R v Heinicke [2001] TASSC 93

Criminal Law (Detention & Interrogation) Act 1995 (Tas).

Bromley v R [1986] HCA 49; (1986) 161 CLR 315; Cleland v R [1982] HCA 67; (1982) 151 CLR 1; McKinney and Judge v R [1991] HCA 6; (1990) 171 CLR 468; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, applied.

Walsh v R A35/1996; R v Parker (1990) 19 NSWLR 177; R v Sparkes 54/1997, followed.

Judgment ID Number: [2001] TASSC 93

1 The accused has sought the exclusion of the evidence contained in two interviews conducted by police and recorded on video tape. The challenge was to admissibility by reason of lack of voluntariness and alternatively by way of discretionary exclusion.

2 On 5 January 2001 at approximately 9.30am the Mr Heinicke was arrested on the grounds that he had committed two acts of armed robbery on December 29 and 30 2000. The police had lawful grounds for the arrest. Mr Heinicke was taken to the Launceston police station and brought before a custody officer at 9.51am. The process included the giving of advice as to the rights of communication and ended at 9.57am with the transfer of custody being given to the arresting detective. At some time before interview the accused spoke by telephone with a legal practitioner employed by the Legal Aid Commission.

3 Detective Constable Bolton, the arresting officer, took Mr Heinicke to a room and commenced, in the presence of Detective Spaulding, to state the basis of the arrest and outline the material which would be put to the accused during a formal interview. That conversation was not recorded and no notes were taken. There is a dispute as to the length and nature of that discussion. At some stage Mr Heinicke became agitated and displayed physical symptoms which caused concern to the two officers. An ambulance was summoned and Mr Heinicke was taken to the Launceston General Hospital where he was physically examined and eventually referred at 1.40pm to an intake officer, a psychiatric nurse. At approximately 2pm, in accordance with procedure the assessment was referred to Dr Bell, an experienced psychiatrist. During the course of that examination Mr Heinicke engaged in bizarre behaviour which included talking to non-existent persons and a claimed hearing of voices. Eventually Dr Bell concluded that the conduct was feigned and not the product of a psychotic state. He made a provisional diagnosis that Mr Heinicke suffered from Ganser's Syndrome, a form of disorder which involves the acting out a form of conduct in imitation of a psychotic episode as a means of avoiding an unwanted predicament. The condition, though rare, is sometimes associated with people with a history of substance abuse. Dr Bell accepted that Mr Heinicke was agitated but not the subject of a psychotic episode and that there was no basis for admission. He concluded that the man was capable of understanding what was happening and of taking part in an interview. The videotaped interview subsequently conducted shows that assessment to be accurate.

4 Mr Heinicke was returned to the care of the officers and taken to the police station. The first interview commenced at 3.30pm and concluded at 4.40 pm. In the course of that interview Mr Heinicke freely accepted responsibility for his part in the robbery which had occurred on 29 December but denied any involvement in the latter crime. Towards the end of the interview Mr Heinicke stated that he did not wish to take part in any further questioning and the interview was terminated. The participants remained in the interview room for some 20 minutes and at 4.58pm a second interview was commenced and recorded, during which Mr Heinicke admitted that he, acting alone, had committed the robbery on 30 December. Following the conclusion of that interview, custody procedures were completed and Mr Heinicke was taken before a court of petty sessions at 9.30pm. Bail was opposed and Mr Heinicke was remanded in custody where he remained until trial.

5 Mr Heinicke gave evidence on the voir dire. He confirmed that he had a history of substance abuse and claimed that he was tired and disorientated at the time of his arrest. He stated that he had been subjected to prolonged questioning and told of the details of the police case against him before being taken to hospital. He further claimed that he had been interviewed on videotape on three, not two, occasions, the first commencing at 7.30pm. In those interviews he said he had maintained his innocence and the videotaped recordings tendered on the voir dire portrayed another person.

6 The challenge to the reception of the evidence was made on three bases, namely:

1 they were not relevant since they portrayed a different person;

3 they should be excluded by an exercise of discretion based on fairness and failure to comply with appropriate procedures.

