R v Gary Kaimonoff; Nesvat Asanovic and Patricia Mary Roche Scc [1988] ACTSC 40 (13 July 1988)

SUPREME COURT OF THE ACT

THE QUEEN v. GARY KAIMONOFF; NESVAT ASANOVIC and PATRICIA MARY ROCHE
S.C.C. Nos. 18 to 20 of 1988
Criminal Procedure - Evidence of Confession

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Criminal Procedure - Evidence - Evidence of identification - Whether adequate or so prejudicial as to be unfair - Failure to identify accused in line-up - Later suggestion that accused might have been person concerned.

Evidence of Confession - Whether voluntary - Questioning when accused in custody before being taken before Magistrate - Whether custody lawful - Whether questioning lawful.

Police Ordinance 1927 - s.24(1)

Alexander v. The Queen [1981] HCA 17; (1981) 145 CLR 395.

Davies & Cody v. The King [1937] HCA 27; (1937) 57 CLR 170.

R. v. Turnbull (1976) 3 All ER 549.

Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1.

Collins v. R. [1980] FCA 72; (1980) 31 ALR 257.

HEARING

CANBERRA
13:7:1988

DECISION

On 6 June 1988 Nesvat Asanovic, Gary Kaimonoff and Patricia Mary Roche were charged on indictment that between 27 November and 21 December 1987 at Canberra and in New South Wales they conspired together and with Joan Tomici to commit offences against a law of the Commonwealth, s.4(2) of the Poisons and Narcotic Drugs Ordinance 1978 (A.C.T.), in that they conspired together and with Joan Tomici to supply the controlled substance heroin to other persons. On arraignment each pleaded not guilty.

2. Before the trial proceeded counsel appearing on behalf of the accused Asanovic and counsel appearing on behalf of the accused Roche indicated that they wished to object to certain evidence which the Crown proposed to lead concerning their respective clients. Counsel for Mr Asanovic wished to challenge certain identification evidence while counsel for Ms Roche wished to challenge parts of the evidence of police interviews with her.

3. Counsel were able to establish to my satisfaction that there were substantial bases for the objections. The learned Crown Prosecutor was prepared to consent to the argument on the admissibility of the challenged evidence being disposed of before the jury was empanelled and accordingly I proceeded to deal with the objections.

4. A young woman, whom it is unnecessary to name, gave evidence that she had known the accused Kaimonoff and Roche for some years "through the drug scene", she having been a heroin addict for about three or four years. She said that in the drug scene during the period of her addiction heroin was referred to by several names, one of which was "gear", and was distributed in deals made up in foil. Some time ago she went to Queensland to get on a Methadone maintenance programme as a means of curing her addiction to heroin. She returned to Canberra about 16 December 1987. Arrangements had been made for her to be able to continue the Methadone programme on her return. The Methadone programme was conducted at Woden Valley Hospital where she attended every day at, it would seem, one or other of the sessions which the operators of the programme conducted. A few days after her return to Canberra she went to the Woden Valley Hospital to pick up her Methadone and saw the accused Roche coming out of a building. Roche asked her to come outside to speak to her. She went outside with Roche to a car and spoke to her there. She saw and recognized Gary Kaimonoff seated in the front passenger seat of the car. She said that Roche got into the back seat of the car. She herself stood at the kerb next to the back door of the car which was open. There was someone in the driver's seat. A conversation took place. She described it as a short conversation which she estimated to have taken five or ten minutes. She said that the other person in the car was a male. Obviously she meant the person who was seated in the driver's seat during the conversation. She was not asked to describe him.

5. On 1 March 1988 she went to the Civic Police Station. She was shown into a room where there was already a line of men. A policeman asked her whether she could pick out the other person whom she had seen in the car at the Woden Valley Hospital. The police officer told her to take a good look at all the people in the lineup. She did so. He then asked her if she could identify the person she had seen. She was asked in chief what she did then and said, "I said I was not sure, that I could not. I was not sure I could pick him." Asked why she said that, she replied that she was confused and that it could have been either the second or the third person, she was not sure. (A photograph showed that the persons taking part in the lineup were of generally similar appearance.) Thereafter she left the room and while waiting at the lift with a police officer saw some people starting to come out of the room. She saw someone, whom she thought might have been the third person in the car, accompanied by a lady. Asked what she meant by saying that she had seen someone who might have been the person she replied, "He just seemed familiar to me at the time." She then identified the accused Asanovic from the photograph to which I have referred. She said she saw him again only at the committal proceedings where she identified him. She again identified him before me.

