R v Vickerstaff
[2019] ACTSC 205
•29 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vickerstaff |
Citation: | [2019] ACTSC 205 |
Hearing Date: | 6 August 2019 |
DecisionDate: | 29 August 2019 |
Before: | Mossop J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility – pre-trial application – application to exclude evidence – voluntary statement made by the accused to police – where evidence of a lie may be an implied admission – whether the accused a protected person for the purposes of the Crimes Act 1914 (Cth) – whether the accused “questioned as a suspect” – whether admission admissible if not recorded – reliability of admissions – discretion to exclude admissions |
Legislation Cited: | Crimes Act 1914 (Cth), ss 23A(6), 23B(2), 23F, 23V, 23WA Evidence Act 2011 (ACT), ss 85, 90, 138, 139, 192A |
Cases Cited: | R v Booth; R v Welsh; R v Vickerstaff [2019] ACTSC 187 R v Esposito (1998) 45 NSWLR 442 |
Parties: | The Queen (Crown) Graeme Vickerstaff (Accused) |
Representation: | Counsel M Howe (Crown) J Purnell SC (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Accused) | |
File Number: | SCC 274 of 2018 |
MOSSOP J:
Application
The accused, Graeme Vickerstaff is facing trial along with Colin Booth and Dean Welsh for the murder of Bobby Allan on 17 December 2017. By Amended Application in Proceeding filed 30 July 2019 he has sought the following orders:
1.That, pursuant to section 138 of the Evidence Act 2011 (ACT), statements made by the Accused to Detective Senior Constable Luke Cameron Perritt on 18 December 2017 not be admitted into evidence at the Accused’s trial;
2.In the alternative to 1, above, the admission made by the Accused to Detective Senior Constable Luke Cameron Perritt on 18 December 2017, being the false denial that he had not seen the deceased, Bobby Allan, ‘for months’, not be admitted into evidence at the Accused’s trial;
3.Any other orders that the Court considers appropriate.
Although not identified as such, the application is an application for an advance ruling under s 192A of the Evidence Act 2011 (ACT).
Crown case
I adopt the summary of the Crown case given by Murrell CJ in her earlier decision in R v Booth; R v Welsh; R v Vickerstaff [2019] ACTSC 187 at [4]‑[8].
4.It is the Crown case that the deceased used and occasionally supplied methylamphetamine. He lived at 47 Goodenia Street, Rivett, where Ms CD also resided. Mr Vickerstaff was CD’s boyfriend. Mr Vickerstaff and CD were drug users.
5. The Crown alleges that, on 17 December 2017, the accused decided to rob the deceased, believing that he was (or was likely to be) in possession of a significant sum of money and/or drugs. Further, Mr Vickerstaff believed that the deceased was harming and/or intimately involved with CD.
6.It is the Crown case that the accused travelled from a service station in Fyshwick to Rivett in a motor vehicle, a trip that would have taken about 10 minutes. They parked their vehicle about 280 metres from 47 Goodenia Street, in a carpark outside the Noah's Ark Childcare Centre in Rivett. One or more civilian witnesses saw them exiting the vehicle.
7.The Crown alleges that the accused went to 47 Goodenia Street, Rivett where, in the early hours of 17 December, there was a violent altercation. In the course of the altercation, the deceased sustained serious injuries. The deceased made his way to 22 Goodenia Street, Rivett, where he died on the doorstep at about 5:30 AM, substantially due to the injuries that he had sustained during the altercation.
8. The Crown says that, after the altercation, Mr Vickerstaff separated from the other accused. In the company of another witness, he drove the deceased's vehicle to Fisher, a nearby suburb. Mr Vickerstaff and the witness went to a laneway. The witness departed the laneway by taxi and Mr Vickerstaff rode away on a bicycle. After they left 47 Goodenia Street, Messrs Booth and Welsh returned to the vehicle outside the Noah's Ark Child Care Centre, discovered that the vehicle had a flat tyre, and went to a nearby location from where they caught a taxi to the McDonald's fast food outlet at Manuka.
The aspect of the Crown case which is relevant to the present application is recorded in the case statement as follows:
On Monday 18 December 2017 police attended at unit [number]/ block [letter] Gowrie Court, Narrabundah, in an attempt to locate and speak with [CD]. While speaking to [CD], police also spoke with the accused Vickerstaff.
