Tasmania v Sudani
[2011] TASSC 50
•22 September 2011
[2011] TASSC 50
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Sudani [2011] TASSC 50
PARTIES: TASMANIA, State of
v
SUDANI, Ashish
FILE NO/S: 55/2010
DELIVERED ON: 22 September 2011
DELIVERED AT: Launceston
HEARING DATE: 14, 15 and 18 April 2011
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Criminal Law – Confessions and admissions – Statements – Records of interview – Discretion to exclude – Whether the circumstances in which the admission was made made it unlikely that the truth of the admission was adversely affected – Whether improper inducements by police officers – Whether person interviewed was vulnerable to making false admissions.
Evidence Act 2001 (Tas), s85(2).
Aust Dig Criminal Law [2752]
REPRESENTATION:
Counsel:
Crown: J P Ransom
Accused: T K Jago SC
Solicitors:
Crown: Director of Public Prosecutions
Accused: Legal Aid Commission of Tasmania
Judgment Number: [2011] TASSC 50
Number of paragraphs: 71
Serial No 50/2011
File No 55/2010
STATE OF TASMANIA v ASHISH SUDANI
REASONS FOR RULING CRAWFORD CJ
RULING 2 May 2011
REASONS PUBLISHED 22 September 2011
The accused was employed by Healthwise as a trainee pharmacist at a Kings Meadows pharmacy. On occasions he also went to his employer's pharmacy in the centre of Launceston. He is charged with three counts of stealing. The first alleges stealing $175,295 from the Kings Meadows pharmacy between 1 July and 14 December 2009. The second alleges stealing stock from that pharmacy. The third alleges stealing $12,797.70 from the Centre Pharmacy. He pleaded not guilty to all charges.
Prior to the empanelment of a jury, he sought a ruling that evidence of admissions made by him in an interview with police be ruled inadmissible under the Evidence Act 2001, s85(2). It provides that evidence of an admission is not admissible unless the circumstances in which it was made make it unlikely that the truth of the admission was adversely affected. He also sought to have the evidence ruled inadmissible under s90 on the basis that having regard to the circumstances in which the admissions were made, it would be unfair to him to use the evidence. The same facts and considerations arise under both sections for the purposes of the case.
On 2 May 2011, I ruled against the accused by ruling that the evidence of the admissions could be given at the trial for reasons I would publish after the conclusion of the trial. The following are those reasons.
The police evidence
I will relate some of the police evidence. It established that the allegation of thefts by the accused was made to them, and on the morning of 15 December 2009 the owner of the pharmacy, Mr Weily, and his information technology manager, Mr Wright, participated in a briefing of officers at the police station. They presented some documents including printouts from a computer system. The allegation against the accused was explained. It involved him using his code to access a till, keying in cancellations of prescriptions that had been dispensed and sold so that a refund was generated by the system, and removing the amount of that refund from the till.
It was arranged that police would arrive at the Kings Meadows pharmacy at 2pm so that the owner would have a prior opportunity to formally terminate the services of the accused and recover from him a set of keys. The detectives mainly responsible for the investigation were Senior Constable Cackett and Senior Constable Chokljat. They arrived at the Kings Meadows pharmacy at 2pm in the company of Inspector Otley.
They went to the accused in an office area. Inspector Otley introduced the officers and told him they were investigating an alleged stealing of money from the pharmacy and they would like him to go with them and speak to them about the matter. He responded that he did not know anything about it. Inspector Otley directed Senior Constable Cackett to arrest the accused, which he did.
Senior Constable Cackett asked if they could search his motor vehicle outside in the car park. He consented. The three officers and the accused went to the vehicle and it was searched. Pharmacy goods were found in the boot and $1500 cash in the console between the front seats. Also found in the front of the vehicle were some loose tablets. Senior Constable Chokljat asked the accused what they were. His response was to become angry and shout at her, asserting that she knew what they were. In the end he stated they were Viagra.
The accused also consented to his home, a nearby apartment, being searched. The three officers accompanied him to it. When they arrived, Senior Constable Cackett asked him whether there was any money in the premises and he said there was not. Senior Constable Cackett sat with the accused at the living room table while the other two officers conducted a search of the premises.
