R v Serrano [2007] VSC 164 | Case summary

1. In order to be admissible, an admission or confession made by an accused must be voluntary. However if the statement is voluntary, the trial judge nonetheless has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused. See McDermott v R[1]; Cleland v R[2]

2. The onus is on the accused to establish that it would be unfair to admit the admission or confession in evidence against him; R v Lee & Ors[3].

3. In considering whether a confession or statement should be excluded from evidence in the exercise of the discretion, the question is not whether the police have acted unfairly; rather, the question is whether it would be unfair to the accused to use his statement against him; R v Lee[4]; Cleland v R[5]; Van Der Meer & Ors v R[6].

4. The Judges' Rules in England, and the corresponding Chief Commissioner's Standing Orders in Victoria, do not have the force of law. The fact that one or more of those Rules have been broken does not of itself have the result that it would be unfair to the accused to admit his statement in evidence; R v Lee[7]; McDermott v R[8].

5. The fact that, in the course of a record of interview, the police have engaged in cross-examination of the accused does not necessarily lead to the exclusion of the answers produced by that questioning. Rather the question is whether the nature of the interview process, including the type of questions asked and the manner in which they were asked, is such that it would be unfair to the accused to admit the contents of that interview in evidence against him; R v Smith[9]; R v O'Neill[10]; R v Clark[11]. An example of impermissible cross-examination which may lead to exclusion of a record of interview, either in whole or in part, is that found in R v Pritchard[12], where a large number of the questions were asked in a scornful way in tones of incredulity or total disbelief. In that case the Court of Criminal Appeal of Victoria held that the trial judge ought to have excluded the record of interview from evidence.

13 Having stated those principles it is necessary now to apply them to the record of interview dated 7 October 2005 to which exception has been taken. In arguing for the exclusion of that interview, Mr Hallowes submitted that the whole of the interview ought to be excluded, or alternatively that a number of parts of it should be excluded. He submitted that the combination of the delay in the carrying out of the interview, the repetition of questions previously asked in the earlier two interviews, and the amount of cross-examination in the interview, should render the whole, or a substantial amount, of the interview inadmissible. Mr Hallowes then took me to the particular parts of the interview to which the accused took exception.

14 In order to rule on the objection that has been taken to the interview, I have read, and re-read, the transcripts of the first two records of interview, and the transcript of the third record of interview. In addition I have viewed the video tape recording of the third record of interview. As a preliminary observation it is fair to remark that no objection was taken by Mr Hallowes to the tone in which the two police investigators asked questions of the accused during that interview. It is understandable that Mr Hallowes did not take objection to that aspect of the interview. Both police asked their questions in measured tones, and neither of them exhibited any verbal or other aggression towards the accused. The focus of Mr Hallowes' submissions related to the content and substance of the questions asked, rather than the manner in which they were asked.

15 I turn first to the submission made by Mr Hallowes that the whole of the third record of interview should be excluded from evidence in the exercise of my discretion. I do not accept that submission. First, I do not consider that the delay between the events which were the subject of the questions in the interview, and the interview itself, was such as to so affect the memory of the accused that it would be unfair to admit his answers to those questions. Indeed, as pointed out by Mr Gibson, who appears to prosecute, on a number of matters the accused revealed that he recollected the matters inquired after. In questions 110 and 111, he was able to recollect attending the dance in Newborough on one or two occasions in the time frame which is the subject of those questions. At no time did the accused state that he was suffering from any defect of his memory. Nor has any evidence to that effect been put before me on the voir dire. I agree with Mr Gibson that it is relevant that the accused man had the benefit of legal advice before her undertook the third record of interview. He was properly cautioned as to his rights at the commencement of the interview, and Detective Senior Constable Cookson specifically asked him whether he understood that he did not need to answer the questions put to him. On a number of occasions during the interview he was again reminded of his rights. There is no suggestion that the accused was importuned or put under unnecessary pressure, in the course of the interview. As I have stated I viewed the video tape of the interview. The accused did not appear to me to be a man under excess pressure, notwithstanding his then circumstances. He was able to comprehend the questions asked of him, and to make answer to them. As a whole, he was not subjected to untoward or oppressive questioning. In those circumstances I do not consider that there is any appropriate basis on which I should exclude the entirety of the third record of interview in the exercise of my discretion. Accordingly I turn to the individual parts of the interview to which Mr Hallowes has taken separate objection.

