair or length of hair may or may not be the same, and he was asked to indicate which photograph, if any, depicted the photograph of the person in question. The witness picked out Photo 7 at first. In his statement he said that he did this because he believed that this photo “looks like the man that I saw”. His statement goes on to say that after having a further look at the photos he also pointed out Photo 11 because he thought that “he resembled the man at the time that I had him in a headlock after having approached him”.
According to the notes taken by Detective Sergeant James who conducted the photograph identification, the witness indicated as follows:
Q: If you are not a hundred per cent certain, is there a person here who closely resembles the person you saw?
A: Number 11 up close, number 7 further away.
Q: What percentage of a likeness would you say he/she is?
A: 50/50 between number 7, 60/40 number 11
Clearly, this is not evidence of positive identification and would not be admissible as such.[3]
However, sometimes evidence of this nature has been admitted as circumstantial evidence where there is other evidence of identification. In Murphy v The Queen,[4] there were four witnesses, each of whom participated in a photographic identification. None of the witnesses positively identified the accused from the photographs, but each of them selected the same photo as the person who could have been involved in the robbery or was similar to the person involved in the robbery or words to that effect. King CJ said:[5]
Nevertheless the evidence did possess, in my opinion, some evidentiary value. The fact that the three persons each selected, independently of one another, one slide out of twenty-four as a person similar in appearance to a participant in the robbery, was some evidence tending to support circumstantial evidence in the case implicating the appellant. In my opinion the evidence was probative and admissible and ought not to have been excluded in the exercise of the discretion.
Counsel for the accused, Mr Stoddart, also referred to the case of Gibson,[6] where evidence had been given without objection that the voice of one of the persons involved in a robbery “sounded like” the appellant. The NSW Court of Criminal Appeal noted that the trial Judge did not leave that evidence as evidence of identification, holding that the evidence was capable of being a circumstantial fact albeit slight. Mr Stoddart also referred to the case of Tugaga v The Queen,[7] where Hunt CJ at CL said[8] that if the quality of the identification is in question, it must be kept in mind that the evidence should not be considered in isolation; what may appear to be poor in quality when taken by itself may gain strength when considered in the context of the evidence as a whole.[9]
If evidence of this kind is admitted as part of a circumstantial case, obviously there must be an appropriate warning to the jury.
However, I think in the present case the evidence is so weak that its probative value is outweighed by its prejudicial effect even as a piece of circumstantial evidence, particularly as two different persons have been identified, one (who is not the accused) somewhat more strongly than the other. Admittedly the person with whom WP was wrestling said that his name was Anthony, but that evidence is not admissible. In the exercise of my discretion I exclude the photographic identification evidence.
During the course of the record of interview the accused was asked if he knew of the location of the residential house next to the health clinic. The accused indicated that he had seen the house, but did not think he had ever been inside it. He was asked to draw a picture of where he thought the house was, which he did. This document became Exhibit P7 on the voir dire. The document is a very rough map showing the location of a car park, the health clinic and the house. It is otherwise quite unremarkable. It certainly does not show an intimate knowledge of the house itself (for example it does not indicate the internal layout of the house). It is likely that virtually anyone who had been to the health clinic or in the vicinity of the health clinic might well have noticed the house. It was submitted that the evidence of the conversation in the record of interview concerning the house and the map was “highly prejudicial, suggestive of an intimate knowledge of the crime scene, rather than a patient at the clinic” and should be excised from the record of interview either as inadmissible or irrelevant. I accept the general proposition that matters contained in a record of interview may be excised if they are irrelevant.[10] In my opinion, the evidence is not irrelevant. It shows that the accused had knowledge of the location of the house and the clinic. Admittedly it shows little else, but that is nevertheless relevant.
There is nothing prejudicial in the drawing such as to warrant its exclusion in the exercise of my discretion.
Objection taken to statements of witnesses put to the accused in the record of interview
Subject to what follows below, in general terms there is nothing necessarily improper about putting excerpts from a statement of another witness to an accused taking part in a record of interview for the purpose of obtaining his comment. However, great care must be taken where the statement contains a number of different propositions which do not accord with the version given by the accused to ensure that the accused is given a proper opportunity to respond to each proposition separately. If a long passage is read out, it is unfair to expect the accused to remember each of the propositions which is being put and to deal with them properly. Each proposition should therefore be put separately. Where, however, the purpose of reading out a passage is to give context for the purpose of drawing to the accused’s attention a particular part of the passage and it is made clear that it is that part of the passage which the accused is being to comment upon, there is likely to be no unfairness.
The first passage complained of relates to a statement given by Porridge to the police as to Porridge’s and the accused’s movements that night. The obvious purpose of the passage in the statement to the accused was to draw to his attention the fact that Porridge claimed that the last time he saw the accused that night was sometime after they had left Rocky’s place after leaving the Jabiru Sports and Social Club. In other words, Porridge claims not to have seen the accused sleeping at his house the next day.
After reading the relevant passages, the following conversation ensued:
GRIEVE:And then you went to bed. And he says he didn’t see you again that night.
SULLIVAN:Yeah, I don’t know.
GRIEVE:I’m just wondering you know his house, why he wouldn’t have seen you.
SULLIVAN:Yeah well I remember him sleeping on that mattress.
GRIEVE:Yep.
SULLIVAN:I’m remember I’m pretty sure I remember seeing Porridge sleep there on the ground, and then I just, I tried to get a blanket or something to cover up I’m pretty sure, cause it was pretty cold in there, I grabbed a jumper or an orange chequered sort of jumper I think it was.
GRIEVE:Yep.