Inspector Otley found in the main bedroom a laptop computer bag full of cash. The amount appeared to be in excess of $40,000 or $50,000. (It was counted at the police station later in the day and amounted to $108,370.) Also found in the apartment were some pharmacy goods.
During the search, Senior Constable Chokljat left the apartment for a personal matter. While she was away, the accused's wife arrived at the apartment. Senior Constable Chokljat returned. Following that, the accused was taken by the officers to the Launceston Police Headquarters.
Although he said he had no memory of it, I find that the accused was taken before a Sergeant Bonde, who was performing the duty of custody sergeant. That was shortly after they arrived at the station. Sergeant Bonde recorded that they arrived at 3.30pm and that the accused was placed into his custody at 3.43pm and advised of his right to communicate with a friend or relative and a legal practitioner. The evidence established that he made no request to do so. It was recorded that his custody was transferred back to Senior Constable Cackett at 3.44pm.
A video recorded interview with the accused was conducted by Senior Constable Cackett and Senior Constable Chokljat from 4.15pm until 6.15pm, with a 15 minute break during it when recording disks needed to be changed. Following the interview, in the presence of the accused the officers commenced to count the money they had found in the laptop bag at his apartment. The counting was recorded on video. It commenced at 6.23pm and finished at 7.03pm. Following that, custody of the accused was transferred back to the custody sergeant at about 7.15pm. He spoke to his wife to inform her of his whereabouts. The following morning, he appeared in a magistrates court and was released on bail.
The admissions in the interview
At the outset of the interview, the accused was told that the officers were investigating the stealing of about $120,000 from the Kings Meadows pharmacy since January 2009. It was mentioned that approximately $120,000 had been found at his home that day and as a result of enquiries, the officers believed he was responsible for stealing that money. They intended asking him questions about that and also about the stealing of some goods from the pharmacy. He was reminded of the caution that he did not have to say anything unless he wished to do so and anything he did say would be electronically recorded and might be given in evidence. He agreed that he understood that.
Next, he was asked "what your knowledge of this stolen money is?" He responded at length. He started with an admission of stealing and followed with a lengthy statement of dissatisfaction with the treatment he and his wife had received from their employer, which appeared to be advanced as some form of justification for his theft. What he said was:
"Um yeah like I you know and um yeah I have taken the money out um of the till um and the was in last um around 3, 4 months. Yeah um how it started um I joined in 27th of December and my wife used to work with Healthwise as well um, um the Pharmacist name his name is Kieran Fisher um he looks after Tasmanian Region um he works at Central Healthwise Pharmacy um he interviewed us and he was going to be our Supervisor um I'm not doing this intentionally because to get Pharmacist as I'm already qualified Pharmacist um I had done my Master in Pharmacy at the University of Tasmania um but just to get licence we need to do certain number of hours. Um he promised lots of, lots of things. We started working over there, um. Initially, like they asked us to sign contract for two years. We did sign contract, this is what happened because what Healthwise did to both of us. Ah, we both needed to do 2000 hours of training but once we started our job um then slowly, slowly we realised that we, we were like um were treated um initially we both were working at Kings Meadows Healthwise Pharmacy then Kieran asked me to work at Central Healthwise Pharmacy. I started working but I never, I was never treated like I'm an Intern Pharmacist I was treated like I'm just a sheep person. Other thing in last, when I started in, like I help lots of times, I went treating like, I have been treated like because I'm from overseas I'm from India, I'm not like a criminal or I haven't done anything and I didn't, I never thought of doing anything like this and this is not to get some money. Ah I can show my certificates and everything."
He said that he and his wife had trainees visas. They needed to work 2000 hours as pharmacy trainees to obtain their qualifications as pharmacists in Tasmania. He was able to do all the work of a pharmacist except sign final prescriptions.
Asked about the method by which he stole the money, he said as follows. To use the computer he would log in with his personal code. He would cancel a prescription from the dispensing system. That generated a refund and he would take that amount from the till. It was all very easy to do. He was shown a pharmacy record from two days before. He explained that he deleted medications more than once during the day and the system kept a record of the running total, which he would remove in cash from the till. He volunteered that he commenced stealing in that way about 3½ months before.
