R v Singh [1999] ACTSC 27 (12 April 1999)

Last Updated: 3 September 2004

R v ANU SINGH [1999] ACTSC 27 (12 April 1999)

CATCHWORDS

CRIMINAL LAW - evidence of admissions to police officer - whether accused under arrest - whether circumstances such that truth unlikely to have been adversely affected - whether circumstances justified reception of the evidence notwithstanding the absence of a caution prior to commencement of questioning - whether special circumstances justifying reception of evidence of conversation not tape recorded - no issue of principle.

EVIDENCE - admissions to police officer - whether accused under arrest - whether circumstances such that truth unlikely to have been adversely affected - whether circumstances justified reception of the evidence notwithstanding the absence of a caution prior to commencement of questioning - whether special circumstances justifying reception of evidence of conversation not tape recorded - no issue of principle.

Crimes Act 1914 (Cth)

Evidence Act 1995 (Cth)

No. SCC 49 of 1998

Coram: Crispin J

Supreme Court of the ACT

Date: 12 April 1999

IN THE SUPREME COURT OF THE )

) No. SCC 49 of 1998

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

ANU SINGH

REASON FOR RULING

Judge Making Order: Crispin J

Where Made: Canberra

Date of Order: 12 April 1999

1. At the trial of this matter objection was taken to the evidence of a police officer, Constable Hains, who spoke to the accused in the living room at the house she had shared with Mr Joe Cinque shortly after his death and whilst his body was lying in the bedroom upstairs. The accused is alleged to have made certain admissions to Constable Hains.

2. The conversation commenced at approximately 1.42 pm and was relatively short. Whilst life was not formally pronounced extinct by a legally qualified medical practitioner until 1.50 pm, the paramedics who had attended the scene had confirmed that Mr Cinque was dead. They had attended in response to telephone calls made by the accused to the 000 emergency number at 12.10 pm and 12.14 pm and the tape recordings of those calls revealed that she had been extremely distressed. The paramedics gave further evidence of her distressed and hysterical conduct following their arrival. They noted that her voice was raised and distressed, that she had attempted to kiss Mr Cinque's body, had pulled at his face, attempted to embrace him and that after the police had arrived and ordered her to leave the room she had behaved in a frantic manner. It had required three men to keep her out of the bedroom and she had begun darting from place to place and flinging herself in their direction. A fire brigade officer who had been present at similar incidents said that he had not seen such agitated behaviour before. There was other evidence of hysterical and confused behaviour prior to the commencement of the conversation.

3. It is by no means clear whether the conversation with Constable Hains was permitted to run its course or whether it was brought to a premature end. However, it is clear that Ms Singh stood up and began to pace around the room again before suddenly attempting to run upstairs. She was brought back down by another officer but began to twist her body and resist efforts to remove her from the house. When placed in the police car a further conversation was attempted but after answering one question she again appeared to become hysterical. She subsequently attempted to fling herself out of the vehicle.

4. Evidence was given by a psychologist, Dr Ken Byrne, to the effect that the accused had a long-standing psychological condition and at the time of the incident was suffering from depression and a severe borderline personality disorder. He expressed the view that any statement she may have made to the police may have been unreliable.

5. Accordingly, Mr Pappas, who appears for the accused submitted that it should be excluded. He relied upon s 85 of the Evidence Act 1995 which is in the following terms:

"(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:

(a) in the course of official questioning; or

(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made was such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the Court may take into account for the purposes of subsection (2), it is to take into account:

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning;

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned."

6. Mr Golding, who appears for the Crown, submitted that the opinion expressed by Dr Byrne should be accorded little weight because of a number of factors including the extent to which it was reliant upon a history recounted to him by the accused and, in particular, the fact that the results of consecutive Minnesota Multiphasic Personality Inventory (MMPI) tests revealed a high score on the "fake" scale. The "fake" scale reflects answers given in the course of an MMPI test which may suggest that the person in question has attempted to dishonestly influence the outcome of the test. Dr Byrne conceded that these were important factors but made it clear that his opinion was substantially dependent upon his own impressions of the accused and information as to her background which he had obtained from other sources.

7. Mr Golding submitted that these factors cast considerable doubt on the accuracy of Dr Byrne's conclusions. It should be noted, however, that Dr Byrne did not say that the statements made by the accused would have been unreliable. He said only that in all the circumstances there would be no way of knowing whether the answers were reliable or, to put it in his words "if it were up to my judgment I couldn't say reliably (whether) what she has reported is accurate without some other corroboration".

8. It seems to me that the evidence of Dr Byrne must be considered in the context of the other evidence given at the trial. There is an abundance of evidence to the effect that in a period of some months leading up to the death of Mr Cinque the accused had behaved in an irrational manner and at times had expressed delusional beliefs. Indeed, one suggested motive for the offences which the Crown alleges she committed was anger arising from a delusion that she was suffering from a terminal illness brought about by the ingestion of Ipecac syrup she had taken at Mr Cinque's suggestion. In addition, as I have already mentioned, the evidence reveals that she had been in an hysterical state immediately before and immediately after the conversation in question. In these circumstances, I find myself in the same position as that expressed by Dr Byrne: I am simply unable to say whether the statements made by the accused to the police would have been reliable.

9. It may be observed that s 85 provides that evidence of an admission is not admissible unless the circumstances in which it was made were such as to make it unlikely that the truth of the admission was adversely affected. The onus plainly lies upon the Crown. In the light of the evidence to which I have already referred I am unable to be satisfied that the circumstances were such as to make it unlikely that the truth of the admission was adversely affected.

10. Accordingly, I ruled that the evidence was inadmissible.

11. In deference to the submissions of counsel I should mention that the objection was also maintained on other grounds.

12. As Mr Pappas pointed out, no caution had been administered until after the accused had made a significantly incriminating statement.

