R v Uttley (Ruling No 1)
[2009] VSC 484
•2 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1708 of 2008
| THE QUEEN |
| V |
| MARGARET ERICA UTTLEY |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March 2009 | |
DATE OF RULING: | 2 March 2009 | |
CASE MAY BE CITED AS: | R v Uttley (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 484 | |
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CRIMINAL PROCEEDING – Objection to police evidence of conversation with the accused – Partial notes of conversation – No recorded evidence – Section 464H(1)(c) of the Crimes Act 1958 – Substance of evidence subsequently put to accused and recorded at police offices – No real prejudice – Material admissible.
CRIMINAL PROCEEDING – Objection to evidence of forensic scientist as critical premise of opinion evidence had no basis in evidence – Evidence not admitted – Capacity to mislead the jury – Basis of evidence not properly shown to exist in other evidence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose SC with Mr B Kissane | Office of Public Prosecutions |
| For the Accused | Mr P Dunn QC with Mr J Hannebery | Lethbridges Barristers and Solicitors |
HIS HONOUR:
Objection is taken to the Crown adducing evidence from Sergeant Day of a conversation which he had in a car with the accused at approximately 9.05 am on Monday 27 August 2007.
Detective Senior Constable Turner was also present in the car and made partial notes of the conversation. The objection was ultimately confined to the following questions and answers at p.623 of the depositions. "I said, 'So what happened then?' She said, 'Then I took it out because I thought I had to hide it'. I said, 'And what happened then?' She said, 'Then I burnt it on the rubbish heap out near the dog kennel'."
Detective Senior Constable Turner made a note of the first question and answer, but not of the second.
The objection is based on s 464H(1)(c) of the Crimes Act. Sub‑section (1) states, "Subject to sub‑s.2 evidence of a confession or admission made to an investigating official by a person who (a) was suspected or, (b) ought reasonably to be have been suspected of having committed an offence is inadmissible as against the person in proceeding for an indictable offence unless, (c) if the confession or admission was made before the commencement of questioning, the confession or admission was recorded by audio recording or audio visual recording, or the substance of the confession or admission was confirmed by the person and the confirmation was recorded by audio recording or audio visual recording".
In the present case when the accused was further interviewed at six minutes to ten on the same morning at the Homicide Squad offices, with the assistance of video recording equipment she was asked the following questions and gave the following answers:
Question: "All right, and you told me about what happened to Steve, when you had shot Stephen, what then happened in relation to his body?" Answer, "I buried him in the fernery". "Okay, could you, and I know you have explained this to me, but I just need to do it for the purposes of the tape, did you bury him straight away?" Answer: "No." Question: "When did you bury him?" Answer: "It was the next day." Question: "Okay, so I know we have gone through this, but you indicated you think that Mark went off to work the next day, you took Hailey to school?" Answer: "I think I took her or Mark would have taken her." Question: "Okay, and then you have dragged Stephen's body out through, is it the bar area and into the fernery area, and that's, and where is that, that's at the new house is it?" Answer: "Yes." Question: "On, on the farm?" Answer: "On the farm." Question: "Shanahans Road Tarneit?" Answer: "Yes." Question: "Okay, and then you indicated to me in the car that you buried him in the fernery; is that rights?" Answer: "Yes." Question: "Okay, now you have also indicated to me that after a period of time, can you tell me how long it was that you then effectively dug him up again?" Answer: "I can't remember." Question: "Okay, I think you indicated in the car that perhaps a couple of months later?" Answer: "M'mm." Question: "And then what did you do with his body then?" Answer: "I burnt it." Question: "Sorry?" Answer: "I burnt it." Question: "Okay, and you told me in the car where you burnt it, can you just explain that to me again, whereabouts?" Answer: "At the back of the house behind the garage." Question: "Okay, and I think in the car you said near the dog kennels?" Answer: "It was near there." Question: "Is that right?" Answer: No audible reply. Question: "You indicated in the car there was a pile of rubbish; is that right?" Answer: "Yes." Question: "And that you burnt him on that pile of rubbish?" Answer: "Yes.
In my view, the substance of the answers as noted in Sergeant Day's statement was put to the accused and the material is admissible in terms of the relevant section of the Crimes Act. Ultimately Mr Dunn put to me that the use of the word "it" in Mr Day's evidence was prejudicial. It seems to me that the same word was used by the accused in her videotaped record of interview, notably when she was asked" "And then what did you do with his body then?" Answer: "I burnt it." Question: "Sorry?" Answer: "I burnt it".
It also seems me that it is apparent that the notes of the conversation do not purport to be precisely verbatim and that the reference is made immediately after the question, "So how long was the body in the fernery?" Answer: "It was in the fernery for a couple of months."
It seems to me that there is no real prejudice in the language of the police officer's evidence when the matter is looked at squarely in all the circumstances of the evidence as a whole.
I come then to the objection to the evidence of Mr Guarino, who is a forensic scientist at the Victoria Police Forensic Services Centre. Mr Guarino prepared an initial statement with respect to luminol tests carried out in the reputed place of death, namely the master bedroom at the home in which the accused lived with the deceased. He subsequently prepared a supplementary statement, the copy of which I have is undated. Objection is taken to that statement. It includes the recitation of a series of assumptions comprising information provided to Mr Guarino by Senior Constable Turner. They include the statement "That the accused stated that there was a pool of blood beside the bed which the accused cleaned with soap and water. No other areas were cleaned".
Counsel for the defence takes objection to the statement as a whole, on the basis that a critical premise of the opinion contained within it has no basis in the evidence. In particular, it is submitted that the accused has never stated there was a pool of blood beside the bed which she cleaned with soap and water.
In response, Mr Rose has conceded that there is no evidence to the effect that the accused has so stated and seeks to adduce Mr Guarino's evidence on the basis that the assumption be amended to read "that the accused stated that there might have been some blood on the carpet which she cleaned with soap and water".
Mr Dunn responds to this concession by submitting that the core of the opinion is directed to evidence of pooled blood.
Having read the opinion, I accept this submission. It seems to me clear that the purpose of the supplementary statement crystallizes in the observations by Mr Guarino, "I did not detect any evidence of pooled (saturated) bloodstaining on the carpet or carpet underlay as a result of my examinations". And the further statement, "In my opinion, based on the information provided, if there had been an area of pooled (saturated) bloodstaining on the carpet which was subsequently diluted with a liquid in an attempt to clean up the blood, it would be reasonable to expect that at least some of the blood and other liquid would saturate the carpet and possibly stain the carpet underlay. Given the information provided to me in this matter, I would have expected to detect such an area of bloodstaining using the luminol technique if it were present".
In my view the supplementary statement of opinion of Mr Guarino should not be admitted. It has the capacity to mislead the jury and, more fundamentally in my view, its basis has not been properly shown to exist in other evidence.
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