R v Williamson (No 2) No. Sccrm-95-566 Judgment No. S6421
[1997] SASC 6421
•25 September 1997
R v WILLIAMSON (No.2)
Matheson J
The accused was charged with the murder of Michael Joseph Heinrich on Saturday 13 May 1996. The deceased was stabbed four times and died from a knife wound to his heart. The stabbings occurred near a front corner of his house at 13 Robe Street, Evanston Gardens after the deceased had come to investigate a noise made by the accused who was illegally on his premises shortly before 4.30 a.m. The accused gave evidence at his first trial in the course of which he admitted that he caused the deceased’s death with a knife. However, he said that at the relevant time he was under the influence of the drug Serapax, which had been prescribed for him for emotional stress resulting from the break-up of his de facto marriage the previous Thursday. He gave evidence that because of his condition he was unaware that he had the knife in his hand at the time of the stabbings.
The accused lived two-doors away from the deceased at 9 Robe Street. He took six 30 mg tablets of Serepax. He was arrested at about 12.45 a.m. after being apprehended and charged with illegally interfering with a van owned by the occupier of 11 Robe Street. He was released on bail at 1.45 a.m. He did not go to bed that night.
The accused was first spoken to about the murder by Detective Biermann at 5.58 a.m at the front of his house. Biermann told him that he was detaining him on suspicion of the offence of murder and cautioned him. Subsequently a tape-recorded interview took place in the rear of a police vehicle nearby. Senior Constable Humphries was present for most of that interview. It commenced at 6.05 am and ended at about 7.06 a.m. The accused remained in the police vehicle and apparently went to sleep while the police made further enquiries. At 8.45 am. the police drove him to 9 Robe Street, entered his house with a general search warrant, and whilst there, a second tape-recorded interview took place. Detective Sergeant Swan and Detective Malcolm Williams were also present. The accused was arrested at 9.38 am. At about 9.55 am he was again placed in the police vehicle, and driven to the Elizabeth Police Station. A non-taped interview took place there between 10.17 a.m. and 10.55 a.m. in the course of which the accused made certain admissions. At about 10.55 am, a fourth interview took place which was taped and concluded at 11.02 am. At 12 noon a fifth interview took place which was recorded on audio-video equipment and concluded at 12.10 pm. At 12.25 pm. the accused was charged with murder. His medical examination by Dr Flock commenced shortly before 2 pm, and blood samples were taken shortly before 2.20 pm.
Before the jury was empanelled, counsel for the accused, Mrs M Shaw QC, sought an order excluding all the conversations to which I have referred. The basis advanced for the order sought was:
"(a) A lack of voluntariness arising from the circumstances of the accused’s detention, the conduct of the police and the accused’s state of mind which deprived him of a real choice as to whether to speak or remain silent;
(b) in the alternative ... that the conversations ought to be excluded in the exercise of discretion as a result of
the failure of the police to afford the accused his rights pursuant to section 79a of the Summary Offences Act;
the circumstances of his detention;
the accused’s state of mind and including the effects of drugs, and tiredness;
and
the illegality of the police conduct."
After hearing evidence and argument on the voir dire, I excluded a very substantial part of the conversations in the exercise of my discretion, and said I would give reasons for my ruling which I now do.
It is convenient here to set out ss78 and 79a of the Summary Offences Act 1953 so far as they are relevant:
"78. (1) Subject to this section, a person who is apprehended without warrant must be forthwith delivered into the custody of the member of the police force in charge of the nearest police station.
(2) Where a person is apprehended, without warrant, on suspicion of having committed a serious offence, a member of the police force may, for the purpose of investigating the suspected offence -
(a) detain that person, prior to delivering him or her into custody at the nearest police station, for so long as may be necessary to complete the investigation of the suspected offence, or for the prescribed period, whichever is the lesser; and
(b) take that person, or cause him or her to be taken, during the course of detention under this subsection, to places connected with the suspected offence.
...
An application to a magistrate for an authorization under this section may be made by telephone and, where an application is so made, a written record must be made in the prescribed form stating -
(a) the grounds on which the application was made; and
(b) whether the application was granted and, if so, the terms and conditions, on which it was granted,
And the record must be confirmed by the signature of the magistrate to whom the application was made.
