R v Pace & Conduit

Supreme Court of Victoria|2008-07-31|Before: Lasry J

CRIMINAL LAW - Evidence - Admissibility - Statements to Police - Compliance with Crimes Act 1958 (Vic) s 464H.

1 The accused in this matter are both charged with the involuntary manslaughter of Kevin Chuter. They are charged on the basis of their alleged respective omissions to properly fulfil the duty of care they owed to the deceased. The Crown alleges that the breach of the duty of care:

... involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.[1]

2 On 8 May 2005, Chuter, a man of 67 years with intellectual disabilities, died following his consumption of liniment which had been used by a football trainer involved in a match at McPhersons Park, Melton. One feature of Chuter's disability was that he had no communication skills. Chuter was under the care of the two accused who in turn were more generally employed to look after him at a shared support facility at 34 Verona Drive, Taylor's Lakes.

3 Both the accused were employed by the Department of Human Services and both had the care of the deceased, with four others, at the football match which was attended on 8 May 2005. The incident is said to have occurred when the deceased needed to go the toilet. That had to be under the supervision of the accused Pace because the accused Conduit was otherwise involved in coaching one of the teams in the women's football match they were watching. The result was that the deceased entered the changing rooms alone for the purpose of going to the toilet, apparently saw a bottle or bottles containing liniment which had been left near a toilet in the changing rooms. As was his disposition, he picked it up and drank some part of it. The liniment contained salicylate and in the quantity that was consumed by the deceased it was highly poisonous.

4 After the deceased had consumed the liniment at the football ground, he was later taken back to 34 Verona Drive, became increasingly ill including suffering from seizures. He was ultimately removed by ambulance to the Western Sunshine Hospital where he died that evening.

5 The Crown case against both accused is that they are both guilty of manslaughter by reason of gross negligence in that they owed the deceased a duty of care which they breached. In the case of the accused Conduit, that breach is alleged to consist of voluntarily and deliberately absenting himself from the immediate presence of the deceased for a protracted period of time whilst charged with his care and, subsequently, upon becoming aware of what had happened, failing to obtain medical advice. In the case of the accused Pace, the breach is constituted by being on her own for a protracted period of time whilst charged with the responsibility for the care of the deceased without reasonable excuse and also subsequently failing to obtain medical advice and/or treatment immediately.

6 The evidence is expected to reveal that the deceased died at about 5.37 pm on Sunday, 8 May 2005.

7 On Monday, 9 May 2005, at about 12.37 pm, Constable Laura Hosking of Keilor Downs Police Station attended at 34 Verona Drive to take a report of a death in relation to the deceased.

8 Upon arrival, Constable Hosking spoke with Norman Saliba who was the house supervisor at 34 Verona Drive. Hosking's statement indicates that Saliba relayed to her the "full circumstances leading up to Chuter's death and how he had come to drink the liniment". The statement goes on:

He informed me of the names and contact details of the two carers who had been working with Chuter the previous afternoon. The names given were Joanne Pace and Kenneth Conduit. He supplied me with the details of another female worker, Fiona Ritchie, who had commenced work shortly before Chuter was taken to hospital.

9 According to his later statement made on 11 July 2005, Saliba had spoken to the accused Conduit on the night of the death of the deceased - i.e. the evening of 8 May 2005, which was the night before he was spoken to by Constable Hosking. In his statement, Saliba says that on that evening he was told the following things by the accused Conduit:

• That the deceased had consumed rubbing liniment and had later died;

• That this occurred at a football ground at Melton when the accused Pace escorted the deceased to the toilets which were attached to the club rooms;

• That Pace waited outside the toilets and when the deceased came out he had liquid on his chin and he smelt strongly of liniment;

• That the accused Conduit thought that the deceased had consumed about a mouthful of the liniment mixture;

• That the accused Conduit did not call Poisons Information because he was told that the mixture was 10 parts vegetable oil and one part liniment and that he would have diarrhoea and vomiting.

In Saliba's statement he also referred to departmental policy concerning matters such as male carers taking male patients to the toilet. He also expressed a professional view that if a patient was to consume any unknown substance that might cause illness, Poisons Information must be called.

