R v Dempsey [2000] VSC 527

5. Mr Dempsey and his wife Kathleen Dempsey now face charges arising out of Bo Dylan's death. Mr Dempsey is charged with murder, Mrs Dempsey with manslaughter. They seek separate trials. Such a request should be granted where its denial would result in "a substantial miscarriage of justice" or "improper prejudice ... Against an accused": Webb v. R [1994] HCA 30; (1994) 181 C.L.R. 41 at 89 per Toohey J.

8. It is not possible to specify in advance when this situation will arise. Each case must depend on its own facts. Where two or more accused are charged jointly, especially where it is accepted that all were present at the scene of the crime and where one or more of the accused may be expected to blame another or other accused, there are strong reasons for having the same jury try the same issues. Otherwise the administration of justice may be brought into disrepute by inconsistent verdicts. Even so, the ultimate question is whether the proposed course will result in improper prejudice against an accused; and where it will, separate trials will be ordered even at the risk of inconsistent verdicts. This appears to have been the guiding principle behind the ruling of Hampel J in R v. Evans and Baskin (unreported) 1 September 1997. It is, in any event, settled law that, "there may be cases where the extent of prejudice flowing to an accused from the admission of evidence which would not be before a jury on a separate trial might be such as to create injustice". R v. Vollmer [1996] VicRp 9; [1996] 1 V.R. 95 at 103 per Southwell and McDonald JJ. R v. Demirok, [1976] VicRp 19; [1976] V.R. 244, R v. Jones & Waghorn (1991) 55 A.Crim.R. 159, and R v. Gibb & McKenzie [1983] VicRp 78; [1983] 2 V.R. 155 are all examples of this. The principle is easy enough to state. It is its application to the particular circumstances which may give rise to difficulty.

11. Mr Bourke, leading counsel for Mr Dempsey, sought to draw comfort from what he submitted was the similarity between this case and each of Demirok, Jones & Waghorn, and Gibb & McKenzie. In each of these latter cases the Full Court or the Court of Appeal, as the case may be, held that the joint trial to which the accused was subject was unfair to the applicant. The particular unfairness, or at least one important aspect of it, present in each of these three cases is not replicated in the circumstances which confront me. In each of Demirok, Jones & Waghorn and Gibb & McKenzie the Crown called an important witness who gave evidence against both accused on their joint trial. The evidence of that witness was in some important respects supported by the record of interview of one of the accused. In relation to that accused the jury might, therefore, obtain from the record of interview a degree of comfort in determining the credit of that witness. In using the record of interview in that way in relation to the case against the accused whose record of interview it was the jury would, of course, be acting within its rights. But the position would be different when the jury came to consider the case against the other accused. The record of interview of the co-accused would not be admissible against that other accused. But that record of interview had already (on this hypothesis) been used by the jury to bolster the credit of a witness called to give evidence not only against the co-accused, but also against the other accused. Thus enhanced, the evidence of the witness as against that other accused might be weighted quite unfairly because its additional weight came from a source that was inadmissible against the other accused. And any attempt by the trial judge to correct that imbalance would necessarily be so convoluted as to be difficult, if not impossible, for a jury to follow. Any such direction would also run into the danger that it might simply emphasise the prejudicial effect of the evidence in question.

14. That is not this case. On the other hand, a joint trial would see the introduction in Mrs Dempsey's case of much material highly prejudicial to Brendan Dempsey although inadmissible against him. It is almost certain that Mrs Dempsey will contend that any neglect by her of the welfare of Bo Dylan was attributable to her husband. She feared that he would cause her to suffer if she exposed him by taking Bo Dylan to medical treatment. Evidence will be called to the effect that he was a violent and aggressive man whom she feared. That evidence will come in part from her relatives who (it might be expected) will be called to speak of his behaviour towards his wife. It may well be bolstered by evidence of Mrs Dempsey's knowledge of her husband's past convictions for crimes involving violence. In addition, the jury will have before it evidence of an admission allegedly made by Mr Dempsey to his wife. This is relevant as going to the time at which (according to her) she first knew of the injuries to Bo Dylan.

