R v Willis (Ruling No 1)
[2015] VSC 261
•11 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BALLARAT
CRIMINAL DIVISION
S CR 2014 0146
| THE QUEEN |
| v |
| JESSE WILLIS |
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JUDGE: | OSBORN J |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 9 June 2015 |
DATE OF RULING: | 11 June 2015 |
CASE MAY BE CITED AS: | R v Willis (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 261 |
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CRIMINAL LAW – Evidence – Murder – Admissibility of record of interview – Whether accused properly cautioned with respect to right to silence – Whether accused informed of the circumstances of offence – Crimes Act 1958, s 464A(2) – Where caution not recorded – Crimes Act 1958, s 464G – Where evidence obtained as a result of impropriety – Whether evidence should be excluded – Evidence Act 2008, s 138 – Evidence Act 2008, s 90.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr J D Williams with Mr P Smallwood | Victorian Legal Aid |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Section 464A of the Crimes Act 1958............................................................................................... 2
The October 2013 record of interview............................................................................................ 3
The oral evidence of Detective Sergeant Trewavas..................................................................... 4
The issues............................................................................................................................................ 8
The circumstances of the offence.................................................................................................... 9
Was the accused cautioned with respect to his right to silence before the record of interview? 10
Was there compliance with s 464A(2)?.......................................................................................... 12
Was there compliance with s 464A(3)?.......................................................................................... 13
Was there compliance with s 464G?.............................................................................................. 13
What was the effect of non-compliance with s 464G?............................................................... 14
Section 90........................................................................................................................................... 19
Conclusion......................................................................................................................................... 19
HIS HONOUR:
Introduction
Jesse Willis is charged with the murder of Ricky Lee Ganly at Avoca on or about 29 April 2013. His trial is listed to commence in Ballarat today.
It is not disputed that the accused shot Ganly in the head intentionally causing his death and that thereafter the accused and another man disposed of Ganly’s body by submerging it within his motor car in a water-filled disused mine working at Avoca.
The defence puts in issue self-defence arguing that the Crown cannot prove that the accused did not believe it was necessary to kill Ganly in order to defend himself from the infliction of death or really serious injury, or that the accused did not have reasonable grounds for such a belief.[1]
[1]Crimes Act 1958, ss 9AC and 9AD.
Ganly’s body was not recovered until January 2014. Prior to its recovery, his disappearance was the subject of a police investigation which included an initial interview with the accused in September 2013 and, following further investigations, a further record of interview made on 31 October 2013. This was followed by a final set of interviews (including a field interview) on 19, 20 and 21 January 2014, undertaken after the discovery of Ganly’s body.
In his first record of interview, the accused said that the first and only time he met Ganly was at a hotel in Deer Park on 28 April 2013.
In his second record of interview, the accused said that what he had first told police was not entirely true. He had met Ganly in Sunshine on 28 April 2013 and travelled to Avoca with him in order to obtain a gun for Ganly. He had parted from Ganly after Ganly had become angry when no satisfactory gun was obtained and when Ganly had stabbed him with a pair of scissors in the arm. The accused did not know what had happened to Ganly.
In his third set of interviews in January 2014, the accused admitted causing Ganly’s death by shooting him in the head and disposing of his body together with his motor car. He said the shooting occurred after Ganly had threatened him with violence and in response to that threat.
The Crown propose to adduce evidence of the October 2013 record of interview as part of the accused’s statements as a whole and as evidence of implied admission of responsibility for the unlawful killing of Ganly. It relies on false denials of knowledge of the circumstances of Ganly’s disappearance. Such denials fall to be considered in conjunction with other post-offence conduct and in particular the disposal of Ganly’s body and car.
Counsel for the accused seek to have evidence of the October 2013 record of interview and an associated statement excluded from the trial. That application is made primarily on the basis that the accused was not properly cautioned as to his right to silence at the outset of the record of interview. This argument was ultimately elaborated by way of a series of alternative propositions. In order to understand the issues raised on behalf of the accused it is necessary first to set out the critical statutory provisions and then to say something about the evidence concerning the October 2013 record of interview.