10 Bearing in mind the nature of this application it became important to establish how much knowledge Constable Hosking had by 10 May 2005 when the police statements were taken from the two accused in order to establish whether she actually suspected they had committed a criminal offence or ought reasonably to have done so. However, she struggled with her memory when questioned about how much of what Saliba said in his later statement was told to her the day before she took the statements of Pace and Conduit.

11 Constable Hosking described that on Tuesday, 10 May 2005, Pace attended at the Keilor Downs Police Station where she gave a statement to Constable Hosking detailing the circumstances leading up to the death of Chuter. At 1.55 pm the same day the accused Conduit attended the police station and a statement was also obtained from him. These two statements provided a description of what occurred on 8 May 2005 at the football ground and subsequently. The Crown wish to rely on these statements primarily because that narrative was constructed without either of the accused revealing that at all material times the accused Conduit was coaching one of the football teams rather than attending to the patients who were in his care, including and in particular the deceased.

12 An application has been made on behalf of both accused to exclude the evidence of the answers given and the statement provided by each accused on 10 May 2005. The basis of the application is that any admissions made within the course of that questioning are inadmissible pursuant to s 464H of the Crimes Act 1958 (Vic) ("the Act") because the questioning and production of the statement were not the subject of audio or audio-visual recording. Alternatively it is argued that even if s 464H does not apply, the statements should be excluded in the exercise of my discretion.

13 On 23 July 2008, I indicated that I did not agree with the submission that s 464H applied to these statements but that I was of the view that in all the circumstances it would be unfair to admit the statements into evidence and that I would exclude them in the exercise of my discretion. I said I would subsequently publish written reasons for that ruling and these are my reasons.

The Application of s 464H of the Act

14 Section 464H(1) requires that a particular procedure be followed where the person being questioning was suspected or ought reasonably to have been suspected of having committed an offence, if it is to be admissible in criminal proceedings against that person:

(1) Subject to subsection (2), evidence of a confession or admission made to an investigating official by a person who -

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 recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person and the confirmation was recorded by audio recording or audiovisual recording; or

(d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording; or

(e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was recorded by audio recording or audiovisual recording; or

(f) if the confession or admission was made during questioning in accordance with an order made under section 464B(5), the questioning and anything said by the person was recorded by audiovisual recording - and the recording (whether audio recording or audiovisual recording) is available to be tendered in evidence.

15 The question here is whether or not either or both of the accused were "suspected" or "ought reasonably to have been suspected" of committing an offence in relation to the death of the deceased at the time their statements were taken. The burden of proving facts which establish the application of this section to the questioning and resultant statements rests on the accused.

16 Constable Hosking gave evidence on the voir dire on this topic. She said that on 9 May 2005 she attended at 34 Verona Drive to take a report of a death at about 12.40 pm. When she arrived she did so with another police member and spoke to Norman Saliba. She said that all she knew at that stage was that she was going there to take a report of a death. She said that she was speaking to Saliba for the whole (or nearly the whole) of the time they were there, which was between 45 minutes and an hour. She was aware that Saliba was telling her things that he had himself been told, primarily by the accused Conduit.

17 She was told that the deceased, Kevin Chuter, had been a resident of the facility and she was given other details about his circumstances. She was told that there were two carers working and that on the previous day they had take him together with four other men to the football game. She was informed that at the game the deceased had drunk some rubbing liniment and on return to the premises had had a seizure and was taken to hospital where he later died. She was also told that the carers were Joanne Pace and Kenneth Conduit. She said that those two carers were with five male residents at the football and that once they had returned from the football, the deceased had been taken to the bathroom. Saliba told Constable Hosking that the carers had been advised to give Chuter water and watch for vomiting and diarrhoea which is what they did. She was then given a description of the manner in which his symptoms developed and the events leading up to the calling of an ambulance.

18 In relation to the obtaining of the statements from the accused Pace and Conduit, Constable Hosking asked them to attend to make a statement the following day because she was preparing a brief of evidence for the Coroner. She said, as to the prospect of criminal proceedings, "No, I didn't think there'd be criminal [proceedings], I thought it would be just an inquest held at the Coroner's Court, I - with the brief. I didn't think [there'd be] any criminal matters at that stage."