17. None of this evidence is admissible against Mr Dempsey. Some of it would, nevertheless, tend to support statements he claims are untrue made by him in a record of interview given on 5 August 1999. All of it would be prejudicial to him. No matter that the jury were carefully and forcefully instructed to put all of the evidence out of their minds when considering the case against Mr Dempsey, and no matter that the jury would endeavour to give full effect to such an instruction, it would, I think, be impossible for the jury to do so.

20. In a well known passage in Demirok (at p.254) the Full Court said:

"The matters of public interest which must be considered in this case and in all such cases may be summarised as follows: In the first place there is the question of the administrative matter of court time spent and public expense incurred if more than one trial is to be conducted. These matters will, in many cases, not be of very great weight; in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts and those interests require that where the accounts of accused persons differ or conflict, their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated re-trial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials."

24. In my opinion, the first factor as set out in this quotation is of little weight in this case. A joint trial would take perhaps as long as would separate trials. Nor is the potential embarrassment of inconsistent verdicts a realistic prospect here; and the third and fourth factors are not of great significance either except that police and medical witnesses will have to give their evidence twice. Set against the interest in ensuring Mr Dempsey has a fair trial, this is, I think, a price which must be paid.

27. Ms Sexton, who is leading counsel for the Crown, submitted that the defence of marital coercion having been raised by Mrs Dempsey, it is crucial that the one jury see both parties to the marriage in order to assess that defence. But how much they see of either must at this stage be quite uncertain; and even if they see much of both, what they see will not necessarily assist them in assessing Mrs Dempsey's position in relation to her husband.

30. Ms Sexton also submitted that I would be better able to assess the strength of the application for separate trials after a joint trial had begun and evidence had been called. In many instances this will be true. Here, however, it is plain on the material I have already before me that a joint trial will place Mr Dempsey in jeopardy of a substantial miscarriage of justice or improper prejudice. In these circumstances I am of the opinion that a separate trial should be ordered.

33. This will be a matter for further discussion, but I presently envisage Mr Dempsey's trial will precede that of his wife which will immediately follow his; and that Mr Dempsey's trial will start at the beginning of the next legal year.

36. The next question concerns the admissibility of certain statements made to the police by Mr Dempsey otherwise than not in accordance with the procedure laid down by s.464H of the Crimes Act 1958 for tape recording confessional statements. It is submitted by Mr Bourke that at the time the statements in question were made Mr Dempsey was a person who was suspected, or ought reasonably to have been suspected, of having committed an offence.

39. Section 464H, is so far as is presently relevant, in the following terms:

"(1) Subject to sub-section (2), [and this, I interpolate to say, is a sub-section not relevant here] evidence of a confession or admission made to an investigating official by a person who - (a) was suspected; or (b) ought reasonably to have been suspected - of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless - (c) if the confession or admission was made before the commencement of questioning, the confession or admission was tape-recorded, or the substance of the confession or admission was confirmed by the person and confirmation was tape recorded".

43. The evidence at issue begins with a statement by Senior Constable Charles Duncan. This statement records conversations which took place between the policeman and Mr Dempsey sometime after 4.30 p.m. On 12 August 1998. Then at 6.25 p.m. Mr Duncan commenced to take a statement from Mr Dempsey. This statement is in narrative form and purports to have been signed by the accused. It was not tape recorded.

