R v Xypolitos
[2013] VSC 514
•27 September 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0015
| THE QUEEN |
| v |
| JOHN XYPOLITOS |
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JUDGE: | Curtain J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 5, 6 and 7 August 2013 | |
DATE OF RULING: | 27 September 2013 | |
CASE MAY BE CITED AS: | R v Xypolitos | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 514 | |
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EVIDENCE – Hearsay evidence – Admissibility pursuant to ss 65 and 66A Evidence Act 2008 (Vic) – Admissibility of the record of interview – Whether questions improper given accused’s ‘no comment’ answers.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC with Ms G Coghlan | Office of Public Prosecutions |
| For the Accused | Mr A Trood | Pica Criminal Lawyers |
HER HONOUR:
John Xypolitos is charged with the murder of Gary Greg Adams on 5 December 2003. In a covertly taped conversation with an undercover operative on 12 April 2012, the accused admitted that he killed Gary Adams. The issue at trial is whether, when he did so, he had the required murderous intent and whether the Crown can exclude self-defence beyond reasonable doubt.
Mr Tinney SC, who appears together with Ms Coghlan on behalf of the Crown, have given notice of ten representations made by Gary Adams which it seeks to have admitted into evidence as exceptions to the hearsay rule. Mr Trood, who appears on behalf of Mr Xypolitos, did not oppose the admissibility of representation numbers 3 and 7. Indeed, they are admissible pursuant to s 66A[1] of the Evidence Act2008 (Vic)[2] as evidence of the deceased’s intention and state of mind.
[1]66A Exception—contemporaneous statements about a person's health etc.s. 66A
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.
[2] Hereafter referred to as ‘the Act’.
The accused, at the relevant time, was in a relationship with the deceased’s mother, Jo-Ann Adams. They commenced their relationship in 1998 and commenced living together in 1999. In 2005, Gary Greg Adams was 17 and had been living with his mother and the accused on and off for approximately 3½ years. The Crown seeks to rely upon these representations to establish the nature of the relationship between the accused and the deceased; that is, that there was some disharmony between stepfather and stepson and that there had been occasions when violence had been inflicted on the deceased by the accused. There will be other evidence before the jury that will point to various aspects of conflict between the accused and the deceased, but the Crown rely upon these representations in particular, because they were made by the deceased. The evidence of relationship, it was submitted, placed in context the accused’s assertion that on 5 December 2003, he lacked the requisite intent and/or acted in self-defence. Mr Tinney SC submitted that this evidence would allow the jury to assess those events in a more realistic and complete way. The only account of what occurred on that day comes from what the accused said 8½ years later, both in the covert conversation of 12 April 2012 and in portions of the interview conducted by the police on that same day where the accused responded to questions asked of him as to what had happened. Mr Tinney SC submitted that on neither of those occasions did the accused suggest there was ever any violence towards him by the deceased or, indeed, by him towards the deceased throughout the time they had known each other. The accused also made statements to the police in 2004 and there detailed the nature of his relationship with the deceased, and again nothing was said on either of those occasions about the nature of the relationship being a violent one.
Mr Tinney SC submitted that the evidence was not led as evidence of bad character or to prove that the accused had a tendency to behave in a violent fashion towards Gary Adams, but rather was illustrative of the true nature of the relationship between them.
Representation number 1
Gary Adams spoke to Lavonne Neal, his teacher, at an airbrushing course he was attending during October/November 2003. Ms Neal stated that towards the end of the course Gary told her he would not be doing the course in 2004 and that he was, “moving out with some friends in Dandenong because he didn’t get along well with his father. He said they used to fight a bit. I remember him saying his stepfather had taken a swing at him or something similar to that on this occasion”.
Mr Tinney SC relied upon s 66A and s 65(2)(c)[3] of the Act to establish the admissibility of this representation. He relied upon Ms Neal’s statement that Gary loved doing the course, that on this occasion he was speaking to the course teacher, telling her why he would not be able to do the course the following year. Thus, this would have been a matter of some significance to him and he would have no reason not to have told his class teacher the truth.
[3] 65 Exception—criminal proceedings if maker not available
(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
(a)was made under a duty to make that representation or to make representations of that kind; or
(b)was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c)was made in circumstances that make it highly probable that the representation is reliable; or
(d)was—
(i)against the interests of the person who made it at the time it was made; and
(ii)made in circumstances that make it likely that the representation is reliable.