19 Constable Hosking was cross examined at some length about what she was told by Saliba on 9 May 2005 and what her state of mind was. Her primary position was that these statements were being obtained for a Coronial brief and that she did not consider that either of the accused were in any way suspects for criminal liability concerning the death of the deceased. I accept that evidence.

20 In my opinion it is almost indisputable that at the time these statements were taken, Constable Hosking did not suspect that either of the accused might have committed a criminal offence. Indeed, ultimately any conclusion that she did was not pressed either by Mr Bourke and Mr Casement on behalf of the accused Conduit or by Mr O'Connell on behalf of the accused Pace. Thus, the accused have not proved on the balance of probabilities that at the time of the statements being obtained from the accused they were suspected by Constable Hosking of having committed an offence.

21 That, however, is not the end of the matter because s 464H(1) applies if the accused "ought reasonably to have been suspected" of having committed an offence. The test is an objective test based on the knowledge that Constable Hosking had at the time the statements were taken. It is necessary to look at the circumstances as they were known to police in order to decide whether the police ought to have entertained the relevant suspicion.

22 The circumstances that were known to police are as I have already described. In considering what ought to have been suspected, I have applied the following description of the appropriate approach identified by the Court of Appeal in R v Vollmer:[2]

But the question whether they [the accused in that case] 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 steadily 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.

In this regard, it is as well to bear in mind the observations of the trial judge in R v Heaney. At the trial, Vincent J had said:

Although the creation of a suspicion requires a lesser factual basis than the creation of a belief, it must nonetheless, be built upon some factual foundation.

In R v Alexander the court, in observations many of which are here apt, said:

In approaching the matter, the narrowing focus of hindsight must be avoided. In our view it would have been wholly precipitate 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 enquiries were 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 to sit in the police car to avoid his recall being confused by contact with other witnesses. In the ebb and flow of preliminary enquiry, 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 R v Heaney: "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 upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created." No apprehension within the ambit of the principle there 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.

23 In applying that approach I am unable to accept that based on that information, Constable Hosking "ought reasonably to have suspected" that the accused had committed the offence of manslaughter, or, for that matter, any other criminal offence. Although the circumstances in Vollmer were different, the principles are amenable to this case because:

• Applying the test whether police acting reasonably "were obliged to entertain that suspicion" there was, at that stage, not a factual foundation for it. I am unable to conclude that as at 10 May 2005, a police officer was obliged to conclude that the cause of death was the criminal negligence by omission of either or both of the accused.

• These enquiries were also in their infancy and, on the evidence, the death was neither inherently obviously the result of a criminal act,[3] nor was it being presented to police as such on the information as it stood on 10 May 2005.

• Even if it could be asserted that police ought to have adverted to the possibility that the accused were, in some way, implicated that would not be sufficient.

24 Therefore in my opinion, s 464H of the Act does not apply to the questioning of the accused on 10 May 2005 and the resultant statements. I do not consider that as at 10 May 2005, an investigating police officer "ought reasonably to have suspected" that either accused had committed a criminal offence.

25 In the event that I concluded that s 464H of the Act did not apply to these statements, I was asked to exclude them in the exercise of my discretion. The extent of the discretion was, inter alia, the subject of consideration in the Court of Criminal Appeal in Rozenes v Beljajev.[4] The Court (Brooking, McDonald and Hansen JJ) in that case was concerned with the exercise of the discretion to exclude evidence central to the Crown case because, in the trial judge's view, it was unreliable. In the course of granting declarations sought by the Commonwealth Director of Public Prosecutions, the Court accepted the existence of a residual discretion in addition to the discretion to exclude evidence based upon a consideration of the probative value as opposed to the prejudicial effect or the discretion in Bunning v Cross.[5] As to that the Court observed:[6]

The proposition must be accepted that there is a discretion in a criminal case to reject any evidence, whether or not a confession, on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair. So much must be accepted both on principle and by reason of the authorities. It would be wrong to regard as exhaustive the two particular discretions (that relating to probative value and prejudicial effect and that established by Bunning v Cross) put forward by the Attorney-General in McLean and Funk as the only discretions available for the exclusion of evidence other than confessional evidence. But while the existence of a residual discretion must be accepted, it is not easy to think of circumstances in which grounds might exist for the exercise of that residual discretion in relation to any evidence - we are not speaking of confessions - which would not bring the case within the more specific principle whereby evidence is not to be admitted where its prejudicial effect is out of proportion to its probative value.

