Tasmania v Hovington
[2013] TASSC 54
•12 August 2013
[2013] TASSC 54
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Hovington [2013] TASSC 54
PARTIES: STATE OF TASMANIA
v
HOVINGTON, Zeb Judge
FILE NO: 407/2012
DELIVERED ON: 12 August 2013
DELIVERED AT: Hobart
HEARING DATE: 29 July 2013
JUDGMENT OF: Blow CJ
CATCHWORDS:
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Particular cases – Person under arrest – Failure to inform of right to communicate with friend, relative or legal practitioner – Trivial and inadvertent contravention of legislation.
Criminal Law (Detention and Interrogation) Act 1995 (Tas), s6(1).
Evidence Act 2001 (Tas), s138.
Aust Dig Criminal Law [2686]
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Discretion to exclude confessional statements – Particular cases – Intellectually impaired person – No legal advice – Not accompanied at interview – Whether unfair to admit evidence of admissions.
Evidence Act 2001 (Tas), s90.
Aust Dig Criminal Law [2688]
REPRESENTATION:
Counsel:
State: J Ansell
Accused: G Barns and C Scott
Solicitors:
State: Director of Public Prosecutions
Accused: No Solicitor
Judgment Number: [2013] TASSC 54
Number of paragraphs: 36
Serial No 54/2013
File No 407/2012
STATE OF TASMANIA v ZEB JUDGE HOVINGTON
REASONS FOR DETERMINATION BLOW CJ
12 August 2013
Counsel for the parties have asked me to make a determination under s361A of the Criminal Code, before the empanelment of a jury, as to whether evidence of a police interview with the accused is to be admitted as evidence wholly, in part, or not at all. The circumstances are unusual.
The accused was interviewed by two police officers on 21 June 2012 in relation to nine fires in the Rokeby area, including two at 17 Arden Drive. He admitted to lighting two of them, including the first fire at 17 Arden Drive. He was indicted on one charge of arson, relating to 17 Arden Drive, and two charges of attempting to commit arson, relating to 17 Arden Drive and 4 Benboyd Court. He is intellectually impaired, to such an extent that he is unfit to stand trial. The prosecutor and his counsel agreed that I should dispense with an investigation into his fitness to stand trial. I agreed, and recorded a finding that he was unfit to stand trial pursuant to s19(a) of the Criminal Justice (Mental Impairment) Act 1999. I then made a determination under s14(1) of that Act that he was not likely to become fit to stand trial during the next 12 months, and commenced to hold a special hearing pursuant to s15 of that Act. By virtue of s16(3)(a) of that Act, the accused is taken to have pleaded not guilty to the three charges on the indictment. I was therefore able to conduct a voir dire for the purpose of a s361A determination, and proceeded to do so.
Counsel for the accused submitted that the evidence of the police interview should be wholly excluded, on the following bases:
· Relying on s85(2) of the Evidence Act 2001, he submitted that the evidence of the accused's admissions was not admissible because the circumstances in which the admissions were made were not such as to make it unlikely that the truth of the admissions was adversely affected.
· Relying on s138(1) of the Evidence Act, he submitted that the evidence had been obtained following a contravention of s6(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995. The accused had been arrested shortly before his interview, but had not been informed of his rights to contact a friend or relative and a legal practitioner between his arrest and his interview.
· Relying on s90 of the Evidence Act, he submitted that I should make a discretionary decision to refuse to admit evidence of the admissions on the basis that, having regard to the circumstances in which they were made, it would be unfair to the accused to use the evidence of those admissions.
Further, counsel for the accused submitted that the jury should not receive evidence of those parts of the interview that concerned the six fires in relation to which the accused has not been charged. Counsel for the Crown submitted that an unedited DVD recording of the interview should go to the jury.