Mr Trood submitted that the depositions revealed that at the committal Ms Neal was not certain that Gary had used the word “swing” and thus the representation was somewhat vague and ambiguous, and that there was a lack of certainty as to what words actually constituted the representation.
I accept that there is a lack of precision as to what Ms Neal reported Gary said to her as to whether the accused had taken a swing at him or something similar. But otherwise, Ms Neal confirmed the content of the conversation she had with Gary at the committal. There would be no reason for Gary to give a false reason and, indeed, a very personal reason to his teacher to explain his inability to do the course the following year. Indeed, Ms Neal said in her statement that she had got to know Gary a bit by talking to him before class and that he tended to keep to himself a bit during the classes. This makes it more likely that when he confided in Ms Neal, he was likely to be telling the truth. However, the test under s 65(2)(c)[4] has been described as an onerous one. The representation must be made in circumstances that make it highly probable that the representation is reliable and, in my view, despite the likelihood of its truth, the circumstances in which the representation was made do not meet this high threshold.
[4] Evidence Act 2008 (Vic).
However, I am satisfied that it is admissible under s 66A[5] insofar as the representation relates to Gary’s intention that he was moving out with friends because he did not get on well with his stepfather, and so much was conceded by Mr Trood. This representation clearly relates to his intention or state of mind at the time he spoke with Ms Neal, which she put towards the end of the course, which concluded on 27 November; a week before Gary Adams was killed.
[5] Ibid.
Representation number 2
The representation relied upon is in a statement made by Ryan Terry, who was in the same class at school with Gary Adams and with whom he had remained friends after Gary left school. Ryan Terry stated, “Throughout our time at school together, Gary had told me he’d had a lot of arguments and fights with his stepdad and that he didn’t want to be at home”. Again, the admissibility of this representation is governed by s 66A and s 65(2)(c) of the Act. This representation lacks specificity as to the time and place as to when it was made, other than that it occurred during a time when the two were together at school. The representation is expressed in global terms and is not specific as to its details; that is, as to whether the representation represents what was actually said by Gary to Ryan Terry or whether, as Mr Trood submitted, it is in fact a summary of what had been said. Indeed, it appears from Mr Terry’s evidence at the committal that the use of the word “fights” may have emanated from something he assumed from the police or an interpretation that he had put upon the words.
Very little is known about the circumstances in which the representation, if it be such, was made which allows an assessment of the probability of its reliability, other than to say that Gary was confiding in his friend over a period of time. Thus, the test has not been met under s 65(2)(c) of the Act. There is no evidence as to when the representation was made and therefore the evidence does not reveal when it was that Gary had that state of mind. Therefore, there is no evidence to attract the provisions of s 66A[6] and, accordingly, that representation is not admissible.
[6] Evidence Act 2008 (Vic).
Representation number 3
Representation number three also relates to representations made to Ryan Terry and there is no objection to its admission.
Representation number 4
The Crown relies upon the representation that the deceased made to his friend, Matthew Kelly: “He used to tell me about his stepfather John. Gary used to tell me that he was physically abused by his stepfather and that John had hit him in the past and used to push him around”. This representation appears to refer globally or compendiously to Gary telling Matthew about being physically abused by his stepfather. There is no evidence as to the time, place or context of such representation being made, and thus no assessment can be made as to the circumstances of its making so as to assess the high probability of its reliability as is required by s 65(2)(c) of the Act.
Representation number 5
This representation relates to an occasion when Gary came to school with his glasses broken and Gary told Matthew Kelly he had been in a fight with John and that John had hit him in the face. This was said to have occurred in the first part of 2003.
The Crown here relies upon s 65(2)(b) and s 65(2)(c) of the Act, and I am satisfied that the representation is admissible under s 65(2)(b). Gary Adams and Matthew Kelly were in the same class at school; they were friends. Gary reported to Matthew Kelly that he had been in a fight with his stepfather and that his stepfather had hit him in the face. This representation was confirmed by the observation of Matthew Kelly that Gary’s glasses had been broken, consistent with being hit in the face, and that observation was made shortly after the asserted fact; that is, the following day at school.
