Errey v The Queen [2001] WASCA 75

Errey v The Queen [2001] WASCA 75 - WASCA 2001 case summary — Zoe

[33]

14 The interview commenced in Curtin House at 10.30am on 12 February. It was conducted by Detective Sergeant Mills and Senior Detective Mirapodi. The interview stopped shortly afterwards as the video recording equipment gave trouble, but it resumed at 10.44 am. It was explained to the applicant that he was not required to take part in the interview unless he wished to and that anything he said could be used in evidence. It is clear and not contested that he understood this. The caution was repeated when the interview commenced again at 10.44 am. The interview was transcribed and there is a transcript in the appeal book. I shall refer to the pages of the transcript as a means of giving an estimate as to its length and the time when certain things occurred, as this method was used in the grounds of appeal and by the trial Judge. The transcript started when the interview recommenced at 10.44 am and it continued for 63 pages when the applicant went to the toilet. This was at about 11.45 am. There was no specific question relating to the offence itself until p 43 of this transcript. The questions until then were questions whereby the interviewing officers were ascertaining how the applicant met the deceased, what had earlier occurred, and as to the applicant's lifestyle generally. There were no leading questions and the applicant was talking freely explaining his lifestyle. It was ascertained that the applicant referred to the deceased as Rob. Detective Sergeant Mills said they were trying to find out as much as they could about him because that is the job they had been given to do. The applicant then answered a lot of personal questions as to the sexual activity that had been taking place between them. He was asked to give, and gave, a detailed description of the unit in which the deceased was living. He had, a short time before the alleged happening, gone to Kununurra to work. He said that he had returned from Kununurra about three weeks ago and he remained in the city looking for work. He was asked, and answered (T/S first tape 43):

[66]

A. No, I'm not really twisting it because I didn't break anything, and you said it was broken, and I didn't break anything, so I knocked on that to get the - - wake up - -

Q. John, your fingerprint, okay, is on that hatch, all right? Now this is a scenario that I'm going to put to you, okay?

A. Mm hm.

Q. That in fact you've taken the fire extinguisher - - listen to me, and listen very carefully; it's important, okay?

A. Mm.

Q. Because as I said to you from the start I'm laying all the cards on the table for you to get you to comment about it, okay?

A. There's nothing to comment about.

Q. Well, you've picked up the fire extinguisher off the wall.

A. Mm hm.

Q. Okay? Sure, you've gone and banged on the door and the window and all those sorts of things - -

A. Right, so - -

Q. - - we know that, because other people have told us.

A. Mm hm.

Q. Okay?

A. Right.

Q. During that banging and calling out to Rob, you've taken the fire extinguisher, then you've put it straight through - -

A. No, I didn't - -

Q. - - into the flat.

A. I didn't.

Q. Your fingerprints are on here?

A. Mm hm.

Q. You've then got into the flat, okay?

A. I didn't get into no flat.

Q. Listen to me. Listen carefully.

A. Yeah, I'm listening.

Q. You got into the flat and you've gone in and you've confronted Robert about something?

A. No, no.

Q. From there he's ended up dead?

A. Nuh, don't agree with you, sorry.

Q. Why?

A. It's not me.

Q. Everything that has occurred so far, okay, during this conversation; every time you're confronted with a fact about the way that the situation has evolved, you've changed your mind.

A. Why would I admit banging that door - I banged the inside of the hatch - when you've already told me it's been broken into, and I'm saying - - I'm more or less saying, 'Shit, I'm the one that got in. I'm the one that murdered him.' So I wouldn't - - I didn't take it that far, did I? But now you're - - now I'm - -

Q. Did I say at any stage that you'd murdered him?

A. Well, if - - If I would have gone your way you would have had me in a bloody nutshell before I even done it, and I didn't go that far. That's what I'm saying. The - - "

[68]

"Q. No, listen to my question.

A. I'm not after any gain. I'm not after any gain. I'm not lying.

Q. Listen to my question, okay?

A. Mm.

Q. You've told somebody - - and this is the scenario: you've told somebody that you've killed a man named Collard, okay? Just listen to me.

