R v Thomas

[1991] TASSC 150

Serial No B36/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Thomas [1991] TASSC 150; B36/1991

PARTIES:  R
  v
  THOMAS

FILE NO/S:  114/1991
DELIVERED ON:  26 June 1991
JUDGMENT OF:  Underwood J

Judgment Number:  B35/1991
Number of paragraphs:  19

Serial No B36/1991
List "B"
File No 114/1991

THE QUEEN v THOMAS

REASONS FOR JUDGMENT  UNDERWOOD J

(Ruling Given Orally During Trial)  26 June 1991

1. The accused was arraigned on one count of rape. He entered a plea of not guilty. Objection was taken on behalf of the accused to the admission into evidence of a tape recorded interview between him and two police officers and to the admission of certain photographs which the Crown proposed to tender on the trial. Evidence of the interview was received on the voir dire and, by tacit agreement between counsel, I was given sufficient relevant information from the Bar table to enable me to determine the objection concerning the photographs.

The Interview

1. It was not submitted on behalf of the accused that the answers given by him to questions asked by police officers were made involuntarily or were irrelevant. Having heard the evidence on the voir dire and the submissions of counsel I am satisfied, on the balance of probabilities, that the evidence to which objection is taken is admissible as a matter of law. It is unnecessary to canvass here the interesting question of whether voluntariness is a prerequisite to admissibility of exculpatory out of court statements made to police officers. After all, the probative value of such statements in most cases (including this one) is not the truth of the statements. Probative value lies in the utterance of the words usually shown by later Crown evidence to be lies. See Cross on Evidence (4th ed para33595).

1. On the voir dire learned counsel for the accused rested his submission upon the basis that the questions had been asked and the answers given in breach of a Standing Order, one of several, issued to all police officers in this State and commonly referred to as the "Judges' Rules". It was submitted that the breach was such that I should, in the exercise of my discretion, exclude the evidence. The matter arises in the following way.

1. At 8.30am on Tuesday 16 April 1991, two police officers were handed a statement apparently taken in the early hours of that morning or late the previous evening from a female complainant alleging that, about 6pm the preceding evening, she had been raped by an African-American sailor from the visiting US ship "Missouri". Although this statement did not form part of the evidence on the voir dire, evidence from the police officers was to the effect that it described the relevant events in detail and identified the assailant as a "negro with a gold tooth inscribed with a $ sign". The police officers knew no more about the matter at that stage other than that a swab and clothing had been taken from the complainant and sent for forensic examination. The police officers then believed that the suspect was still residing at the hotel where the crime was alleged to have been committed. On checking there they found that he was not at the hotel and so, at 10.15am that morning, they went on board the USS "Missouri". At that stage they did not wish to interview the suspect, but to ascertain his identity. If that could be achieved, the intention was to await receipt of other evidence before conducting an interview.

1. However, events took an unexpected turn. The Master at Arms on the "Missouri" told the police officers that only one sailor had a gold tooth engraved with a $ sign and within minutes, produced this sailor, the accused, to the police. The police, unarmed with a tape recording device or other mechanical means for recording any conversation asked the Executive Officer of the ship if the accused would be permitted to go with them to the police station. This request was denied in circumstances which led the police officers to infer that if they did not question the accused there and then there was a real risk that further access to him by the police might be barred. Accordingly, the police officers asked if they could interview the accused on board the ship. This request was acceded to by the Executive Officer on condition it was conducted in the presence of the Master at Arms.

1. Before the interview began the two police officers carefully considered the relevant Standing Order and decided in the circumstances that it had no application. The Standing Order, issued by the Tasmanian Commissioner of Police to all police officers was tendered in evidence. It reads:

"Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions, or any further questions, as the case may be."

1. The section of the Standing Orders in which the above appears includes an opinion from the Solicitor General. With reference to that rule the opinion is that the rule "clearly includes a case where a reasonable police officer, on the information available to him, should have made up his mind to lay a charge."

1. In evidence, both officers said that at that stage of the investigation they had not (and inferentially, no reasonable police officer would have) made up their minds to charge the accused. Their reasons being:

1They had not seen the complainant and had no impression which comes from face to face contact of the likely veracity of her account.

2They had no scientific or other evidence which tended to corroborate her allegation of the commission of a serious crime.

1. The interview which lasted about half an hour was conducted, as arranged, in the presence of the Master at Arms. It was recorded on a tape recorder provided by the Master as Arms. A copy of this tape was tendered in evidence. No caution was administered to the accused. Early in the interview the accused made admissions which clearly led the police to believe that this was the man referred to in the complainant's statement. Not long after that, the accused was asked did he believe the complainant was 16 and he said:

"No I do not but first of all the question that you are going to get to is I didn't have sex with no one – man all right?"

