R v Willson - [2005] SADC 25

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILLSON
Reasons for Ruling of His Honour Judge Rice
22 March 2005
CRIMINAL LAW
Charge of causing death by dangerous driving - challenge to the admissibility of a short conversation between a police officer and the accused during which she admitted she was the driver - conversation took place at the scene of the accident when the accused was undergoing treatment for significant leg injuries.
Held - accused was obliged to answer the question as to the identity of the driver pursuant to s 38 of the Road Traffic Act, but the admission should be excluded in the exercise of the discretion.
Road Traffic Act 1961 s 38, referred to.
R v Hooper (1995) 64 SASR 480; R v Lobban (2000) 77 SASR 24; R v Swaffield (1998) 192 CLR 159; Van der Meer v The Queen (1988) 62 ALJR 656; Police v Jervis (1998) 70 SASR 429, considered.

R v WILLSON
[2005] SADC 25
Introduction

In this matter the accused is charged with Causing Death by Dangerous Driving. Particulars of the offence alleged against her are that, on 1st January, 2003, at Clare, she drove a car in a manner which was dangerous to the public and thereby caused the death of Nicola Cathy Green.
Application is made to exclude a very short conversation said to have taken place at the scene of the accident between the accused and Senior Constable Hill. In this conversation, the accused is alleged to have admitted that she was the driver. Although there is other evidence available to the prosecution that is capable of supporting a finding that the accused was the driver, the alleged admission is obviously important.
Although the grounds upon which exclusion is sought are variously described, the essence of the case for the accused is involuntary, or, alternatively, that it would be unfair to allow the alleged admission to be used against her. The circumstances of the conversation are outlined below, but the alleged admission is said to have been made when the accused was in great pain and distress as the result of quite significant injuries that she sustained in the accident.
Circumstances of the conversation
As mentioned, the accident giving rise to this charge occurred on New Year’s Day, 2003 at about 10.00 a.m., at the intersection of Emu Flat and Blyth Roads, about one kilometre west of Clare. It was a single vehicle accident. The vehicle was travelling away from Clare towards Blyth when it failed to take a right-hand bend, left the bitumen road onto a dirt side road, collided with trees and shrubs, rolled over and at some stage caught fire. There were only two people in the vehicle at the time of the incident, the accused and the deceased, Nicola Green.
The statement from Senior Sergeant England suggests that the speed of the Ford Falcon at the time it was negotiating the bend and before it left the road was between 134 kilometres per hour and 157 kilometres per hour.
Both young women had significant blood alcohol levels. Blood taken from the accused at 12.10 p.m., about two hours after the accident, showed a blood‑alcohol reading of 0.12%. Blood taken from the deceased at 10.55 a.m. showed a blood-alcohol reading of 0.184%.
As can be seen from that bare overview of the case, the committal evidence would support the conclusion that someone was driving in a manner dangerous to the public. Whether there is proof that the accused was that driver will form a significant part of the case.
After the accident a number of people attended at the scene. As mentioned, after the Ford rolled over, it caught fire. Those that attended needed to assist to move the accused and Ms Green. Their positions were as follows.
The accused was in the rear of the vehicle. The rear of the driver’s seat was laid flat and she was lying on her back with her legs out the rear driver’s side window. Both of her legs below the knees were broken and were at about 90 degrees to her body. She was unconscious.
Ms Green was lying on the ground about three metres to the left of the vehicle. There were no signs of movement or noise. A little later she was moved about twenty metres away when the fire in the engine compartment was unable to be readily extinguished. She was conveyed to the Clare Hospital and then the Flinders Medical Centre. However, Ms Green had sustained severe head injuries and died the following day.
Evidence was given on the voir dire by Dr McArthur who was on-call at the Clare Hospital and attended the scene shortly after the rollover. In his declaration he said that he examined the accused when she was lying on the side of the road. When he examined her she was conscious, alert and talking. He could smell liquor on her breath. He asked her if she was driving and she said: “I don’t know.” I will return to the aspect of her injuries shortly.