I am satisfied that in those circumstances, particularly in the context where Gary had previously complained about his stepfather’s behaviour towards him to Matthew Kelly and thus this was not the first time a complaint had been made, that it was highly unlikely that the representation is a fabrication and thus, that representation is admissible.
Representation number 6
This representation was made the following day to Matthew Kelly when Gary came to school, on this occasion, without his glasses. He saw that Gary had a bruise on the side of his face, just under his eye. He asked Gary what happened, and Gary said that he and his stepfather had got into another fight and that his stepfather had punched him in the face.
The Crown here relies on s 65(2)(b) and s 65(2)(c) of the Act. I am satisfied, for the same reasons as apply to representation number five, that this evidence is admissible pursuant to s 65(2)(b). The representation was confirmed by the observations of Matthew Kelly, who observed a bruise to his face, and that injury had not been apparent to him the day previously.
Representations 8, 9 and 10
These representations also appear in the statement of Matthew Kelly. Number eight relates to the words, “He may be the reason Gary would leave because Gary was fed up with John’s aggression and said the aggression had got worse”. The Crown submitted that the latter words are the relevant representation admissible under s 65(2)(c) of the Act.
As to representation nine, this relates to the words, “The only thing Gary has ever told me he was frightened of was his stepdad. Nothing else”. The Crown contend that this statement is admissible under s 66A[7] as a statement of his feelings towards his stepfather, those being one of fear, and is also admissible pursuant to s 65(2)(c)[8] because Gary is, on this instance, talking to his close personal friend with whom he has confided in the past.
[7] Ibid.
[8] Evidence Act 2008 (Vic).
Representation number 10 relates to the statement that “Gary used to talk about moving out to get away from his stepdad”. The Crown here relies upon s 65(2)(c) and s 66A of the Act to establish the admissibility.
Mr Tinney SC conceded, in particular in respect of representation number 8, that there was an uncertainty as to when it was said, and thus the representation was unlikely to meet the requirements of s 65(2)(c). Mr Tinney SC also acknowledged in respect of representation number nine that there was a lack of specificity as to the precise circumstances of the making of the representation, but he submitted that it was said in the context of the confiding relationship that Gary Adams had with Matthew Kelly.
I am not satisfied that representations eight, nine and ten are admissible pursuant to s 65(2)(c) of the Act. There is a paucity of evidence relating to the circumstances in which these representations were made, such that no assessment can be made of the circumstances of their making, so as to assess the high probability of the reliability of the representations. All that is known is that Matthew Kelly and Gary Adams were close friends and Gary did confide in Matthew, but the circumstances in which he did so and when he did so are not known, other than to say, in respect of representation eight, Gary made the representation that the aggression was getting worse in the week or two before he disappeared. For these reasons, the representations are not admissible pursuant to s 65(2)(c), bearing in mind that this has been described as an onerous test and one which has the potential to operate unfairly to the accused.
As to whether representations eight, nine and ten are admissible pursuant to s 66A of the Act, I am of the view they are not. Each of the representations are expressed in bald, generic terms and there is nothing in the evidence which provides context to their expression. As to representation eight, it is devoid of context and the evidence makes no reference to when it was made and how it was that Gary Adams came to have that knowledge and state of mind, if that be the case. In these circumstances, it is simply a bald statement of something that Gary Adams had said to Matthew Kelly at a time and place unknown.
As to representation nine, again the evidence is devoid of context. The representation is extremely broad and it is not clear whether this representation was made once or many times, or when or where the representation was made. So it is that it is not known at what time during his relationship with Matthew Kelly, Gary Adams said those things to him and thus had that knowledge or state of mind.
As to representation 10, the representation appears to be a compendious statement or possibly a summary of various conversations that Gary Adams had with Matthew Kelly, and it is without any specificity of something said by Gary to Matthew Kelly on any particular occasion.
If I were wrong in those conclusions that the representations are not admissible pursuant to s 66A of the Act, then I would, in the exercise of the discretion pursuant to s 135,[9] exclude the evidence on the basis that it would be unfairly prejudicial to the accused and pursuant to s 137, [10] refused to admit it, having formed the view that its probative value is outweighed by the danger of unfair prejudice to the accused. The lack of precision about what was said and the circumstances and context in which the representation was made means that the evidence could not in any way be effectively challenged and, in my view, that would effect an unfair prejudice to the accused.