...
‘the prescribed period’, in relation to the detention of a person apprehended without warrant, means a period (calculated from the time of apprehension) of four hours or such longer period (not exceeding eight hours) as may be authorized by a magistrate, but in determining whether the prescribed period has elapsed since apprehension -
(a) any delays occasioned by arranging for a solicitor or other person to be present during the investigation will not be taken into account; and
(b) the time that would have been reasonably required to convey the person apprehended from the place of apprehension to the nearest police station, assuming that the person had been taken forthwith to that police station, will be subtracted from the time that has actually elapsed from the time of apprehension:
‘serious offence’ means an indictable offence or an offence punishable by imprisonment for two years or more."
"79a (1) Subject to this section, where a person is apprehended by a member of the police force (whether with or without a warrant) -
(a) the person is entitled to make, in the presence of a member of the police force, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts; and
(b) where the person is apprehended on suspicion of having committed an offence -
the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subjected while in custody;
if English is not the person’s native language - the person is entitled, if he or she so requires, to be assisted at an interrogation by an interpreter; and
the person is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law).
(1a) - (1b) ...
(2) The member of the police force who is in charge of the investigation of a suspected offence in relation to which a person has been apprehended may decline to permit -
(a) the person is custody to make a telephone call to a particular person (being a relative or friend); or
(b) a particular person (being a relative or friend of the person who has been taken into custody) to be present at an interrogation or investigation,
if the member of the police force has reasonable cause to suspect that communication between the person in custody and that particular person would result in an accomplice taking steps to avoid apprehension or would prompt the destruction or fabrication of evidence.
(3) A member of the police force must, as soon as is reasonably practicable after the apprehension of a person -
(a) inform that person of his or her rights under subsection (1); and
(b) warn the person that anything that he or she may say may be taken down and used in evidence."
The evidence of a number of the witnesses who gave evidence at the first trial was tendered by consent on the voir dire, including the evidence of the accused, the evidence of Sergeant Fechner who released the accused on bail at 1.45 am after he had been charged with illegal interference, and the evidence of the forensic pathologist, Dr James, who was also called before me to supplement his evidence. In addition the prosecutor called the police officers already mentioned, namely Biermann, Williams, Humphries and Swan. For the accused, Mrs Shaw called Dr J M White, a psycho-pharmacologist, and a solicitor, Ms G A Brown. I unhesitatingly accept her evidence, and I propose summarising it now perhaps slightly out of sequence.
She was admitted as a solicitor in 1978, and has been employed by the Legal Services Commission for thirteen years. She said that as a result of an arrangement between the Police Department and the Legal Services Commission, the Commission has had in place an after hours custody service since 1992, and a poster was provided to the Police Department describing the service. A copy of the poster was tendered and it read, so far as is material:
"LEGAL SERVICES COMMISSION
...
AFTER HOURS
CUSTODY SERVICE
PHONE 378 9978
A solicitor is available after-hours and on weekends for those people held in police custody about to be charged or interviewed in relation to MAJOR INDICTABLE OFFENCES.
During ordinary business hours contact the nearest Legal Services Commission office.
..."
On Saturday 13 May 1995 Ms Brown received a message to ring Detective Malcolm Williams at 207 9458. The pager noted that the message was received at 10.19 am. Ms Brown returned the message at 10.43 am. She spoke to someone whom she took to be Detective Williams. She told him it was Gabby Brown speaking from the After Hours Custody Service. He told her he was investigating a murder at Evanston Gardens. He said that Paul Tothill had been named by the accused as his solicitor. They had unsuccessfully tried to contact him. They had used an office number but Williams told her he might be in Sydney. She said that she would come to Elizabeth. She asked to speak to the accused. She said the accused was very agitated and upset, and she could not get much sense out of him. He asked her where Paul Tothill was because he wanted to speak to him. After speaking to the accused, Williams came back on the phone. Ms Brown told him the accused was upset, and she asked him to wait for her and not to do anything until she got there. She could hear somebody in the background, who she took to be the accused, who sounded very upset and agitated. She arrived at Elizabeth at 11.30 am, spoke to Williams and other police officers and ascertained the background facts. She then spoke to the accused at 11.45 am. She said he appeared to be slightly incoherent and very agitated. She thought he appeared to be drunk but he did not have a smell of alcohol on him at all, but she certainly formed the opinion that he was affected by some substance. She asked the police to arrange a medical examination and blood test. She was told that the accused had not yet been charged and that the officer in charge of the station was the only one who could authorise that. She then endeavoured to find out Paul Tothill’s private phone number and eventually got it from a police officer at the Elizabeth Police Station. She rang Mr Tothill and arranged for him to attend, which he did that afternoon.