7 Most of the events recounted are not in dispute and are verified by documentation. The claim that the person portrayed in the videotape recording is not the accused is, for the purpose of this ruling, not accepted. That being so, the times displayed on these tapes assist in the resolution of some of the relevant occurrences. Mr Heinicke was transferred to the custody of Detective Constable Bolton at about 10am. Allowing for the gathering of papers, sorting out of material, movement and the like, it is likely that Mr Heinicke arrived at the CIB rooms at approximately 10.15am. Detective Constable Bolton believed that he outlined the procedures and the nature of the allegations for some 10 - 15 minutes. During the morning he also interviewed Elizabeth Rushton, a principal witness, with a view to obtaining material which could be put to Mr Heinicke. Mr Heinicke was permitted some time outside in a courtyard for the purpose of smoking. Allowing for those events it is reasonable to find that the time elapsed was some 45 minutes, making the time as being approximately 11am. It is likely that at that stage Detective Constable Bolton determined to commence the recorded interview, a process interrupted by the behaviour of Mr Heinicke. Some time then elapsed as that behaviour was evaluated, a decision made, an ambulance summoned and Mr Heinicke transported to hospital. Allowing for waiting time reception and a physical examination, and arrangements for the presence of the psychiatric nurse, the recorded time of the arrival of the intake officer of 1.40pm is consistent with the prosecution account. The results of the examination communicated by Dr Bell permitted the police to safely return Mr Heinicke to custody.

8 The examination conducted by Dr Bell and the communication of his advice concluded some time after 2.20pm. Allowing for the return to the police station and the necessity to again prepare for the interview it is unlikely that further interrogation could have commenced much before 3.30pm.

9 The absence of notes, recording of times or involvement of a corroborative person is not good practice. However, the failure to record the preliminary discussion neither offends the provisions of the Criminal Law (Detention & Interrogation) Act 1995 or of itself requires the exclusion of admissions subsequently obtained (Heatherington v R [1994] HCA 19; (1994) 120 ALR 591). The course of the first interview as viewed by the Court does not show untoward tiredness or stress on the part of the accused. No suggestion is made of physical coercion or threats. The interview itself does not disclose the existence of material obtained from a person previously interrogated on an "informal basis". The version of events, as to these events, as given by the three police officers and Dr Bell are accepted.

10 A claim made that the person portrayed on the videotape is another, absent the existence of a genuine mistake or clear refutation, ought remain an issue for the jury and a contention that it is unsafe or unreliable does not give rise to an exercise of discretion (Rozenes v Beljajev [1995] 1 VR 553, Farrell v R A36/1996). In any event, given my findings, the evidence is reliable and ought be considered by the jury, together with any evidence of the accused, as to whether he is the person portrayed.

11 The findings of fact made in relation to the events leading to the interview commencing at 3.30pm permit the conclusion that the prosecution has established that the admissions were made voluntarily. The continued denial made by Mr Heinicke in that interview as to involvement in the robbery of 30 December reinforces the confidence in that conclusion.

12 Similarly the findings of fact do not warrant an exercise of discretion to exclude the material on the basis of unfairness as defined by the High Court in cases such as Cleland v R [1982] HCA 67; (1982) 151 CLR 1; Duke v R [1989] HCA 1; (1989) 180 CLR 508; McKinney and Judge v R [1991] HCA 6; (1990) 171 CLR 468 and R v Swaffield [1998] HCA 1; (1998) 192 CLR 159.

13 It is for these reasons that the Court ruled that evidence of the interview commenced at 3.30pm could be placed before the jury.