13. In the present case the position was governed by s 23F of the Crimes Act 1914 the relevant portion of which provides that "if a person is under arrest for a Commonwealth offence, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence". Subsection 23A(6) provides that where an offence against the law of the Australian Capital Territory is punishable by imprisonment for a period exceeding twelve months and the investigating official concerned is a member of the Australian Federal Police, Part 1C of the Act applies as if references to Commonwealth offences included references to that offence and references to a law of the Commonwealth included references to a law of that territory. All of the offences on the indictment are so punishable and Constable Hains is, of course, an officer of the Australian Federal Police. Accordingly, the provisions of s 23F apply to the conversation in question.

14. Section 23B(2) provides that a reference in Part 1C to a person who was arrested includes a reference to a person who was in the company of an investigating official for the purpose of being questioned if, inter alia, the official would not have allowed the person to leave if the person wished to do so. Constable Hains candidly conceded that he would not have allowed the accused to leave had she wished to do so. Accordingly, there can be no doubt that she was "under arrest for a Commonwealth offence for the purposes of the section".

15. It is clear that Constable Hains did not caution the accused before starting to question her. He seemed to believe that a caution was only then required, and some other police officers appeared to share that belief. As Sergeant Lymbery said with apparent approval, "as soon as the admission was there he cautioned her". Of course there may be many circumstances in which an investigating police officer may not realise that there is any need for a person to be cautioned until he or she has said something which gives rise to at least a reasonable suspicion of criminal conduct. In the present case, however, Constable Hains was aware that Mr Cinque had died apparently of an overdose of heroin and that the accused had said "we were supposed to go together" or words to that effect. In these circumstances there were grounds for suspicion that she may have committed an offence and it was obviously insufficient to commence to interview the accused and caution her that she need not answer his questions only when she had already made a significantly incriminating admission. In any event the obligation imposed by s 23F arises whenever a person is under arrest for an offence of the relevant kind.

16. Sub section 138(1) of the Evidence Act 1995 provides that evidence which was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law "is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". This provision involves a significant departure from the common law principle that illegally or improperly obtained evidence was prima facie admissible. In considering the balancing exercise required by subs (1), the court is required to take into account certain matters specified in subs (3) including the probative value of the evidence, its importance in the proceeding, the nature of the relevant offence, the gravity of the impropriety or contravention, whether the impropriety or contravention was deliberate or reckless and the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law.

17. Having regard to the view which I have taken of the reliability of this evidence it is unnecessary to canvass these issues in any detail. I must say, however, that I accepted the evidence of Constable Hains and had no doubt that he genuinely believed that the obligation to caution a suspect arose only in the circumstances which he described in his evidence. That understanding was quite wrong but as I have previously mentioned his misconception seemed to have been shared by other officers. In these circumstances I am satisfied that his contravention of s 23F was neither deliberate nor reckless.

18. Nonetheless, it is surprising to find that experienced police officers still harbour such a misconception since s 23F was enacted in 1991 and amended to its present form in 1995. There has been ample time for members of the Australian Federal Police to become aware of its requirements and failure to comply with it may well result in the exclusion of potentially crucial evidence.

19. In the present case, Mr Golding submitted that the evidence was of significant probative value since it was made only shortly after the events in question. He also submitted that it was of considerable importance in the proceedings since it provided a potential basis for insight into the mental state of the accused at the time of the offence and that was obviously of critical importance to a defence of diminished responsibility. On the other hand, as I have indicated I had some reservations as to the reliability of the alleged admissions. Furthermore, I noted that when the accused was taken back to the police station and a further caution was administered she declined to be further interviewed. It is true that even after being cautioned by Constable Hains at the scene she answered one further question in terms which appeared to involve completing what she had intended to say prior to the caution. However, I was left with the impression that she may not have answered any questions had she been cautioned initially unless, of course, she had been so distressed and agitated that she had felt some compulsion to talk about the incident. In these circumstances I would not have been satisfied that the proviso to s 138 had been satisfied.

20. Furthermore, it is common ground that the conversation was not tape recorded. Section 23V(1) of the Crimes Act 1914 provides that if a person who is being interviewed as a suspect makes a confession or admission to an investigating official the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless, if made in circumstances where it was reasonably practicable to tape record it, the questions and answers were tape recorded. I am satisfied that the conversation was made in circumstances where it was reasonably practicable to tape record the conversation and that the failure to do so involved a breach of s 23V.

21. Sub section (5) provides that a court may admit evidence of this kind even if the requirements of this section have not been complied with if, having regard to the nature of the non-compliance and the reasons for it, the court is satisfied that "in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice".

22. In the present case I have every sympathy with Constable Hains. He impressed me as a responsible officer who I think had been somewhat distressed at seeing the body of Mr Cinque and who may have been at a loss to know how to deal with a distraught and at times hysterical young woman whom he had reason to think knew how Mr Cinque had died and may herself have been at risk. In these circumstances it was entirely understandable that he should have asked her what had happened. Consequently, if I had regarded the evidence as reliable and this had been the only ground of objection I would have been satisfied that the Crown had discharged the onus resting upon it by virtue of subs (5) and admitted the evidence.

23. However, for the reasons which I have outlined earlier I ruled that the evidence was inadmissible.

I certify that this and the twenty-three (23) preceding numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 12 April 1999

Counsel for the DPP: Mr T Golding

Solicitors for Accused: Director of Public Prosecutions

Counsel for the Defendant: Mr J Pappas

Solicitors for the Defendant: Sutherland & Tiirikainen

Dates of hearing: 29 March 1999

Date of judgment: 12 April 1999