Later he explained that his practice was not to remove the money until the end of the day. Sometimes he would take as much as $1500, sometimes less. It depended on what he had reversed during the day. Further, what he took from the till in cash at the end of the day was sometimes limited by how much cash was available in the till.
Asked why he had started stealing, he explained in detail complaints he had against his employer concerning what he perceived to be inadequate treatment and training. Asked again, he said: "There was no other way just I wanted to show them. Um, like, I would like to tell everything, what happened." He then continued with detailed complaints against his employer. They included inadequate supervision and the termination of his wife's employment. He had become unhappy but his employer would not listen. He was given too many menial jobs. He said: "I was depressed all the time and have got medical certificate from doctor and you can investigate if you want." He was taking anti-depressants, he said. He complained of being treated as dumb, of being insulted. He then explained: "Yeah so I just, you know it started over like kind of revenge and there was no way I could harm the company so that was the only thing. ... It wasn't like I wanted money otherwise I would have started spending somewhere."
He volunteered that he believed that he could get away with stealing because there was no camera in the pharmacy.
He said that of the money found in the laptop bag about $25,000 was his own. He had withdrawn it from his Commonwealth Bank account in 2007 and 2008 in three amounts. The rest of the money in the bag he had stolen from the pharmacy. He explained that to finance his study he had been advanced $30,000 by a man he referred to as his uncle who lived in Illinois. Although pressed, he was unable to explain why he withdrew money from his bank account rather than leave it there for safekeeping. He accepted that he had sent maybe $10,000 or $15,000 to his father and brother in India over the last three or four months, adding "because before that I didn't have any money", other than the money from his uncle. However he maintained that what he sent to his father and brother came from his earnings. His explanation about the source of the money sent to India was far from clear.
It was put to him that money had been stolen from the Centre Pharmacy by the same method. Although he accepted he had been at that pharmacy at times, he maintained he had stolen nothing from it and that he knew of no-one else who had done so. He was pressed about that but maintained his denials.
It was put to him that he had asked an employee at the Centre Pharmacy to open bank accounts and transfer money for him to India. He denied that and asserted that if the employee had said that he was lying. It was also put to him that he had shown that employee the money in the laptop bag and said that he intended to send it home to India for investment. He denied that as well. He added: "Why would I lie, why would I lie when I'm accepting that I have done and I told you everything what I did and how I did." It was put to him that he had shown another employee the money in the laptop bag and he denied it.
He was questioned at length about stealing money in the same way from the Centre Pharmacy and continued to deny it.
He agreed he had told a number of people he owned a restaurant in Hobart and a service station but said he had made those things up.
He explained that he had intended to finish his employment at the Kings Meadows pharmacy in 15 days' time when his contract ended. He did not have another job lined up. He did not have a licence and had not sat a pharmacy examination because he had depression. He had seen a Dr Strong once for his depression about 20 to 25 days before.
Towards the end of the interview he was asked whether he was fully conscious that it was wrong to steal money. He responded: "Yeah, I knew it but ... I couldn't find any other way to harm the company." He began to cry. He had been teary at times earlier in the interview.
He admitted to stealing stock from the Kings Meadows pharmacy. Asked how long it had been going on, he said he had done it three or four times. The stolen stock included Homy Ped shoes, perfume, aftershave, a blood pressure monitor, shampoo, maternity pads and head lice combs. The police had found them in his possession. Asked why he had stolen items for which he had no use, he was unable to explain, but agreed that the reason was the same as for the money. He added:
"It wasn't like a big sort of criminal planning, there was just sort of like I always say, sort of angerness because every time when I started, I used to work really, really hard for the company then they would consider. They always used to appreciate everyone but because I'm from overseas and I'm from India, and I always struggle with my language, they always used to make fun of me. I did complain lots of, sorry, I did complain lots of times there is a lady name Vicky, she always used to tell me like, I don't know anything, um and when I said why don't you think I'm doing internship, at least inaudible pharmacy say no, your degree's from India, you are just a boy; you don't know anything and lots of time she insulted me in front of customer like I'm serving someone on till, she was just um, Ashish, this is not the right way, this is the way you do."
