Tasmania v Purkiss and Otto
[2019] TASSC 45
•27 September 2019
[2019] TASSC 45
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Purkiss & Otto [2019] TASSC 45
PARTIES: STATE OF TASMANIA
v
PURKISS, Bradley Scott
OTTO, Margaret Anne
FILE NOS: 178/2017, 181/2017
DELIVERED ON: 27 September 2019
DELIVERED AT: Hobart
HEARING DATES: 3-6, 9-13, 16-20, 23-27 September 2019
JUDGMENT OF: Blow CJ
CATCHWORDS:
Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Discretion to exclude – Unfair to accused to use evidence of admission – Accused too distressed to be fit to be interviewed – Assertions and arguments by police that it would not be fair for a jury to hear – Evidence of minimal probative value.
Evidence Act 2001 (Tas), s 90.
R v Amad [1962] VR 545; R v Pritchard [1991] 1 VR 84, referred to.
Aust Dig Criminal Law [2752]
REPRESENTATION:
Counsel:
Crown: M Wilson, A Shand
Accused Purkiss: A Hensley, P Monk
Accused Otto: A G Melick SC, C Graves, J Bloomfield
Solicitors:
Crown: Director of Public Prosecutions
Accused Purkiss: Legal Aid Commission of Tasmania
Judgment Number [2019] TASSC 45
Number of paragraphs: 28
Serial No 45/2019
File Nos 178/2017181/2017
STATE OF TASMANIA v BRADLEY SCOTT PURKISS
and MARGARET ANNE OTTO
REASONS FOR RULING DURING TRIAL BLOW CJ
27 September 2019
The two accused, Bradley Purkiss and Margaret Otto, are being tried together on a joint charge of murder. On 19 September 2019 I made a decision refusing to admit into evidence a 14 minute section of an audio-visual recording of Ms Otto's third police interview. I did that pursuant to s 90 of the Evidence Act 2001, on the basis that that portion of the interview contained admissions, and that, having regard to the circumstances in which those admissions were made, it would be unfair to Ms Otto for the Crown to use the evidence. These are my reasons for that decision.
Section 90 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 summary, my reasons for not admitting the evidence were as follows:
· Throughout the 14 minutes in question, Ms Otto was so distressed that she was not fit to be interviewed.
· Some of the "questions" during the 14 minutes contained assertions and arguments, some of whose foundations were doubtful, and which it would not have been fair for the jury to hear.
· The probative value of Ms Otto's answers during the 14 minutes was minimal, having regard to what she had previously told the police, and the state that she was in.
The Crown contends that the accused Purkiss murdered Ms Otto's husband, Dwayne Davies, by shooting him with a shotgun in a shed at Mr Purkiss' home at Elderslie on the night of Friday, 26 May 2017. The Crown contends that he and Ms Otto planned that he would murder Mr Davies, that he killed Mr Davies pursuant to that plan, and that Ms Otto is therefore also guilty of murder.
Ms Otto was formally interviewed by detectives from the Bellerive CIB at the Bellerive Police Station on three occasions. Each interview was audio-visually recorded. Details of the interviews are as follows:
· The first interview was on Tuesday, 30 May 2017 from 4.10pm to 11.25pm. It was conducted by Detective Constable Fiona Howard and Detective Senior Constable Sarah Wilson. Shortly after the conclusion of that interview, which lasted more than seven hours, Ms Otto was arrested for being an accessory after the fact to murder. She has been in custody ever since.
· The second interview was conducted on Wednesday, 1 June 2017 by the same detectives from 12.05pm to 2.45pm. That interview was conducted at the request of Ms Otto, who had said she wanted to give the police further information.
· The third interview was conducted on Thursday, 2 June 2017 from 12.40pm to 2.06pm by Detective Inspector Stephen Burk, the officer in charge of the investigation, and Detective Senior Constable Wilson. Once again, that interview was conducted at the request of Ms Otto.
When the third interview commenced, Ms Otto had been in custody for a little over 36 hours. She had been incommunicado for most of that time. She had already been questioned by detectives at great length.