46. On 15 November 2000 during the course of a voir dire Mr Duncan was cross-examined about his attitude towards Mr Dempsey at this time. The following passage appears in the transcript, page 218 line 2:

"Question: When you were talking to him [that is, Mr Dempsey] the day before, [12 August 1998] you must have come to the view that his explanations for the child's injuries and then his discussions - well, his explanations for the child's injuries were fairly hard to swallow? Answer: I felt that his account would certainly warrant further enquiries and further investigation either to verify or negate what actually happened. Question: On the face of it to you they weren't very acceptable, were they? Answer: There were certain issues I found I would have, if I had have been in charge of investigating, I would have decided it would have required extra investigation. Question: In other words, you would have been suspicious of him as to causing or allowing a non-accidental death? Answer: Yes, I would say yes, I agree with that. That's a fair comment Question: And those suspicions must have even hardened during the course of you taking the statement from him on the 12th? Answer: I believe I was still open-minded. I had an open mind when I finished to take the statement. Question: I'm not accusing you - of the statement in any way being improper, I'm just asking about your state of mind? Answer: No, I still think I had an open mind. As I said, it posed as many questions as it would have answered for me and I had an open mind. Question: You had suspicion but an open mind. Does that summarise it, does it? Answer: I had suspicions that there were certain circumstances surrounding the child's death that needed to be answered. Question: I don't want to appear insensitive about it. It must have appeared to you that he was talking about a child who was pretty accident prone if you relied on what he said. Answer: Yes, that would be accurate".

50. This passage is relied upon by Mr Bourke to support the proposition that by the time Mr Dempsey made his statement, if not before, Mr Duncan either suspected Mr Dempsey or ought to have suspected him of committing an offence in relation to Bo Dylan's death.

53. Another piece of evidence sought to be excluded under this head is to be found in the statement of Sergeant R. A. Lucas-Gear of Mount Beauty. He spoke to a Dr Robinson shortly after he arrived at the Mount Beauty Hospital at 3.30 p.m. On 12 August. According to Mr Lucas-Gear Dr Robinson "advised me that on examining the child he found a home-made splint on the right leg. The splint consisted of a ruler and elastic material. He stated he had spoken with the parents of the child in relation to the circumstances of death and felt that the degree of stiffness of the deceased did not fit the timeframes given by the parents. He informed me that he had contacted the Coroner's Court".

56. Mr Lucas-Gear then spoke to Mr and Mrs Dempsey. His record of that conversation is contained in his statement. Afterwards Mr Lucas-Gear (having previously left the room to view the splint on the body of Bo Dylan) returned to the room where Mr and Mrs Dempsey were. They were, according to Mr Lucas-Gear, whispering as he entered the room and stopped when they became aware of his presence. He then had a further conversation with both Kathleen Dempsey and Brendan Dempsey.

59. Another piece of evidence subject to the present controversy is a statement by Detective Senior Constable Sleep. It recounts a conversation had with Mr Dempsey sometime after 5.45 p.m. On 13 August. These being the items of evidence sought on by Mr Bourke on Mr Dempsey's behalf to be excluded, I turn to the relevant principles. They are conveniently set out in R v. Vollmer [1996] VicRp 9; [1996] 1 V.R. 95 at 120:

"It should first be noted that the question whether they were suspects is a question to be answered by the application of a subjective test. Did the police, in fact, regard the applicants as suspects? Clearly enough the judge found that they did not. But the question whether they ought reasonably to have been suspected is one requiring an objective view. One must look at the circumstances as they were known to police and then decide whether the police ought to have entertained the relevant suspicion. It should secondly be borne in mind that the question is not whether the police 'might or could' have reasonably entertained the suspicion. The question is whether acting reasonably they were obliged to entertain that suspicion."

63. The principle is illustrated in the case of R v. Alexander [1994] VicRp 58; [1994] 2 V.R. 249. The applicant was convicted of the murder of his wife. The deceased's death occurred in the matrimonial home in Frankston on 26 December 1990 and was brought about as a result of her being stabbed more than 40 times to the chest and neck. The murder weapon was never discovered. The Crown case was that the applicant attacked the deceased shortly after their sons left the home about 9.30 a.m. He then left the house at about 10.15 or 10.30 a.m. On a shopping trip. One of the sons returned home and found the body and notified the police. The applicant then himself returned to the house in the guise of a man ignorant of the events that had occurred. The suggestive motive for the crime was financial.