The evidence of Dr James established that the accused had a high concentration of Serepax in his blood at the time of the alleged murder, and also at any other relevant time. Dr James said such a person would appear as though he was intoxicated. He might appear confused and perhaps a little disorientated, have difficulty maintaining balance and have slurred speech.
Dr White had viewed a video of the charging and bailing by Sergeant Fechner at the Elizabeth police station, and read the transcript of the tape recorded interviews between the accused and the police, and the evidence of Dr James. Dr White said that Serepax can cause some impairment of normal thinking processes, particularly memory, and can cause disinhibition and impulsiveness. Dr White also said that from a viewing of the video of the charging and bailing at Elizabeth Police Station at 1.30 am he thought the accused seemed to have some difficulty in balance and walking in a direction required. As far as the tapes of the interviews after 6.05 am were concerned, he said that he noticed that the accused’s speech was slurred, slow and deliberate, that he had difficulty with the sequence of events, made a number of contradictory statements, and had difficulty comprehending some of the questions, and exhibited some confusion. He considered that the accused was obviously impaired by the drug’s influence. He said a person may make an incorrect statement believing it to be correct because of the influence of the drug.
The accused did not give evidence on the voir dire.
There is no doubt that Mr Biermann on several occasions paid what I will describe as "lip service" to the requirements of s79a(1) in his various conversations with the accused. I propose to focus first on the accused’s entitlement with regard to a solicitor. I stress that unlike the entitlement to make a telephone call to a nominated relative or friend, which is merely to inform the relative or friend of his whereabouts, the accused was entitled to have a solicitor present during any interrogation to which he is subjected while in custody. Soon after the 6.05 am interview started the accused told Biermann his lawyer was Paul Tothill. A little later he said "I’d prefer my lawyer to be here, but I just don’t know where he is. I just ... he’s either in Sydney or -", and he was virtually cut off. Then this exchange took place:
"Q. Paul TOTHILL. Would you like the police to make some enquiries to try and contact, or find a phone number, or do you have his phone number at your home address.
A. I’ve got a few cases coming up on the er 24th.
Q. All right, all right. We won’t worry about that, but um can you, could you just answer that question for me please Craig. Um it’s important that I get a direct answer if you could. Would you like somebody, namely a relative, solicitor or friend to be here while you[sic] ask you these, when I ask you these questions.
A. I’ve got no-one around at this time of the morning, no.
Q. All right, so by that I take it that you don’t want er attempts to be made to try and contact Tothill or do you.
A. Well Tothill will find out what’s going on yeah in the long run, but not at the moment.
Q. All right, so you’re happy to er, for me to speak to you without anybody here.
A. Yeah, I’ve got nothing to hide."
A little later he was asked "Do you want us to try and contact the lawyer now for you Craig?" And he replied, "Um I don’t know where to look for him or, you know, what, I wouldn’t have a clue."
It is convenient here to mention that during the later interview at 10.55 am at the Elizabeth Police Station, the accused said to Biermann apropos Paul Tothill’s telephone number, "If I had my wallet, I’d have his after hours number, but I left it at home". Unfortunately during the earlier conversation at the accused’s house, no mention had been made of Paul Tothill’s telephone number.
