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[2008] VSC 290
procedural. The court held that s 464H of the Crimes Act 1958 (Vic) did not apply to the statements, but excluded them from the Crown case in the exercise of its discretion because their admission would be...
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The judge decided that the police did not have to treat Pace and Conduit as suspects when they gave their unrecorded statements, so the statutory recording rule did not make the statements inadmissible. Even so, the judge excluded them. Their main added value was to suggest that the accused had lied about Conduit's coaching role, but that point could be proved in other ways and the emphasis on alleged lies could unfairly prejudice the jury. The statements had also been requested for a coronial investigation, soon after the death, when the accused were not in a position to appreciate that their conduct might be treated as criminal.
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In R v Pace & Conduit (Ruling No 1), Lasry J of the Supreme Court of Victoria considered whether statements given by two care workers to police could be used in a criminal trial. The accused, Joanne Pace and Kenneth Conduit, were charged with the involuntary manslaughter of Kevin Chuter, a 67-year-old man with intellectual disabilities who had no communication skills [1]-[3].
The Crown alleged that Pace and Conduit had duties of care towards Chuter and that their omissions amounted to gross negligence. As summarised by the judge, the allegations included Conduit's absence from the residents while coaching a football team, Pace's responsibility for Chuter while Conduit was occupied, and the accused's later response after they became aware that Chuter had consumed liniment [5]. Chuter had consumed liniment at a football ground in Melton on 8 May 2005, became increasingly ill after returning to the accommodation, and died that evening [2]-[4].
The ruling did not decide whether either accused was guilty. It dealt with a preliminary evidentiary application. Police Constable Laura Hosking attended the care facility on 9 May 2005 to obtain information for a report of the death and a brief for the Coroner [7]-[8], [18]. On the following day, Pace and Conduit each gave a statement to her. The Crown sought to rely on those statements, among other things, because the judge understood that they did not disclose that Conduit had been coaching a team while the residents were in his care [11].
The accused applied to exclude the statements. Their primary argument was that s 464H of the Crimes Act 1958 (Vic) made them inadmissible because the questioning and statements were not recorded. In the alternative, they argued that the court should exclude the statements in the exercise of its discretion [12]. Lasry J rejected the statutory argument but accepted the alternative argument and excluded the statements [13], [24], [31].
The statutory question turned on whether, when the statements were taken, either accused was already suspected of an offence or ought reasonably to have been suspected. Section 464H(1), as set out in the judgment, imposes recording conditions for admissions made to an investigating official by a person within either category [14]. The accused bore the burden of proving the facts that brought their statements within the section [15].
The judge accepted Hosking's evidence that she did not suspect either accused of criminal liability. She had attended to report a death, understood that she was preparing material for the Coroner, and did not then think there would be criminal proceedings [18]-[20]. The more important question was the objective one: whether a reasonable officer, with the information available at the time, ought to have suspected an offence [21].
For that question, Lasry J applied the approach described in R v Vollmer. The test was not whether an officer might or could reasonably have entertained a suspicion, but whether a reasonable officer was obliged to do so [22]. Applying that test, he considered that the investigation was at an early stage and that the information available did not provide a sufficient factual foundation for a required suspicion of criminal negligence by omission. Nor was the death inherently obviously the result of a criminal act, or being presented to police as such [23]. He therefore held that s 464H did not apply to the questioning or the statements [24].
That conclusion did not resolve admissibility. The judge separately considered whether the statements should be excluded to avoid unfairness. He accepted the existence of a residual discretion to reject evidence if receiving it would make a criminal trial unfair, while noting the relationship between that discretion and the more specific assessment of probative value and prejudicial effect [25].
The judge focused on what the statements would add to the Crown case. Much of their factual content was expected to be available from other sources. Their main additional purpose was to suggest that the accused had effectively lied to police by not revealing Conduit's coaching role, and that this conduct supported an inference of consciousness of guilt [27], [29]. The judge considered the alleged omission relevant but of limited probative force, particularly because the manslaughter case concerned a combination of alleged omissions rather than a deliberate criminal act. He also noted that the same matter would be before the jury from other sources [29].
Against that limited value, the judge weighed the prejudice likely to arise from emphasis on alleged lies to police. In his assessment, that prejudice would be significant and likely to outweigh the statements' probative value [29]. He also considered how and why the statements had been obtained: the police officer had requested them to assist with a coronial brief, and they were made shortly after the events, when the accused were not in a position to appreciate that their acts or omissions might be criminal rather than matters affecting their employment [30]. Taking those factors together, he ruled that the statements should not be led in the Crown case [31].
The ruling applied, rather than changed, the statutory test in s 464H(1). As reproduced in the judgment, the section makes the admissibility of an admission subject to recording requirements where the person making it was suspected, or ought reasonably to have been suspected, of an offence [14]. The ruling's contribution in this case was to apply the objective limb to information available during an early police inquiry into a death.
