R v Ince [1999] VSC 418

8. It was not until March 1998 that the accused became a possible suspect. On 13 March, Illingworth arrested and cautioned the accused. He planned to interview the accused. Prior to arresting the accused, he was aware that there would be problems with language and with the accused having had mental problems. As to the latter, he had spoken with a psychologist who provided some information as to treatment. Illingworth said that, on being arrested, the accused showed signs of vagueness, in the sense of not showing an interest in what was happening. Illingworth said that he was conscious then and later, of there being a difficulty in assessing the level of understanding of the accused of what was said to him in English. He arranged for the accused to be seen by a Dr Welborn. She formed the opinion that the accused was not fit for interview because of his mental state, and arranged for him to be certified and admitted to a psychiatric hospital.

11. After 13 March and up to 22 March, when the accused was arrested again, having been discharged from psychiatric hospital on 18 March, further investigative work was carried out by police. That work led to the accused being seen to be not just a possible suspect, but the only suspect. Further information obtained included some to the effect that the accused had spoken of feigning symptoms of mental illness to gain certain advantages. The police were concerned that they were not able to find the firearm that had been used.

14. On 20 March, O'Neill interviewed and obtained a statement from Tolga Caliskan. What Caliskan said included: that he had been the driver of the second car; that the accused had been seated alongside him in the car; that the sunroof had been open; that the deceased had been carried along with the car, apparently hanging on to the sunroof; that some distance from when the deceased had started hanging on, the accused had risen in his seat; that there was what sounded like two shots; that the deceased was no longer hanging on; that the accused sat down and was seen to be holding a handgun; that the deceased indicated that he had fired the gun to frighten the man.

17. After obtaining the statement, O'Neill asked Caliskan if he would be prepared to wear a tape recorder and speak with the accused, and Caliskan said he would. On 21 March, Caliskan was provided with a recorder and shown how to operate it. Caliskan rang the accused and arranged to meet him. O'Neill watched from nearby as Caliskan talked with the accused in Turkish. O'Neill said he had more than one reason for asking Caliskan to use the recorder. He wanted to see whether Caliskan's account would be corroborated, and whether the accused would talk about matters that would help the investigation, and he wanted to get admissions about the shooting, and he wanted information about the location of the firearm. O'Neill said he did not give advice to Caliskan as to how to talk with the accused, but left it to Caliskan to talk as he chose.

20. On the voir dire, I heard parts of that conversation, in Turkish, played in court. The prosecution had had a transcript prepared of a translation of the conversation. That first translation was 13 pages long. The prosecution later produced a second translation, which was said to be better than the first in a number of respects. The second translation was 8 pages long. During the conversation, the accused said enough for it to be manifest that Caliskan's account to the police was at least substantially correct. As to the gun, the accused told Caliskan no more than that it was in a safe place.

23. On the following day, 22 March, the accused was arrested, and taken to the Homicide Squad office. The police arranged for Dr Odell to see the accused with an interpreter. Dr Odell was given a briefing that included that the accused had been certified as an involuntary patient by Dr Welborn, and had been discharged on 18 March. Dr Odell formed the view that the accused was fit for interview. He had later watched how the accused behaved in the videotape of the interview. He said that after doing so, he felt confirmed in the correctness of the view that the accused was fit for interview. Dr Odell also formed the view that the accused was not psychotic when examined. Illingworth then interviewed the accused. The accused, at a relatively early stage, gave his first no comment answer. Thereafter he gave some further no comment answers. That was done selectively, rather than continuously or close to continuously. Illingworth put to the accused considerable material based on what witnesses had said to the police. He said that he did so in order to give the accused an opportunity to say what he wanted to say as to what the witness had said. The accused made no material admissions. The accused was charged with murder.

26. On or before 3 April, the accused was admitted to the Rosanna Forensic Psychiatric Centre. He was seen there on 3 April by Dr Bell. He noted that the accused showed signs of psychosis, including that he complained of auditory hallucinations. He noted perplexity of affect and passivity of thought. He diagnosed the accused as having paranoid schizophrenia, and he did not subsequently have reason to change that diagnosis. He continued to supervise the care of the accused until 22 December 1998. He formed the view that the accused was of average intelligence.