A little later he said: "I just wanted somehow I wanted to show them that I'm not an idiot. I can do what I want. I have mind."
Asked about a fake Rolex watch on his wrist, he said it was all part of the lie.
The interview concluded when he was asked: "Do you have any complaints about the way you've been treated by police, any police today?" He answered: "No, very cooperative." It seemed to me that he was having difficulty finding the correct word to use but that he meant that he had been treated well by police and had no complaints about his treatment.
The accused's case for inadmissibility of the admissions
Evidence was given on the voir dire for the defence by the accused, his wife Purvi Sudani, Dr Viral Vasini and Dr Tess Crawley.
The accused's evidence was that he is an Indian national. Between 2002 and 2006 he studied pharmacy at a college in India. He came to this country in July 2007 and eventually became an employee at the Kings Meadows pharmacy.
He said that in 2002 there were major riots in India between Hindus and Muslims. During them he saw a police officer slap his father and accuse him of trying to save a terrorist.
He said that on a Saturday in April 2006 he helped a friend, a female pharmacy student, by accompanying her when she visited the principal of the college in his office. His friend confronted the principal with an accusation that he had offered to provide her with examination papers if she spent a weekend with him at a resort. The accused supported her by asking the principal whether he had done such a thing. The principal told him that it was none of his business.
Later that day his friend asked him to make a statement to police about the matter and he agreed to do so. At the police station he wrote a statement that included what had happened in the principal's office.
At about 12 or 1pm the following day, a Sunday, he was watching a movie with Dr Vasini and some others in a room he shared with Dr Vasini. He could not remember who the others were. Three police officers entered the room. One of them had taken his statement the previous day. They swore at him, dragged him to a police jeep outside and took him to the police station. On the way he was abused for having made his statement against the college principal.
He said that at the police station they took him to a cell, stripped him of his clothes, sat him on a chair with a very bright lamp, tied his hands behind the chair and started to slap him, demanding that he make another statement retracting what he had said against the principal and stating that his friend had offered favours to the principal in return for the examination papers. He refused and they continued to slap and swear at him.
He said that one of the officers started to beat him on the lower leg with a long stick called a lathi. He was crying throughout the ordeal. An officer slapped and punched him in the face, causing his nose to bleed. He maintained his refusal to provide another statement, saying that it would ruin his friend's life.
The assaults stopped for a time and he was left chained in the cell. Then the officers returned to torture him again, this time with what he referred to as an ice bar, a cast iron bed with ice underneath it. They made him lie chest down on it. He refused to sign a blank paper. After that he was injected with a drug and a blunt screw was rotated on his leg five or six times, peeling the skin off and causing him great pain.
He said that eventually he succumbed because of the pain and signed the blank paper. Following that an officer "masturbated on my face".
He became unconscious and next remembers being in hospital. He left there the following day.
Evidence corroborating his evidence of being tortured by the Indian police in 2006 was given by his wife and Dr Vasini. Mrs Sudani said that on the Sunday she received a telephone call from Dr Vasini and went with him to the hospital to visit the accused. He was lying on a bed crying. She was unable to speak to him because of his crying and she left after about half an hour. He had dressings on his hands and legs and his nose was bleeding and packed with cotton.
I mention that I found Mrs Sudani an unimpressive witness. She tended to tailor her evidence to provide support for her husband's case and she tended to be evasive and to avoid giving direct and consistent answers to questions in cross-examination. Further, it was apparent that she had signed a statement for police which contained assertions different to those she made in evidence.
I found Dr Vasini's credit difficult to assess. He gave evidence by videolink from India with the consent of Crown counsel. The quality of the sound was very poor and there was a delay of about two seconds between the picture and the sound.
Dr Vasini said he shared a room with the accused for four years. On a holiday in April 2006 he, the accused and some friends were watching a movie one morning when police arrived and dragged the accused away. He could not remember who the friends were.
Dr Vasini said that he and a friend, Narim Ramani, went to the police station and saw the accused on a chair being ruthlessly beaten with a stick and slapped. He was crying and shouting to be left and asked what he had done wrong. Dr Vasini said that he was only present for a few minutes before the police sent him away. I would be surprised if he would have been able to witness any of the violence.