Section 464A of the Crimes Act 1958
Section 464A of the Crimes Act 1958 relevantly provides:
(1)Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be—
(a) released unconditionally; or
(b) released on bail; or
(c) brought before a bail justice or the Magistrates’ Court—
within a reasonable time of being taken into custody.
(2)If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)—
(a)inform the person of the circumstances of that offence; and
(b)question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.
(3)Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.
In turn, s 464G provides:
(1)If a person is in custody in relation to an indictable offence, an investigating official who is required by sections 464A(3), 464C(1) and 464F(1) to give the person in custody certain information must record (by audio recording or audiovisual recording), if practicable, the giving of that information and the person's responses, if any.
(2)Subsection (1) is subject to section 464B(5H) and (15).
The October 2013 record of interview
It is not disputed that at the time he was interviewed on 31 October 2013 the accused had been arrested and was in custody within the meaning of s 464A(1).
The video recorded record of interview which is the subject of challenge commenced with a preliminary statement by Detective Sergeant Trewavas.
ALL RIGHT. MY NAME IS SERGEANT STEVE TREWAVAS. I’M A DETECTIVE AT THE HOMICIDE SQUAD IN MELBOURNE AND TODAY WE’RE HERE AT MARYBOROUGH POLICE STATION IN MARYBOROUGH. IT’S THE 31ST OF OCTOBER 2013 AND THE TIME IS NOW IS 2.21 PM AND WE’RE ABOUT TO HAVE A CONVERSATION WITH JESSE WILLIS IN RELATION TO THE DEATH OF RICKY LEE GANLY WHICH OCCURRED ON THE 28TH INTO THE MORNING OF THE 29TH OF APRIL 2013. JESSE’S COME IN TODAY AFTER RECEIVING A PHONE CALL FROM THE LOCAL POLICE AND WE’RE HERE AS A RESULT OF THAT. ULTIMATELY WE’RE HERE HAVING A CONVERSATION.
Mr Trewavas then questioned the accused man commencing as follows:
Q1 Jesse, just so you’re aware the tape deck is going to run, The Homicide Squad — we run our tape decks all the way through. So from when we commence this until you leave today, there will be a recording of what occurs. So this is in fairness to you and us and open and transparent about what happens.
AMm’hm.
Q2 So everything we say in the room here or anything we do in the room here is recorded on there. There’s three disks there you would have seen me loading up just a minute ago?
AYep.
Q3 One’s for the court, one’s for me and one goes home with you today. All right?
AMm’hm.
Q4 So ultimately your actions or what you say, recorded, and can be used in evidence in court.
AMm’hm.
Q5 You understand.
AYep.
Q6 There’s also some important things and I know I’ve done this before when we were outside and explained it to you but you have some rights which are important to you and important you understand what they are and your legal rights are that you can speak to a friend or relative and tell them you’re here at the police station and or — and or you can speak to a solicitor and get some legal advice.
AMm.
Q7 Do you understand those two rights?
AMm.
Q8 And you’ve — we’ve gone through this before but you’ve declined.
AYeah.
Q9 You’re happy to go ahead now. We’re going to be a while so really this is just the formalities. Turn it on, it’s operating so just be mindful of that it’s going on now.
AMm.
It can been seen that, although Mr Trewavas did advise the accused that his answers could be used in evidence in court, he did not advise him of his right to silence either at all or in the terms specifically required by s 464A(3).
The oral evidence of Detective Sergeant Trewavas
Mr Trewavas gave evidence upon the voir dire concerning the circumstances in which the accused came to be interviewed on 31 October 2013. He said that on the morning of that day he travelled to Maryborough with another detective and arrived at about 10:30 that morning. He and his companion then briefed two local detectives who were instructed to arrest the accused at his home. They attempted unsuccessfully to make the arrest but the accused then rang the Maryborough Police Station and agreed to come in at 12:30 for the purpose of an interview.
Mr Trewavas was not present when the accused initially arrived but had a conversation with the accused after a record of his attendance had been entered in the attendance register and after he had been spoken to by the custody sergeant.