SULLIVAN:A reddy sort of jumper.
GRIEVE:Yep OK.
SULLIVAN:I was just lying there, and I woke up from there.
GRIEVE:Alright would it be fair to say that if he got up and went to work in the morning he would have seen you?
SULLIVAN:Yeah well he should have saw me.
Objection was further taken in relation to this passage in relation to the comment “I’m just wondering, you know, his house, why he wouldn’t have seen you” as in effect being an expression of disbelief.
Counsel for the accused referred to the judgment of The Queen v Bankowski,[11] when Smithers J said:
It is quite improper to cross-examine an accused person in custody. If the statements of the accused are flung back in his teeth with expressions of disbelief that is an improper form of cross-examination. See Williams J in Smith v The Queen. If his statements are refuted by an intimation that some witness had stated to the contrary, this is an improper form of cross-examination. Whether or not it be regarded as cross-examination the statement to the accused that such and such witnesses say this or that against the accused in a material particular is an independent impropriety. See Smith v The Queen (supra) per Williams J, at p 129. See also R v Brown and Bruce. If it is done to induce a confession, as it obviously was in this case, it amounts to pressure on the part of a person in authority and is calculated to deprive any supervening confession of the quality of voluntariness.
In Smith v The Queen,[12] Williams J said:
I am certainly not satisfied that the police did not tell the accused that three people had seen him near Georgina's house and that would have been a thoroughly improper statement for the police to make. It is quite clear from their own evidence that the police did tell him that they had information that he had not been to see Yamashita at 2 a.m. on the Sunday morning, which was in effect a statement that they did not believe him, and that also was an improper statement for the police to make.
Accepting the force of these authorities, I think that in this particular case it is clear that Det Grieve expressed disbelief at the accused’s statement that he slept the night at Porridge’s house.
Objection was taken to a passage which was read to the accused from the statement of a witness called Linda. Counsel for the Crown conceded that the material in this part of the record of interview included prejudicial material. It clearly did. I do not think it is necessary to say too much about it. I consider that the whole of the evidence on pages 28-29 of the transcript of the record of interview starting with the line “Grieve: Nup, OK. OK, and we got a statement from Linda...” up to the end of the passage “... she said you were there for about 10 or 15 minutes.” should be excluded in the exercise of my discretion.
Objection was also taken to some questions relating to why the accused said that he walked to Paddy’s that night. On page 36 of the transcript the following passage appears:
GRIEVE:OK, why would you walk to Paddy’s?
SULLIVAN:I don’t know.
GRIEVE:I know you have said you can’t remember doing it, but now, what, why would you, why do you think you would walk to Paddy’s and given that Paddy lives, out of town?
SULLIVAN:Yeah.
GRIEVE:You had a place to stay in town, your mates are in town.
SULLIVAN:I do not know.
GRIEVE:Why would you walk to Paddy’s?
SULLIVAN:I don’t know.
GREIEVE:It doesn’t make sense to me.
SULLIVAN:Not now.
In my opinion, this passage should be excised from the record of interview as improper cross-examination.
The last passage objected to was the passage beginning at page 34 of the record of interview where the police officer gives a précis of the allegations made by the complainant. During the course of this part of the record of interview, the following conversation occurred:
GRIEVE:A male person, has entered that residence.
SULLIVAN:Yeah.
GRIEVE:Next to the health clinic, they walked into the main bedroom they seen the lady asleep on her bed.
SULLIVAN:Yeah.
GRIEVE:Next to her boyfriend, they picked that lady up, they’ve dragged her from the room, they dragged her down the hallway, they then dragged her into the spare bedroom, and placed her on a single bed. They then undressed themselves and hopped on top of her, a sexually assaulted her, be means of rubbing their penis against the inside thigh of her leg, by grabbing her hand, and forcing her hand onto their penis, by touching her breasts, by kissing her. During the struggle, she’s knocked the hat off the top of this person’s head, and its fell, fallen on the floor. And that where it was found. You telling me you were wearing that hat last night, but you’re telling me you don’t how it got there?
SULLIVAN:Nup, I can’t remember, nup.
GRIEVE:OK during the course of the struggle, right,
SULLIVAN:Yep.
GRIEVE:The victim has asked, the male person, who he was.
SULLIVAN:Yep.
GRIEVE:This male person said, its Anthony.
SULLIVAN:(inaudible)
GRIEVE:See where we’re going with it.
SULLIVAN:Yeah.
GRIEVE:Yep, persons using your name, persons wearing your hat.
SULLIVAN:I can’t remember any of this, this is pretty fucked up.
This is clearly cross-examination designed to elicit a confession. It is improper in the sense explained by Williams J in Smith v The Queen in the passage cited above. I exclude it in the exercise of my discretion, beginning with that part of the passage starting with “During the struggle she’s knocked the hat off the top of the persons head...” and ending with the comment “... yep, persons using your name, persons wearing your hat”.
------------------------------
[1] (1995) 80 A Crim R 302.
[2] [2003] NTSC 9 at [16].
[3] See Pitkin (1995) 80 A Crim R 302 at 305-306.
[4] (1994) 62 SASR 121.
[5] Murphy v The Queen (1994) 62 SASR 121 at 123-124.
[6] (1999) 110 A Crim R 180.
[7] (1994) 74 A Crim R 190.
[8] At 196.
[9] Cf Chamberlain (No 2) (1984) 153 CLR 521 at 535.
[10] See Kilby v The Queen (1973) 129 CLR 460 at 472-473 per Barwick CJ.
[11] (1971) 18 FLR 179 at 182.
[12] (1957) 97 CLR 100 at 129-130.
0
7
1