For the first few minutes of the third interview, a female detective who had a family liaison role in the police investigation spoke to Ms Otto. That officer then left the room. Then, for about an hour, Detective Inspector Burk questioned Ms Otto as the lead interviewer, with some questioning by Detective Senior Constable Wilson. During that period, Ms Otto was distressed, but not too distressed for it to be unreasonable to continue the interview. Detective Inspector Burk's conduct during that part of the interview was faultless. Ms Otto was interviewed in a room normally used for the interviewing of children. She was seated on a comfortable blue couch, and made herself at home. The inspector sat at some distance from her, on the other side of a table. He did not ever raise his voice. He paused appropriately between questions when Ms Otto needed to compose herself. His questions were focused, and not at all repetitious or aggressive. At some stage Detective Senior Constable Wilson took over the questioning. Some of the questions that she asked were difficult, but none were improper. There came a time however when Ms Otto's level of distress increased, and the interview was suspended for her benefit.
The interview recommenced after a break of about seven minutes. The inspector reminded Ms Otto of the caution, and she said that she understood. The inspector then asked her a particularly upsetting question, in which he asserted that she had been responsible for the murder of her husband, that she had orchestrated his death, that she had made up a fictitious account of a violent relationship with him, that she had shown no remorse, and that she was glad that he was dead. From that point on, until the end of the interview, Ms Otto was uncontrollably distressed. She was trembling and crying continuously. She curled up into a foetal position on the blue couch, and remained in that position. For much of the time she was whimpering uncontrollably, but she responded to some questions by crying loudly and hysterically. The inspector did not raise his voice or change the tempo of his questioning. But he proceeded relentlessly with his questions, showing no sign that Ms Otto's uncontrollable crying and trembling made any difference to him at all. At this stage of the interview, his conduct was disgraceful. The interview should have been terminated because Ms Otto was not fit to continue.
It is plain from the recording of the interview that Ms Otto was so distressed that she was having difficulty answering some questions. She plainly understood the questions, and attempted to respond to them, but she was so distressed that there was an unacceptable risk that she would be unable to remember important pieces of information, or that she would make mistakes in her answers. It is also very significant that Ms Otto was in no fit state to consider whether or not to answer particular questions, or to decide whether or not to tell the inspector that she was not prepared to answer any further questions at all.
Ms Otto and Mr Davies lived together for about 17 years before his death. They were married about four years before he died. In her first interview, Ms Otto described their relationship in considerable detail. She described many years of what she called "emotional abuse". From her description of her husband, he treated her extremely poorly, being bad tempered, prone to verbal aggression, manipulative, selfish, lazy, unreliable, and emotionally demanding. At an early stage in the first interview Ms Otto told Detective Howard, "He's never physically hit me." However, a couple of hours later, she described a time when Mr Davies used to slap her about the face in a sexual context. There was no other suggestion that he was ever physically violent towards her, though she described being scared of him.
In the course of the first interview, Ms Otto made admissions to the following effect:
· Mr Purkiss had been very concerned for her welfare.
· She had often said to Mr Purkiss and others that it would be easier if her husband was dead.
· She had thought that, if her husband were to commit suicide, in some ways that would be a release.
· Mr Purkiss had said to her, "If you need to be out of there, I'll get you out of there, you've only got to say."
· On two occasions towards the end of 2016 she had sexual intercourse with Mr Purkiss at his home. That made her feel that she was being treated with respect. She ended the sexual relationship, saying, "But I can't keep doing this." She then became dependent on her friendship with Mr Purkiss.
· She went through a stage when she was sending Mr Purkiss photos of herself naked, because he was telling her how beautiful she was. That was something that her husband did not do.
· She confided in Mr Purkiss, providing him with a lot of information about her relationship with her husband.
· Her husband had a "meltdown" on the morning of Friday, 26 May 2017.
· Mr Purkiss came to see her when she was at work on that Friday. She told him that she had had coffee with his partner, Jill, some days previously. He said, "Jill would be happy to help you as well and we've got room out here. We can get you out of here. You will be safe."
· On the Friday night, Mr Davies said that he was going to see Mr Purkiss. He left in Ms Otto's vehicle at about 6pm.