A. Yeah, I'm listening to it, but I'm still nodding me head, aren't I?

Q. From there, okay, I've asked you the question. Now the thing that you've got to gain by telling a lie is that you're saying, 'No, I didn't do that'?

A. That's right. I'll go to court. You can have me fucking for 10 years. I don't give a shit. You've been screwing me - -

Q. I'm not - -

A. Look, they screwed me with the army, they screwed me in the police force, they're screwing me now. You may as well bloody get it over and done with; shoot me in the backyard.

Q. We want the truth, John.

A. I'm not - -

Q. No, no, no, John, we - -

A. I'm telling you the truth. I'm telling youse the truth. I did not do it.

Q. No you're not - -

A. I am . I'm certainly not screwing you about anything.

Q. From minute one - and I've never met you before. I've seen you around town in the last 10 days or so, but from minute one I've laid it on the table with you about where we're going, okay?

...

Q. What I want to know is if you did get into the flat - - just listen to me.

A. Mm hm.

Q. This is really important.

A. Mm, sure it's important, really important in that - -

Q. If - - if you got into the flat, okay, and Rob was already dead, did you move his body?

A. No, I didn't move his body. I didn't even get into the flat.

Q. You still haven't explained to me how your fingerprint is on the inside hatch.

A. Well, you figure it out for yourself.

Q. Well, I can't. that's why I'm asking you.

A. Well, I've been in the kitchen. I've been feeling the - - around the microwave. I've been felling what's this, is there a door, is there a handle to it? No, it's just a piece of wood.

Q. I asked you specifically before - -

A. I made coffee, I made Milo I done this and read the papers.

Q. Yeah, okay. I asked you specifically before, okay - -

A. Mm hm.

Q. - - about whether or not you had any reason to handle the hatch, to touch the hatch at any time, and you told me, 'I've never touched the inside servery hatch.'

A. That's right, because you told me it's broken into."

[120]

76 His Honour said that in the second half of January 1999 the applicant went to Kununurra to work on a banana plantation. The deceased helped the applicant with some money and his Honour considered that the deceased hoped that that would be the last he saw of the applicant. The applicant, however, returned from Kununurra within a week and was living largely from handouts and slept wherever he could find a bed. His Honour found that the applicant went to the deceased's unit unexpected and uninvited, wanting to be allowed to stay the night. The applicant, on arrival at the unit, knocked but the deceased did not answer. His Honour found that the applicant was determined to sleep the night in the unit and decided to try and force an entry. His Honour rejected the applicant's account that he wished to enter the unit to see if the deceased was alright. His Honour said that the applicant took the fire extinguisher which had been hanging on the wall in the public passageway and he used it to bash the inner door of the hatch of the servery until it gave way. He said that he was satisfied that the applicant knocked the inner door out of the wall into the kitchen. His Honour said it was not clear whether the applicant then reached in and obtained the key or whether the deceased came from his bedroom and opened the door. His Honour said, "In either event the front doors were open and you barged your way in overcoming Mr Collard's clearly expressed reluctance to let you in." His Honour said that he was satisfied that there was a loud exchange at the front door which was heard by a neighbour. His Honour was also satisfied that the applicant entered the unit carrying the fire extinguisher and rejected the explanation that he did this at the deceased's insistence. His Honour said, "I am satisfied Mr Collard was naked when you forced your way past him into the flat ignoring his refusal to admit you." His Honour said that he formed the view that after a little time a fight developed between the two in the lounge room immediately inside the front door. His Honour said that while he had reservations about the honesty of the applicant's account, he considered himself required to accept in the applicant's favour that the deceased picked up a small kitchen knife. His Honour said that the reason for the deceased doing that would be clear. He was no physical or emotional match for the applicant's aggressiveness and he was trying to get the applicant to leave the unit. The applicant was determined to stay. His Honour was satisfied that the applicant was able to knock the knife from the deceased's hand and that he threw the deceased onto the lounge chair. He considered that on and off the applicant throttled the deceased, mostly with both hands grasped around the lower neck and that at times he punched the deceased to the head and continued to do this for a prolonged period, much longer than the three, four or five minutes suggested by the applicant in his evidence. His Honour said, "During this time you forced him to the floor where you knelt over him, throttling him and punching him." His Honour rejected the suggestion that the deceased said he intended to kill the applicant. His Honour said, "I am also satisfied on the evidence that you were so angered by Mr Collard's natural reluctance to have you stay and his picking up of the knife that you attacked initially in a self-centred anger but realised quickly that if he lived to tell the story, you would be likely to be reported to the police and you decided that you must kill him to be sure that this did not happen." His Honour then said: (AB471)