During the conversation, police asked the accused Vickerstaff if he knew the deceased Mr Allan. The accused said ‘yes’ and that he ‘had not seen the deceased for months’.
This is alleged to be a lie demonstrating a consciousness of guilt.
The relevant evidence about the interaction with Mr Vickerstaff is contained in the witness statement of Detective Senior Constable (DSC) Luke Perritt. In summary it is as follows.
The evidence of DSC Perritt was that he and DSC Anderson attended the unit. He knocked on the door and a female called out. The police officers identified that they wished to speak to CD. The female said that CD had not been there since the prior day. The female said that she was getting in the shower. DSC Perritt told her that the police would wait. The female stopped talking to him. The police returned to the car and waited nearby. After about five minutes as they were leaving, they saw the front door of the premises was open and again approached the front door. They knocked on the door and heard a male respond. DSC Perritt said that he wanted to speak with CD. A male subsequently came to the door and he identified himself as Mr Vickerstaff. Mr Vickerstaff walked back into the unit and subsequently a woman identifying herself as CD came to the door. She was asked if she knew the deceased and said that she did. She was told of his death. She was told that police were at her premises. She agreed to speak to police. DSC Perritt’s witness statement then continues:
15.I explained to [CD] that I wanted to conduct a ROC with her, and that I would like to do that at the Police Station. She agreed to this. Whilst sitting there, ([CD] said that she had left her house the previous Friday night. She said she left because Mr Vickerstaff had come over and told her that she needed to get out of the house because something very bad was going to happen.) [CD] asked if she could go back into the unit to collect her purse. We walked back to the unit and she went inside. I waited by the front door and I then heard [CD] whispering to Mr Vickerstaff. This lasted about 2 minutes and I could not make out what was being said.
16.Both [CD] and Mr Vickerstaff then came outside. DSC Anderson spoke briefly with [CD] nearby our car whilst I spoke briefly with Mr Vickerstaff. Mr Vickerstaff apologized, saying he had just woken up. He held out his right hand offering a handshake. Mr Vickerstaff wore shorts but had no shirt on. I saw that he was fair skinned, had a bald/shaven head, had no facial hair, had numerous tattoos over his upper body, was very thin, appeared in his late 40’s or early 50’s and was about 6 feet tall. I did not observe any injuries on Mr Vickerstaff.
17.(I asked Mr Vickerstaff if he also knew the Deceased. Mr Vickerstaff said yes. I told him that we may also need to speak with him later because if he knew the Deceased, he may be able to assist us in our investigation. Mr Vickerstaff responded to this comment by saying that he had not seen the Deceased for months.) Mr Vickerstaff asked if he would need to arrange for [CD] to get home afterwards and I told him that he would not need to, as we would get her back home.
Police then travelled with CD to the City Police Station where they undertook a recorded conversation with her.
DSC Perritt was made available for cross‑examination at the hearing of the application. He said that SC O’Brien had tasked him with locating CD. He did not know what her involvement was, if any, with the events that occurred at the Goodenia Street house. For that reason DSC Perritt obtained a number of possible addresses where she might be found. A record on PROMIS (the AFP information management system) indicated that she was associated with Mr Vickerstaff and it was for that reason that DSC Perritt attended Mr Vickerstaff’s address at Gowrie Court. The interaction with Mr Vickerstaff occurred in passing as the police officers and CD were leaving the premises so that CD could travel with the police officers to the City Police Station in order to participate in a recorded interview. Mr Vickerstaff followed the police officers as they were leaving. It was only in passing that Mr Vickerstaff was asked whether he knew the deceased. It was in response to that question that he volunteered that he hadn’t seen the deceased for a month.
DSC Perritt accepted that after being provided with the information by CD about what she had been told by Mr Vickerstaff, Mr Vickerstaff was a person who had information in relation to the events and that he would therefore treat him as a person of interest because he would have information relevant to provide to police. He did not accept the proposition that was put to him that Mr Vickerstaff was at that point a suspect. DSC Perritt said that he didn’t understand that Mr Vickerstaff was a suspect nor was he under arrest.
He was cross-examined by reference to information available at the time to police that two men were seen leaving the Goodenia Street address, a document requiring a lookout to be kept for the vehicle driven by CD and a document prepared at some stage by an AFP intelligence officer which described Mr Vickerstaff as a person of interest. The cross‑examination did not demonstrate that he was or ought to have been aware that Mr Vickerstaff was a suspect at the time when he spoke to him.