Another relevant feature of the events at the scene relates to speculation by some of those present that there may have been a child in the vehicle (TP51). (As a matter of fact, the accused has a young son (TP65), but he was in the care of his grandparents at the time.) A search of the scene was made and no child was found. The vehicle was burning too fiercely initially to make any search of it. This was a relevant factor in Senior Constable Hill’s decision to speak with the accused. It is that conversation and its circumstances to which I now turn.
Senior Constable Hill attended the scene at a time when the accused and Ms Green had both been removed to a safe distance from the vehicle. After speaking with some of those present, he learned of the suggestion that there may have been a third person in the vehicle at the time of the rollover. As the result of receiving that information, he approached the accused and had this brief conversation:-
“I said,‘Who else was in the car?’
She said,‘Nicola.’
I said,‘Anyone else?’
She said,‘No.’
I said,‘Who was driving?’
She said,‘Me. I was driving.’ ”
Essentially, Senior Constable Hill said that, despite the difficult circumstances, he decided to ask if there was anyone else in the vehicle and, while he had her attention, ask her who was driving. At the time of this conversation the accused was being attended to by Dr McArthur. The accused’s parents were present by this time.
Initially, Dr McArthur found her to be delirious, agitated, conscious and speaking (TP17). He tried to find out some information from the accused but she was “....screaming in pain and was disorientated and had no idea of where she was or what had happened....” (TP17, 20). He said she had bilateral fractures and impaired consciousness (TP18, 20). She was not responding to his questions (TP20, 35-40). Her injuries were described in this way (TP18):-
“It was after that initial conscious state, and ABC scenario it was immediately obvious that she had bilateral lower leg fractures with a clinical deformity, where the legs were almost at 90 degrees to the rest of the body.” (See also TP31-34.)
The most obvious cause of the delirium or impaired consciousness was the pain from the bilateral fractures. Initial treatments included intravenous morphine to relieve the pain and distress because the fractures had to be reduced by straightening the legs and try controlling the haemorrhaging at the fracture sites (TP21-22). The fractures were reduced and her legs put in splints (TP34). The accused was given 15 milligrams of morphine by about 11.15 a.m. After that the doctor said there was less screaming out in pain, but she had no orientation and no recollection of the events (TP22, 40).
Dr McArthur said that, although he knows Senior Constable Hill, he had no recollection of him at the scene. Dr McArthur does acknowledge, however, that his focus was on the accused.
Dr McArthur also said that, when the accused was taken back to the Clare Hospital and even though her conscious state had improved, she still had no memory of the events and there was a degree of amnesia (TP24, 36).
A Clare Ambulance Service volunteer, Mr T. Doult, was also called on the voir dire. He assisted in looking after the accused both before and after Dr McArthur attended. He also asked her about the events but she was unable to remember. Like Dr McArthur, Mr Doult could not remember Senior Constable Hill talking with the accused, although he also was focused on assisting the accused who was in a significant degree of pain (TP46-47).
Senior Constable Hill remembers the accused’s mother being there comforting her and that Dr McArthur was also present. Senior Constable Hill has no recollection of speaking with them before speaking with the accused. He was squatting down close to the accused. They knew each other. The text of the short conversation is quoted above. He recalls her screaming at some stages but not when he was speaking with her (TP59-60, 88, 91).
I find his primary reason for wanting to speak with the accused was to find out whether the accused’s son had been in the car and, whilst there and with her attention, asked who was the driver (TP53, 63-76). It was not unreasonable for him to do that at that time despite her obvious pain and distress and even though it may have been too late to rescue anyone else from the car.
According to Senior Constable Hill’s evidence on the voir dire, the conversation quoted above was at 11.05 a.m. (TP56). Dr McArthur said that he arrived at above 11.00 a.m. and the morphine was administered at about 11.10 a.m. to 11.15 a.m. (TP21-22). I find that, on that basis, the accused did not have the benefit of the morphine at the time of the challenged conversation.
I make this additional point. As has been referred to above, when the accused was questioned by others about the events, she said she could not remember. There is nothing inconsistent with that and knowing who was driving. I am sure there are many accidents where the driver knows he or she was the driver but, at the same time, does not know what happened. I have not lost sight of the fact that the accused said to Dr McArthur that she did not know who was driving.