16 Mr Hallowes first turned to question 76 to 319. Those questions related to the evidence to be led on behalf of the Crown as to the accused's vehicle stopping near a bush track a short distance from Newborough on 12 April 2004. Subsequently some items of women's clothing were found at or near that location. Mr Hallowes submitted that no explanation had been given by the Crown as to why it had taken the police some 18 months to question his client about that matter. At the time at which he was questioned the accused could not be expected to recollect his movements on the day in question and thus to do justice to himself. Thus his answers in the interview on this topic were general, and did not relate to the particular day in question. In addition Mr Hallowes objected to particular questions. He submitted that some questions incorrectly proceeded on the assumption that the accused had in fact stopped at bush land, when there is no evidence that that is so. Further he objected to questions 213 to 251 on the basis that those questions assumed a fact which was not admitted by the accused, namely that he had stopped at the location alleged by the police on 12 April 2003. Further, it was submitted that many of those questions amounted to unfair cross-examination.

17 I agree that the police could have interviewed the accused at a date earlier than October 2005 concerning his trip to Newborough in April 2004. However that fact does not of itself render the questions and answers elicited during the record of interview on that topic inadmissible. Indeed, while it is true that the accused did not have a precise recollection relating to 12 April 2004, nonetheless he did recall, in the interview, having visited the dance at Newborough on one or two occasions in the time frame referred to during the questioning, namely April or May 2004. The accused, in the third record of interview, was questioned about matters which occurred close to the time at which he had already been interviewed about a very serious matter, namely the disappearance of Ms Trailovic. Thus the topic which was being questioned about, namely a trip to Newborough in April 2004, had a relatively precise reference point in time. As I have stated the accused was able to relate to that time frame quite readily in his answers. In general terms he gave answers indicating some reasons why he might have stopped in the course of his journey home after leaving the dance in Newborough. Accordingly I do not consider that it would be unfair to the accused if I were to admit the answers which he gave to questions 76 to 212.

18 On the other hand, the questions and answers which are between questions 213 to 251 fall into a different category than those which precede them. The questioning in that part of the interview contains questions more appropriate for cross-examination. In the words of Williams J in McDermott v R[13], the type of questions asked were designed to "break down" the answers already given by the accused earlier in the interview. Further, a number of the questions proceeded on the incorrect assumption that the accused had actually conceded that, on the day in question, he had stopped his vehicle on route from Newborough to Melbourne. Thirdly, shortly after this segment of the interview commenced, the accused on four occasions stated that he did not wish to comment. Although I am not critical of the continued questioning after the accused made that remark, nonetheless it does reflect that the accused himself felt that he should not continue to answer the questions put to him about that aspect of the matter. For those reasons I rule that questions 213 to 251 and the answers to them should be excluded in the exercise of my discretion.

19 Mr Hallowes also referred to questions 124-128, 143-144, 165, 182 and 194 which proceeded on the assumption that the Crown could prove that the accused had in fact stopped his vehicle at bush land. Mr Hallowes submitted that there was no evidence that the accused's vehicle had in fact stopped at a point at which there was bush land. In the course of agreement, it was agreed that I should defer ruling on the admissibility of those questions and answers until evidence has been led in the trial which is relevant to the nature of the vegetation at the point at which the accused is alleged to have stopped his vehicle on the night of 12 April 2004.

20 Mr Hallowes also submitted that questions 282 to 319 should be excluded in the exercise of my discretion. In those questions Senior Constable Cookson pointed out to the accused that, according to the tracking device, the accused had driven in a distance away from Melbourne, rather than to Melbourne, at the point at which he stopped his vehicle. Mr Hallowes again relied on the question of delay as producing unfairness to the accused. He submitted that it could not be expected that the accused could, in October 2005, have recalled the reason why he might have proceeded away from Melbourne rather than towards Melbourne upon leaving the dance at Newborough.