· Later that night Mr Purkiss arrived at the home of Ms Otto and Mr Davies in that vehicle.
· On arriving, Mr Purkiss put Mr Davies' mobile phone and keys on a table. He then threw into the fire an item that looked like a bracelet that Mr Davies used to wear.
· He said something like, "I will make the decision. You're free." Ms Otto did not ask what those words meant. He said words to the effect of, "He cried like a bitch," and "He'll leave you alone now," and "You're free and he will never be a problem," and "You're free, start your life, start living it, it starts now."
· Mr Purkiss showed her a bullet cartridge that was engraved with the number 6 and the word "Doc", which was her husband's nickname.
· As a result of the things Mr Purkiss said, Ms Otto thought that her husband was dead.
· Mr Davies had installed four closed circuit television cameras at the house in Risdon Vale. After he arrived there in Ms Otto's vehicle on the Friday night, Mr Purkiss disconnected the CCTV.
· Mr Purkiss indicated that he wanted to ride home on a motorcycle that Mr Davies had brought to the house, but its battery was flat. Ms Otto therefore drove him in her car from her home in Risdon Vale to a point within walking distance of his home at Elderslie.
· At about 4am on the Saturday Ms Otto phoned Mr Purkiss, so that it would look as if she had phoned to enquire as to her husband's whereabouts.
· Mr Purkiss returned to the house on the Saturday and, amongst other things, took the CCTV hard drive box away.
· Ms Otto believed that Mr Purkiss had a gun at Elderslie.
In the course of the first two interviews, a number of propositions were put to Ms Otto by the interviewing officers and denied or refuted by her. Some of them were put to her and refuted many, many times. The refuted propositions included the following:
· That she asked Mr Purkiss to help her get rid of her husband.
· That Mr Purkiss told her that he had killed her husband.
· That Mr Purkiss told her that he had shot her husband.
· That she and Mr Purkiss had planned what they would say to the police about the events of the Friday night.
· That they planned that she would give Mr Purkiss an alibi.
· That she had falsified messages on her husband's phone about visiting Mr Purkiss to talk about motorbikes.
· That Mr Purkiss would say that she had killed her husband; and that she had moved his body; or that she had had more involvement than she had told the police about.
· That she knew more than she was telling the police.
· That she gave Mr Purkiss the impression that she wanted her husband gone.
· That she told Mr Purkiss that she wanted her husband dead.
· That Mr Purkiss had told her that all she needed to do was snap her fingers and he would "have it done".
· That there had been a whole week of planning for her husband to die.
· That Mr Purkiss had come to her at her workplace on the Friday to tell her what he was going to do and how he was going to do it.
· That it was unbelievable that Mr Purkiss had not told her where the body was, and that she had not asked him.
· That the motorbike that Mr Purkiss was going to take on the Friday night was payment for killing Mr Davies.
· That she had killed her husband.
· That Mr Purkiss was not involved.
· That she knew where the body was.
In the relevant 14 minutes of the third interview, Ms Otto responded to every question she was asked. There were several questions and answers that the Crown agreed to edit out of the recording, no doubt on the basis that those parts of the interview were clearly inadmissible. There were other questions and answers that involved propositions being put to Ms Otto and her refuting them. The answers that she gave, many of which the Crown wished to rely upon as admissions, were to the following effect:
· When Mr Purkiss arrived at her home on the Friday night and told her that she could start living and stop existing, she said, "I don't know what to do." She did not know whether she said "Thank you", or kissed him, or hugged him.
· She just wanted to stop being scared.
· She just wanted her husband to go away so that she could live with her family. She did not know how that was going to happen.
· Mr Purkiss and his partner wanted her to go to the mainland, but she was scared for her son.
· Mr Purkiss and his partner had offered to let her stay at their home, but she believed her husband would have followed her.
· She did not know whether he would have followed her to the mainland.
· Earlier, at some point, Mr Purkiss told her that if she did not make the decision to go, he was coming to pack her up and take her to his house.