Although it may not be strictly necessary to do so, I find that Senior Constable Hill had the short conversation with the accused. The fact that others may not have seen him or heard him have that conversation is not to the point.
I also note from the committal papers that the accused was spoken to by Senior Constable Fuller on 11th March, 2003, over two months after the incident. When Senior Constable Hill’s account of the brief conversation was put to her, she said that she had no memory of the conversation. I add, for the sake of completeness, that when asked if she was the driver, she was unable to say and did not know.
Legal principles and discussion
I have made certain findings in the discussion above. Importantly, in my view, the accused was spoken to by Senior Constable Hill at a time before the administration of any morphine. She must have been in the most extreme pain. As the evidence disclosed, she was “....screaming in pain and was disorientated and had no idea of where she was or what happened....”.
I make it plain that it was not unreasonable or improper for Senior Constable Hill to approach the accused and have that brief conversation. I find that the text of the conversation was as he deposed to it.
Senior Constable Hill, having asked who was the driver, s 38 of the Road Traffic Act 1961 obligated the accused to answer that question. She had no right to refuse to answer even though the answer may have incriminated her. In this respect, Parliament has removed the common law privilege against self‑incrimination: see R v Hooper (1995) 64 SASR 480. It was not necessary for the officer to specifically refer to the section in asking the question. Further, the occasion to which the question referred could only have been the roll-over. I find it was a voluntary conversation.
In those circumstances, the accused places reliance upon a discretionary basis for exclusion. It is incumbent upon the accused to demonstrate that there is a factual basis upon which a discretion to exclude is enliven and that, in the overall circumstances, the evidence ought to be excluded.
The authorities that deal with the principles relating to the exercise of the discretion are legion. For present purposes I am content to rely upon the cases and principles that were discussed by Martin J in R v Lobban (2000) 77 SASR 24, particularly the discussion under the “Unfairness – confessional evidence” heading and under what was described as the “General unfairness discretion”. In my view, the evidence sought to be excluded here comes within the discretions identified in both headings.
Under the first heading, Martin J referred to R v Swaffield (1998) 192 CLR 159 and its reliance upon Van der Meer v The Queen (1988) 62 ALJR 656. Referring to Swaffield’s case, Martin J said (para 49):-
“In the joint judgment of Toohey, Gaudron and Gummow JJ, their Honours referred to the power to exclude confessional evidence on the basis that it would be unfair to an accused to admit the statement. They summarised the purpose of that discretion as protecting the rights and privileges of an accused person (at 189). Identifying that unfairness is concerned with the right of an accused to a fair trial, their Honours cited the following passage from Van der Meer v The Queen (1988) 62 ALJR 656 at 666:
‘[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him ... Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.’ ”
Interestingly, Martin J refers to the judgment of Doyle CJ in Police v Jervis (1998) 70 SASR 429 (at 448) where Doyle CJ refers to an example not unlike the present case:-
“I accept that unfairness can arise through no fault of the law enforcement authorities. The case of an admission made by an accused person who is suffering from severe shock might be unfair, even if the person to whom it was made was unaware that the person was suffering from shock: cf R v Ostojic (1978) 18 SASR 188 at 197, per Wells J. But in that situation the authorities seek to use an admission made in circumstances that render its use unfair. In such a case they have, unwittingly, taken advantage of the state of the accused.”
In the present case, the accused made an admission while in extreme pain, shock and distress. Although Senior Constable Hill was well aware of her pain, he said he was unaware of the extent of her injuries, particularly that she had two broken legs that were broken at right-angles.
Not only is the unfairness discretion to exclude confessional evidence enlivened here, in my view the evidence should be excluded.
Even if that is thought to be the wrong approach to the facts of this case, in my view the general unfairness discretion is also enlivened and with the same result. The admission made by the accused was made in circumstances that created the real risk that it was unreliable and that it would be quite unfair to admit against the accused at her trial.
The application to exclude succeeds. Evidence of the conversation is excluded.