The State of Western Australia v Newton [No 3]
[2016] WASC 221
•21 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NEWTON [No 3] [2016] WASC 221
CORAM: HALL J
HEARD: 18 JULY 2016
DELIVERED : 21 JULY 2016
FILE NO/S: INS 355 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
DARRYL RAYMOND NEWTON
First AccusedJOANNE RUTHSALZ
Second Accused
Catchwords:
Criminal law - Evidence - Objections to portions of police interviews - Whether relevant - Whether comments by police officers admissible - Turns on own facts
Legislation:
Nil
Result:
Rulings made
Category: B
Representation:
Counsel:
Prosecution : Ms C Barbagallo
First Accused : Mr A E Eyers
Second Accused : Mr K P Bates
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
First Accused : Legal Aid (WA)
Second Accused : A Williams
Case(s) referred to in judgment(s):
McDermott v The Queen (1948) 76 CLR 501
The Queen v Beble [1979] Qd R 278
HALL J: The accused are jointly charged that on 2 April 2015 they murdered Travis Mills. The trial commenced on 18 July 2016 and is listed to continue for seven weeks. At the commencement of the trial counsel for two of the accused, Darryl Newton and Joanne Ruthsalz, indicated that they had objections to portions of their clients' interviews with the police. A large number of edits had been agreed between the parties but a few remained unresolved and rulings in respect of them were required.
During the course of argument, some objections were withdrawn and others were agreed. Accordingly, I will only deal with those portions that remain in dispute.
Darryl Newton
Mr Newton was interviewed over two days, 13 and 14 May 2015. The only part of the interview to which objection is taken is on disc 2 commencing at 5.10 pm on 13 May 2015. I have viewed this disc. A transcript of this interview was provided to the court. That transcript was marked with blue highlighting identify the passages in dispute. I will deal with each of the passages below.
1.The first passage is between pages 12 and 18 of the transcript. In this part of the interview the police officers show Mr Newton CCTV footage on a laptop computer and explain to him where the camera that took the footage was located by reference to a map. The officers describe what is depicted on the footage as it is shown. The objection to this passage is that it is irrelevant, lacks any probative value and serves only to bolster the police officers' claims as to what the footage depicts. I do not accept this objection. Throughout the passage Mr Newton watches the footage intently. As it is explained to him what the footage is said to depict he agrees with what is said. Towards the end of the passage a summary of the effect of the footage is then put to Mr Newton and he accepts that that is an accurate summary. Later in the interview, this evidence forms part of a challenge put to Mr Newton regarding his own account of his movements. In these circumstances, the passage is relevant and has probative value.
2.The second passage is from pages 20 to 27 of the transcript. This relates to the police showing Mr Newton further CCTV footage. Again, it is put to him what it depicts and he appears to accept that what the police say is accurate. Towards the end of the passage he agrees that a car appearing in the footage is a station wagon. The prosecution case is that Mr Newton's car is a station wagon of same make and appearance. This footage again forms the basis of a challenge later put to Mr Newton regarding his movements. The objection taken to this passage is the same as for the first. For the same reasons I do not accept that objection. The passage is relevant and admissible.
3.At page 34 of the transcript, Mr Newton is shown a map which one of the police officers refers to as being 'significant'. This is objected to as being an opinion. However, in context, it is apparent that what the officer in fact says is that the map is 'significant to us' and he then goes on to explain why. This is not, therefore, a mere expression of opinion but an explanation of the significance that the map has to the allegations being put to Mr Newton by the police. For those reasons, I do not accept this objection.
4.At page 61 of the transcript one of the police officers puts to Mr Newton that he is contradicting himself. This is objected to as being a comment. It is not improper for police to point out that answers appear to be incorrect and to thereby give a suspect an opportunity to explain suspicious matters: The Queen v Beble [1979] Qd R 278. That is what occurs here and Mr Newton denies the contradiction and provides an explanation. Excessive persistent questioning in the nature of cross‑examination may also in some circumstances result in exclusion of evidence: McDermott v The Queen (1948) 76 CLR 501. However, having viewed the recording of the interview it could not reasonably be suggested that the questioning by the police was overbearing or oppressive. I do not accept this objection.
5.At page 70 of the transcript Mr Newton is challenged regarding his claim to being with the co‑accused, Darren Campbell, at Mr Campbell's shop at the time the murder occurred. The police challenge that claim by referring to evidence that Mr Campbell's telephone did not indicate that he was at his shop at that time. One of the police officers then makes a comment regarding Mr Campbell that he was 'off committing murder'. This is merely a comment or rhetorical flourish and adds nothing to the challenge. Significantly, it does not form part of a question to which a response is sought. I accept this objection and this passage should be excluded.