· She did not ever say to Mr Purkiss that she wanted her husband killed, but said, "I wish he would go away and far, far away." She just wanted him intimidated. She wanted him not to come back.
· Her husband had made suicide threats. If he had gone through with it, she would be lying if she did not say that she would be relieved.
· When asked what she had actually said to Mr Purkiss, she gave an answer that was partly inaudible, but which ended with the words, "... make sure that I'm free forever."
· She did not know whether Mr Purkiss had taken it, from what she said, that she wanted him to kill her husband.
· She did not want her husband to be killed, but just wanted him to leave her alone.
At one point the inspector asked Ms Otto a hypothetical question about what might be said in a future police interview with Mr Purkiss. He asked, "So if he comes along this afternoon and tells Police that you have organised this murder and you've approached him and given him sufficient information to believe that you wanted him dead, how are we going to argue against that?" Ms Otto replied, "You can't cause that's how it looks." The Crown contended that it would be open to the jury to treat that answer as an admission, not just as to the apparent strength of the prosecution case, but as to the correctness of the hypothetical allegations. Such an interpretation of Ms Otto's words would involve taking them out of context. Over hours and hours of police questioning she had consistently maintained that she had not been involved in organising or instigating the killing of her husband. Ms Otto at that point was a trembling, whimpering wreck. She was no doubt talking about her perception of how strong the evidence against her looked. She was not making a representation of fact. Her comment therefore did not fall within the definition of "admission" in s 3(1) of the Evidence Act. That definition reads as follows:
"admission means a previous representation that is —
(a)made by a person who is or becomes a party to a proceeding, including a defendant in a criminal proceeding; and
(b)adverse to the person's interest in the outcome of the proceeding."
By the time the inspector asked that question, Mr Purkiss had been interviewed three times. He brought his third interview to a conclusion the previous night, when he refused to answer any further questions. The inspector's question suggested that Mr Purkiss was still talking to the police, and was therefore misleading. And he certainly did not explain to Ms Otto that nothing said by Mr Purkiss in a police interview could be used as evidence against her at her trial.
Towards the end of the 14 minutes, the following exchange occurred between the detectives and Ms Otto:
"Burk:We believe that you had the option to get out of that house and chose not to and you wanted Bradley [Mr Purkiss] to kill him on your behalf because that was easy.
Otto:No. Oh God I keep saying it, no. I didn't want him to be killed. I just wanted him to leave me alone.
Wilson:That's the only way he was going to leave you alone.
Otto:I know, I know what you're saying I (inaudible)
Wilson:Well you've said it, I haven't said it.
Otto:My head hurts. I, I ... ".
The Crown contended that in the second answer in that exchange, the first "I know" amounted to an admission because it could be interpreted as meaning "I know that the only way my husband was going to leave me alone was if Mr Purkiss killed him." Such an interpretation is not reasonably open. It involves taking two words of an extremely distressed woman out of context, and twisting what she was saying. Sometimes when people are whimpering and crying they repeat themselves. Ms Otto's answer, taken in context and as a whole, could only reasonably be interpreted as an acknowledgement that she understood what the two detectives were both saying. What she said did not constitute an admission, because it was not adverse to her interest in the outcome of the current trial.
The evidence relied upon by the Crown as proof of the charge of murder is entirely circumstantial. The jury will therefore have to find Ms Otto not guilty of murder unless they conclude that there is no reasonable hypothesis consistent with her innocence: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 536. Her defence is that she did not participate in the planning of the killing, did not intend her husband to be killed, and did not instigate or abet the killing. There is ample evidence from which the jury might conclude that Mr Purkiss killed Mr Davies. If the jury is satisfied beyond reasonable doubt that he did, the critical question for them in relation to Ms Otto will be whether the circumstantial evidence that they accept leaves open any reasonable hypothesis consistent with her innocence. In my view evidence of Ms Otto's answers to the detectives during the relevant 14 minutes of her third interview would not have made any significant difference to the strength of the Crown case against her.
A number of Inspector Burk's questions incorporated assertions that Ms Otto did not agree with. The assertions that she did not agree with were of no evidentiary value. Evidence from the inspector as to his beliefs concerning her involvement in the killing would not have been admissible as evidence. It would therefore have been unfair to Ms Otto for the jury to have heard some of the assertions made by the inspector during the relevant 14 minutes.