Dr Vasini said that evening he and his friend visited the accused in hospital. The accused was terrified, had difficulty breathing, was receiving oxygen and was unable to speak. He had wounds, skin peeling around his foot, an injury to his leg which had been dressed and inflamed wrists.
The accused's evidence was that following his experience with the police in 2006 he always had nightmares. He did not seek treatment in India, but had been on anti-depressants since 2002 and was still on them for about four months after his arrival in Australia in 2007.
He said that he had no trust in police, and when the officers came to the Kings Meadows pharmacy on 15 December 2009 he felt anxious and scared, because he did not know what was going to happen. When the police were at his flat he was crying, he said. He confirmed that he and Senior Constable Cackett remained together in the living room. They were there for at least 30 or 40 minutes. During that time, Senior Constable Cackett told him that the police knew he had stolen $120,000. When he protested how could anyone take such an amount, Senior Constable Cackett asserted that he had cancelled prescriptions and taken refunds from the till totalling $120,000.
He said that Senior Constable Cackett claimed there were at least five witnesses, including his supervisor and another employee who had seen him stealing the money, and there was also video evidence. Senior Constable Cackett explained there was a law in Australia that if a person co-operated with police and accepted what he had done it amounted to showing remorse, in which case the person was no harm to society and the judge might give him a shorter, probably suspended, sentence. Senior Constable Cackett told him that his pharmacy career in Australia was over and that if he did not co-operate he would go to gaol for a few years and would then be deported to India.
The accused said that when his wife arrived, Senior Constable Cackett asked her whether she was involved in the stealing from the Centre Pharmacy when working there, and she denied that. He was asked whether he was a permanent resident and his wife was asked about the type of visa she had and she was told that she would be deported back to India immediately.
The accused said that before the police took him away from the apartment he spoke to his wife in their native language, Gujarati. He told her he believed he had been framed and that the police were probably in it. He said that he was denying the allegation but that the police were not happy to listen to him and he did not know what to do. His wife responded that he should do whatever the police said, because all she wanted was for him to come home at the end of the day. He then told her that he would do whatever they said and probably would admit. He added that she should stay out of it and say she knew nothing about money, otherwise she would be dragged into it as well.
Mrs Sudani's evidence was that she arrived home from shopping to find Senior Constable Cackett and Inspector Otley there with her husband, who was sobbing. She said that Senior Constable Cackett told her that he had been arrested for stealing money and goods from the pharmacy, that his employment had been terminated and that if he did not co-operate he would go to gaol and she would be deported. The officer said that if the accused admitted to the charges he would probably receive a suspended sentence and would come back home.
Mrs Sudani said that in their native language she told the accused to co-operate and do whatever the police said. In cross-examination she added unconvincingly that she also told him not to let them beat him.
The accused was taken to the police station. He said that in the interview room before the cameras were turned on, he was told that all he had to do was co-operate and accept that he had done it and he would be fine.
Asked what he thought he had to do at that time he said:
"I already made my mind before that because I knew that if I don't do what they say then probably the same thing because I was bit paranoid and I was so scared as well so I thought, I don't have any other way other than because they put two options so I, I just went thinking along that two path, one way is either I accept other way is I don't accept."
Asked what he thought would happen if he did not accept what the officers were saying, he said:
"Det Cackett already put this to me before that we've got enough evidence no matter how much you resist you will, we will, you will be convicted and the judge will give you longer sentence. So I just couldn't think that, I couldn't think that I don't have to accept because I was innocent but I just, I was so scared and so anxious and–."
He gave evidence that he had seen a Dr Strong on one occasion, on 25 November 2009, when he was facing an exam and obtained a medical certificate. It certified that he was severely depressed and in an extremely disturbed and abnormal mental condition and would be unable to work for three months. However, in cross-examination he said that the main reason he obtained the certificate was not the forthcoming exam but that he wanted to quit work and go home to India without losing credit for the pharmacy training he had done.
The accused said that when he was taken to the custody sergeant following the interview, he said nothing about how Senior Constable Cackett had made him feel because he thought all policemen were the same. He added that he thought that if he complained something bad would probably have happened as it had in India. I found those answers at odds with his explanation for making admissions. On his evidence, it was not his view at that time that the police officers had threatened him or mistreated him in any way. His case was that he believed he had to co-operate and confess, otherwise a judge would send him to gaol for a long time and he would be deported.
