The Queen v Robb

Challenge to admissibility of part of the record of interview

2 Mr Mylonas, on behalf of the accused, submitted that the record of interview had been conducted improperly and that investigating police had failed to comply with s 464C of the Crimes Act 1958. It is submitted that, contrary to that section, the accused was not afforded her right to speak to a solicitor, despite being informed by police conducting the record of interview she could do so if she wished.

3 By way of background, the record of interview commenced at 4.50pm on 30 January 2014 and stopped at 5.50pm. The accused had indicated she needed something to eat and specifically requested a cold Milo drink to assist with what she described as an iron deficiency.

4 The record of interview was recommenced at 8.50pm. Apparently, one reason for the substantial break was that the accused fell asleep. Also it is apparent during the break police conducted further investigations.

5 Immediately on recommencement of the record of interview, the accused was reminded that she had been told she could contact a legal practitioner. The accused agreed that she had been told that she could contact a legal practitioner.[1] The accused was asked if she wished to contact a legal practitioner 'at this point in time'. She replied, 'It's a bit late. I can't do anything about it now'.[2] Then, the following questions and answers are recorded in the transcript of the record of interview:

Q539: O.K. Is that a yes or a no? Do you want to contact a solicitor?

A: Yes.

Q540: You do?

A: (NO AUDIBLE REPLY)

Q541: O.K.

A: What's the time anyway?

Q542: The time is 5 to 9. Yep. So you want me - - -

A: I wanna talk to my mum. She doesn't know I'm here.

Q543: Your mum does know you're here.

A: (No answer).

Q544: Yeah.

A: (No answer).

Q545: And I can - I can assure you of that.

A: (No answer).

Q546: Yeah.

A: (No answer).

Q547: O.K.

A: (No answer).

Q548: Your mum knows. She knows you're safe and she knows the kids are safe.

6 There is then discussion between the accused and interviewing police concerning the accused contacting a family member. Then the following:

Q555: Yeah. Your rights enable you to contact a family member or friend to let them know where you are basically, it's not a - an extended conversation. O.K.

A: No, but - - -

Q556: That might be something that we can - - -

A: - - - I've got anxiety, you know.

Q557: Mm'hm.

A: - - - and this plays on my anxiety. I haven't even got my anxiety tablets. I never got a chance to grab anything.

Q558: Mm'hm, O.K. But we'll get the interview process finished, O.K., then you might be able to contact your mother and have a conversation with her. O.K., all right.

A: Well, what's going to happen with me?

Q559: Well, we'll talk about that at the end of the interview process. I'm not going into that at this particular point of time. O.K., all right. Now, I've explained to you your rights, a solicitor, and a friend, a family friend, which has been - which has been, I can assure you. I'll ask you again, did you want to contact a solicitor at this point of time?

A: Mm.

Q560: Kristy, you just have to answer, please.

A: I don't know. I don't know. I've never been in this situation, I don't know.

Q561: All right.

A: (No answer).

Q562: We can't - - -

A: - - -

Q563: We - - -

A: - - -

Q564: O.K. We can't advise you on it either way, on whether you get a solicitor or speak to a solicitor. That's totally up to you. We've obviously asked you if you want to speak to one because that's your right, O.K., and those rights don't get taken away from you, be whether now or in five minutes' time, ten minutes' time, end of interview. If you wanna speak to a solicitor we'll - we'll facilitate that. O.K. If you're - if you're happy to keep going now but in five minutes' time you say "Look, I want to speak to a solicitor," or whatever, that right doesn't diminish, it stays for the whole time you're with us. O.K.

A: I know.

Q565: What - - -

A: Let's just get on with the interview then.

Then, further on in the record of interview, the following questions and answers are recorded:

Q570: That's what we've been doing, so what we wanna do is we wanna continue the interview but we don't want to do that if you don't want to.

A: I do.

Q571: Yep. And - but we need - we - we want to make sure 100 per cent that you're comfortable in knowing what your rights are okay, and - - -

A: Well, I do, but I just wanna know - - -

Q572: No well we won't continue until we - we are satisfied you understand that [sic] your rights are.