On meeting the accused, he walked with him through the interior of the police station to a car park area adjacent to a sallyport. The accused then had a cigarette before they returned back into the police station.
Mr Trewavas says that, as he walked to the rear of the police station with the accused, he first told him that, although he had come in voluntarily, the accused was under arrest in relation to the suspicious disappearance and suspected murder of Ricky Ganly.
Mr Trewavas says that, after making clear to the accused that he was under arrest in relation to the suspected murder of Ganly, he then gave the accused ‘the full caution and rights’. He told the accused that he was not obliged to say or do anything but anything he did say or do could be recorded and given in evidence. He also spoke to the accused about his rights in relation to contacting a friend or relative, informing them where the accused was, and he told the accused that he had the right to speak to a solicitor to obtain some legal advice. He asked the accused if he understood this and he said yes. They then had a conversation for about 15 minutes before going back into the police station. He made no note of advising the accused he was under arrest or of cautioning him at that point. Mr Trewavas cannot say precisely where he was when he cautioned the accused, although he describes the route they traversed in some considerable detail.
In the course of the conversation near the sallyport, the accused made two statements which Mr Trewavas recorded in his notebook:
If I tell you what I know I won’t be going home.
…
Can you guarantee I will go home tonight?
Mr Trewavas says that when he was asked whether he could guarantee that the accused would go home that night he responded:
No I can’t guarantee it. I don’t know what you’re going to tell me.
Immediately below his initial note of these statements by the accused, Mr Trewavas made a further note to similar effect preceded by the word ‘I/view’ meaning interview:
If I tell you everything I know I won’t be going home.
…
Can you guarantee me I will go home tonight?
He is not now sure why he made this additional note.
There was some further conversation near the sallyport concerning the accused’s fear of bikies. The accused was scared of what people would do to him if he spoke to police. Mr Trewavas did not make a note of this conversation and does not now have a complete recollection of it.
As his notes further record, Mr Trewavas organised the issue of search warrants relating to the accused’s home and spoke to a solicitor from Aboriginal Legal Aid before commencing the formal record of interview at 2:21 pm.
Mr Trewavas says that at the time he commenced the interview he expected the accused to co-operate but perhaps did not expect him to confess.
Mr Trewavas initially gave evidence that he believed the accused was not present when he made the preliminary statement at the start of the record of interview. He subsequently accepted that the video shows his recollection was faulty.
Mr Trewavas agreed in cross-examination that he had probably conducted hundreds if not thousands of interviews in his career and that there is a stock standard phrase with which detectives or police commonly commence records of interview:
I intend to interview you in relation to …
He agreed that in this case such a phrase would have been ‘I intend to interview you in relation to the death or disappearance of Ricky Ganly’. Mr Trewavas did not use this phrase which he described as the traditional model in which the accused person is told of his rights by reference to a blue card.
Mr Trewavas adopted a more informal methodology described by the acronym PEACE. The letter P stands for preparation, E stands for engage and explain, A stands for account, C stands for challenge or clarification, and E for evaluation. The model envisages that a suspect will initially be made to feel comfortable and go through a series of preliminary stages before his account is challenged or clarified.
Prior to commencing the interview with this methodology, however, the accused had been told what the interview was going to be about and that Mr Trewavas would conduct the interview with him on tape.
Mr Trewavas agreed that he did not, in the course of the recorded interview, tell the accused that he had a right to refuse to answer questions. This was not because of a deliberate choice. It was a mistake and omission on his part.
There was a break in the interview a little after 4:15 pm which lasted until the interview recommenced at 4:34 pm. He did not caution the accused again at this point because the break was a short one.
It was put to Mr Trewavas that, given that he had overlooked cautioning the accused about his right to silence when he conducted the formal record of interview, it was possible he had also overlooked cautioning him in relation to his right to silence as they moved through to the sallyport area and had a discussion prior to the interview. Mr Trewavas denied this possibility.
