Binning v Lehman
[2002] WASCA 255
•17 SEPTEMBER 2002
BINNING -v- LEHMAN [2002] WASCA 255
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 255 | |
| Case No: | SJA:1070/2002 | 9 SEPTEMBER 2002 | |
| Coram: | WHEELER J | 17/09/02 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | MARK LOUIS BINNING SHANE LINDSAY LEHMAN |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | R v Swaffield (1998) 92 CLR 159 Bunning v Cross (1978) 141 CLR 54 Cleland v The Queen (1982) 151 CLR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
SHANE LINDSAY LEHMAN
Respondent
Catchwords:
Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
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Category: B
Representation:
Counsel:
Appellant : Mr D J Matthews
Respondent : Mr A R Fraser
Solicitors:
Appellant : State Crown Solicitor
Respondent : Michael Tudori
Case(s) referred to in judgment(s):
R v Swaffield (1998) 92 CLR 159
Case(s) also cited:
Bunning v Cross (1978) 141 CLR 54
Cleland v The Queen (1982) 151 CLR 1
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1 WHEELER J: The respondent was charged with possessing a firearm whilst not being the holder of a licence or permit under the Firearms Act 1973. The complaint was dismissed after hearing. It appears that the evidence which his Worship admitted was, broadly, to the effect that the respondent had been found with the firearm in his vehicle. It was in a bag in his vehicle. However, it appears that there was another person in the vehicle at the time and it also appears that the respondent had shortly beforehand given a lift in his vehicle to a number of other persons. There appeared to be no forensic evidence linking the respondent to the firearm. During the course of a formal interview, the respondent made no admissions.
2 However, during the course of the trial the prosecution had attempted to lead evidence of a police officer, which evidence included evidence of admissions made to him by the respondent as to the respondent's ownership of the firearm. The admissions were made in somewhat unusual circumstances. It appears that the respondent had been the subject, or one of the subjects, of an undercover investigation during the course of which a police officer had posed as a purchaser of drugs.
3 The incident involving the firearm had occurred on 5 February 2001. On 7 February 2001, after the respondent had been interviewed and advised that he would be charged, but before the complaint was issued against him, the undercover officer, who was wearing a recording device, met with the respondent. It appears that the purpose of the meeting was for the respondent to supply to the undercover officer some drugs which had been the subject of an earlier agreement between them.
4 Very early in the course of that conversation, the respondent himself brought up the fact that he had been arrested recently. The officer asked what he had been arrested for and was advised by the respondent that he was pulled over for a random search and that there was a gun in the back of his car. He went on to describe the gun. This part of the conversation occurred in response to what appeared to me to be entirely neutral responses by the undercover officer to the information, which the respondent volunteered to him. Apart from asking what the arrest had been for, the majority of the officer's responses consisted simply of the word "yeah". The officer asked whether the arresting police had "gone to town" on the respondent and the respondent advised that he "… just went in there mate, no comment no comment … fucking blah blah blah". He then went on to describe in some detail the fact that he had a number of shoes which appeared to have been stolen in the vehicle as well and explained that these belonged to a "mate" of his. The undercover asked
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- whether the respondent had any other "heat" on him. The respondent at first said that he had not, but then went on to explain that there had been an armed robbery of a delicatessen recently and the undercover officer commented that the police possibly thought that the respondent was the culprit. The undercover officer then asked, "Was that your own drill?" (It being common ground that the word "drill" referred to the firearm). The respondent advised that it was. He then went on to explain that he did not resemble the description of the persons who were said to have committed the armed robbery. There was then some discussion about the quality of the drugs being supplied and drugs supplied in the past. There was a discussion about the risk involved in drug transactions and the respondent commented to the effect that with his luck he would probably be caught with just a small quantity of drugs, and that he had refused to participate in a particular transaction because for the small quantity involved it was not worth the risk.
5 It appears that the reference to the respondent's luck was understood as an allusion to his being discovered with a gun in his vehicle during the course of a random search. The undercover officer then asked whether the police who conducted the search were local police and whether this search appeared to be purely an accident. Those sorts of enquiries would of course be the sorts of enquiries to be expected of a person who was engaged in drug dealing with the respondent and who would naturally be expected to be concerned about the possibility of the respondent being the subject of surveillance. That conversation was not directed to elicit any particular admissions but did elicit from the respondent the comment that he had "killers" (ammunition) in the firearm and that it was fully loaded. The undercover officer asked, "Were you expecting something or do you always carry it around like that?" and the respondent explained that he always had it like that. There was then further reference to future drug transactions which were proposed.