29. I turn briefly to my reasons for taking the preliminary view that the evidence of the record of interview should not be adduced in the exercise of my "fairness" discretion. In Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95 at 99, the point was made that the prosecution should not lead evidence of the exercise of the right to remain silent that might provide a basis for inferring a consciousness of guilt. By way of example it was said that it should not be adduced that, when charged, the accused made no reply. In R v Hartwick, (unreported, Victorian Court of Appeal, 20 December 1995), when endorsing the application of that proposition, it was also noted that what was said in Petty should not be taken as an inflexible exclusionary rule. In the circumstances before me, there seems no reason why the questions producing a "no comment" response should not be excluded. However, once all of the no comment questions and answers are edited out, it is apparent that nothing or almost nothing by way of confession or admission is left. Some material may be a possible basis for a consciousness of guilt attack, but even that is somewhat doubtful. In Jukov (1994) 76 A Crim R 353, there was found to be long and persistent questioning, including much inappropriate cross-examination, of an accused who wished to exercise his right not to answer questions. The accused there had made no significant confession or admissions and the prosecution only wanted to use the answers as a foundation for a claim that the accused had made false denials evidencing a consciousness of guilt. It was held that the record of interview should have been excluded as unfair. The same conclusion was arrived at in similar circumstances in Tiplea (unreported, Victorian Court of Criminal Appeal, 12 April 1995). In Tiplea, there was not a finding as in Jukov that the accused wished to exercise his right to decline to answer questions, but the cross-examination was condemned in strong terms.

32. In the circumstances before me, the combination of certain factors contra-indicating unfairness made it a case that is far from overwhelming. I could not see that there had been any police impropriety. I did not consider the period of time which passed before the interview began or the period taken up by the interview to be unduly long. It seemed to me that both the persistence of the interviewing policeman and the nature of the questions were appropriate in the circumstances. There was persistence, but not of the kind that warranted criticism as in Jukov and Tiplea. Further, I do not accept that the police cross-examined in a strongly judgmental way. There was an understandable uncertainty and concern on the part of the police about the whereabouts of the gun that the accused had told a number of witnesses that he had used. There was also an understandable concern on the part of the police about how to treat the information that they had been given that the accused had spoken of his feigning mental illness. Further, it was my assessment that the accused chose to answer the questions selectively, rather than that he exhibited a constant desire to exercise his right to silence and yet felt compelled to answer on occasions. It seemed to me that Illingworth, who was the main interviewing police officer, put in a fair way to the accused matters gleaned by Illingworth during his investigations. Ince seemed to me to want Illingworth to continue to do so, at least in part because Ince seemed to be desirous of finding out as much as possible of the information gathered by the police.

35. On the other hand, as in Jukov and Tiplea, the accused made no significant confession or admissions. It seemed to me that the prosecution could only hope to use the answers given by the accused during the record of interview as a foundation for a claim that the accused had made false denials evidencing a consciousness of guilt. Moreover, the confidence that I could have in my assessment of the accused's behaviour could not but be reduced by the clear evidence from Dr Bell as to the accused's impaired mental state in the period of months after the record of interview. It was my assessment that the combination of those two factors outweighed the factors contraindicating unfairness, that led to my forming my preliminary view that the evidence should be excluded.

38. I turn from the interview of the accused by the police to the covertly recorded conversation between the accused and Tolga Caliskan. As to the applicable principles, I have reviewed carefully what was said in Swaffield v The Queen [1998] HCA 1; (1998) 192 CLR 159, and particularly at paragraphs numbered 53, 54, 91, 97 and 99 to 102. It is clear that much will depend on the combination of circumstances both indicative and contra-indicative of unfairness and prejudice.

41. Mr Bourke argued primarily that the whole of the conversation should be excluded. It was only his secondary position that it should be edited to minimise potential prejudice. What he put included:

* that there was prejudicial material in what was said and in the atmosphere set by the conversation;

* that there was unfairness in the way that the police set up the conversation;

* that the conversation was recorded in breach of the right of the accused to remain silent;

* that there had been improper eliciting during the conversation;

* that the conversation must be viewed in the light of the mental illness of the accused;

* that it must also be viewed in the light of the language problem in presenting what was said before a jury

50. Mr Bourke argued that there was a potential for prejudice in the general atmospherics of what was said, and that the potential was heightened by Caliskan using words denigrating the police. He also argued that some parts of what was said by both the accused and Caliskan were such as were likely to give rise to a prejudicial perception of insensitivity. I accept that those submissions have some substance, but consider that judicious editing can substantially reduce if not eliminate the potential.