The issues
It is first submitted on behalf of the accused that the Court should not be satisfied on the evidence that the accused was cautioned with respect to his right to silence before the commencement of the formal record of interview. The following aspects of the evidence are emphasised.
·No contemporaneous note was made of the giving of an initial caution.
·Mr Trewavas now has an incomplete recollection of the full terms of the conversations he had with the accused man, where precisely they occurred and what was said.
·Mr Trewavas was incorrect in his initial recollection as to whether the accused was present when the preamble to the record of interview was recorded. This casts doubt on the accuracy of his recollection as to other matters.
·The assertion that a caution was given is not corroborated by any other independent witness.
Secondly, it is submitted that, even if the Court were satisfied that some caution was given prior to the formal record of interview, it should not be satisfied that it included a caution which advised the accused of his right to silence. It is emphasised that, although a partial caution was given when the interview commenced, this was not recognised as inadequate. Further, express reference is made in the opening series of questions to ‘two rights’, which two rights do not include the right to silence. The separate right to silence is not identified or acknowledged as such.
Thirdly, it is submitted that, if a caution was given prior to the formal record of interview, it was not recorded in accordance with the requirements of s 464G.
Fourthly, it is submitted that not only is the formal record of interview deficient by reason of the failure to adequately caution the accused in respect of his right to silence, but it does not satisfy the requirements of s 464A(2) at its outset by informing the accused of the circumstances of the offence that he was suspected of having committed before the questioning commenced.
The circumstances of the offence
It is convenient to deal with the last point first because compliance with s 464A(2) informs the context within which s 464A(3) must be complied with.
I accept Mr Trewavas’s evidence that prior to the formal record of interview process commencing he told the accused that he was under arrest in respect of the suspicious disappearance of and suspected murder of Ricky Ganly having regard to the following matters.
·Mr Trewavas’s notebook confirms his oral evidence that on attendance at Maryborough Police Station two local detectives were instructed to arrest the accused.
·The notebook also confirms his oral evidence that in the event the applicant came in voluntarily to the police station after no initial arrest was effected.
·It is inherently probable that Mr Trewavas was, as he says, then concerned to make clear that the accused was or was not under arrest.
·Mr Trewavas’s account of the conversation is a circumstantial one despite some uncertainty as to the precise location at which the relevant statements were made to the accused. In particular, his description of taking the accused from the front of the police station out the back so that the accused could smoke and of speaking to him in the course of this process is a circumstantial one detailing the route taken.
·Whilst it is true that no note was made of the whole of the conversation the evidence that the starting point was a discussion about the arrest of the accused and its basis is inherently probable given the sequence of events.
·The responses noted in the police officer’s notebook:
If I tell you what I know I won’t be going home.
and
Can you guarantee I will go home tonight?
each tend to corroborate that the accused was told that he was a suspect in respect of the suspicious disappearance and suspected murder of Ganly. It is plain that the subject of the suspicious disappearance of Ganly was raised if these statements were made. It is also plain that the accused understood his own role in respect of that disappearance was in issue.
·The preliminary statement made at the start of the record of interview that ‘we’re about to have a conversation with Jesse Willis in relation to the death of Ricky Lee Ganly which occurred on the 28th into the morning of the 29th of April 2013’ is consistent with prior discussion identifying the subject matter of the proposed interview, although it goes no higher than this save that it specifies the relevant dates.
·I accept the evidence of Mr Trewavas that the accused was advised and knew what he was going to be interviewed about. In my view, the general tenor and course of the record of interview including in particular the initial 100 questions tend to confirm that this was so and that the accused was not taken by surprise by the subject matter of the questioning.
·No evidence was called from the accused to dispute that he was told that he was arrested before the record of interview or that he was told more specifically that he was under arrest in relation to the suspicious disappearance of and murder of Ricky Ganly. Although the Crown bears the relevant onus of proof, the evidence as a whole falls to be evaluated in this context.
I accept that views might differ as to the weight of some of these considerations but taken together they persuade me that the evidence of Mr Trewavas that the accused was told the basis of his arrest should be accepted.
Was the accused cautioned with respect to his right to silence before the record of interview?