[9] Ibid.
135General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing; or
(c)cause or result in undue waste of time.
[10] 137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
Mr Trood submitted that, should representations five and six be admitted in to evidence, then they ought nonetheless be excluded either pursuant to s 137 of the Act because the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, or in the exercise of the discretion pursuant to s 135. Mr Trood submitted that as the Crown are not relying upon the evidence as tendency evidence and the evidence cannot be used as propensity evidence, this will be the only evidence going beyond arguments or unhappiness in the home, extending to causing physical injury, thereby giving the evidence undue weight and undue significance in the context where there is no other evidence that can shed light on those incidents. Mr Tinney SC submitted that the evidence is probative because it is relevant to the nature of the relationship between the accused and the deceased, and is relevant as to whether a 17 year old would attack his stepfather in circumstances where previously his stepfather had been violent towards him.
The nature of the relationship between the accused and the deceased is clearly relevant to the events of 5 December 2003. The evidence is probative and places in context the accused’s assertion that the deceased came at him with a screwdriver. There is nothing misleading or confusing about the evidence, and nothing about it which will cause or result in an undue waste of time. Nor can it be said that the probative value of the evidence is outweighed by the danger of any unfair prejudice to the accused, as that expression is regarded.[11] Indeed, any such prejudice which may flow from its admission can be cured by the appropriate direction to the jury which the jury are taken to abide.
[11] Evidence Act 2008 (Vic) s 137.
Mr Trood sought the admission of ten representations made by the deceased to Jo-Ann Adams, Rebecca Allanson and Tara-Lee Whatmore. Representations three and four relate to what was said by the deceased to Rebecca Allanson during a telephone conversation some time in 2003 in which he said that he did not like John because he was too strict and he did not like John telling him what to do because he was not his biological father. The deceased and Rebecca Allanson had been childhood friends and remained in close contact, ringing each other on the phone once a week. Representation nine occurred in a conversation with Tara-Lee Whatmore when the deceased said he was having problems at home, that his mother was not standing up for him and that he did not like his stepfather. These representations are relevant to the nature of the relationship between the deceased and the accused in the same way as the various representations relied upon by the Crown and goes to the deceased’s state of mind at some time in 2003. The Crown concedes their relevance and the admissibility of these representations, and indeed the representations, being contemporaneous statements of the deceased’s feelings and state of mind, are admissible under s 66A of the Act.
As to the balance of the representations relied upon, without going into the detail of them, all but one relate to the deceased’s father, the deceased’s relationship with him and that his father had a more liberal attitude towards the deceased drinking and smoking. Representation ten as expressed to Tara-Lee Whatmore in December 2003, related to the deceased saying that someone was after him, being the deceased, in Cranbourne. Mr Trood submitted that these representations were relevant indirectly in that they went to the deceased’s state of mind, his preference to be with his father and that he may have been in an agitated frame of mind in December 2003, as he thought that there were people after him, either because of their association with his father or for some other reason. Mr Tinney SC submitted that these representations did not meet the test of relevancy as described by s 55 of the Act.[12] I have come to the same view. The drug habits or otherwise of the deceased’s father, and the deceased’s relationship with his own father is not relevant to what occurred between the deceased and the accused in the shed on the afternoon of 5 December 2003. Nor can it be said that the deceased’s concern that “a couple of men were after him as his father owed them money over drugs”, or that the deceased had said someone was after him, can be said to be relevant to his state of mind when he was in the shed that afternoon with his stepfather.
[12]55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to adduce evidence.
The facts in issue are those which go in proof of the accused’s state of mind, his intent or lack thereof, and whether the Crown has excluded that he acted with lawful justification or excuse. I cannot see how these matters can rationally affect the assessment of those facts in issue. For these reasons, because in my view the representations fail to meet the threshold test of relevance, no question of their admissibility arises.
The admissibility of the Record of Interview
Mr Xypolitos was arrested by the police at Marine Parade, Elwood on 12 April 2012. Unbeknown to him, he had been the target of a sophisticated covert operation which had been conducted over the previous two months, culminating in his making admissions to the killing and dismembering of Gary Adams to a covert operative whom Mr Xypolitos believed to be the head of a criminal syndicate. He had made those admissions earlier that day and at the time of his arrest, again unbeknown to him, he was in the company of two covert operatives.