The judgment emphasises that the statutory threshold is more demanding than the possibility that an officer could have considered a person implicated. The question, adopting Vollmer, is whether police acting reasonably were obliged to entertain the suspicion [22]-[23]. It also cautions against allowing hindsight to narrow the assessment of what police knew at the time. The judge described the inquiries as being in their infancy and assessed the information available on 10 May 2005, not the fuller case that developed later [23].
The separate discretion analysis also reflects an important distinction in the ruling. The statements did not fall within the recording rule on the judge's findings, but that did not automatically make them admissible. The court considered fairness independently, including whether their probative value justified the prejudice their use could create [25]-[30]. The ruling therefore illustrates two different routes to exclusion: a statutory rule tied to the suspect status of the person questioned, and a residual fairness discretion.
The judgment does not purport to alter the elements of involuntary manslaughter. It records the Crown's case by reference to alleged duties, omissions, and the asserted standard of gross negligence [1], [5]. Its actual decision concerns the evidence, not the truth of those allegations or the accused's criminal liability.
At [22], the judge adopted the Vollmer formulation: “The question is whether acting reasonably they were obliged to entertain that suspicion.” In plain English, an officer's ability to imagine that someone may have committed an offence is not enough. The statutory question is whether the circumstances known at the time required a reasonable officer to hold the relevant suspicion.
At [23], the judge explained that the inquiry was at an early stage and that there was not then a sufficient factual foundation to require suspicion of criminal negligence by omission. This is a time-specific assessment. It addresses what police knew on 10 May 2005, not what could be concluded after the investigation and prosecution had developed.
At [24], Lasry J stated that s 464H did not apply to the questioning and statements. The effect was that the absence of an audio or audio-visual recording did not make these particular statements inadmissible under that section, on the facts found.
At [29], the judge said the prejudice from emphasis on alleged lies to police would be significant and likely to outweigh the statements' probative value. In plain English, the statements risked encouraging the jury to treat the alleged concealment as powerful evidence of guilt, even though the judge considered its evidentiary value limited and the point provable through other sources.
At [30], the judge treated the coronial purpose and timing as further fairness considerations. The statements had been requested to assist the Coroner, soon after the events, when the accused were not in a position to appreciate that their conduct might be treated as criminal. That consideration formed part of the cumulative basis for exclusion; it did not replace the statutory analysis.
The decision is most directly relevant to a question about whether unrecorded admissions were made after a person was suspected, or ought reasonably to have been suspected, of an offence. Its application depends on what information police had when the questioning occurred and what purpose and stage the inquiry had reached. The judgment does not make the fact that an inquiry is described as coronial conclusive. Rather, it treats the officer's purpose and state of knowledge as parts of the circumstances assessed [18]-[24].
The ruling may also be relevant where evidence was obtained in an investigative context not initially regarded by police as criminal, but is later sought to support a prosecution. It shows that the statutory threshold and the fairness discretion are distinct inquiries. Even when the statutory recording provision does not apply, the court may consider whether the evidence's use would be unfair [24]-[30].
For the discretionary analysis, potentially comparable features include evidence that has little unique probative value because the same facts are available from other sources, a proposed use that invites an inference of consciousness of guilt, and a risk that the jury may give the evidence disproportionate weight. The judgment's reasoning is tied to its particular record: the judge identified the statements' principal Crown use and assessed the potential prejudice in the context of the alleged omissions [27]-[30]. It does not establish that statements taken for a coronial purpose must always be excluded.
The supplied judgment contains no account of later cases applying, distinguishing, or rejecting this ruling. On the material available here, it is not possible to state how later courts have treated Pace & Conduit. The judgment itself identifies R v Vollmer as the source of the objective approach to reasonable suspicion, and considers Rozenes v Beljajev in relation to the residual discretion to exclude evidence [22], [25]. It also refers to Bunning v Cross in the discussion of the available exclusionary discretions [25].
Those references explain the authorities Lasry J used in 2008; they are not evidence of later treatment of Pace & Conduit. Any account of subsequent consideration would require later decisions not included in the source text.
The ruling left the trial's central factual and legal questions undecided. It did not determine whether the accused owed the duties alleged by the Crown, whether either breached a duty, whether any breach met the criminal standard described in the charge, or whether the alleged omissions caused Chuter's death. Those issues belonged to the trial, not this evidentiary ruling [1], [5].
The judge also expressly left aspects of the consciousness-of-guilt issue for later consideration. At [29], he observed that there might be more to debate when that issue arose for determination. His assessment that the statements had limited probative value was made for the purpose of the admissibility application and at an early stage of the case. The ruling therefore does not establish a general rule about the evidentiary weight of alleged lies or omissions.
Further questions that the ruling does not answer include how a court should assess the objective suspicion threshold on materially different information, how the residual discretion operates in circumstances unlike those considered here, and how later courts have interpreted this ruling. The text does not supply answers to those questions, and no broader conclusion should be attributed to it.
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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.
R
Pace & Conduit
(1978) 141 CLR 54
The court held that s 464H of the Crimes Act 1958 (Vic) did not apply to the statements, but excluded them from the Crown case in the exercise of its discretion because their admission would be unfair.