26 It is my opinion, however, that it would be unfair to the accused for these statements to be led as part of the Crown case for several reasons which includes, as one consideration, my view that the prejudicial effect of the evidence exceeds its probative value.

27 First, I am informed by the prosecutor that the bulk of the information contained in these statements will be before the jury from other sources in any event. The primary purpose in seeking to tender this material is to establish that the accused Conduit and Pace both effectively lied to police by not revealing that Conduit was engaged in the coaching of a football team when he should have been more closely involved in the care of the deceased and his fellow residents. This lie and the associated deliberate omissions are circumstances said by the Crown to be capable of supporting an inference reflecting a consciousness of guilt of the offence charged by both accused.

28 The offence charged is involuntary manslaughter by negligent omission. I have read the Crown opening and it is clear that the case against these two accused is based on a significant number of allegations:

• That the accused Conduit was occupied with coaching a football team when his duty was to be attending to the care of the deceased man and the other residents during the day of 8 May 2005;

• That by the completion of the football game, the accused Conduit had become aware of the fact that liniment had been consumed by Chuter and was told by a trainer to "watch" him;

• That after the game the group visited a shopping centre on the way back to the Taylor's Lakes accommodation - no attempt was made to enquire of Poisons Information about the consequences of consuming the liniment;

• About an hour after the return to the accommodation, because of the symptoms being displayed by the deceased, a call was made to 000 emergency to establish why these reactions might have been occurring. As a result paramedics were dispatched to the premises;

• An attempt was made to contact the trainer from the football game to identify the constituent elements of the liniment;

• It was later established that the liniment was toxic;

• The paramedics arrived and it was not until 4:19 pm (more than an hour after the return to the accommodation) that a call was received by Poisons Information with the result that it was recommended that the deceased be removed to hospital where he arrived at 4:52 pm;

29 The result is that the involuntary manslaughter alleged against the accused contains two factual aspects - the circumstances as they prevailed at the football game and the subsequent failure to obtain medical advice or treatment immediately. Although the words "and/or" are used in the opening, at this early stage of the case it is difficult to see that a case could be sustained against either accused based only on the first of those two elements. Thus, whilst the deliberate omission to inform police about the role of the accused Conduit at the football and any associated lies that go with that are relevant to an aspect of the Crown case, it may prove difficult for the Crown to rely on it to establish that the two accused were conscious of their guilt of the offence of involuntary manslaughter. That offence in this case covers a combination of circumstances of omission rather than a deliberate criminal act. There may be more to this debate when the issue of consciousness of guilt arises for some level of determination by me. At this stage, in considering the exercise of my discretion, I take the view that the evidence is not particularly probative. In any event the allegation that Conduit and Pace were prepared to conceal the fact of the accused Conduit's involvement in the football match will be before the jury from other sources. There is, therefore, nothing uniquely probative in these statements. On the other hand I do consider that the prejudicial effect of emphasis on lies being told to the police in these statements would be significant and would likely outweigh any probative value they might have.

30 Second, the statements were made as a result of a request by the relevant police officer which, at that stage, she made because she considered she was assisting in the compilation of a brief for the Coroner. The statements were made some two days, or less, after the various incidents happened and in circumstances where in my view neither accused were in a position to realise that their acts or omissions had been criminal as opposed to the risks to which they may have been exposed within the Department of Human Services in connection with their employment. I consider that in the particular circumstances of this case, to admit these statements would therefore work a particular unfairness on the two accused.

31 For these reasons, I ruled that the statements not be led as part of the evidence in the Crown case.

[1] R v Nydam [1977] VicRp 50; [1977] VR 430 at 445.

[2] [1996] 1 VR at 120 (citations omitted) (emphases added).

[3] For example, the result of an assault, stabbing or gunshot wound.

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