6 To summarise, the respondent had made no admissions during the course of a formal interview. A couple of days later he had dealings with an undercover policeman who was investigating a different type of offence altogether. That undercover policeman appears to have had no prior knowledge of the circumstances of the alleged firearm offence. The respondent himself embarked on the subject of the alleged firearm offence. During the course of that conversation, he advised the undercover officer that he had made no admissions. The role played by the undercover officer in the course of the conversation which followed was by and large a neutral one, merely responding to or commenting upon aspects of the subject which were raised by the respondent. However, he
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- did ask two questions which could be regarded as being of a leading nature. The first, which enquired whether the gun was the respondent's own gun, secured an admission that it was. The second appeared to assume that it was the respondent's gun and was directed really to the question of whether the gun was intended for any particular purpose. The answer to that was that there was no particular purpose, but the response of course entailed an admission that the gun was "always" carried by the respondent.
7 There was no evidence from the undercover officer. So far as one can tell from the transcript of the conversation, his role, once the subject of the firearm was introduced by the respondent, does not appear to be that of an interviewing officer cross-examining or attempting to obtain admissions in any systematic way. The majority of his responses, as I have noted, were neutral ones and appear to stem entirely from a need to stay "in character" and to respond as one might suppose that a person engaged jointly in a criminal activity with the respondent might respond to such information. The question as to whether the respondent had anything in particular in mind in carrying around a loaded firearm may well have been sparked by a desire to obtain information about other possible offences which had been committed or might be planned, which motivation, if it existed, would be an entirely proper one. The question as to whether the gun was the respondent's own gun may have been no more than an attempt to keep the conversation going, or it may have been a deliberate attempt to obtain an admission; although both views were urged upon me, it is not possible to make a finding either way and it is of course possible that both considerations were present to the mind of the officer.
8 It is accepted that his Worship erred in his approach to this matter. First, although the recording equipment in Court unfortunately failed to record a considerable portion of his Worship's ruling in relation to both the admissibility of the taped conversation pursuant to the Surveillance Devices Act 1998, and his ruling in relation to the application of R v Swaffield (1998) 92 CLR 159, it may be discerned from the transcript and from the affidavit of Mr Balcombe, the prosecutor on the day in question, that his Worship relied upon both the Surveillance Devices Act and the decision in Swaffield. So far as the Surveillance Devices Act is concerned, it is conceded by the respondent, that the Surveillance Devices Act did not render the use of the listening device unlawful, and that the taped conversation was obtained lawfully. The only question, which was truly open to his Worship's consideration, was whether as a matter of discretion he should reject the evidence of the undercover officer on the basis discussed in Swaffield.
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9 So far as that latter point is concerned, his Worship's critical ruling is the portion which I now set out:
"So it [Swaffield] says so far as the Judge's rules are concerned, the critical point was the absence of a caution. I have to agree with counsel this case is right on point and their Honours in that case ruled in favour of the exclusion of evidence obtained in very similar circumstances where there was a secretly tape recorded statements made by the respondent to undercover police, and there was – such evidence was the primary evidence implicating the respondent. There had been a previous refusal to answer police questions. Those statements were voluntarily made, and on the basis of the unfairness discretion, the public policy discretion, the High Court ruled ultimately that it ought to be excluded. And I feel that the facts are so far on point I really can't distinguish them in any way …"
10 It was conceded by the respondent during the course of argument that, to the extent that his Worship appears to have formed the view that any subsequent questioning, by an undercover officer, where an accused person has already earlier exercised his right to silence, must be inadmissible, that view was in error. Much will turn upon the circumstances of the subsequent questioning. It is clear from the decision in Swaffield that the undercover officer in that case, knowing that Swaffield had earlier refused to answer police questions about particular offences, deliberately determined to question Swaffield about those offences, in his undercover capacity, in order to elicit if possible the admission which had not been elicited during the course of the earlier official questioning. Those circumstances were different from this case. It appearing that his Worship has erred in his approach to the issue, it is now for me to determine, applying the principles in Swaffield, whether the evidence should have been excluded.