A: Oh I - yeah, I understand what my rights - - -

Q573: Yeah.

A: - - - so I can get a - yeah.

Q574: Yeah, O.K. So you just say the word and we'll - we'll - we'll do it. O.K. But we need to know you understand before we kick off.

A: Like, I understand.

Q575: O.K. So what - what - would you like to do at this particular time?

A: Just answer the questions.

Q576: Yep. You don't have to answer the questions. You know that?

A: Yeah.

Then further into the record of interview, the following questions and answers are recorded:

Q943: And we've explained numerous times you can make a phone call.

A: Well, when? When did I make the phone call?

Q944: No, we have said to you you can make phone calls, at any stage you can make a phone call.

A: Yeah, well - - -

Q945: You can phone a solicitor.

A: - - - can I make a phone call?

Q946: Yep.

A: I've been asking to do that for hours.

Q947: No you haven't - you haven't.

A: I wanted to make a phone call. Yes I've - I've been asking down there for them to come and get you so I could make a phone call.

Q948: Well, when we've spoken to you - every time we've spoken to you we've offered you that. O.K.

A: (No answer).

Q949: This is the phone call you can make to call your mum. Is that right?

A: Mm'hm.

Q950: O.K. Well, as I - as I've explained to you, we've conducted a search warrant at your mum's address. O.K. So we weren't able to facilitate that, O.K., at that particular time. All right. As I say, I'm happy to give you a call - once this interview process is over and you can call your mum and let her know what's going on.

A: Well, I wanna know what's going on - - -

7 I do not consider the conduct of the record of interview demonstrates inappropriate conduct by investigating police. Mr Mylonas pointed to the answer to Q539 as indicating the accused wanted to consult a solicitor. He contends that the answer to the question demonstrates the accused 'has exercised her right. Section 464C(2)(a) of the Crimes Act is quite specific'.[3]

8 Section 464C(2)(a) is specific. An investigating officer 'must' afford reasonable facilities as soon as practicable 'if a person wishes to communicate with a friend, relative or legal practitioner'. After review of the relevant passages of the record of interview, I do not consider the accused conveyed in any meaningful sense that she wished to communicate with a friend or legal practitioner. I do not consider that it is appropriate to take the answer to Q539 in isolation to the questions and answers that come before and those that come after that particular question. There is a confusion demonstrated by the accused as to whether she wishes to speak to a solicitor or her mother.[4]

9 There are a number of questions following Q539 where police are concerned to ensure the accused has knowledge and awareness of her rights. Upon consideration of the relevant questions and answers from the record of interview, I am satisfied the accused's rights were adequately explained to her and that the accused did not wish to communicate with a legal practitioner. I do not agree that there was a refusal by investigating police to comply with the requirements mandated by s 464C(2)(a).

10 The assertion by the accused that she had been asking to make a phone for hours[5] is not substantiated by a reading of the record of interview. Further, I do not read the words of Detective Senior Constable Hunt at record of interview Q950 as amounting to a withdrawal of the accused's right to a phone call and an offering of a phone call only after the accused has completed the record of interview. Upon my reading of the question, it is apparent the accused is being offered a phone call immediately - or, alternatively, at the end of the record of interview the accused is told she can make a call to let her mother know what is going on.

11 There is no impropriety by police demonstrated by a full reading of the record of interview. I do not consider there is any basis to exclude the record of interview on the basis of impropriety, that is, a failure to comply with s 464C(2)(a) of the Crimes Act 1958 or s 138 of the Evidence Act 2008.

12 Mr Mylonas submitted that I should exclude the second part of the record of interview on the grounds of prejudice outweighing probative value. Those grounds included the majority of the interview is not relevant and evidence obtained is not important in the context of principle issues in the proceeding. I do not agree. The second part of the record of interview covers topics including who the accused was with on the evening of 29 January, ownership of a baseball bat found at Mr Matthews' house, the content of the 000 call and shoe impressions. These matters and the accused's responses are relevant and I do not consider give rise to any prejudice to the accused such that the second part of the record of interview should be excluded.