The existence of documents such as an ACT policing alert prepared at some early stage in the investigation requiring that a lookout was to be kept for a motor vehicle which referred to CD and Mr Vickerstaff as persons of interest is not inconsistent with the evidence of DSC Perritt. The evidence did not establish that he was aware of that characterisation in a document that he did not prepare. He did not accept that the characterisation in that document reflected his state of mind at the time.
Similarly a document created by an intelligence officer which described Mr Vickerstaff as a person of interest is not inconsistent with DSC Perritt’s evidence. First, it cannot be said that the document referred to him as a person of interest at the time when he was tasked with locating CD. Although the document was first created on the morning of 18 December 2017, it indicates on its face that it was amended on many occasions up until July 2019 and the evidence does not establish on the balance of probabilities when the characterisation as a person of interest was included in the document. Second, the evidence does not establish that DSC Perritt or SC O’Brien saw the document prior to the interaction with Mr Vickerstaff.
The suggestions that were put to DSC Perritt based upon a retrospective analysis of disparate pieces of information known to police generally at that time did not indicate either that he considered, or ought to have considered, Mr Vickerstaff to be a person of interest prior to his attendance at the Gowrie Court premises.
His evidence was credible and consistent with what he had been told and the limited function that he was performing at the time. The investigation was at an early stage and many lines of enquiry were being pursued. It is completely understandable that an officer in the position of DSC Perritt would not have formed even a tentative belief about the role of Mr Vickerstaff.
A statement from SC O’Brien described his involvement as case officer in relation to the investigation of the death of the deceased. He was also made available for cross‑examination at the hearing of the application.
At the point in time when he tasked DSC Perritt with locating CD, SC O’Brien understood that she was a resident of the house where police suspected a crime had been committed. They did not know her whereabouts. They did not know whether she was dead or alive. He gave evidence that the task given to DSC Perritt was an initial investigation to locate CD as a necessary first step to determining her welfare and what, if any, involvement she had in the circumstances leading to the death of the victim.
I considered the evidence of SC O’Brien to be reliable.
Application of provisions
The accused contended that the evidence of the statements made by him to DSC Perritt should be excluded under s 138 of the Evidence Act by reason of non-compliance with s 23F of the Crimes Act 1914 (Cth) or s 139 of the Evidence Act. He also submitted that it was inadmissible by reason of s 23V of the Crimes Act, s 85 of the Evidence Act and s 90 of the Evidence Act. I will address each of those contentions below.
Section 23F and s 139
The relevant provision of the Crimes Act (Cth) is as follows:
23F Cautioning persons who are under arrest or protected suspects
(1) Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.
(2) The investigating official must inform the person of the caution in accordance with subsection (1), but need only do so in writing if that is the most appropriate means of informing the person.
(3) Subsections (1) and (2) do not apply so far as another law of the Commonwealth requires the person to answer questions put by, or do things required by, the investigating official.
“Protected suspect” is an expression which is defined in s 23B(2):
(2) A person is a protected suspect if:
(a) the person is in the company of an investigating official for the purpose of being questioned about a Commonwealth offence; and
(b) the person has not been arrested for the offence; and
(c) one or more of the following applies in relation to the person:
(i) the official believes that there is sufficient evidence to establish that the person has committed the offence;
(ii) the official would not allow the person to leave if the person wished to do so;
(iii) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so; and
(d)none of the following applies in relation to the person:
[not relevant]
(e) the person has not ceased to be a suspect under subsection (4).
…
(6) In this Part, a reference to questioning a person:
(a) is a reference to questioning the person, or carrying out an investigation (in which the person participates), to investigate the involvement (if any) of the person in any Commonwealth offence (including an offence for which the person is not under arrest); and
(b) does not include a reference to carrying out a forensic procedure on the person under Part ID.
Section 23F may apply in the Territory to investigation of Territory offences by the AFP: s 23A(6).
The decisive point in the present case is that in s 23B(2)(c). DSC Perritt did not have the belief referred to in s 23B(2)(c)(i), would have allowed (and did allow) the accused to leave if he wished to: s 23B(2)(c)(ii) and had not given the accused reasonable grounds for believing that he would not be allowed to leave if he wished to: s 23B(2)(c)(iii). Therefore the accused was not a protected suspect for the purposes of s 23F. He was not under arrest. Therefore s 23F did not apply to the interaction between the accused and DSC Perritt.