The officers who conducted the interview were Detectives Lang and Fry. The circumstances leading up to the interview are largely undisputed. The parents of the accused are separated. His mother lives at Lake Leake. His father lives in Rokeby. He sometimes lives at his mother's home, and sometimes at that of his father. Before the interview, Det Lang spoke first to his father, and then to his mother, with a view to getting the accused to come to the Bellerive Police Station so that police officers could take his fingerprints, a DNA sample, and his photograph. His mother brought him to the police station on 19 June, two days before the interview, and those things were attended to. On 20 June, at the request of Det Lang, the accused and his mother returned to the police station. Det Lang proposed that the accused be interviewed in relation to the fires. It became apparent that his mother wanted to seek some legal advice for his benefit. It was agreed that no interview would proceed that day, but that the accused and his mother would return the following day at 1pm.
The next day, 21 June, the mother arrived early, spoke to Det Lang, and said that the accused was "going off" in her car across the street, and would not get out of it. Detectives Lang and Duffy went to the car, where the accused was angry and agitated. He had damaged the car and did not want to get out of it. Det Lang arrested the accused, who walked co-operatively into the police station, where he calmed down.
Evidence as to what happened inside the police station was given by Detectives Lang and Fry, and by the accused's mother. In some respects, the mother's evidence is inconsistent with that of the detectives.
Det Lang's evidence was to the following effect. She spoke to the accused in the absence of his mother. She asked if he wanted to speak to anybody else. He he said that he did not. She spoke to him about conducting an interview. He said that he "just wanted to sort it out", and that he "wanted it over and done with", or words to that effect. She spoke to the mother about the interview and told her that it was probably better if she did not participate. She told the accused that his mother was out the front of the police station, and asked whether he wanted her there. He said he did not. She had been in touch with the accused's father, but he had not asked to be allowed to attend the interview.
Det Fry arrived at some stage after the accused had been arrested and brought into the police station. He gave evidence that neither parent had asked to be allowed to attend the interview. He said that the accused wanted to proceed with an interview, and did not want anyone to be present.
The accused's mother gave evidence to the following effect. She told the detectives on the day before the interview that the accused could not be interviewed because he would not understand what they were asking. She said that she needed time to find out what she was supposed to do. On the day of the interview, she asked several times to be allowed to attend the interview with the accused, because he would not understand the questions, but the detectives refused her requests.
In the days preceding the interview, the accused's mother procured two medical reports about him from his treating doctors. One was from his general practitioner, Dr Jones. The other was from a paediatrician, Dr Pascoe. The mother gave evidence that she gave both letters to Det Lang. Det Lang gave evidence that one document, not two, was provided, and that it was given to Det Fry. Det Fry gave evidence that he received the letter from Dr Jones, but not the other one.
The letter from Dr Jones contained information as to the accused suffering from epilepsy and having a history of seizures. The only information in her letter relevant to the accused's intellectual impairment was that, according to his mother, he had had "academic learning problems", and had been in a class of children with special needs. The letter from the paediatrician said that the accused "has been assessed on many occasions over the years and he clearly has a significant learning disability and of course reduced cognitive ability".
One important reason for deferring the interview until 21 June was that the accused and his mother wanted an opportunity to seek legal advice. However there is little evidence as to whether legal advice was sought, let alone obtained. Det Lang gave evidence that, on the day of the interview, she did not ask whether legal advice had been obtained because she regarded that as none of her business. Det Fry's evidence added nothing in relation to the point. The accused's mother gave evidence that she could not remember if she spoke to a lawyer. His father gave evidence that she told him that she had "phoned Legal Aid". I am unable to make a finding as to whether any legal advice was provided. However I infer that no useful legal advice was provided directly or indirectly to the accused. If that had been the situation, I think his mother would have remembered at least some details, or that the accused's answers during his interview might have given some indication that legal advice had been provided. They gave no such indication.
Reliability of admissions (s85)
Section 85 reads as follows:
"(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant —
(a)to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b)as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purpose of subsection (2), it is to take into account —
(a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b)if the admission was made in response to questioning —
(i) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned."