53. Mr Bourke argued that there was unfairness in the way that the police set up the conversation. He put to me that I should conclude that the police had not articulated satisfactorily the reason for deciding to defer interviewing Ince. There is some truth in that. The senior sergeant who made the decision to covertly record the conversation did not give evidence on the voir dire. Mr Bourke urged me to conclude that the real or main purpose of the police setting up the taped conversation was to elicit evidence to be used against the accused. On the other hand, Mr Coghlan urged me to find that the primary purpose of recording the conversation was to corroborate the reliability of what Caliskan had told the police. In my assessment, based on what was said to me by O'Neill and Illingworth, there were several good reasons for the police wanting to record the conversation. One was to try to have Caliskan confirmed. Another was to try to get information about the firearm. Another was to try to get information about matters relevant to learning the truth as to what happened on the night of the shooting. Another was to gather evidence that might be used against the accused. In my assessment, there is ultimately little of significance going to unfairness in police motives.

56. Mr Bourke argued that I should conclude from how the accused dealt with the police at the record of interview that he intended to exercise his right to remain silent. My assessment of how the accused behaved at the record of interview is that he chose to be selective in what questions he answered. It seemed to me that he did so, at least in part, because he wanted to find out what information the police had to put to him. I had a similar impression as to how the accused dealt with Caliskan. The accused wanted information from Caliskan in a way that was akin to Caliskan wanting information from the accused. On both occasions, the accused was prepared to volunteer information selectively as a means of getting information back. The accused had made known to Caliskan that he wanted to talk with Caliskan. I am not disposed to conclude that the accused wanted at all times to exercise his right to remain silent, or that that right had been impugned.

59. Mr Bourke submitted to me that I should find that Caliskan obtained information by eliciting it, in the perjorative sense of extracting it by interrogation, in that Caliskan, posing as a friend, was manipulating the conversation and laying traps for the accused, and in that the questioning was concentrated and considered, by contrast to a conversation where the other party to the conversation just raised topics and allowed the accused to comment if so minded, and in that it was unfairly leading to ask a question such as - Did you tell anyone you shot the man", with its two verbs "tell" and "shot". I do accept that Caliskan did press very hard on the topic of telling about the shooting. It seemed to me that on other issues he allowed the conversation to flow reasonably well. I mention briefly the related issue of how the police "briefed" Caliskan. I accept what was said in effect by each of Caliskan, O'Neill and Illingworth. That was that the police did not coach or even advise Caliskan as to how to ask questions, or what questions to ask, but suggested that he engage the accused as a friend in a relatively normal conversation. In my assessment, there was no unacceptable interrogation-type eliciting.

62. Mr Bourke also put to me that what was obtained by way of admissions from the accused did not go beyond what had been conceded. In reply, Mr Coghlan argued that what was said by the accused was evidence that was probative in its own right of his involvement in the crime. He also put to me that there is a qualitative difference for a jury between what comes by way of concession or admission and what comes from the mouth of the accused. He put to me that the jury would be assisted by hearing the conversation when it came to consider certain issues. One issue was as to what inferences might properly be drawn as to the accused's state of mind. Another was as to whether the accused had a good memory of events. Another was as to the accused's capacity to make decisions of a sophisticated kind. I accept what was put to me by Mr Coghlan.

65. Mr Bourke put to me, and I accept, that allowance must be made for two other factors. One is the evidence of Doctor Bell that the accused was suffering from paranoid schizophrenia at the time. The other is the difficulties in the jury understanding the differences in meaning and other potentially unfamiliar aspects of a conversation in a language other than English.

68. It is clear from Swaffield and Pavic that I must have regard to all the circumstances. I mention now some not mentioned earlier and summarise the position as to others. I treat Caliskan an agent of the state. The accused was not in detention. Caliskan was quite a close friend of the accused. Caliskan had been an eye witness to the events being talked about. There was no issue as to the reliability of the information provided by the accused. There was no illegality in what was done. There was no improper conduct on the part of the police. There was an understandable concern about where the gun was.

71. In the circumstances, and applying the principles laid down in Swaffield and Pavic, I was satisfied that the proper course was to allow the conversation, significantly edited, to be adduced. I now set out in a table form, the extracts which I ruled should be excluded.

77. I exercised my discretion to exclude parts which it seemed to me contained one or more of the following: inaudible matters, matters unclear in translation, unnecessarily derogatory references to the police, unsavoury language, an impliedly intimidatory attitude on the part of the accused to others, and braggadocio.