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[2018] VSC 628
General information, not legal advice.
Supreme Court of Victoria
2018-10-19
Taylor J
Original judgment source is linked above.
CRIMINAL LAW - Record of Interview - Whether breach of s 464A(2)(b) Crimes Act 1958 to 'inform the person of the circumstances of that offence' - R v Lancaster [1998] 4 VR 550 applied.
2 The accused denies any involvement in the incident that led to the death of her partner Darren Anthony Reid on 19 December 2016. Indeed, in a formal police statement given to police on 20 December 2016, the accused said that she witnessed another man - an intruder in company with two others - douse the deceased with flammable liquid and set fire to him, resulting in his death.
3 On 4 January 2017, the accused was arrested and thereafter participated in a record of interview with police at the Victoria Police Centre in Docklands.
4 The accused challenges the admissibility of the record of interview. The accused argues that the interview was conducted in breach of s 464A(2)(a) of the Crimes Act 1958 (Vic) in that she was not informed prior to questioning of the circumstances of the offence she was suspected of having committed. As a consequence, the accused argues that the record of interview should be excluded in an exercise of the discretion under s 138 of the Evidence Act 2008 (Vic). Relevant to that exercise, the accused relies upon the use of the PEACE method of questioning[1] and the need for courts to closely scrutinise that particular interrogation technique. In that regard, the accused places particular reliance upon the observations of the Court of Appeal in Willis v The Queen.[2]
5 The prosecution submits that there has been no breach of s 464A(2)(a) of the Crimes Act. The accused was informed at all times that she was under arrest and was being interviewed in relation to the death of Darren Reid.
6 It is convenient to set out the following extracts of the transcript of the Record of Interview.
Q6 So as I explained to you a little earlier today, my name's Mick Cashman. I'm from the homicide squad and here today, because I want to interview you in relation to the death of Darren Reid, who was your partner.
Yes
Q7 Darren died on 19 December, after an incident at [address] ---
Yes
Q8 --- on 18 December 2016. So that's why we're here because I want to ask you some questions about that incident. Before continuing ---
Yes
Q9 --- I must inform you that you do not have to say or do anything but anything you say or do may be recorded and given in evidence. Do you understand that?
Yes
Q10 So again, whatever we capture here today goes on this recording unit and it can be used at court at a later date if - if that's the way things unfold. I must also inform you of your following rights.
[Hereafter the accused was informed of her rights, about which no complaint is made.]
Q43 Okay, all right. Look, I guess this - this process I guess works best if instead of me sort of interrupting and jumping in, I just like to give you the opportunity to give your story as best you can, if you choose to. So I like to open the first question and see what you can tell me about the death of Darren Reid. Can you tell me about the incident that unfolded?
I can. But what - what am I under arrest for and what's my allegation? That's what I want to know. What am I here for?
Q44 Well ---
I haven't even buried the man, mate.
Q45 Sorry?
I haven't even buried the man. I haven't - he's not even at rest.
Q 46 Mm.
I have been with the man 20 years. What do you want to know about it?
Q47 well, that's ---
The death of Darren? Really? Everyone knows the death of Darren.
Q48 Well, that's what I'm here to discuss with you today.
Mm.
Q49 I'll go back one step.
And what - what am I in here for exactly? This is ---
Q50 Yeah. When - when - this morning, remember when we spoke to you in Melon Street ---
Yeah
Q51 --- so little earlier today, it was after 10 o'clock ---
Yes
Q52 --- 20 past 10 ---
Yes
Q53 --- by - by my watch, we - myself and one of my colleagues spoke to you in Melon Street.
Q54 Your daughter was there, ...
Yes
Q55 We told you we needed to speak to you in relation to the death of Darren Reid and that you were under arrest. Okay?
Yes
Q56 And we put - we put you in the car. You hopped in the car with me.
Yes, that's right.
Q57 and I told you that you didn't have to answer any of my questions---
No.
Q58 --- if you didn't want to.