Mr Xypolitos was interviewed on 12 April 2012 at the office of the Homicide Squad and participated in a record of interview with Detective Senior Constable Hunt, which commenced at 1.40pm that afternoon. He was cautioned, his rights explained to him, and he agreed that he was happy to proceed. It was a brief interview with a break of some 15 minutes, and concluded with Mr Xypolitos being informed that he would be charged with murder and being asked if he wished to comment upon that, and then some further procedural questions concerning ancillary matters took place.
Detective Senior Constable Hunt, in the first part of the interview, put questions to Mr Xypolitos which explained to him that his conversation earlier that day with the purported crime syndicate boss had been monitored and recorded, that the police knew that he had made admissions to killing Gary Adams, that the person he had been principally dealing with, over the past two months, was a covert operative and that he had been the subject of a covert operation by the Victoria Police. The details of the admissions that he had made were put to him and, in respect of these questions, he answered “no”, “no comment”, or “I’ve got no comment”. At question 21, Detective Senior Constable Hunt said to him “I assume at this stage you’re not going to answer any of my questions that I ask, is that right?”. The transcript records “no audible reply”, but the video recording played on the voir dire reveals a slight nod of the head in response. There followed two more questions:
Is there anything you want to tell me?---No
All right. As I said, when we conduct the search warrant at your mother’s address if there are remains there that you’ve mentioned to Gary there were what position’s that going to place you in?---Pretty bad one for me.
Two questions later, Detective Senior Constable Hunt indicated that he was not going to continue with his questioning and said to Mr Xypolitos:
You obviously intend not to answer any of my questions. What I might do just for this point in time, I’ll just stop the interview, suspend the interview, okay. I’ll take a short break, okay, have a think about it and then we’ll come back and we’ll finish the interview. All right?
The interview was suspended at 1.47pm and resumed at 2.05pm.
Mr Xypolitos was again cautioned, again his rights were explained to him, which he said he understood, and at question 29 Detective Senior Constable Hunt asked him:
For the final time, is there anything you want to tell me about what happened to Gary Adams?---Just under a lot of stress at the time, not thinking obviously.
Yep?---So that – that’s about it.
Do you want to tell me a bit more than that?---Nah, nah.
Can you tell me how Gary died?---Nah.
It was then put to Mr Xypolitos that he had gone into some detail with Gary at the Crown Casino that day and was asked if there was any reason why he did not want to tell him or was he able to tell him where Gary’s remains were, and that this was his opportunity to give his side of the story, to which Mr Xypolitos replied, “No, I can’t say”. He was then asked, “Okay, you don’t want to continue any further?”. “No, no”. “No?”. “No”. He was then charged with murder.
Mr Trood submitted that the answers in the record of interview, particularly once it became apparent that Mr Xypolitos was not going to answer questions, were improperly obtained. He submitted that to continue questioning after that indication contravened Mr Xypolitos’ right to remain silent and therefore the evidence, in particular, the answers to questions 23, 29, 30 and 34, was improperly obtained and is not admissible, pursuant to s 138 of the Act.[13] In support of his submission, he relied upon the principles articulated in R v Ng that, “a clear statement by a detained person that he did not wish to be further questioned would be all that was required to bring the interview to an end”. [14] As I understand Mr Trood’s submission, it is not put that there was any relevant unfairness or that Mr Xypolitos’ answers were not voluntarily obtained. He submitted it was simply a matter of the evidence having been improperly obtained, the discretion to exclude it should be exercised in the accused’s favour.
[13]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.
(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.
(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.
[14] [2002] VSCA 108, 65 [105].
Mr Tinney SC submitted that there was no impropriety in the manner of questioning and therefore the evidence was not improperly obtained. Mr Tinney SC submitted that Mr Xypolitos at no stage said he wanted the interview to come to an end, and there is no law which says an interviewer must cease questioning simply because a person answers “no comment” to questions. Mr Tinney SC further submitted that even if there were such impropriety, it was not of the high order as envisaged by s 138(2) of the Act and, in any event, an assessment of the factors to be considered as adumbrated in s 138(3) demonstrates that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence that had been here obtained.
Mr Xypolitos did not give evidence on the voir dire.