In cross-examination he was asked further about his reasons for not making a complaint to the custody sergeant and in particular, he was asked what he thought the police had done wrong. His response was that they would not believe his assertions of innocence. Asked why then, at the end of the interview, when asked whether he had any complaints about the way he had been treated by police that day, did he respond "no, very cooperative", he said: "Yeah, so in the interview, in the same interview then I was scared, I was frustrated that, because I wanted to go home and what I'm saying is, how would you expect me to complain to the same police officer in the same interview that you did this to me."
Also in cross-examination, he agreed that he denied to the police that he had stolen money from the Centre Pharmacy. He gave as his reason what had happened in India in 2006. He said that the police suggested in the interview that a fellow employee was involved in the stealing with him. He felt guilty that the woman he had tried to help in India could not finish her pharmacy degree because of his intervention. Influenced by that, he denied stealing from the Centre Pharmacy because he did not want to implicate his fellow employee. Nor did he wish to implicate his wife who had also worked there. I found his explanation unconvincing. Of course, he denied stealing from the Centre Pharmacy in any event.
Dr Crawley is a clinical psychologist and practices as a forensic psychologist. She saw the accused on five occasions between 20 September and 30 November 2010 for the purposes of preparing a report to his solicitor. She emphasised that she was unable to express an opinion concerning whether the accused's admissions to the police were true or false.
In summary, her evidence was that it was her opinion that if the accused's claimed history of suffering from depression and anxiety and of being mistreated by Indian police was true, he was more vulnerable to making false admissions than persons who had no such history. Her opinion about that equates with commonsense.
Reasons for concluding that the admissions were admissible
It was the accused's case that having regard to the circumstances in which the admissions were made, it was likely that the truth of the admissions was adversely affected. See Evidence Act, s85(2). It was also his case, and counsel for the Crown did not disagree, that the issue of the truth of his admissions was to be disregarded, pursuant to s189(3).
In summary, the accused relied on the evidence concerning the circumstances in which the admissions were made as being his history of depression and anxiety, his mistreatment by Indian police in 2006 and his consequent vulnerability to making false admissions. He also relied on the improper inducements to make admissions he and his wife claimed were made to him by Senior Constable Cackett at his home, namely that if he co-operated with police and admitted what was alleged against him he would probably receive a suspended sentence, but if he did not do so he would go to gaol for a number of years and he and his wife would be deported from Australia.
For the purposes of my ruling, I accepted that the accused did have a history of depression and anxiety and of being mistreated by Indian police in the way he claimed. I also accepted that because of those matters he had an increased vulnerability to making false admissions to police.
Importantly, it was the accused's case that during the interview he was doing whatever the police said or, to put it another way, he was saying what they wanted him to say. He maintained that he was pushed into confessing something which he did not do. In the light of the recorded interview, I was unable to accept his case or his evidence concerning his reasons for making the admissions.
There was certainly no sign of coercion by the police in the interview. At all times the officers acted professionally and respectfully. Further, it was clear that the accused was not simply telling the officers what they wanted to hear. He made admissions about stealing money and goods from the Kings Meadows pharmacy but he denied stealing from the Centre Pharmacy and maintained his denials despite firm questioning and expressions of doubt from the officers. He also maintained a version concerning the source of some of the money in the laptop bag despite the obvious disinclination of the officers to believe what he was saying. He also volunteered a considerable amount of detail about some matters concerning which I have no doubt the police knew nothing.
I gained a firm impression that the accused did not feel overborne by his situation.
On the balance of probabilities I concluded that the officers made no improper inducements as claimed by the accused and his wife. I had no reason to doubt the police evidence. I positively disbelieved his wife's evidence for reasons I gave earlier. I did not accept his evidence about the inducements because I concluded that his statements in the interview were inconsistent with having been made out of a desire to co-operate with the police, as he claimed. The credibility of his evidence was harmed as a result.
I concluded that it was unlikely that the truth of his admissions were adversely affected by the circumstances in which they were made. I was not persuaded that it would be unfair to him to admit the evidence.
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