14 The first recorded interview concluded at 4.40 pm. Mr Heinicke had maintained his denial as to involvement in the second robbery and had stated that he did not wish to answer to further questions. The three participants remained in the interview room for some 20 minutes. According to Detective Constable Bolton there was a discussion about the personal problems of Mr Heinicke, procedures to be followed, a volunteered acceptance by Mr Heinicke of involvement in the second robbery and a wish to be re-interviewed. He denied that any inducement of bail had been made. Detective Constable Spaulding who gave evidence after Detective Constable Bolton volunteered that bail had been discussed but that Mr Heinicke had been told that it would remain a matter for the court. Detective Constable Bolton stated that as a matter of policy, bail was opposed for all persons charged with armed robbery. The following extract from the interview shows that Mr Heinicke had some expectation that he might be granted bail:

"BH I hope he gives me bail. I am not going anywhere, I mean, you can check up, I was in Devonport

JB Right, she let - um Elizabeth won't mind you being out there you don't reckon

JB ok, this is a video recorded interview conducted at Launceston Police Head Quarters on Friday, the 5th of January 2001, and the time is 4.58pm. Ah, Brenton, I am Detective Bolton, this is Detective Spaulding. Can you please tell us your full name

JB your address Brenton, do you remember your address

JB Okay, just probably not - try not to touch that Brenton. OK, Brenton, um do you agree Brenton that um, that ..

JB I don't know, what time did we finish the last one

JB Do you agree Brenton, about 20 Minutes ago, that we um just concluded a video recorded interview with yourself. We just - about 20 minutes ago ..

JB Do you agree with that? And then, do you agree Brenton that after we concluded that interview we - the three of us had a conversation

JB And then as a result of that conversation at your request um you - you wished to participate in another short interview

JB Is that right? And can you tell us why - why you want to - why you requested another interview Brenton

BH Well ah, well I suppose I basically couldn't live with myself

JB So Brenton, are you now happy to tell us the truth about what happened with the Tompsons Lane Corner Store robbery

JB Okay, I have to caution you Brenton, you're not obliged to say or do anything unless you wish to do so, but whatever you say or do is being recorded and it may be used as evidence. Do you understand

15 The tape commenced before the formal part of the interview. The commencing conversation, the absence of record (compounding the earlier absence of good practice) and the sudden acceptance of responsibility are causes for concern. The evidence of Dr Bell given on the voir dire and at trial supports the existence of Ganser's Syndrome. Manifestations of that syndrome include compliance with authority and the making of unreliable answers in order to gain advantage. The mental condition of a suspect or prisoner is a relevant factor (Bromley v R [1986] HCA 49; (1986) 161 CLR 315). No details are provided as to the preliminary conversation which led to the sudden change of story. No attempt was made to have Mr Heinicke adopt, in the recorded interview, any of those details. The bare statements:

"JB Do you agree with that? And then, do you agree Brenton that after we concluded that interview we - the three of us had a conversation

JB And then as a result of that conversation at your request um you - you wished to participate in another short interview

"BH Well ah, I suppose I basically couldn't live with myself"

are themselves cause for concern. It is unlikely that advice as to procedures would have occupied much time and it is reasonable to conclude that the discussion as to a change of story and a willingness to be re-interviewed occupied a longer time than that stated by the officers. It is also likely that Mr Heinicke had a greater expectation of obtaining bail than, on the version of the officers, he was entitled to have. The reference to a possible place of residence indicates that the issue had been discussed in some detail. Finally, there is the suddenness of the change and the continued occupancy of the interview room. Given the diagnosis made in relation to Mr Heinicke and his denial in evidence that he was the person portrayed in the videotape it is difficult to make any finding as to what had occurred between the two interviews.

16 The Criminal Law (Detention & Interrogation) Act 1995 did not require the intervening period to be videotaped. However, once the question of a "change of heart" was raised by either side it was appropriate that the discussion be recorded. The second interview can be seen as a continuation of the former, as can the matters giving rise to it. As Brennan, Dawson and Gaudron JJ said about the effect of comparable legislation in Heatherington (supra) at 601:

"When there is a series of questions, including questions and answers that have been tape-recorded, and the confession is made during the tape-recorded questioning, the whole series of questions must be considered. By reference to the whole series, the court ascertains whether, as a matter of objective fact in all the circumstances - including time, place, content and the participating persons - the tape-recorded questioning and the questioning in the remainder of the series are part of the same questioning or are different questionings. When s464H(1)(d) is applicable, evidence of a confession made by a suspect during questioning is admissible only if it is made during a questioning the whole of which has been tape-recorded. When s464H(1)(d) is applicable and an investigating official has questioned a suspect in order to determine the involvement of the suspect in the relevant offence, but has failed to tape-record some of those questions, a confession made during questioning that is tape-recorded is not admissible if the questions which were not tape-recorded were part of the same questioning - unless, of course, the court exercises its 'exceptional circumstances' discretion under s464H(2).

The self-explanatory or self-contained nature of a particular series of questions and answers or the fact that particular questions produced the confession is insufficient to establish that the questioning in that series or the productive questions constituted a separate questioning. It may be that what was asked in a tape-recorded interrogation that was separated in time or place from an earlier series of questions was not affected by answers given during the earlier series, but that is not an exhaustive test to disprove the proposition that the earlier and later questions were part of the same questioning. The separation of time and place and the subject matter of the questions asked are material to determining whether the questioning in the tape-recorded interrogation and the earlier series of questions are part of the same questioning."

The fact that the second interview formed a continuation of the earlier questioning is relevant to an exercise of discretion.

17 It is not necessary to make findings as to what occurred during the intervening period. No findings adverse to either police officer are made. However, consistent with the second basis stated in Cleland (supra) namely policy as to propriety of procedure and the requirement for reliability (McKinney and Judge v R (supra)) the evidence will be excluded by reason of an exercise of discretion.

18 Whilst directed at the issue of voluntariness the following statement of Brennan J in Collins v R [1980] FCA 72; (1980) 31 ALR 257 at 307 that:

"The conduct of police before and during an interrogations fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused."

19 In R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 the High Court had reason to consider the policy question earlier stated in Cleland in relation to the issue of reliability. As Brennan CJ said at par12:

"The curial concern about unreliability was subsumed by a concern about the nature of the inducement and its effect on the will of the confessionalist."

"Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification - to name but some improprieties - may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case."

20 Reliability impacts on the question of fairness and the use of inadequate procedures impact on reliability. In that way absence of adequate procedures come within the ambit of policy. In Walsh v R A35/96 at 6 I attempted to summarise the state of the law (before Swaffield):

society is seeking to prescribe forms of interrogation and their manner of recording which, if followed, will ordinarily afford a safe basis for the reception of evidence (McKinney and Judge v R (supra));

many of those forms and methods are designed to ensure the accuracy of the account given;

where there is a breach of the 'form' of interrogation then evidence may be excluded as a matter of condemnation of a breach of requirement (Cleland v R (supra));

if accuracy is established, ie the facts that certain words were said, then minor or unintended lapses will not necessarily lead to the exclusion of evidence (Pollard v R [1992] HCA 69; (1992) 176 CLR 177);

where accuracy is in issue, greater attention ought to be given to the question of whether safeguards designed to produce accuracy were followed;

traditional forms of coercion and inducement, such as the withholding of bail, lengthy interrogation, violence, or its threat, and the 'planting' of evidence are more difficult to perpetrate if correct procedures are followed;

special considerations should be afforded to factors of age (Dixon v McCarthy (1975) 1 NSWLR 617; R v M [1976] Qd R 344; T v Waye (1983) 11 A Crim R 422), physical or mental infirmity (R v Parker (1990) 19 NSWLR 177); and background R v Anunga (1976) 11 ALR 412; R v Narula [1987] VicRp 55; (1986) 22 A Crim R 409))."

21 Counsel for the Crown contended that the cogency of the answers given during the course of the interview is shown by the evidence of others. The following extracts show such not to be the case.

"JB What weapon is it - what did you use on this one? Was it similar to the pizza weapon or what ..