[121]

"Your thoughts were entirely for your own welfare and you gave no thought to Mr Collard as you deliberately pressed on, long after he had been disarmed, throttling him mostly with both of your hands until there was no longer any sound from his body. In my finding, he died from asphyxia on the lounge floor in front of the lounge chair in the position where his blood from the blows to his head was found on the carpet.

You then sought to dislodge both his arms by pulling on them. You considered they were connected in some way to what you described as his evil soul and you then dragged his naked body into the bedroom to prevent it being seen through the kitchen window; that is, to avoid detection. You then took a pen and drew a line across the heart area of his chest, in your words to write off his heart.

Then you had a bath and slept until the midmorning in the bed in the bedroom with Mr Collard's body lying on the floor in the position where his blood was found. In the morning I am satisfied from the medical evidence you rolled over the body so that it was face down, where it was found some days later on 5 February when Mr Collard's brother checked on him.

In the morning you showered, went through Mr Collard's possessions, put on his underwear, a shirt, jeans and shoes of his, put your own clothes in a shopping bag, took money, cigarettes and beer belonging to Mr Collard and left the unit, leaving the doors locked behind you. You put the shopping bag with your clothes in it in a rubbish bin away from the unit and eventually found your way to Mandurah where you had some acquaintances and where your parents lived.

I'm satisfied that you skilfully lied to the police, initially to deny any involvement in Mr Collard's death and you adjusted your story quickly whenever you saw that the police had evidence of some matter or other and eventually realising that the police had discovered too much, including your fingerprints at the unit and what you had said to an acquaintance at Mandurah, you then gave a further version of events which admitted your involvement in Mr Collard's death but presented it as a matter of self-defence.

In your evidence in this court, I am also satisfied that you skilfully and dishonestly refined your account to further strengthen the case for self-defence and to support the view that at no time did you intend to kill Mr Collard. Your evidence in this court and all that has been said by you about Mr Collard's death in the past, makes it extremely obvious that you feel no remorse whatever for what befell Mr Collard. You continued to see yourself as the wronged party because he wouldn't let you stay the night and because you now find yourself before this court.

Much of your conduct was bizarre. The jury heard the evidence of two psychiatrists who saw you within a short time of Mr Collard's death when you were referred by the court or by two courts. I am particularly impressed by the evidence of Dr Patchett as to his assessment of your condition. This was the result of 6 days intensive investigation and assessment at Graylands Hospital between 13 and 19 February last year.

I accept his opinion that you were not suffering from any psychiatric illness or mood disorder and that while you had some strange ideas, they were in accordance with your own particular beliefs and were not delusional.

I also accept that while you were earlier, particularly in 1989, diagnosed as schizophrenic or suffering from schizo-affective disorder, this was not the case and your symptoms at that time were the consequence of your drug abuse. In particular, as the doctor said, amphetamines and marijuana can produce symptoms which are indistinguishable from those conditions.

I note from the evidence that you were still using at least marijuana at Mandurah after Mr Collard's death. I accept from Dr Patchett's evidence that you have a personality disorder which, among other things, makes you particularly aggressive and self-centred."

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (216 paragraphs)

Errey v The Queen [2001] WASCA 75 (15 March 2001)

Questions arising on the video recorded interview

Resumption of interview at 1.40pm (2nd tape)

55 minute break. Attempts to obtain a lawyer

Resumption of interview after 55 minute break - third tape - Applicant states he does not wish a lawyer

Whether interview when admissions were made was voluntary.

Whether detectives earlier cross-examination was unfair.

Whether portion of earlier interview after first request for a lawyer should have been admitted

Remaining particulars claiming the interview was not a voluntary one

Parties

Cases Cited (10)