66. On his return to the home the applicant was spoken to by Detective O'Loughlin. He commented on a graze on the applicant's right knee and a cut on the applicant's left leg. The applicant at first explained this by saying that he fell over while shopping at Dandenong. Later that day he gave to a different policeman an account of what occurred which included a different version of how he had sustained his injuries. He then stated that he had fallen over at home. The question at issue in Alexander's case was whether at the time O'Loughlin spoke to the accused he ought to have entertained a suspicion of the accused's complicity in an offence. At page 255 of the report of the Court (Crockett, Southwell and Cummins JJ) said this:

"In our view it would have been wholly precipitant to characterise the applicant when being questioned in a preliminary way by O'Loughlin at the premises as suspected or a person who ought reasonably to have been suspected within the meaning of s.464H(1). The inquiries were then in their infancy, O'Loughlin asked only a few questions. O'Loughlin had not even asked the applicant his full name and address. No verbatim notes were taken. O'Loughlin gave evidence that the applicant was asked it sit in the police car to avoid his recall being confused by contact with other witnesses. In the ebb and flow of preliminary inquiry mere advertence by an investigating officer to the possibility of a person having committed an offence falls far short of the purview of s.464H(1)(a) and (b). As was stated by this Court in the R v. Heaney [1992] VicRp 85; [1992] 2 V.R. 531 at 548: 'The section is not concerned with a state of mind founded upon speculation or mere idle wondering, but is concerned with a state of mind arrived at upon consideration of known facts out of which an apprehension that a person might possibly have submitted an offence is created'."

70. No apprehension within the ambit of the principles stated was reached by O'Loughlin, or in the then circumstances ought to have been reached. The words 'might possibly' in that passage do not operate so as to include within the principle there stated the mere advertence to the possibility of a person having committed an offence (as distinct from an apprehension created thereof). What is required is a positive apprehension."

73. It seems clear that Mr Sleep spoke to Mr Dempsey after the results of an autopsy on Bo Dylan were known. According to the evidence of Doctor Shelley Robertson given at the committal that autopsy began at 9.30 a.m. On 13 August. The autopsy found that Bo Dylan died of a head injury with a fractured femur being a contributory factor.

76. In my opinion once the police received the results of the autopsy they ought reasonably to have suspected Mr Dempsey of having committed an offence. This was the point at which concerted and properly directed police investigation could begin. Before that time, however, they did not and ought not to have suspected him in the relevant sense. They did not until then even know the cause of death. It is almost as unprofessional for police to jump to unwarranted conclusions as it is to fail to come to conclusions which on the evidence are properly open to them.

79. I, therefore, conclude that statements made by Mr Dempsey to the police before the results of the autopsy were known were made in circumstances in which the police neither in fact suspected, nor ought reasonably to have suspected, that Mr Dempsey was guilty of committing an offence. I come to this conclusion despite the cross-examination of Mr Duncan earlier quoted by me. Seen in its full context it seems to me that that cross-examination does not include an admission by Mr Duncan that at any relevant time he suspected Mr Dempsey of complicity in Bo Dylan's death. The full context as set out by me is, in my opinion, properly to be seen as demonstrating Mr Duncan's openness of mind and demonstrating also that while he had doubt and suspicion about the circumstances surrounding the death of Bo Dylan, he did not suspect Mr Dempsey of complicity in that death in terms which fall within s.464H.

82. Accordingly, in my opinion, the statement of Mr Sleep should not be admitted in evidence. He clearly was aware of the results of the autopsy at the time he spoke to Mr Dempsey on 13 August. But the other statements are admissible. They were made in circumstances which, in my opinion, do not fall within the parameters of the relevant provision of the Crimes Act.