13 It is convenient now to deal with the notice of incriminating conduct. On 20 October 2014, the Director of Public Prosecutions filed an amended notice of incriminating conduct outlining that the prosecution intends to rely on the conduct of the accused when she fled the scene upon being placed under arrest on 30 January 2014 in circumstances where she ran up Albert Road, away from police, as evidence of incriminating conduct. Police intercepted the accused as she attempted to scale a fence at 8 Albert Road, Hallam.

14 The prosecution also intends to rely on the following alleged lies of the accused as evidence of incriminating conduct:

(i) Prior to being arrested on 30 January 2014, the accused provided a false name, date of birth and age, being that her name was 'Catherine', her date of birth was '6th of the 5th 1983' and that she was 35 years of age.

(ii) In the record of interview with police on 30 January 2014, she provided the following answers:

(a) when asked if she was involved in the assault, she responded with, 'I wasn't there', 'I didn't go there', 'I didn't go to the house' and 'that I didn't go there';

(b) in relation to 16 January 2014, she states, 'That's probably the last time I was - I was there', 'I haven't been back there';

(c) she stated she moved out on 17 January 2014 and that was the last time she was at 25 Henry Street, Noble Park;

(d) when asked if she went to 25 Henry Street, Noble Park last night, 'No. How, I don't have a car';

(e) when asked, '... as of five o'clock last night you were home?', 'Yes'. "And you remained home the entire night until you left to take the kids to school at 8.30 this morning?', 'Yeah'. 'At no point in time during the night did you leave the house?', 'No';

(f) 'Between leaving your house and going to Gino's and then coming home again, did you go anywhere else last night?', 'No. He let me do the washing and stuff. On the way in - we just talked on the way, talked and shit, and that's all'; and

(g) 'He told us you were there', 'I wasn't though'. 'Yeah. The deceased has rung 000 and said you were there', 'Yeah, it doesn't mean it was. Seriously'.

15 The defence challenges the admissibility of this evidence on the basis that the conduct and lies are not reasonably capable of being viewed by the jury as evidence of incriminating conduct, amongst other submissions which will be discussed below.

16 In R v Ciantar,[6] the plurality of the Court of Appeal held that evidence of post offence incriminating conduct will be admissible in circumstances where:

(i) The prosecution has precisely identified how that conduct demonstrates a consciousness of having committed the offence; and

(ii) The judge is 'satisfied that the post offence conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating such consciousness of guilt'.[7]

17 Therefore, evidence of incriminating post offence conduct should not be admissible in circumstances where 'an innocent explanation of post offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post offence conduct is intractably neutral'.[8]

18 Importantly, 'a jury may have regard to lies and post offence conduct without being satisfied that there are no other potential explanations for them apart from guilt of the offence which is charged'.[9] Therefore, it cannot be my role to exclude evidence on the basis that there are reasonable explanations for this conduct, other than that it is indicative of the accused's consciousness of guilt.

19 I turn now to consider each of the facts that the prosecution intends to lead as evidence of incriminating conduct in order to determine whether they are admissible in light of the above principles.

20 While it is certainly open to the jury to find that the accused's flight and arrest and provision of a false name, date of birth and age to the police have an innocent explanation - such that the accused could have been attempting to protect her co-accused or attempting to conceal the nature of their relationship from becoming public knowledge - this does not take the matter so far as to suggest that the jury, properly instructed, could not make the finding that her conduct was indicative of her consciousness of guilt. For example, it is open for the jury to decide that the accused's subsequent explanation that she was scared renders her conduct not incriminating. However, it is not the case that this is the only reasonable conclusion to be drawn.

21 In relation to the alleged lies referred to above in my reasons at 14(ii)(b) and (c), the defence alleges that these are arguably not lies as the accused appears to have been referring to the last time that she resided at Mr Matthews' residence. The prosecution contends that these statements may be viewed as lies as, in the context of the record of interview as a whole, the accused is 'resolute in her position that she has not been present at the address since she moved out some two weeks earlier'. I find it inherently likely that, in the context of that part of the record of interview, the accused was referring to the last time she resided at the house, rather than any subsequent visits to the property. I therefore consider that these statements are not admissible as evidence of incriminating conduct.

