R v Carter [2000] VSCA 6

R v Carter [2000] VSCA 6 - VSCA 2000 case summary — Zoe

[12]

The Crown case against the applicant was as follows. Kerrie Lee Compen was a friend of the deceased and also knew the applicant and Jewell. On Friday 14 February 1997 Compen met the deceased at about midday, during her lunch break. They drove together to Noble Park where they used heroin. The deceased had been released from custody some few days earlier and overdosed. Compen took her to a hospital on the corner of Heatherton Road and the Princes Highway, dropped her off and returned to work. At approximately 4 p.m. that day Compen received a telephone call from the applicant, who said she had just "been released". They arranged to meet and after work the deceased met Compen and they went together to the applicant's home where they spent the evening together smoking marijuana. They agreed to meet the following day at around 11 a.m. Compen overslept the next morning and when she reached the agreed meeting point the others were not there. On Monday 17 February Compen received a telephone call from the mother of the deceased, Sonja Lawry, asking about her daughter who was missing. Neither of them knew where the deceased was. A week or two later the applicant called Compen at work and they discussed the subject of the missing woman, the fact that her mother was still looking for her and that no one had seen her. The applicant said to Compen "something along the lines of 'we knocked her'". Compen said she used the words "knock" but could not recall whether she said "I" or "we". She took this to mean that the applicant had murdered the deceased. On a later occasion the applicant told Compen "that she thought she would practically get pinned with the murder, that ... Homicide were looking for her, that they wanted her ... that she was going to get done for it, ... she was upset as she said this, she was crying." The applicant continued saying that she felt the best thing to do was to leave Kerrin Jewell as much as possible out of it "as she had little to do with what actually happened", and as Jewell, with a daughter, had more to lose.

[35]

Ground 1 of the application relates to a claim that the judge erred in his ruling that the evidence of covert tape-recordings between the applicant and Warren and Ingrid Eyles made on 9 and 10 May 1997 should be admitted. The facts relating to the obtaining of these covert tapes were not in dispute. Warren and Ingrid Eyles were the aunt and uncle of the deceased, however they had not seen her since she was nine years old due to her falling out with her immediate family. They had known the applicant from Odyssey House, since Warren Eyles had been undergoing drug rehabilitation there at the same time as the applicant. The applicant was not aware of the family relationship between the deceased and the Eyleses. The Eyleses had been assisting the police generally from approximately the middle of 1996 as registered informants, in regular contact with Detective Sergeant Smith of the Drug Squad. On 15 February 1997 the deceased was reported missing and officers from the Homicide Squad were briefed by the Criminal Investigation Branch at Ringwood in relation to her disappearance. By 9 April 1997 the police were treating the investigation as a missing person inquiry with some suspicious circumstances suggesting that the girl may have died. The police regarded the applicant as a possible witness into the disappearance of Parkes as she was one of the last people to see her alive. The police wanted to obtain a statement from the applicant as to her knowledge of Parkes's last movements. By 9 April, the applicant was also one of a number of people nominated in information received by the police as possibly being involved in the deceased's murder. On 9 April police officers from the Homicide Squad, including Detective Senior Constable Carroll, spoke to the applicant in an interview room at the Ringwood Police Station between 5 and 7.15 p.m. in relation to the disappearance of the deceased. The applicant at this time gave an account as to the girl's last movements prior to her disappearance. At the conclusion of the conversation, the police officers questioning the applicant asked her to make a statement, but the applicant told them at this time that she had received legal advice and had been advised by her solicitor that she was not to speak to the police or make a statement. Detective Senior Constable Carroll formed the view at this time that if the applicant was asked to engage in a formal record of interview, she would give a "No comment" record of interview. The police officers did not then caution the applicant in relation to her right to remain silent prior to their conversation with her on 9 April, on the basis that at that time she was only considered to be a potential witness in relation to Parkes's disappearance.

[61]

In Swaffield and Pavic, the High Court considered the question whether confessional statements voluntarily made to a witness who, unbeknown to the confessionalist, was a police officer or was acting on behalf of the police, should be admitted into evidence on the trial of the confessionalist. In the first of these cases, Swaffield had been charged with two offences of breaking and entering and with wilfully and unlawfully setting fire to the premises of the Leichardt Rowing Club. He declined to be formally interviewed by the police. At the committal hearing no evidence was led against him and he was discharged. On 11 August 1994 an undercover police officer involved in a drug detection operation had a conversation with Swaffield during which the officer pretended that his brother-in-law was in trouble for burning a car. Swaffield made admissions to the officer of his involvement in the fire at the rowing club. Fresh charges were laid against him in the District Court of Queensland, and the judge declined in the exercise of his discretion to exclude the conversations from evidence on the grounds of unfairness. Swaffield was convicted and appealed to the Court of Appeal of Queensland. That Court by a majority quashed the conviction and entered a verdict of acquittal. In the second of the cases, Pavic was questioned by police officers on 18 December 1994 about the disappearance of Andrew Astbury. The officers told Pavic that he did not have to speak to them but that if he had been in a fight with Astbury he should obtain legal advice and, depending upon that advice, attend the police station for a recorded interview. On 26 December the body of Astbury was found. On 3 January 1995 the police took Pavic into custody and conducted an interview with him during which he maintained his right not to answer any questions. The police told Pavic that they believed that he had murdered Astbury but released him without charge. On 9 January 1995 the police interviewed one Clancy, a close friend of Pavic. They told him that they believed that they had enough evidence to charge Pavic with murder but suggested that Clancy speak to Pavic on behalf of the police and carry a recording device for that purpose. Clancy agreed and spoke to Pavic, who made admissions of his involvement in killing Astbury. Pavic was committed for trial in the Supreme Court of Victoria on a charge of murder. The trial judge declined to exclude the conversation between Pavic and Clancy from evidence on grounds of unfairness. Pavic was convicted of murder and his appeal to the Court of Appeal was dismissed.

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Judgment (138 paragraphs)

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Cases Cited (2)