1. Thereafter, the interview consisted of repeated denials of sexual intercourse accompanied by a detailed account of innocent conduct between the complainant and the accused. It concluded with a request by the accused to the police that they proceed against the complainant for making false accusations to the police. The police left the accused on the ship at the end of the interview with the promise that they would continue their enquiries.

1. Subsequently, forensic and other evidence which corroborated the complainant's account came into the hands of the police and in result, the accused was arrested on a warrant the following day.

1. In these circumstances, I am clearly of the opinion no breach of the relevant Standing Order occurred. If identity was then the only issue before the police, I would accept the submission of defence counsel that, after the accused made sufficient admissions to make it clear to the officers that he was the man referred to in the statement, a caution should have been administered. But it was no the only issue. Non consensual intercourse was also an issue and, very early in the interview, the accused volunteered an answer and later consistently adhered to it that, on this issue, his account and the complainant's account were diametrically opposed. As the officers rightly said to the accused towards the end of the interview:

"We have got more investigations to run. We don't know, we have got what you said and we have got what she said and we have got to try and sort out who is telling the truth."

1. Being in possession of no more than two conflicting accounts one made by a person whom the interviewing officers had not even seen, no reasonable police officer situated as these officers were at the time of the interview and armed only with the information they then had, would have made up his mind to lay a charge.

1. Even if there had been a breach of the Standing Order, in the circumstances, I would not exercise my discretion to exclude the evidence. Learned counsel for the defence relied (inter alia) upon R v Whitford [1980] Tas R 98. In that case, Everett J set out the English equivalent of the Tasmanian Standing Order set out earlier in these reasons. The terms of the U.K. order were then different from the terms of the present Tasmanian Standing Order. Having observed as trite law that a breach of the "Judges' Rules" does not in itself result in the exclusion of evidence, his Honour said at p100:

"Nevertheless, 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 to largely stultify the purpose of the Rules.

In this case, it must be borne in mind that the right to remain silent is one of the cherished ingredients of our criminal system of justice."

1. With great respect to his Honour I find that I am unable to ascribe the same degree of relevance that his Honour did to the United Kingdom Standing Order upon the exercise of a judicial discretion in this State. Also, I regret I find myself not in agreement with his Honour's statement of the "duty" to exercise the discretion to exclude the evidence in the circumstances postulated.

1. So far as I am aware the judgment of the High Court in R v Lee (1950) 82 CLR 133 is still good law. In that case the joint judgment of the Court made it clear that the Judges' Rules were no more than a general description of an appropriate standard of propriety and stated with respect to the proposition that a breach of the Rules required the exercise of discretion to exclude the evidence, at p154:

"It is better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would unfair to use his own statement against the accused. We know of no better exposition of the whole matter than that which is to be found in the two passages from the judgment of Street J (as he then was) in R v Jeffries (1947) 47 SR (NSW) at pp311, 314 which are quoted by O'Bryan J in the present case. His Honour said: 'It is a question of degree in each case, and it is for the presiding judge to determine, in the light of all the circumstances, whether the statements or the admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him'."

1. The accused did not give or call evidence on the voir dire. It is apparent from the tape recording of the interview that the accused gave his answers readily, responsively, coherently and logically. They were given in the presence of the Master at Arms on his own ship, a person to whom he could have turned for assistance should he thought it appropriate to do so. There is nothing in the content of the interview to suggest that the manner of questioning was oppressive or in any way unfair to the accused. The statement sought to be adduced in evidence is exculpatory and not inculpatory. Other than suggesting that the accused might take various courses, there was no submission that the exculpatory statements were damaging to the case of the accused. In the circumstances therefore, if I were called upon to exercise my discretion, I would not exercise it in favour of the accused for I see no basis upon which it could be said to be unfair to the accused to admit exculpatory statements made voluntarily by him to police officers.

The Photographs

1. Learned counsel for the defence asked that I exclude certain photographs in the exercise of my discretion upon the basis that, except in one case, their prejudicial value outweighed their probative value. In the one case it was submitted that no evidence was to be given of the injury depicted in the photograph. This submission was shown to be incorrect and I rule that photograph admissible. With respect to the photographs showing the accused's gold tooth with the inscribed $ sign I also rule that it is admissible. By his plea, the accused had put in issue all the ingredients in the crime of rape including identity. Further, there is nothing really prejudicial about the photograph. The remaining photographs depict the hotel bedroom. The photographs were taken after the relevant time and whilst the room was occupied by persons unknown. The photographs show the room in some disarray with a considerable number of empty beer stubbies on tables, benches and the floor. However, I see no difficulty in explaining quite clearly to the jury that the photographs were taken whilst the room was being occupied by someone quite unconnected with the accused. Alcohol is not alleged by the Crown to have any relevance on the trial of the accused and therefore I see no prejudicial value in admitting the photographs of the room with an appropriate explanation.

1. In conclusion, therefore I reject all applications made on behalf of the accused.