A DVD recording of the police interview was tendered on the voir dire. It is clear from that recording that the accused is a person of very low intellectual capacity. For example, he did not know his date of birth. However the detectives conducted the interview in a way that was appropriate for a person of low intellectual capacity. They went slowly. They asked simple questions. They did not put words in the accused's mouth. They took time to make sure that he understood what they were asking, and what they were talking about. They asked about one fire at a time. They showed him photos of the fire-damaged houses as they went. They were not overbearing or hostile in any way.
During the interview, the accused was first asked about the two fires at 17 Arden Drive. He denied lighting them. He was asked about a fire at a second address. He denied lighting it. Next, he was asked about the fire at 4 Benboyd Court. He admitted lighting it. The interviewing officers asked how. He said he had used a petrol bomb. They asked him for details as to what materials he used, how it worked, where he got the materials, and when and where he had learned how to make a petrol bomb. They asked about where he threw it, and where he threw it from. The accused gave prompt sensible answers to all those questions. If he had confessed to something that he had not actually done, any such false confession would have been exposed by the subsequent questioning. Near the end of the interview, the officers returned to the topic of 17 Arden Drive, and the accused admitted that he had started the first fire there, using a petrol bomb.
The answers given by the accused throughout the interview indicated that he understood what he was being asked, and understood that he was able to choose how to answer each question.
It is true that the accused has a substantial intellectual impairment. As a result, he was at a substantial disadvantage when he was interviewed alone, without the assistance or support of a parent, a legal practitioner, or even an independent adult of ordinary intelligence. However, having regard to the questions asked by the detectives, the way they were asked, the answers given by the accused, and the way he gave his answers, I am satisfied that the circumstances in which his admissions were made make it unlikely that the truth of those admissions was adversely affected. I therefore reject the submission based on s85.
Evidence illegally obtained (s138)
Section 138 of the Evidence Act reads as follows:
"(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."
Det Lang gave evidence that she spoke to the accused after his arrest in the charge room at the police station before conducting the interview in the interview room. She said that, whilst in the charge room, she asked him if he wished to speak to a friend, a lawyer, or a parent, and that he said that he did not want to. She said that she then wrote in her notebook, "given right to communicate". A copy of an extract from her notebook containing that entry was tendered on the voir dire. That evidence was unchallenged and uncontradicted. I accept it.
Strictly speaking, what Det Lang said fell short of what is required by s6(1) of the Criminal Law (Detention and Interrogation) Act 1995. That subsection reads as follows:
"(1) Before any questioning or investigation under section 4 may commence, the police officer conducting the investigation must inform the person in custody that he or she —
(a)may communicate with, or attempt to communicate with, a friend or relative to inform the friend or relative of the whereabouts of the person in custody; and
(b)may communicate with, or attempt to communicate with, a legal practitioner."
That subsection applied since the accused had been arrested and was being detained for questioning pursuant to s4(2)(a) of that Act. Det Lang was the police officer conducting the investigation. She therefore had a duty to inform the accused of his rights under s6(1). She did not inform him of his rights. She enquired as to his desires. There is a subtle difference. Because she did not inform him of his rights, s6(1) was contravened.
However the accused's mother knew where he was. She and he had been given an opportunity the previous day to seek legal advice and consider whether he should participate in an interview. If the accused had said that he wanted to communicate with a friend, relative or legal practitioner, I have no reason to think that he would have been denied an opportunity to attempt such communication. The contravention of s6(1) should therefore be regarded as a very trivial one.
I infer that Det Lang was not conscious of the subtle difference between informing the accused of his rights, and enquiring as to his desires. Her contravention was inadvertent, rather than deliberate or reckless.
I must address the other considerations listed in s138(3). I consider the evidence of the accused's admissions to have high probative value. They constitute important evidence, but not the only evidence of his guilt. There is evidence that one of his fingerprints was found on a cigarette lighter at 17 Arden Drive. There is evidence that he admitted to two teenage boys, on separate occasions, that he lit a fire at that address. I have already referred to the nature of the alleged offences and their subject matter. I infer that no proceeding has been or is likely to be taken in relation to the contravention of s6(1). It would not have been difficult for Det Lang to have proceeded without any contravention of that subsection.