6.At page 72, one of the police officers states that Mr Newton's story 'keeps evolving' and that he is 'trying to think on [his] feet'. Whilst, as I have noted earlier, it is not improper for police to point out that answers appear to be incorrect in order to give the suspect an opportunity to provide an explanation, this passage does not fall into that category. It is, rather, a commentary on Mr Newton's account which does not seek any substantive response. Later in the interview, Mr Newton is challenged in a more detailed way and is asked for responses. As mere commentary, this passage is irrelevant and should be excluded.
7.On page 75 one of the police officers puts to Mr Newton that there are 'inconsistencies' between his account and other evidence that has been put to him during the course of the interview. Objection is taken to the use of the word 'inconsistencies' as being an impermissible comment. On this occasion, that word is properly used as part of a series of questions in which Mr Newton is being asked whether he can account for the alleged inconsistencies. He appears to accept the inconsistent evidence but says that there is nothing he wishes to say about it. There is nothing improper in this and the objection is overruled.
8.Between pages 76 and 77, there is a passage in which the police tell Mr Newton that other people have been arrested and are being questioned. The objection to the first part of this passage was withdrawn. Objection was only maintained to the second part in which Mr Newton is told the results of the post‑mortem examination of the deceased, that the deceased may have been alive when the car was incinerated and that 3 April 2015 was the deceased's daughter's first birthday. Mr Newton's response to this is 'Okay. Yeah, right, I didn't even know the fella'. The objection to this passage is that it is irrelevant and that its only purpose can be to elicit sympathy or prejudice from the jury. No questions are put to Mr Newton in respect of this information. It appears that the police provided this information in order to encourage him to talk to them. Whilst that may have been a legitimate tactic, it did not produce any relevant response. In these circumstances, this passage should be excluded.
9.At pages 78 to 79 the police show Mr Newton a further piece of CCTV footage. The significance of this footage is that it shows a light coloured Commodore. Mr Newton again watches the footage intently, appears to accept the descriptions given by the police and, in particular, accepts that a light coloured Commodore is depicted. The objection is that the police description of what is shown is impermissible opinion evidence. I do not accept that objection. The description provided by the police as the footage is being shown is accepted by Mr Newton. This passage is also relevant to the challenge to his account that is made by the police.
10.At pages 80 to 83 further CCTV footage is shown to Mr Newton. This footage is alleged to show Mr Newton's car and the deceased's car leaving the deceased's home. Mr Newton accepts that one of the vehicles is a light coloured station wagon. Again, the objection is that the police descriptions of what is depicted in the footage is opinion evidence and irrelevant. I do not accept that objection. The police descriptions of what is depicted are accepted by Mr Newton, in particular, that one of the cars is a light coloured station wagon. This evidence is then relied upon by the police in challenging Mr Newton's account. The passage is relevant and admissible.
11.On page 89 one of the police officers tells Mr Newton that he now has an opportunity to tell them what happened. The officer then says that he thinks that Mr Newton is lying, that the police have obtained 'somewhat incriminating' evidence against him and that Mr Newton is not 'a silly guy'. This is largely commentary, some of which lacks coherence. There are other questions, which are not objected to, in which the police tell Mr Newton that he has an opportunity to provide an explanation for his involvement. The passages complained of on page 89 contribute nothing material to the challenge, do not seek any substantive response and should be excluded.
Joanne Ruthsalz
Joanne Ruthsalz was also interviewed between 13 and 14 May 2015. The only portions of her interview that remain in dispute are in that part of the interview commencing on 14 May 2015 at 12.40 am. I have viewed the recording of that part. Again, a transcript of this part of the interview with the disputed parts highlighted in blue was provided to the court.
The relevant passage appears at pages 6 to 9 of the transcript. During argument, objection was withdrawn to a number of parts of this passage and the prosecution agreed to another part being excluded. The remaining parts are constituted by long statements by the interviewing officer regarding a mobile telephone service with a number ending in 620. The prosecution case is that this telephone service was subscribed for by Ms Ruthsalz using a false name and was then used by her to communicate with other co‑accused. Ms Ruthsalz remains impassive throughout this part of the interview and makes no responses that could be viewed as being either admissions or acceptance of the accuracy of the evidence that is being summarised. In these circumstances, the objection is that these statements are merely comment by the interviewing officers and not admissible. The prosecution submits that, whilst Ms Ruthsalz makes no admissions, there is a marked change in her demeanour. It is suggested that prior to the 620 service being mentioned she was talkative and forthcoming but that afterwards she becomes non‑communicative. I have viewed the recording and am unable to accept that any inference of guilt could properly be drawn from the demeanour of Ms Ruthsalz during this part of the interview. I uphold the objection and the relevant passage should be excluded.
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