But what do you mean "the death of Darren Reid"? Are you ---
Q59 Well, we're interested in the circumstances that have led to his death and whether it's suspicious or it's not suspicious. Okay we want to explore ---
Are you asking was it me or are you asking something else?
Q60 Well, I am asking you to tell me what you know about it. What - what can you tell me about the incident that led to Darren's death?
Not being smart ---
Q61 No.
--- But be more specific. What do you mean? What actually happened with Darren's death or ---
Q62 Yeah, absolutely, yep.
7 Later in the interview the following exchange took place:
317 ... Now, am I going to get bailed or anything today or am I stuck in a cell?
Q318 Oh, look, we are a long way from - from that at this stage.
Mm.
Q319 Yeah. And I don't - I'm not one to make promises that I may or may not be able to keep.
I just don't understand that.
...
326 ... So am I charged with anything?
Q327 no, no, not - right now you're not charged with anything.
Am I ---
Q 328 At the moment you're being interviewed.
Oh, sorry.
Q329 Yeah. So at the conclusion of the interview, then I'll decide what's gunna happen from there. Okay?
That's fine, mate.
8 Section 464A(2)(a) is in the following terms:
(2) if a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1) -
(a) inform the person of the circumstances of that offence
9 In R v Lancaster,[3] Tadgell JA said:
[I]t would, I think, in the case of an investigation of the homicide, generally be sufficient compliance with the terms of s 464A(2)(a) to inform the person being questioned that the questioning relates to the death of a certain person at a certain time and place. Very often an investigating officer will not know what the nomination of the crime should be and an investigation of a homicide might, of course, be of what turns out to be a case of murder or something less than murder.[4]
By way of examples of what ordinarily would satisfy para (a), I would suggest a statement by an investigating official that he wanted to question the person 'about the death of X' ... With it being unnecessary to specify murder or manslaughter...[5]
11 In R v Kerr (Ruling No 1),[6] T. Forrest J said
An investigating official is obliged to 'inform the person of the circumstances of that offence' before questioning that person. It is unnecessary for investigators to inform and accused of the precise details of the offences, or nominate a particular offence. What is required is that the accused be appraised of 'the central factual feature or features expressed in general and abbreviated terms, of the offence for which the person is in custody'.[7]
12 His Honour went on to conclude that the words 'in relation to the disappearance and suspected death of Bill Stevenson' were sufficient to comply with s 464A(2)(a) of the Crimes Act and noted that they were almost identical to the example given by Tadgell JA in Lancaster.[8]
13 In my view the information provided by the informant in questions 6 and 7 of the record of interview extracted above are sufficient to comply with the requirement in s 464A(2)(a) of the Crimes Act. The accused was told that the questioning related to the death of Darren Reid on 19 December 2016 after an incident at his home address the previous day. That formulation aligns squarely with that offered by Tadgell JA in Lancaster.
14 It follows that as there has been no breach of s 464A(2)(a) of the Crimes Act, no issue of the exclusion of improperly or illegally obtained evidence under s 138 of the Evidence Act arises.
15 I note, however, that even if the discretion under s138 of the Evidence Act was enlivened, the matters delineated in s 138(3) would favour the admission of the record of interview. I note the high probative value of the evidence, the importance of the evidence in the trial, that the trial concerns an allegation of murder and that the entire record of interview demonstrates that the informant at all times was cognisant of the rights of the accused.
16 In this regard I note the view of Priest JA in Willis who held that if the caution had been administered in that case (a matter on which he differed from the majority), any breach of s 464A(2)(a) would not of itself had led to the exclusion of the record of interview.[9] That was so not withstanding his Honour's identification of 'real dangers'[10] in the PEACE interrogation technique employed in that matter.
[1] At committal the informant accepted that the structure of the Record of Interview had a format similar to the PEACE methodology.
[2] [2016] VSCA 176, [202] (Weinberg and Beach JJA), [211], [237] (Priest JA) ('Willis').
[3] [1998] 4 VR 550 ('Lancaster').
[6] [2015] VSC 64 ('Kerr').
The Queen
Stone