11 I should add that it is no criticism of his Worship to say that an error was made in the application of Swaffield. It is plain that his Worship had little time to consider the matter. Further, the proper enunciation, and the application, of the principles in that case is one of extreme difficulty. The difficulty in the applicability of the principles is illustrated by the division of opinion in the High Court between Kirby J on the one hand and the other Justices in that case in relation to the matter of Pavic, with which the Court dealt at the same time, and from the comment of Brennan CJ, in relation to the arguments for and against the admission of Swaffield's admissions, that "there is much to be said for either view".
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12 The approach which a majority of the High Court considered formed part of the common law, as a result of the development of principle over a series of cases, is set out in par 69 of the decision in Swaffield. That is, admissibility turns first on the question of voluntariness, next on exclusion based on considerations of reliability, and finally on an overall discretion which might take account of all the circumstances of the case, to determine whether the admission of evidence is "bought at a price which is unacceptable, having regard to community standards". The issues, as their Honours observed, tend to overlap in many cases.
13 So far as the conversation in issue here is concerned, there is no doubt that the entire conversation was voluntary so far as the respondent was concerned, and that he was under no compulsion to make the admissions which he made. So far as he was concerned, he was dealing with another party in a criminal enterprise in which they were on an equal footing; to the extent that there was any inequality, one might glean from the tenor of the conversation that the respondent was in a somewhat superior position, as being a person with better connections in the drug world and able to obtain the drugs sought by the undercover officer.
14 So far as reliability was concerned, the respondent's counsel adverted to the warning of Kirby J in Swaffield's case that within a criminal subculture, false boasts of criminal behaviour may be common and may be considered necessary in certain circumstances (at par 126). I accept that this is a consideration which must be kept in mind. However, it is not a consideration which appears to be of relevance in this case. Indeed, it is noteworthy that during the course of the conversation the respondent expressly disclaimed responsibility for other criminal acts in relation to the stolen shoes and in relation to the armed robbery of the delicatessen. There is nothing in the particular conversation to suggest that he would have felt any need to claim falsely that the firearm was his own.
15 The difficult question is the one which relates to aspects of unfairness and public policy. The question arises as to whether what was done during the course of the conversation was a violation of the respondent's right to choose whether or not to speak to police, in circumstances where he had already decided to exercise his right to silence when formally interviewed.
16 Factors suggesting that the evidence should have been admitted are as follows. The evidence was plainly highly probative. The enforcement of the regime for the licensing and control of firearms is important for reasons of public safety. There is no evidence that the undercover officer
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- deliberately set out to circumvent the respondent's exercise of his right to silence. His responses and questions to the respondent were made in a context where it was obviously desirable for him to remain in character and where he was not afforded an opportunity to review the courses open to him and to choose his words with care.
17 As against those considerations, it is clear that the respondent had told the undercover officer that so far as the formal interview was concerned he had exercised his right to silence, and it was subsequent to that that advice the undercover officer asked the question which drew the response from the respondent that the gun was his own. Toohey, Gaudron and Gummow JJ noted in Swaffield that, at least so far as Canadian authorities were concerned, it was important to determine the extent to which any admission was elicited by the undercover officer. It is clear in this case that the admission was elicited in response to a question by the officer, and that subsequent admissions proceeded against the background of that acknowledgement of ownership.
18 I regard the considerations in this case as being finely balanced. However, in this case it seems to me that the admission of evidence obtained in this way, would not be "bought at a price which is unacceptable". Although the undercover officer was of course engaged in a deliberate subterfuge in representing himself to be a purchaser of drugs when he was not, the purpose of the subterfuge was not to overcome the respondent's earlier failure to answer questions in relation to the firearm offence. Nor, unlike Swaffield, was this a case in which the undercover officer decided to take advantage of his role in order to elicit admissions from the respondent. Rather, the respondent himself brought up the subject of the alleged offence, and, although there were one or two questions of a direct nature, the role played by the undercover officer for the greater part of the conversation appears to have been a deliberately neutral and non-committal one, rather than that of an investigator or cross-examiner.
19 It is therefore my conclusion that the evidence in this case was wrongly excluded. I will hear counsel in relation to the orders which should follow from these reasons.
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