At the beginning of that period, the inspector's first question, after reminding Ms Otto of the caution, was as follows:
"I need to make this really clear to you. We believe that you have been responsible for the murder of Dwayne Davies. We believe that you have orchestrated his death by making up a fictitious account of a violent relationship between yourself and Dwayne Davies. You've shown no remorse. You're glad that he's dead and that you have given Bradley [Mr Purkiss] sufficient information for him to believe that you wanted him dead. What do you say to that?"
The assertion that Ms Otto made up "a fictitious account of a violent relationship" is somewhat surprising. If the inspector truly believed that, it is not clear where he got that idea. He did not question Ms Otto about violence or the lack thereof on the part of her husband. It is true that during her first interview Ms Otto described a time when her husband used to slap her about the face in a sexual context, but otherwise she complained about emotional abuse, not violence on his part.
It was unfair for the inspector to assert that Ms Otto had "shown no remorse". Throughout her interviews she had been saying that she had not wanted her husband to be killed, and had shown signs of being upset by his death. The jury will of course have to consider whether she was lying about her desires and distressed only about her own predicament. However, in the circumstances, it was unjustifiable for the inspector to assert as a fact, without discussion of the point, that she had shown no remorse.
Other questions by the inspector that incorporated controversial assertions and arguments were as follows:
· "The truth of the matter is Marg that you had a number of different options put forward to you. You had a conversation with Brad's partner the week before and, last Saturday. She gave you an option to get out and you didn't take that option which leads us to believe that you weren't satisfied with that, you didn't want to leave, you wanted Doc [Mr Davies] out of your life and you were using Bradley to achieve that on your behalf."
· "Just while there Marg, Bradley's going to be interviewed again this afternoon. Okay. So this is your last opportunity to tell us anything that you think might assist this investigation and to understand that Bradley has not to this point supported you at all. So if he comes along this afternoon and tells Police that you have organised this murder and you've approached him and given him sufficient information to believe that you wanted him dead, how are we going to argue against that?"
· "We believe that you had the option to get out of that house and chose not to and you wanted Bradley to kill him on your behalf because that was easy."
There have been many reported common law cases in which evidence of admissions and confessions has been excluded because of oppressive questioning, particularly questioning involving undue persistence, cross-examination or scepticism. Many of the cases are referred to in Cross on Evidence, 11th Australian edition, at [33730]. These cases are useful in determining questions of fairness for the purposes of s 90 of the Evidence Act.
In R v Amad [1962] VR 545, Smith J said, at 548:
"A person in custody is, by that fact, ordinarily under great stress, and for that reason the law for his protection holds it to be improper to subject him, even after caution, to any form of cross-examination the tendency of which is in fact to extort admissions or to overcome his mental resistance to making admissions."
In R v Pritchard [1991] 1 VR 84, the Crown had relied at trial on a videotaped interview in which the interviewing officers had made it clear that they did not believe the interviewee. The Victorian Court of Criminal Appeal dismissed an appeal against conviction, but made critical comments about the form of questioning. Crockett, McGarvie and Beech JJ said, at 93:
"The harm to him [the applicant] was that by the form of his questions the police officer was able to convey to the viewer of the tape the undisguised ridicule and derision he entertained about the answers of the applicant given in an endeavour to extricate himself from what obviously were real difficulties. The police would not at the trial have been permitted to express their incredulity or total disbelief in the applicant's answers. Why should they be allowed to do so by the form of questions chosen to be put to the applicant which can be, as they were, so vividly reproduced before the jury at trial?"
Several of Inspector Burk's questions involve expressions of disbelief in Ms Otto's answers and expressions of belief as to her involvement in the killing of her husband. He said things that he would not be allowed to say as a witness at the trial. It would have been unfair to Ms Otto for the jury to have seen and heard the inspector saying the things that I have quoted.
It was for these reasons that I decided not to admit the 14 minute section of the interview as evidence on the trial.
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