During the journey from Robe Street to the Elizabeth Police Station, Biermann spoke on his mobile telephone to his Honour Mr Gurry SM, having regard to the fact that the "prescribed period" within the meaning of s78 had nearly expired. In consequence Mr Gurry made an order which I admitted on the voir dire, and which read:
"ORDER FOR AN AUTHORISATION PURSUANT TO SECTION 78(2) OF THE SUMMARY OFFENCES ACT 1953
(Extending Period of Detention Prior to Delivery to Police Station)
Application made by Peter Alan Biermann
Detective Senior Constable (Name & Rank)
Stationed at Holden Hill CIB
on 13/5/95
Name of Person Apprehended: Craig Allan Williamson
Offence Under Investigation: Murder
Time and Date of Apprehension: Arrested 9.42 am 13/5/95 at Evanston Gdns - detained at 5.58 am but not formally arrested until 9.42 am. More time required [required] for medical examination and possible short interview thereafter.
Result: Application granted for a period of 3 hours from 10.03 am on 13/5/95.
Period of Extension (Note: The person must be delivered into the custody of the officer in charge of the police station at the expiration of the period of extension or at such time as the investigation is complete, whichever period is the shorter.):
UPON APPLICATION made at the time and on the date set out, by the applicant for an order extending the time that the person apprehended, having been apprehended on suspicion of having committed the offence set out (which is an indictable offence or an offence punishable by imprisonment for 2 years or more), may be detained prior to being delivered into custody at the nearest police station. I HEREBY AUTHORISE the applicant to detain the person apprehended prior to so delivering him for so long as may be necessary to complete the investigation of the suspected offence or for the period of extension, whichever is the lesser.
Dated this 13th May 1995
(Signed)
Magistrate
D C Gurry"
(My emphasis.)
I also admitted an affidavit from Mr Gurry, the relevant paragraphs of which are as follows:
I have perused a copy of the above authorisation under my hand and dated the 13th of May 1995.
I can recall receiving the phone call from Detective Senior Constable Biermann. I recollected, prior to actually checking the date in the 1995 calendar, that I received the phone call on a Saturday morning.
I cannot now recall precisely what Detective Senior Constable Biermann said to me but I have no reason to doubt that it would be along the lines set out in the order itself.
Unfortunately I have not made a note of the precise time at which the telephone rang. Usually I do so but I have not done so on this occasion. I see that the period of three hours was to run from 10.03 a.m. on the 13th of May 1995. I cannot now recall whether I selected that time as being the approximate time I received the phone call or as being the time when I actually uttered the words of approval to the application. It is likely, however, that Detective Senior Constable Biermann rang me a few minutes before 10.00 a.m.
I spoke with Detective Senior Constable Biermann first. I then asked to speak to Mr Williamson. I have a definite memory of doing that. I outlined to Mr Williamson the details of the request for an extension of time and asked him if he had any views on the matter. I can remember him saying that he wanted to get legal advice. I told him that notwithstanding that it was my intention to grant the application.
I would then have spoken again to Detective Senior Constable Biermann and informed him that I intended to grant the application in the terms set out in the written order. I cannot recall whether I told him of the defendant’s request for legal advice." (The emphasis is mine.)
Biermann admitted in cross-examination that Mr Gurry asked him whether he was going to arrange for a solicitor for the accused and that he said that he was. It is clear from Ms Brown’s evidence - and the police witnesses do not dispute it - that Detective Williams did ring the Legal Services Commission’s After Hours Custody Service and left the message I have quoted above. When the accused finally spoke to Ms Brown after her arrival at the Elizabeth Police Station he again asked for Paul Tothill.
I propose to leave this aspect to one side for a moment and consider now the extent to which Biermann observed the requirement that he allow the accused to make, in his presence, "one telephone call to a nominated relative or friend to inform the relative or friend of his ...whereabouts". Again, it is true that Biermann paid "lip service" to this requirement several times, and that after they arrived at the Elizabeth Police Station, he did ring Michelle Gordon on the accused’s behalf. However, it is clear from early in the interview commencing at 6.05 am that the person the accused wished to telephone was his former de facto wife, Tracey Daniels. Biermann, however, said - still quite early in the interview:
"Well at this stage of the investigation, because of the serious nature of the investigation, um I’ll be refusing that phone call all right to that particular person or an associate for the fear that it may hamper our investigations. Do you understand that, and that’s the basis for my refusal."