21 I do not accept that submission. As I have stated, in the third interview in October 2005 the accused did recollect going to the dance in Newborough on one or two occasions in the period of time which was the subject of the questions. Although he did not specifically recollect the day in question, he did postulate as a possible explanation for the fact that he was driving away from Melbourne, the possibility that he had been travelling in the wrong direction. He explained how that could occur, particularly late at night. In my view there is nothing inherently unfair in the admissibility of the questions and answers in that segment of the interview.

22 Mr Hallowes next objected to questions 333 to 346, which related to the tooth which had been found in front of the cabinet in the lounge room. In the first interview (questions 487 to 496) questions had been asked of the accused as to whether, to his knowledge, Ms Trailovic had her own teeth. Mr Hallowes submitted that at that point the accused should have been asked about the human tooth that was found in the lounge room. In my view, and subject to one qualification, I do not consider that the questions and answers in this part of the interview process are unfair. The accused was asked to offer an explanation as to how the tooth was in the location in which it was found. I do not consider that the time delay is sufficient to render it unfair that the answers that he gave in that part of the interview be admitted in evidence. However I do consider that questions 338 to 341, and the answers, should be excluded. Those questions contain assertions by the police that the deceased had been murdered. The type of questions which were asked could not be the subject of viva voce evidence (compare R v Pritchard)[14]. However I consider that questions 333 to 337, and 342 to 346, and the answers to those questions, are admissible.

23 The next group of questions to which Mr Hallowes took exception are questions 347 to 382. Those questions relate to the piece of chair which was found behind the garden shed, and which had blood on it. For the reasons which I have already expressed I do not consider that the delay in questioning the accused about that aspect of the matter has produced such an unfairness to the accused that I ought to exclude this segment of the interview from admission into evidence. The accused was given an opportunity to explain how the chair with the blood of Ms Trailovic happened to be behind the shed. The questions were asked of the accused in a fair manner. The accused was able to answer that he had nothing to do with the breaking of the chair, or with the fact that there was blood of Ms Trailovic on the chair. Accordingly I do not consider that the questions and answers in this bracket of the interview should be excluded from admission into evidence.

24 Mr Hallowes next objected to the questions and answers which occurred between question 382 and 419 of the interview, relating to the finding of the broken pair of glasses behind the garden shed in the rear yard of Ms Trailovic's premises. In the first record of interview in March 2004 the accused told the police that Ms Trailovic did wear glasses. However in the third interview in October 2005, when asked if Ms Trailovic wore glasses, he said "I don't think that always". He said he could not recollect seeing her with glasses. He was then questioned as to the difference between those answers and the answers he gave in the first interview. Having read the transcript of the questions between question 382 and question 403, and the accused's answers, I am concerned that it might be unfair to the accused should that part of the interview be admitted. The accused's first answer, when questioned whether Ms Trailovic had glasses, was equivocal. He was then asked if Ms Trailovic wore glasses like those shown to him in the photograph. From there he was pressed about whether she wore glasses. It seems to me that as the interview process unravelled, it is quite possible that the accused either became confused, or alternatively became over defensive, in this aspect of the interview. That impression was reinforced when I viewed the interview itself. I would be surprised, if I admitted that part of the interview, if the Crown sought to, or could, make any use of the accused's lack of memory in October 2005 on that aspect of the case, when he had earlier stated that Ms Trailovic did use reading glasses. In those circumstances no purpose is to be served by admitting in evidence questions 382 to 403 and the answers, while, on the other hand, the admission of those questions and answers may be productive of unfairness to the accused. Accordingly I rule that questions 383 to 403, and the answers, be excluded from evidence. On the other hand I do not consider that there is any unfairness in the admission in evidence of questions 404 to 419 and the answers, which directly relate to the glasses which were found in the back yard of Ms Trailovic. In my view the Crown are entitled to put in evidence the statement by the accused, in October 2005, that he did not know anything about the broken glasses which were found in Ms Trailovic's back yard.