I further accept the evidence of Mr Trewavas that, when he advised the accused that he was under arrest in respect of the suspicious disappearance of and suspected murder of Ricky Ganly, Mr Trewavas went on to caution the accused in respect of his right to silence in terms reflecting the requirements of s 464A(3), namely that he did not have to say or do anything but that anything he did say or do might be given in evidence, having regard to the following matters.
·Questions 6 and 8 in the record of interview directly corroborate the oral evidence that there was a process of cautioning prior to the record of interview.
·It was a logical concomitant of advising the accused that he was under arrest that he also be fully cautioned.
·Mr Trewavas freely admits that he made a mistake in failing to give a full caution at the outset of the record of interview by advising the accused only that what he did or said would be recorded and could be used in evidence in court but not advising him of his right to silence. On the other hand, he denies that he did other than give a full caution after advising the accused that he was under arrest.
·The statements of the accused noted in the police officer’s notebook confirm that there was a conversation between them about whether the accused would or would not answer questions concerning the disappearance of Ganly.
·The record of interview progresses through to question 435 when the accused is told in terms that he is the number one suspect in relation to the murder of Ganly and is challenged in a series of questions to say more about the disappearance of Ganly. Questions and answers 442 and 443 are as follows:
Q442 You’ve – if you did know what happened to him, would you tell me?
AYeah.
Q443 Really? Why would you tell?
AI don’t know. I might just go ‘no comment’. You’re making me nervous. You’ve taken a very serious tone of voice all of a sudden. I’ve - yeah.
·The fact that the accused volunteers his capacity to make a ‘no comment’ answer again tends to confirm that he had been advised of his right to silence and knew how to exercise it.
·No evidence was called from the accused disputing that he was cautioned prior to the record of interview or asserting that he did not understand his right to silence. Although the onus is upon the Crown with respect to this issue the evidence which is available falls to be considered in this context.
·The fact that the giving of the caution was not noted by Mr Trewavas in his notebook is not surprising given the very limited notes made overall concerning the conversation prior to the record of interview. Likewise, the fact that it was not recorded is explained by the informal location in which the conversation deposed to took place.
I accept once again that views might differ as to the relative weight of these considerations but taken together they support the acceptance of the evidence of Mr Trewavas that the accused was cautioned as to his right to silence.
Was there compliance with s 464A(2)?
I have set out the terms of s 464A(2) above.
An investigating official is obliged to inform a person in custody of the circumstances of the offence which he is suspected of having committed before he can question that person in order to determine the involvement (if any) of the person in that offence.
It is unnecessary for the investigator to inform an accused of the precise details of the offence, or nominate a particular offence.[2] The accused must be apprised of ‘the central factual feature or features expressed in general and abbreviated terms, of the offence for which the person is in custody.’[3] In the present case, police did not know the precise circumstances of Ganly’s disappearance. They did not have conclusive evidence that he had been killed by the accused or indeed that he was dead. In R v Lancaster, Batt JA, with whom Winneke P agreed, said:
The expression ‘the circumstances of that offence’, in my view, means the central factual feature or features, expressed in general and abbreviated terms, of the offence for which the person is in custody. What is required is sufficient information to enable the person both to understand what he is to be asked about or the investigations he is to participate in, and also to make an informed decision concerning the rights which the subdivision confers on him or preserves for him, such as the right of silence and the right to communicate with a friend, relative or lawyer. The amount and content of the information required will vary from case to case, but the expression does not require a statement of all the facts of the offending or all those then known to the official. Much less does it require a statement of the elements of the offence or its name, either of which might mean little to many persons taken into custody.[4]
[2]R v Lancaster (1998) 4 VR 550, 557 (Batt JA, with whom Winneke P agreed).
[3]Ibid.
[4]Ibid.
In my view, it was sufficient to advise the accused that he was under arrest in relation to the suspicious disappearance of and suspected murder of Ricky Ganly.
A similar conclusion was reached with respect to like words by T Forrest J in R v Kerr.[5] Leave to appeal from that interlocutory decision was refused by the Court of Appeal.[6]
[5][2015] VSC 64.