6. In cross-examination she agreed that the conversation she had with Ms Roche would not have taken five minutes and that she had only a fleeting glance at the driver. She agreed that during the identification parade she spent about ten minutes looking at the men in the lineup and that she had taken her time in looking at each person, going within an arm's length of each as she looked at him. She agreed that she said to a police officer as she left the room, "Sorry, I can't be sure." She agreed that the police officer had said to her, "Are you very sure?" and that she had replied, "No, I can't identify him." In evidence before me she commented that she was "not sure between two people". She was further questioned about those leaving the room after the identification parade and reiterated that she had said to one of the police officers, "It might have been the person." She was then asked, "But you still were not sure, were you?" She replied, "I thought I was when he came out because he had come out, but I was not sure in the lineup, no." She also said that she had told the police officer who asked her what was wrong that she was confused.

7. Inspector McDonald gave evidence that he conducted the identification parade, that the young woman walked towards the line of men and about 40 seconds later turned to him and said, "Sorry, I can't be sure."

8. Detective Senior Constable Bradley gave evidence that after the identification parade he spoke to the young woman. He was asked what she said and replied, "She told me that she had made a terrible mistake while she was in the room. She thought it was the person - I am not even quite sure exactly what the circumstances of the offence were, your Honour, but a person that she should have indicated to the police inside that room, was the accused I had spoken about just a short time ago, and she failed to indicate him, and as soon as she had walked out, she told me she had realised she had made a terrible mistake."

9. He was asked in cross-examination whether, referring to Asanovic, she had said, "He might have been the person." He replied, "No, I think she was fairly definite that it was him - to me, when she spoke to me in the foyer of the police station."

10. In the face of the evidence of the young woman herself, it seemed to me that the probative value of the evidence of Senior Constable Bradley was so slight as to make it valueless. Alexander v. The Queen [1981] HCA 17; (1981) 145 CLR 395 at p 433 per Mason J. Alternatively, his evidence was inadmissible because not confirmatory of evidence of identification by the young woman acknowledging that she had correctly identified Asanovic at an earlier date. Alexander v. The Queen per Gibbs C.J. at p 406 and Murphy J. at p 434.

11. The dangers of identification evidence are well catalogued in a number of cases. See, for example, Davies & Cody v. The King [1937] HCA 27; (1937) 57 CLR 170; R. v. Turnbull (1976) 3 All ER 549 and Alexander v. The Queen. There was nothing in the evidence of the young woman which amounted to a positive identification by her of Asanovic at any stage except in Court during the committal proceedings. That identification seemed to me to be insufficient to warrant the reception of her evidence as to identification. What probative value it may have had and, having regard to her evidence which I have set out in some detail, it seemed to me that that was slight, was heavily outweighed by the risk of prejudice to the accused Asanovic. I therefore rejected the evidence of identification.
Patricia Mary Roche

12. The accused Roche was first interviewed by Detective Sergeant David Frederick Baker. Initially she was searched. During the search four hypodermic syringes were found in her handbag. Sergeant Baker then said to her that he was going to ask her some questions concerning a quantity of white powder which had been found in a car in which she had been travelling a short time before. He gave evidence that he administered the usual caution and that she said she understood it. She gave her name and address and the first name of her boyfriend. She agreed that she had been a passenger in the car which had driven into the motel where the questioning was taking place and that that car was being driven by a friend of hers who, she agreed, was talking to police outside the door. To the next question she replied, "I don't want to answer any questions." She was asked two further questions to each of which she replied, "Yes". She was then asked a question about the white powder substance said to have been found in the car in which she had arrived. She said she did not want to say anything about it. She was asked another question and replied in the same way. She acknowledged that the handbag indicated to her was hers and that it had contained four syringes which she said were for her personal use. She was asked what she used the syringes for and declined to answer. She was also asked her reason for being in Canberra and declined to answer that question also. She was asked to read the notes of the conversation to which I have just made reference. She said that she could not remember being cautioned and advised that she was not required to answer any questions but added, "Maybe it is just the lapse of my memory." She declined to sign the pages of the notes although she agreed that no threat promise or inducement had been held out to her to make the answers recorded. She was then placed under arrest for the possession of what Detective Sergeant Baker said he believed was a narcotic substance.