25 The next group of questions to which Mr Hallowes took objection found at questions 420 to 479 of the third record of interview, which relate to the finding by the police of spatters and stains of Ms Trailovic's blood in her lounge and dining room. Mr Hallowes submitted to me that those matters had been the subject of questioning in the second record of interview. Further it was submitted that some of the questions exaggerated the amount of blood which was found.

26 The fact that the topic, which was the subject of questions in the third interview, had already been the subject of questions in the second interview, would not render the questions and answers in the later interview inadmissible. The questions and answers in the second interview were of fairly short compass. It was appropriate for the police to ask further questions concerning such an important subject in the third interview. There was nothing oppressive or unfair to the accused in being asked those questions. It is true that the police described the blood stains as "numerous": and as involving "quite a bit of blood". If and to the extent that that description is at variance with the amount or number of blood stains and blood spatters found at Ms Trailovic's premises, such a discrepancy would be self evident to the jury. Further that discrepancy would not, in the context of the questions asked, have rendered the questions unfair, nor make it unfair that the answers to those questions be admitted in evidence. For those reasons I consider that the questions and answers from question 420 to 466 are admissible.

27 On the other hand I have concerns about the questions which were asked from question 467 to 478. Those questions asked the accused to supply an explanation how the deceased might have injured herself in a manner which would account for the amount and distribution of the blood found. Those questions were asked in the context of previous answers in which the accused stated that he did not know anything about Ms Trailovic injuring herself in such a manner as to cause her to bleed in the lounge and dining room of her house. In my view the questions asked from questions 467 to 478 are speculative, and the answers to those questions are both speculative and argumentative. The answers have no probative value. On the other hand there is a risk that if they are admitted in evidence they might be misused by the jury. In those circumstances I consider it unfair to admit in evidence the questions and answers from questions 467 to 478 of the third record of interview.

28 As I understand it no objection was taken to questions 479 to 485 of the interview which related to the broken chairs and furniture. In any event I do not consider that there is anything about those questions and the answers which would render them inadmissible.

29 Next Mr Hallowes raised an objection to questions 486 to 492 of the third record of interview, concerning the lay out of the lounge room and the dining room. He submitted that those matters had been the subject of questions in the earlier interviews. However he was not able to point to any unfairness which would result from the admission of those questions and answers into evidence and accordingly I hold that they are admissible.

30 Mr Hallowes then took objection to the questions in the third interview relating to the fact that there are no vertical blinds covering the window which abuts the dining room table, notwithstanding that there are vertical drapes in other parts of the house of Ms Trailovic. The questions to which Mr Hallowes took objection are questions 493 to 524 and 555 to 565. He submitted that the subject of the vertical blinds had been explored in the first record of interview and the second record of interview. He also submitted that some of the questions asked in the third record of interview were put in an unfair manner in that they contained expressions of incredulity on behalf of the police.

31 Although the subject of the vertical blinds had been raised in the two earlier records of interview, I do not consider that the questions asked of the accused in the third record of interview were oppressive or unfair. It was the accused man who volunteered, in answer to question 498, that he had never been in the area of the dining room table. It was, in my view, legitimate and not unfair for the police to ask him questions about that answer. Those questions were asked were questions 499 to 524, and I do not consider that there is any untoward unfairness involved in admitting them into evidence, subject to a few small qualifications to which I shall shortly refer.

32 The questions in the third record of interview from question 555 to 565 return to the issue of the vertical blinds in the dining room. There is nothing about those questions which would render the admission into evidence of the answers to them unfair to the accused. The topic covered is an important subject in the case. Blood stains of Ms Trailovic were found on the dining room table and on the window sill on which there are no vertical blinds. It was appropriate, and not unfair, for the detectives to question the accused on that subject in the third record of interview, notwithstanding that that subject had already been covered by questions put to the accused in the earlier interviews.

33 As I stated there are a few qualifications which I should make in relation to the admissibility of the questions to which I have just referred. Question number 503 is a comment and not a legitimate question and it would be unfair to the accused for it to be included in the interview. It seems to me that the answer can be retained, notwithstanding that the question should be deleted from the interview. For the same reason I consider that the end phrase in question 515 ("I don't understand how that can be") should be excluded from evidence. The deletion of that phrase would not affect the answer by the accused. I also rule that questions 523 and 524, and the answers, should be excluded. The questions put by the police were in the nature of comments rather than questions. They should not go before the jury.