JP Was it exactly the same object or did you make up a new one

JB The same one. Okay, now how did you from - how did you get to the shop

JB Okay, and did you know which shop you were going to

BH No, I didn't know what I was doing actually when I - when I'd left the pavement. Didn't really have any plans and I just ah, walked out. Walked out of the house with this thing and I started walking - walking down the street"

The evidence of the co-offender Lawrence Williams given on the trial was that following the pizza robbery, the imitation weapon was pulled apart and thrown over the fence at Cupania Street.

"BH Yes, it was straight down, and I - I think I just stood on the corner thinking, you know, where - where should I go, you know, do I need this, you know? And then, well, before I knew what was going on I was - I was ah outside the shop and, I don't know, everything is basically a blur after that

BH Well, I guess I stuck the thing over my head and walked in

JB If you weren't going to rob that shop would you have robbed the shop down the road for argument's sake

BH Yes, yeah, it wasn't planned, that - there wasn't that one, you know, it wasn't - you know, no"

"JB Was it the same balaclava, if I can use that word, as you used the night before - with the pizza one

BH I'm not real sure if it was or not? Possibly was

JB Did you make up a new one or was it one of the two that you and Toby used the night before

The evidence was that the balaclavas worn during the pizza robbery had been burnt before 30 December.

"JB Okay, did it have a - one big hole or two eyes and a mouth hole

BH I don't - I don't believe it had a mouth hole, I think it was just two holes or a slit, I'm not too sure what it was"

The evidence of the shop attendant was that she could see the mouth of the assailant.

"BH No. Oh basically once I got to the shop I walked across the road. I got to the shop and everything after that was just sort of a blur"

"JB Now do you know, is there two entrances to that shop to your knowledge Brenton

JB Now which entrance did you go in, the - the, main road entrance which is George Town Road, or the Tompson [sic] side -

JB Okay, so you've walked in. Now who was behind - was anyone else in the shop

There were two entrances and the shop attendant was quite certain that the assailant had left the George Town Road entrance. The response accepts both entrances.

BH No, I cant really remember what I said to her. Like I said, everything - basically everything inside the shop's a blur

JB Do you remember what you did with the object that you had in your hands

BH I believe I pointed it in her direction I guess"

JB our information is you said' give me all your money' would that be right

In evidence the two shop attendants were quite clear as to the language used.

"JB Ok. Now did she, did you reach in and get the money, or did she hand it over to you

BH No I believe she handed it over in a plastic bag

JB we, our, well as I said before, we think its, oh well we were told its 1260 dollars, would that be right

BH possibly, I, I, I really don't know, I really could not say"

The shop attendant did not claim that the money had been placed in a bag. She said that she handed it directly to the assailant. The amount of money mentioned by the interrogator was that taken. The response lacks specificity.

"JB alright. Now did you know, which way did you, did you go back to Cupania Street the same way that you got there

JB our information is that after you walked out of the shop you crossed George Town Road then you walked up the road to the Rocherlea Tavern and then you turned right into Hume Street. Do you remember turning fight [sic] into a side street of the main road there

The questions accord with a description given by an eye witness, Mark Chugg, and are simply assented to.

"MS um, you said that you got the money and it was in a plastic bag, when you got back to Cupania street, did you have that bag with you when you went there

This did not accord with the evidence of the shop attendant who said that she had placed the money directly into the hand of the assailant.

22 The probative value of these answers could not be said to be great.

23 There are occasions where a claim made by an accused that certain statements made were not recorded ought not give rise to a question of reliability (R v Sparkes 54/1997) and it is sometimes impossible to employ procedures where there is a sudden "change of heart" by a person subject to detention. But it would be a denial of the spirit of the Criminal Law (Interrogation & Detention) Act if courts as a matter of course permitted the reception of a videotaped interview comprising denials followed by a recanting recording interview made after a short unrecorded series of events which were themselves not subject to verification or which had not been fully and openly adopted in the following recorded interview.

24 The material comprised in the interview commenced at 4.58pm, the events giving rise to that interview and the portion of the custody record pertaining to the second interview will not be received into evidence by reason of an exercise of discretion.