[6]Charles Hinton (A Pseudonym) v The Queen [2015] VSCA 40.
The purpose of the sub-section was complied with because the accused was provided with sufficient information to enable him to understand what he was to be asked about and to make an informed decision concerning his rights including his right to silence and the right to communicate with a friend, relative or lawyer.[7]
[7]R v Lancaster (1998) 4 VR 550, 555–6 (Tadgell JA, with whom Winneke P agreed), 557 (Batt JA, with whom Winneke P agreed).
Was there compliance with s 464A(3)?
If for the reasons I have given the evidence of Mr Trewavas is accepted as to the giving of a full caution after he advised the accused of his arrest, then there was compliance with s 464A(3).
Was there compliance with s 464G?
Self-evidently, s 464G was not complied with. The giving of the full caution was not recorded.
What was the effect of non-compliance with s 464G?
I respectfully adopt the analysis of T Forrest J in R v Kerr with respect to s 138 of the Evidence Act 2008:[8]
[8][2015] VSC 64, [11]–[21] (citations in original).
11At common law, the Bunning v Cross discretion permitted the exclusion of otherwise admissible evidence that had been improperly or unlawfully obtained.[9] The discretion required the trial Judge to balance competing policy considerations, including ‘the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful [or improper] conduct of those whose task it is to enforce the law.’[10]
[9]Bunning v Cross (1978) 141 CLR 54.
[10]Ibid 74 (Stephen and Aickin JJ).
12Section 138 of the Act derives significantly from the common law discretion:[11]
[11]Robinson v Woolworths Ltd (2005) 64 NSWLR 612, 618 [22].
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law—
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
13Despite its similarities, s 138 has altered the burden of proof on an application for exclusion on the basis of impropriety or illegality. The party seeking to exclude the evidence has the burden of showing that the evidence was obtained improperly or in contravention of an Australian law; it then falls to the party seeking the admission of the evidence to persuade the court that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.[12] In that sense s 138 contemplates a two-stage process.[13]
[12]Parker v Comptroller-General of Customs [2009] 83 ALJR 494, 500 [28] (French CJ) (‘Parker’).
[13]Employment Advocate v Williamson (2001) 111 FCR 20, [78] (Branson J).
14A second and related difference is that while exclusion under the rule in Bunning v Cross was discretionary s 138 is expressed in mandatory terms: upon satisfaction that the evidence was obtained improperly or in contravention of an Australian law the trial judge must exclude the evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.[14]
[14]See, DPP v Hicks (Ruling No 1) [2014] VSC 43, 20 [60].
15The Act does not define ‘improperly’, ‘impropriety’ or ‘contravention’. In Parker, French CJ noted that the relevant ordinary meanings of ‘improper’ included ‘not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong’,[15] while ‘contravention’ referred to ‘[t]he action of contravening or going counter to; violation, infringement, transgression.’[16]
[15]Parker (2009) 83 ALJR 494, 501 [29] (French CJ); The Oxford English Dictionary, 2nd ed (1989), Vol VII, p 747.
[16]Parker (2009) 83 ALJR 494, 501 [29] (French CJ); The Oxford English Dictionary, 2nd ed (1989), Vol III, p 847.
16In New South Wales, the Court of Criminal Appeal has held that in the absence of a general definition of ‘impropriety’ the common law principles ‘collected in [Ridgeway v The Queen],[17] derived from earlier Australian authority […], should be applied.’[18] It followed, according to the majority view:
[17](1995) 184 CLR 19.
[18]Robinson v Woolworths Ltd (2005) 158 A Crim R 546, 554 [22] (Basten JA, Barr J agreeing) (‘Robinson’); See, also DPP v Hicks (Ruling No 1) [2014] VSC 43, 18 [56].
that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be ‘quite inconsistent with’ or ‘clearly inconsistent with’ those standards.[19]
[19]Robinson (2005) 158 A Crim R 546, 554 [23] (Basten JA, Barr J agreeing).