13. She was taken to the Canberra Police Station and charged with a number of offences. During the course of charging she denied that the substance found in the car was hers. She repeated that denial in response to another charge.

14. All this questioning took place early in the morning of Sunday, 20 December 1987. It was completed by approximately 7.50 a.m. when she was charged.

15. At about 6.55 a.m. the next morning, Sergeant Baker again questioned the accused. She had by this time been in custody for almost 24 hours. In the course of the interview which then took place, she made damaging admissions clearly probative, if accepted, of the crime of conspiracy with which she was charged.

16. During the course of the interview she was asked how she was feeling. She replied, "Terrible, . . . I'm hanging out . . . (my symptoms are) just hot and cold flushes and just generally sick." She was asked whether she wished to continue the interview and she said, "It is up to you." Sergeant Baker then said to her, "Trish, it is up to you whether you want to continue or not. I don't want to continue with this interview unless you want to." She replied, "Just further to the questions that you have asked me, I was travelling in the car that night because John asked me to. I know that there was some dope in the car. I had no idea whereabouts or what amount. I had simply gone with John to share the driving and no part of the quantity of white powder that was found was mine." Thereafter the questioning continued.

17. Sergeant Baker described Ms Roche as having seemed quite subdued during the course of the conversation but not appearing to be suffering physically from any disability although she appeared to have just awakened. Sergeant Baker had been told that Ms Roche had seen the doctor the day before and had had Valium prescribed for her. He had asked her how she was feeling because it was fairly standard procedure to do so when dealing with somebody suspected or believed to be a drug addict. He said that he saw no physical evidence that Ms Roche was suffering hot and cold flushes. He described the cell where Ms Roche had been detained as about 12 or 14 feet by 10, without natural light and containing a bench with a mattress and a toilet bowl. He said that when he interviewed Ms Roche on the Monday morning she was wearing a blanket. He said that when he started to question Ms Roche she seemed perfectly OK and that he had asked her how she felt, even though not at the beginning of the questioning, so that the question would be a matter of record. He emphatically denied that he saw her shiver or sweat or show signs of distress. He said that he had spoken to a number of heroin addicts over the last eight or nine years and had some knowledge of the physical symptoms of heroin addiction. He enumerated shivers, sweats, runny nose, watery eyes, itching and scratching. He agreed that fidgeting was a commonplace sign. He said she was not fidgety but very subdued and very quiet. He agreed that she appeared tired. He denied that he said to her, "Well I think we've got you between a rock and a hard place and the charges you are on are very serious. I have already talked to Tomici and he's told us a fair bit. Maybe if you tell us what happened we could charge you with something less serious. We feel you've just been caught up in this. Maybe the charges are too serious for the part you had in it?" He agreed that he made no enquiries about bringing Ms Roche before a Magistrate on Sunday, 20 December and agreed further that it was certainly not commonplace in his experience to question people after they had been formally charged. He could not recall another instance where he had done it.

18. Senior Sergeant Lawler gave evidence that he had been the officer in charge of the Watch House of the City Police Station from 7 am to 3 pm on 20 December 1987. Ms Roche had made no complaints to him during that period. He was on the same shift on 21 December 1987. Again he had received no complaints from Ms Roche on that day. He agreed that he had not sought the services of a Magistrate on the Sunday. In re-examination he was asked what was the practice in the A.C.T. when persons were arrested on the Sunday. He replied, "They wait in custody until Monday morning at 9.30 am." He had never known of any other practice.