22 In relation to the alleged lies referred to above in my reasons at 14(ii)(a), (d), (e), (f) and (g), the prosecution submits that these are deliberate answers in respect of material issues and therefore, if false, may be construed as indicative of the accused's consciousness of guilt. The defence again contends that these statements do not necessarily implicate the accused in the commission of the offence as she could have been lying to conceal the identity of her co-accused or to protect herself against any adverse consequences arising from the fact that she was, at the time, on bail for other unrelated offences. Again, there is nothing in these submissions that prevents the jury from rationally making a finding that the evidence could indicate a consciousness of guilt on the part of the accused.

23 However, there is a more fundamental problem concerning the manner in which the prosecution relies on the evidence set out in 14(ii)(a), (d), (e), (f) and (g) and seeks to use this evidence as incriminating conduct. There are numerous questions in the record of interview that concern the same conduct and what the prosecution would say in answer to the questions are the same lies. For example:

Q177: O.K. So last night - so you - you say you were home from five o'clock till - what time did you leave to school this morning?

A: 8.30.

Q178: So what you're saying is from five o'clock or approximately five o'clock yesterday afternoon until 8.30 or so this morning - - -

A: Mm'hm.

Q179: - - - you were at home?

A: Yeah, yeah.

Q180: You didn't leave home at any time?

A: No I didn't. I don't have a car or anything.

...

Q606: All right. Did you have anyone come around last night?

A: No. And why does that ... no, I haven't. Mum turned up at seven o'clock. The only person is me, mum and the kids.

Q607: Okay there was no-one - there was no-one else at the house at night. I'm just getting clear that that's - that's what you're saying.

A: There's not - - -

Q608: All right. And what you said in relation to 25 Henry Street, at no time last time did you go to that address?

A: No, no. I haven't been there for two weeks, probably more than that.

...

Q864: And there was a knife that was located outside the - the bungalow like a kitchen knife. Do you know anything about that?

A: I haven't been there for two weeks, seriously.

24 There are other examples of similar questions with similar responses. Mr Rose stated during the course of submissions that the prosecution intended to rely on these answers as matters going to credit. He explained rather than placing all the answers in the notice of incriminating conduct, the prosecution would rely on specific examples of incriminating conduct and he suggested I could charge the jury using words to the effect: 'The Crown also relies on these matters specifically and they are the ones you [would be] justified [in using] as incriminating conduct. They rely on them as to credit [the others] but they [the prosecution] also specifically say you can take these as examples of incriminating conduct'.[10]

25 I am required to provide direction to the jury as to the manner in which the jury may treat evidence the prosecution relies upon as evidence of incriminating conduct.[11] As I indicated during the course of submissions, I find it extremely difficult to comprehend how I am to cogently charge a jury that certain lies may amount to incriminating conduct, but exactly the same lies at different parts of the record of interview are only to be considered as matters of credit. Such a charge, I consider, is likely to be highly confusing to the jury and presents a real potential that, in that confusion, the jury will not be able to isolate the conduct relied upon for incriminating conduct from the conduct relied upon that is said by the prosecution to go to credit. I consider the consequences of such a charge are that there is a substantial risk that such conduct that is not the subject of the notice of incriminating conduct could be misused by the jury, in effect loaded up onto the notice of incriminating conduct, and thus there is a substantial risk of unfairness to the accused. I consider that, pursuant to ss 135 and 137 of the Evidence Act 2008, the manner in which the prosecution seek to rely on the evidence contained in 13(ii)(a), (d), (e), (f) and (g) of the notice of incriminating conduct in these circumstances presents a danger that the evidence might be unfairly prejudicial to the accused and confusing such that any probative value is outweighed. In these circumstances, as suggested by Mr Rose, these matters may be used in their totality as matters going to credit, but in the circumstances I exclude this evidence as evidence of incriminating conduct.

[4] At the commencement of the record of interview, the accused had indicated to police she did not want her mother to know she was at the police station. ROI, Q20-24.

[6] [2006] VSCA 263; (2006) 16 VR 26.

[11] Jury Directions Act 2015 s 21(1) and (2).