Article 9 of Part III of the International Covenant on Civil and Political Rights provides, in par 1, "No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." It may be that, as a result of the contravention of s6(1), the accused was deprived of his liberty otherwise than in accordance with a procedure established by law, for the purposes of the Covenant. If so, I do not regard that as significant because the contravention of s6(1) was so trivial.
Having regard to all the relevant considerations, I conclude that, primarily because the contravention of s6(1) was trivial and inadvertent, the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which this evidence was obtained. It is in the public interest that the evidence be admitted. I reject the submission based on s138.
Unfairness discretion (s90)
Section 90 of the Evidence Act reads as follows:
"In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if —
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."
In my view the factors relevant to the s90 unfairness discretion in this case are as follows:
· At all material times, the accused has had a very substantial intellectual impairment.
· He was interviewed alone, without the assistance or support of a friend, relative, legal practitioner, or independent adult.
· He did not have the benefit of any legal advice.
· The interviewing officers had only limited information as to the extent of his intellectual impairment.
· The interviewing officers did not know that he did not have the benefit of any legal advice.
· The interview was conducted in a manner that was appropriate for a person of low intellectual capacity.
· Whether the evidence is admitted or not, the accused will not be punished for what he did as he is unfit to stand trial.
For the purposes of this determination, I do not think I need to make any findings about the conflicting evidence given by the detectives and the accused's mother. If everything she said is true and correct, there can still be no doubt that the interviewing officers did not understand the extent of the accused's intellectual impairment. They knew that he was of low intelligence. They interviewed him accordingly. They had no duty to invite one of his parents or anybody else to be present during the interview. There had been a reasonable opportunity for legal advice to be sought. They were not told that legal advice had not been provided. The answers given by the accused in the course of the interview indicated that he understood their questions, was giving credible answers, and was having no difficulty in understanding the questions and deciding how to answer them.
Perhaps the strongest criticism that can be made of the detectives is that they did not say much about the use that could be made of the answers given by the accused during the interview. It is usual for a police officer, when cautioning an interviewee, to explain that the answers may be recorded and "used in evidence". In fact the quoted words appear in s139(1)(c) of the Evidence Act, which relates to the giving of cautions. In this case, Det Lang went a little further and said, "… anything you say or do is being recorded and may be used in evidence, that's in court, at a later date." The accused responded, "Yeah." He gave the appearance of understanding what he had been told.
Having been fully informed as to the extent of the accused's intellectual impairment, I consider that it would have been desirable for the detective to have explained more, and questioned the accused further as to his understanding of the possible consequences of making an admission. However I have to make a value judgment concerned with unfairness, and I must take into account the fact that the detectives had limited knowledge of the extent of the accused's intellectual impairment, and did not know that he had received no legal advice, directly or indirectly.
Having regard to all the circumstances, I am not persuaded that it would be unfair to the accused to use the evidence of the admissions made by him during his interview. I reject the submission based on s90.
Editing of the interview DVD
The evidence as to the interviewing of the accused concerning fires that he did not admit lighting has a probative value. The recording of the parts of the interview relating to those fires shows the accused's capacity to understand questions and respond to them. The jury will probably need to think carefully about the weight to be attached to his admissions. The entire interview is relevant to the assessment of the weight to be attached to the admissions. I do not think there is any significant risk that the jury will attach a false importance to the parts of the interview that concern fires that are not the subject of charges, nor that they will react on irrational grounds to those parts of the interview. I therefore consider that the questions and answers relating to all nine fires should be admitted.
However there is one passage in the interview that I think should be excluded pursuant to s137 of the Evidence Act. The passage in question appears in the transcript at page 29, lines 8 to 12. At that point, the accused mentioned lighting two earlier fires and not being taken to court in relation to them. That evidence has little probative value, and there would be a substantial risk of unfair prejudice if it were admitted.
Conclusion
For the reasons stated, I determine that the evidence of the police interview is admissible, and is to be admitted at the special hearing, except for the passage at page 29, lines 8 to 12 of the transcript.
0
2