19. Dr Eaton gave evidence of examining Ms Roche at 2.37 pm on 20 December 1987 to assess her fitness for interrogation. She complained of some stomach cramps but on examination he found nothing about her physical condition to cause him any concern. He prescribed a low dosage of Valium to help her to sleep should she need it. Asked about her likely condition when questioned on the Monday, he said that usually in withdrawal not much happens in the first eight to sixteen hours but after 36 hours withdrawal symptoms tend to become severe with maximum intensity after 48 hours. He said that her fitness for interrogation would in those circumstances depend upon exactly when she was interrogated. She had told him that she had last used heroin at 7 pm on 19 December 1987. He said that when she was interrogated on 21 December 1987 she could have started to have aches and pains and hot and cold flushes, to be nauseous, to have muscle tremor, diarrhoea and pain in the limbs. He said the first thing that normally happened was that people started to get very restless, complaining of vague pain and having difficulty speaking. He said it was possible that she had fairly mild symptoms of withdrawal which did not affect her a great deal but they could have been more severe. It was very difficult to know.

20. Detective Tompsett gave evidence that he had the opportunity to observe Ms Roche between shortly before 9.30 am and shortly after 10 am on Monday 21 December 1987 when she was in the precincts of the Magistrates Court. He saw her chatting with other accused who were with her and that she appeared normal. He had seen her previously on a number of occasions stretching back as far as June 1986.

21. Detective Sergeant Baker's evidence concerning the interview and the condition of the accused Roche was corroborated by First Constable Thompson. In particular he denied hearing any suggestion by Detective Sergeant Baker to Roche that she was between a rock and a hard place.

22. Ms Roche gave evidence that she had been taking a daily dose of heroin of approximately a gram and a half by five amounts per day and had been doing so for about 12 months before December 1987. She confirmed her arrest and charging and being placed in a cell which she described as being about 12 feet by 8 feet, without natural light, furnished with a bench, a mattress and a toilet bowl. She had some exercise in a larger area adjacent to the cell but there was no natural light. When examined by the doctor she had begun, she said, to "hang out". She said she was feeling fairly sick and had been sick in her cell and vomiting and had a bit of diarrhoea. She said she complained to the doctor about cramps at the time. He examined her. She said that from then on until the following morning her condition got worse with general fidgeting and general soreness. She did have some Valium and had some sporadic sleep, not very much, during the night. She said that on the Monday morning she had no energy and felt very sick. She said that she was more worried about how she felt physically than in trying to cope with the situation she found herself in. She said that she did not bring the blanket with her but that it had been brought for her and had been wrapped round her during the interview because she was shivering. She said that Sergeant Baker had used the words, "We have you between a rock and a hard place". She said that she thought that had an influence on her but she did not think she was thinking clearly at the time. She agreed that she had been questioned about her condition and told that it was up to her whether the interview continued or not. She gave as her reason for giving the answer already quoted that she thought that would end the questioning. Asked why she continued to provide answers, she replied, "I do not think I felt I could ask them to stop, that I did not want to answer any more questions, once I started. I did not want to continue answering questions but I just want together enough (sic) to tell them I do not want to answer any more questions."

23. In cross-examination she agreed that she knew that when police talked to her she did not have to answer any questions. She agreed that she was in no doubt about that and that she had been spoken to by police on a number of occasions and had had a caution administered. She agreed that she had been given an opportunity of discontinuing the interview of which she had not availed herself. She agreed that the interview with Sergeant Baker was not a terribly long one but was not a short one either. She agreed that she read the notes of the conversation which took place between Sergeant Baker and herself fairly quickly but carefully. She did not bother, she said, to attempt to correct the record by having inserted the alleged conversation concerning a rock and a hard place. She said that the inference was there that the import of what Sergeant Baker had said to her which was not recorded was that if she cooperated things would be better for her and that she did cooperate. But thereafter she continued the interview when she had a chance to stop it. She agreed that she had questioned the accuracy of the record taken of the conversation which had taken place shortly before her arrest and that she made no such challenge or, indeed, any challenge to the accuracy of the record of the conversation of 21 December 1987.