Section 139 of the Evidence Act provides that statements made by a person who is under arrest will be taken to have been obtained improperly if the person was not cautioned prior to making the statement. It is unnecessary to set out the statutory provision. In this case the determinative requirement is that “the person was under arrest for an offence at the time”. Section 139(5) extends the concept of being under arrest to a situation where a person is in company of an investigating official for the purposes of being questioned if certain conditions are satisfied. Those conditions reflect the terms of s 23B(2)(c) set out above. For the reasons given earlier, none of these requirements were satisfied in the present case.
Section 23V
Section 23V of the Crimes Act renders inadmissible confessions and admissions not tape-recorded or otherwise recorded as set out in the section. It is not necessary to refer in full to its provisions. The opening words of s 23V(1) provide as follows:
23V Tape recording of confessions and admissions
(1) If a person who is being questioned as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:
…
The decisive issue in relation to the application of s 23V in the present circumstances is whether the accused was being “questioned as a suspect”. The written submissions put on behalf of the accused referred to the definition of “suspect” in s 23WA of the Crimes Act. That definition is not applicable as it is in Pt ID of the Crimes Act (as opposed to Pt IC which contains s 23V) and the section commences “In this Part…”. That leaves the term undefined. There is clearly a distinction between being questioned generally and questioned as a suspect. I accept the evidence of each of the police officers that at the point in time when DSC Perritt spoke to the accused he was not being “questioned as a suspect”. Rather, the high point at that stage was that he became a person of interest who may have relevant information about the victim of the offending because he knew him.
As a consequence, the obligations in s 23V did not arise and it does not provide a basis for the exclusion of the evidence.
Section 85
Section 85 of the Evidence Act is as follows:
85Criminal proceedings—reliability of admissions by defendants
(1)This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant—
(a)to, or in the presence of, an investigating official who at the time was exercising functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b)as a result of an act of someone else who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
Note Subsection (1) was inserted as a response to the decision of the High Court of in Kelly v The Queen (2004) 218 CLR 216.
(2)Evidence of the admission is not admissible unless the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected.
(3)Without limiting the matters that the court may take into account for subsection (2), it must take into account—
(a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b)if the admission was made in response to questioning—
(i)the nature of the questions and the way in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned.
For the purposes of this application I accept that a lie may amount to an implied admission: R v Esposito (1998) 45 NSWLR 442 at 458-459. The two factors identified for the purposes of establishing that the truth of the admission may be adversely affected were that first, the accused had only shortly before been told that Mr Allen had died in circumstances where he had been at the accused’s house for the purposes of purchasing or selling drugs and second, that as a result of admitting knowing the deceased he had been told that he may need to speak with police in relation to the investigation. These two factors in combination provide a reason why he may have told a lie which would distance himself from the deceased.
These submissions really amount to a submission that the lie that was told can be explained by other reasons including a consciousness of guilt of offences other than those charged. Consideration of this possibility will usually be a standard component of any direction given to the jury. Nothing in the circumstances surrounding the making of the statement would cast doubt on the truthfulness of any admission. There is likely to be considerable scope for debate as to what the implied admission is an admission of, but that is not the issue to which the protection in s 85 is addressed.
Section 90
Section 90 of the Evidence Act is as follows:
90Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a)the evidence is presented by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
Note Pt 3.11 contains other exclusionary discretions that apply to admissions.
The accused made the bald submission that “it would be unfair to him to allow the Crown to use the evidence having regard to the circumstances in which it was obtained”. This submission was not elaborated upon. The statement made by the accused was voluntary, it was made in circumstances where the police conduct was reasonable. The meaning and significance of the statement are matters for the jury to assess in light of the directions that they are given. Nothing about the circumstances in which it was made would make its use unfair. Insofar as the statement gives rise to an admission it is not unfair to the defendant to use the evidence.
Orders
The Amended Application in Proceedings sought rulings excluding the evidence. It identified the orders sought. The accused has been unsuccessful in having that evidence excluded. It is appropriate, in order to dispose of the application, to rule that the evidence is admissible.
The order of the Court is:
1. The statements made by the accused to Detective Senior Constable Luke Cameron Perritt on 18 December 2017 are admissible at the accused’s trial.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 29 August 2019 |
2
2