Biermann was aware that the accused and Tracey Daniels had separated and that the accused had been charged with assaulting her, and in my opinion he had no justification for declining to permit the call, see s79a(2) supra. The fact that the accused probably could not in fact have spoken to her on the telephone is irrelevant. As Cox J observed in his ruling on a voir dire in R v Turner and Williams 9 November 1997 there are no saving provisions in s79a.
I come now to an even more serious criticism of the police. Upon arrival at the Elizabeth Police Station, the accused was placed in the audio visual recording interview room. It would appear that from and after their arrival at about 10.17 am, there were actually at least two of the three police officers who had accompanied him there who were present in the room. I do not know why it was necessary for any of them to stay inside the room. In fairness, I should mention that Williams unsuccessfully tried to ring Paul Tothill at his office and then rang and left a message with the Legal Services Commission paging service, and Biermann rang Michelle Gordon. It appears that the accused became very upset about 10.35 am while they were waiting for a solicitor from the Legal Services Commission to ring, and he started to cry. Humphries left to get him some coffee. Biermann and Williams remained. Williams said "What’s on your mind?". It was then that the accused made some damaging admissions. I do not think Williams should have questioned him in all the circumstances, including the circumstance that the police were well aware that he wanted legal advice. What is worse, and notwithstanding that Williams had been asked by Ms Brown at 10.43 am not to speak to the accused until she arrived, Biermann proceeded to interview the accused on tape between 10.55 and 11.02 am in the course of which he put to the accused the gist of the earlier conversation between Williams and the accused to which I have just referred.
A further criticism of the police questioning at the Elizabeth Police Station is justified. They sought and obtained an authorisation from Mr Gurry SM for an extended period of detention of three hours "for medical examination and possible short interview thereafter". The medical examination did not take place for nearly four hours after the authorisation was granted, and the accused was kept in the audio-visual interview room from 10.17 am and actually interviewed again.
I propose now to consider whether the Crown discharged the onus on it to establish on the balance of probabilities that the accused’s incriminating answers were voluntarily made. There was undoubtedly a strong body of evidence that indicated that the accused was substantially under the influence of Serepax at any relevant time, and I have no doubt that the accused’s lack of sleep and food and undoubted emotional upset exacerbated the drug’s influence. I accept that an incapacity to choose whether to speak or remain silent or to understand the availability of such a choice may constitute involuntariness, but having anxiously considered in particular the accused’s answers and appearance when on video, and the evidence of Doctors James and White, as well as the other evidence, I have reached the conclusion that the onus on the Crown has been discharged. In so deciding I do not overlook the relevance of Mrs Shaw’s criticisms of the police observance of the requirements of s79a. However, I regard those criticisms as of more importance in considering the alternative argument in relation to a discretionary exclusion of the evidence.
I do not find it necessary in this case to categorise what the police did and failed to do as illegal, although it may well have been, but I have no hesitation in categorising it as unfair, particularly having regard to the condition of the accused. "... the discretion to exclude evidence on the ground that its reception would be unfair to the accused ... is not confined to unlawfully obtained evidence ..." see Foster v R (1993) 113 ALR 1 at 6-7, and see McDermott v The King (1948) 76 CLR 501 at 513-515. I do not overlook the fact that the accused did not give evidence on the voir dire. The police officers who interrogated the accused from and after 5.58 am said that they did not consider he was under the influence of anything, but in that they were clearly mistaken. I consider that fairness here demanded an earlier and more purposeful attempt to locate Mr Tothill, and if that failed, at least to advise the accused of the Commission’s After Hours Custody Service, and make contact with it. I also refer to other criticisms of the police conduct which I have made above. I do not overlook that they were investigating a murder and that they were aware that the accused was probably the killer if not the murderer, nor do I overlook that several of the accused’s answers suggested he was willingly co-operating. However, on the whole of the evidence I considered it would be unfair to admit the evidence, or at least so much of it as related to the period after the accused said he would prefer his lawyer to be present and nominated Paul Tothill, and that is what I ruled.
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