24. I formed the opinion by the end of the voire dire that the accused was a cool and intelligent young woman and that she knew perfectly well what she was about when she was questioned on the morning of 21 December 1987. I am satisfied that Detective Sergeant Baker did not use the expression "between a rock and a hard place" or one like it nor make any suggestion to the accused woman that if she cooperated things might go more easily with her. I am satisfied that she was suffering from some degree of tiredness and from the beginning of withdrawal symptoms when she was interviewed but I am also satisfied that she was not in such a condition as to render the interview an unfair one. In taking this view I bear in mind that the question is not whether Ms Roche appeared to the interviewing detectives to be fit for the interview but rather whether she was in fact fit. In my opinion she was. I think she knew exactly what was happening and was well able to take care of herself.

25. However, Mr Brewster of counsel for Ms Roche submitted that she had been questioned while detained unlawfully after she had been charged with offences and kept in custody without being brought before a Magistrate to be dealt with. The evidence of her admissions was therefore, he submitted, inadmissible.

26. So far as is applicable, s.24(1) of the Police Ordinance 1927 reads:-
"Any person apprehended without a warrant

shall, as soon as practicable, be delivered
into the custody of the member of the Police
Force who is in charge of the nearest police
station, in order that the person may be
secured until he can be brought before a
Magistrate to be dealt with according to law,
or, if in any . . . case the member of the
Police Force deems it prudent to take bail,
until he has given bail for his appearance
before a Magistrate."

27. I am satisfied that in the circumstances Ms Roche was delivered into the custody of the member of the Police Force in charge of the nearest police station as soon as was practicable after her apprehension. The question then is whether she was lawfully secured until she could be brought before a Magistrate to be dealt with according to law. This depends upon whether, in all the circumstances, it was lawful that she should have been held in custody until not later than 9.30 am on Monday 21 December 1987.

28. The unchallenged evidence was that persons arrested on a Sunday remain in custody until Monday morning at 9.30 am before being brought before a Magistrate. Senior Sergeant Lawler had never known of any other practice although one can conceive readily of circumstances where it might be appropriate that a person arrested on a Sunday should be brought before a Magistrate on that day as a special case. But there seems to me to have been no circumstance which required that an attempt should have been made to bring Ms Roche before a Magistrate on 20 December 1987. In the circumstances I take the expression "until he can be brought before a Magistrate to be dealt with according to law" to mean, generally, to be brought before a Magistrate sitting in usual hours to be dealt with according to law. In my opinion, therefore, Ms Roche's detention until the morning of Monday, 21 December 1987 was not unlawful. The question whether the discretion of the Court to receive or reject the evidence of her admissions should be exercised because obtained during a period of illegal detention does not fall to be considered.

29. Even if I be wrong in the interpretation I have placed on the relevant part of s.24(1) of the Police Ordinance 1927, I do not think that the evidence of the admissions during the interrogation which I have found to be fair should be rejected on the ground of illegality. There did not appear to be any improper conduct on the part of the police officers concerned and, as I understand the decision of the majority in Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1, evidence of a confession obtained while an accused is in unlawful custody is not necessarily to be rejected because of that circumstance alone and, indeed, as the headnote says and I think the text of the judgments support, it will only be in a very exceptional case that a voluntary confession which would not be unfair to the accused to admit could be rejected on the ground of the public interest.

30. In all the circumstances I considered the evidence to have been admissible and ruled accordingly.

31. Mr Brewster also challenged the admissibility of the conversation between Ms Roche and Detective Sergeant Baker which took place on the morning of 20 December 1987. He said it was inadmissible because Detective Sergeant Baker persisted in his questions after Ms Roche had indicated she did not wish to answer any questions. It is true that he did so persist but in my opinion it was not unreasonable that he did so and Ms Roche continued to be selective in the answers she gave, refusing to answer several of the questions asked. I do not think the questioning could be said to have rendered what she said inadmissible as involuntary. There was no suggestion, in my opinion, that in answering the questions put by Detective Sergeant Baker Ms Roche did anything but exercise a free choice to speak or be silent. See, generally, Collins v. R. [1980] FCA 72; (1980) 31 ALR 257 at pp 307-9. Accordingly, I ruled that that evidence was also admissible.