17Although the Act does not provide a general definition of ‘impropriety, it does contain a number of deeming provisions. The first, s 138(2), applies only to evidence of an admission:
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
18Section 139 is a further deeming provision, of general application, that relates to the failure to caution certain persons:
139 Cautioning of persons
(1)For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—
(a) the person was under arrest for an offence at the time; and
(b)the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and
(c)before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
[…]
(5)A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if—
(a)the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or
(b)the official would not allow the person to leave if the person wished to do so; or
(c)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.
19I have omitted what are in my view the irrelevant aspects of s 139. They include sub-s (2), which is a deeming provision that applies to questioning conducted by investigating officials who are not empowered to arrest the person; sub-s (4), which provides an exception to the deeming provisions where the person is required, by law, to answer questions put by the investigating official; and sub-s (6), which creates a limited, and irrelevant, exception to sub-s (5).
20As I have said, if the party seeking the exclusion of the evidence satisfies the Court that the evidence has been obtained improperly or in contravention of an Australian law it then falls to the party seeking its admission to persuade the Court that it should be admitted. The balancing exercise to be undertaken pursuant to s 138(1) is, essentially, the balancing exercise discussed in Bunning v Cross.[20] Sub-section (3), however, adds to that exercise a list of mandatory considerations:
[20]DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355, 5–6 [17].
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
21Although they are dealt with independently elsewhere in the Act, the reliability[21] of the evidence and the unfairness[22] of admitting the evidence may also be relevant considerations.[23] Neither unreliability nor unfairness is necessary in order that it be undesirable that the evidence be admitted.[24]
[21]Evidence Act 2008, s 85.
[22]Evidence Act 2008, s 90.
[23]R v Helmhout (2001) 125 A Crim R 257, 259 [11].
[24]Ridgeway (1995) 184 CLR 19, 49–50 (Brennan J) and 83 (McHugh J).
The evidence now in issue was obtained in contravention of s 464G and thus should not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. There is an obvious public interest underlying s 464G, which is to ensure compliance with the substantive provisions referred to in it, including s 464A(3).
This said, I am satisfied the failure to comply with s 464G did not materially affect the course of the subsequent interview. That failure has made the fact-finding exercise with respect to s 464A(3) much more difficult than it should have been but it cannot sensibly be thought to have itself influenced the course of answers given in the record of interview.
The consequences of the failure to comply with s 464G can be further conveniently analysed by reference to the mandatory considerations set out in s 138(3).
(a) The probative value of the evidence is difficult to evaluate. The record of interview does not contain direct admissions of responsibility for the death of Ganly or with respect to the circumstances in which he died. When it is coupled with other aspects of the accused’s post-offence conduct, however, it is capable of being viewed as materially probative of the Crown case.
(b) The evidence does materially amplify the Crown case as to post-offence conduct.
(c) The offence is very serious and there is a strong public interest in presenting the jury with all relevant evidence in respect of it.
(d) The contravention is essentially a procedural one.
(e) I am satisfied the contravention was neither deliberate nor reckless.
(f) The contravention was not contrary to or inconsistent with a right recognised by the International Covenant on Civil and Political Rights.
(g) No other proceeding has been or is likely to be taken in relation to the contravention.
(h) There was no apparent difficulty in obtaining the evidence without the relevant contravention of the law.
Given my conclusions as to the giving of a full caution prior to the record of interview, there is no reason to regard the contravention of s 464G as giving rise to underlying unfairness to the accused or to infer that it rendered the evidence now in issue any less reliable.
In the circumstances, I would conclude that the desirability of admitting the evidence substantially outweighs the undesirability of admitting it.
Section 90
In my view the conduct of the record of interview in the circumstances I have found was not materially unfair. Further, it may be doubted that the Evidence Act 2008 contemplates that once evidence of this sort meets the criteria of s 138 it can be excluded under s 90 on the grounds which the accused raises.[25]
[25]Em v The Queen (2007) 232 CLR 67, 106 [119] (Gummow and Hayne JJ).
Conclusion
I would not exclude the October 2013 record of interview and related statements from evidence.
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