I have come to the view that there was no impropriety in the way the questioning of Mr Xypolitos proceeded, either after Mr Xypolitos gave a number of “no, no comment” answers or after Detective Senior Constable Hunt came to the view that Mr Xypolitos was not going to answer his questions, nor was there any impropriety in continuing the questioning of Mr Xypolitos after the break in the interview.
Detective Senior Constable Hunt gave evidence on the voir dire that Mr Xypolitos appeared to understand his rights. Mr Xypolitos told him he did, and agreed to participate in the interview. So much is confirmed from a viewing of the video recording. Indeed, it must be said that Mr Xypolitos portrayed a somewhat relaxed demeanour during the course of the interview. Mr Xypolitos had been interviewed by the police on at least two occasions before and, indeed, it is not contended that he did not know that he had a right to remain silent. So that any questions he did answer were, I am satisfied, in the exercise of his right to speak or to remain silent.
At question 21, before the break, Detective Senior Constable Hunt told Mr Xypolitos that he assumed he was not going to answer his questions. Mr Xypolitos did not articulate a reply, but rather gave a slight nod of the head. He could have, but did not at that stage, say that he did not wish to be questioned any further. It was after the short break, during which Detective Senior Constable Hunt conferred with his colleagues, that the interview resumed. Mr Xypolitos was again advised of his rights and again cautioned. He agreed that he understood, and it was then he was asked, “For the final time, is there anything you want to tell me about what happened to Gary Adams?”. Mr Xypolitos chose to respond to that question in the terms that he did. It was not until question 37, when Detective Senior Constable Hunt asked him, “You don’t want to continue any further?”, that he answered, “No”. It was only at that point could it be said that Mr Xypolitos indicated that he did not wish to be further questioned.
There is no obligation on a police interrogator to cease an interview simply because a “no comment” answer is given. A police interrogator is not bound to accept the first answer made, and there is nothing about this questioning which could be said to be oppressive, overbearing or persistent. Indeed, the interview came to an end in a timely manner after Mr Xypolitos had agreed with the proposition at question 37 that he did not want to continue any further. I see nothing improper in Detective Senior Constable Hunt telling Mr Xypolitos what it was that the police knew and the fact that he had been the subject of a covert operation and that the police knew he had made admissions. It would, one would think, be most improper to have interviewed Mr Xypolitos without making those things made known to him. In my view, Detective Senior Constable Hunt was acting fairly and properly in apprizing Mr Xypolitos of those matters, despite his “no comment” answers to the propositions put to him.
Mr Xypolitos did not know until he was interviewed by the police on that day at the offices of the Homicide Squad that he had made admissions to a police officer, that those conversations had been monitored and recorded and that he was going to be charged with murder as a result of what he had said. This covert operation and, indeed, this record of interview, were the culmination of an investigation that had transpired over the past 8½ years. He knew that police had suspected him in the disappearance of Gary Adams and, indeed, had questioned him previously about it. In these circumstances, it was not improper to ask him if he had any comment to make on being charged with the murder of Gary Adams or if he would like to give a reason as to why he was killed. As I understand Detective Senior Constable Hunt’s evidence, he said that these questions are asked as a matter practice; that may well be so, but in this particular instance I see no impropriety in them being put to Mr Xypolitos.
If am wrong in the conclusion that there was no impropriety, then I would nonetheless admit the answers into evidence, having been satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in that way. In considering the matters to be taken into account in determining that question, regard is had to s 138(3) of the Act. Here, the evidence is relevant, probative and important. The charge is murder. This issues in dispute are intent, and whether Mr Xypolitos acted without lawful justification or excuse in striking Gary Adams to the head two to three times with a hammer. His answer, particularly at question 29, is relevant to his state of mind at the time he struck Gary Adams with a hammer and the contention that he acted in self-defence, for this was the first opportunity he had to tell the police that he had killed Gary Adams in self-defence, and he did not say that to them. Not only was this the first opportunity he had to tell the police that, but he knew by then, of course, that the police knew that he had made admissions to killing Gary. Further, the answers were responsive, they were not the product of persistent or importune questioning, and they were given in the full knowledge of his right to remain silent. The impropriety, if it be such, is not of a high order, there is nothing about the impropriety which affects the reliability of the answers, and the impropriety, if it be such, was certainly not deliberate.
For these reasons, I am satisfied that the evidence is admissible.
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