34 Mr Hallowes next objected to the questions and answers in the third record of interview relating to the carpet which had been removed from the lounge and dining room of Ms Trailovic's premises. Those questions and answers occur at questions 526 to 554 and 565 to 597. Mr Hallowes submitted that those matters had already been canvassed in the first two records of interview. He also submitted that some questions asked of the accused carried the connotation of disbelief by the police.

35 It is correct that the accused was asked about the missing carpet in the first two records of interview. However the questions in the third record of interview were designed to elicit more detailed responses from the accused as to two particular aspects of the accused's statement that Ms Trailovic, with some help from himself, had removed a significant quantity of carpet from the lounge dining room area of her home shortly before she disappeared. Questions 526 to 554 were questions which sought clarification from the accused as to in which areas of the lounge and dining room he had assisted to remove carpet. Those questions were the consequence of the accused volunteering, at question 498, that he had not previously been in the dining room area. In my view it was not unfair for the questions to be asked of the accused, nor would it be unfair for those questions and his answers to be admitted in evidence. At questions 565 to 597 the accused was asked questions relating to the amount of carpet which was actually removed from the lounge dining room area. In particular he was asked questions which were designed to ascertain what had become of the difference between the amount of carpet which had been removed from that area, and the amount of carpet which had been found by the police. It is correct that that issue had already been the subject of questions by the police. However the question of the missing carpet will be a central question in the case. It was legitimate of the police to seek further clarification of the accused's answers in relation to that aspect of the case. In particular it was appropriate for the police to point out that in excess of 12 square metres of carpet was missing from the lounge dining room area. The questions were asked in a fair manner and the accused was able to respond appropriately. I do not consider that it would be unfair to the accused that the questions and answers in that bracket of the record of interview be admitted in evidence against him.

36 Mr Hallowes then took exception to a further group of questions, at question 598 to 617, asked of the accused about the finding of blood belonging to Ms Trailovic over the furniture and walls in the house. In my view the questions asked of the accused invited him to speculate, in a similar manner to the questions which I have already excluded, namely questions 467 to 479. For the same reasons I would consider it unfair to the accused if questions 598 to 617 and the answers to them were admitted in evidence and I rule that they are inadmissible.

37 Mr Hallowes next took exception to question 675 of the record of interview. Although that question involves a comment which may not be factually entirely correct, the point made by Mr Hallowes would be self evident to the jury. I do not consider that the question is inadmissible.

38 Mr Hallowes then raised some objections to some of the questions relating to telephone calls from Ms Trailovic's house, which are found in question 739 and following. In particular he focused on question 750. I do not consider that that question was unfair. The accused was asked to explain to whom Ms Radmilla Buchanan could have spoken at Ms Trailovic's premises on 25 December. When he postulated that Ms Buchanan might have spoken to Ms Trailovic, Detective Senior Constable Cookson correctly pointed out that Ms Buchanan stated that she had spoken to a male and not a female. In my view there was nothing unfair about the questions. In the course of argument the admissibility of question 753 was raised by Mr Hallowes. Mr Gibson has properly conceded that question 753 and the answer to it are inadmissible.

39 Mr Hallowes also argued, although not strenuously, that the questions from question 787 to 796, concerning Ms Trailovic wearing jewellery when she left her house on 26 December, were inadmissible. Mr Hallowes did not press that submission. In my view the questioning was fair. The accused was reminded of his earlier answer and Mr Cookson sought further clarification from him as to the jewellery that she was wearing when she left.

40 Finally, I note that Mr Gibson has correctly conceded that questions 797 to 819, and the answers of the accused to those questions, are irrelevant, and therefore should be excluded from the record of interview.

41 Thus, in conclusion, I reject the application made on behalf of the accused man to exclude the whole of the third record of interview from evidence. However in conformity with the reasons which I have provided, I rule that the following parts of the record of interview are inadmissible:

R v Serrano

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