Director of Public Prosecutions v Okwechime (No 2)
[2024] ACTSC 34
•1 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | DPP v Okwechime (No 2) |
| Citation: | [2024] ACTSC 34 |
| Hearing Dates: | 29-30 January and 1 February 2024 |
| Decision Date: | 21 February 2024 |
| Before: | Mossop J |
| Decision: | See [176]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, arrests, search, seizure and incidental powers – pre-trial application to exclude evidence – alleged breach of s 230 of the Crimes Act 1900 (ACT) – Acting Sergeant directed officers to take photographs of accused – whether there is statutory capacity to delegate the power under s 230 – definition of “take” in s 185 includes “requesting another person |
| to take” photographs – whether an Acting Sergeant is a | |
| “Sergeant” – police services provided to the Territory by the | |
| Australian Federal Police (AFP) – Territory references to “rank” | |
| are interpreted by reference to Commonwealth laws establishing | |
| the AFP – Australian Federal Police Act 1979 (Cth) picks up | |
| powers conferred by Territory laws and applies them to AFP | |
| officers – Territory laws apply to an acting appointee as if they | |
| hold the actual office | |
| CRIMINAL LAW – POLICE – Rights, powers and duties – pre-trial application to exclude evidence – scope of premises identified in search warrant – where police searched vehicle parked in car | |
| parking space allocated to unit the subject of the search warrant | |
| – whether a car parking space or storage shed associated with a | |
| unit falls within the “premises” described by reference to the unit | |
| number – consideration of Unit Titles Act 2001 (ACT) – a unit | |
| includes any unit subsidiary shown on the units plan as annexed | |
| to the unit – car parking spaces and storerooms capable of registration as unit subsidiaries – search of vehicle in car parking | |
| space permitted by the search warrant | |
| CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, arrests, search, seizure and incidental powers – pre-trial application to exclude evidence – alleged | |
| non-compliance with ss 23F, 23H and 23V of the Crimes Act 1914 | |
| (Cth) – where accused was a “protected suspect” – breach of | |
| s 23V not made out as questioning of accused captured on police | |
| body worn camera footage – breach of s 23F not made out as | |
| accused cautioned at beginning of questioning and periodically | |
| throughout execution of warrant – police failed to contact an | |
| Aboriginal legal assistance organisation and to offer accused an | |
| interview friend – established breach of s 23H CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, arrests, search, seizure and incidental | |
| powers – pre-trial application to exclude evidence – contravention | |
| of s 23H Crimes Act 1914 (Cth) – police failed to contact an | |
| Aboriginal legal assistance organisation or arrange an interview | |
| friend – accused helped police to locate items listed in search warrant – applicants failed to establish that compliance with s 23H would have meant police did not locate items – consideration of factors in s 138(3) Evidence Act 2011 (ACT) – desirability of | |
| admitting evidence outweighs undesirability of admitting evidence obtained in the way that it was | |
| Legislation Cited: | Acts Interpretation Act 1901 (Cth), ss 23, 33A, 33AB Australian Federal Police Act 1979 (Cth), ss 4(2), 9(1)(b) Crimes Act 1900 (ACT), ss 185, 210F, 226, 230, 230A Crimes Act 1914 (Cth), ss 3, 3C, 3E, 3LA, 23B, 23F, 23H, 23L, 23V, Pt 1AA, Pt 1C Criminal Code 2002 (ACT), s 312 Evidence Act 2011 (ACT), ss 137, 138, 142, 192A Legislation Act 2001 (ACT), s 220 Real Property (Unit Titles) Act 1970 (ACT), Sch 2 Unit Titles Act 2001 (ACT), ss 9, 10, 12, 12A, 19, 33(2) |
| Unit Titles Regulation 2001 (ACT), s 3 | |
| Cases Cited: | Employment Advocate v Williamson [2001] FCA 1164; 111 FCR 20 Heyward v Bishop [2015] ACTCA 58; 73 MVR 426 Kadir v The Queen [2020] HCA 1; 267 CLR 109 Martin v The Queen [2015] ACTCA 38 Parker v Comptroller-General of Customs [2007] NSWCA 348; 232 FLR 362 Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 R v Barklimore [2007] ACTSC 3;167 A Crim R 377 R v Coulstock (1998) 99 A Crim R 143 R v Grech [2017] NSWCCA 288 R v Hunt [2014] NTSC 19; 286 FLR 59 R v JF [2009] ACTSC 104; 237 FLR 142 R v Salcedo (No 2) [2018] ACTSC 104 R v UD (No 4) [2020] ACTSC 226; 284 A Crim R 536 R v Williams [2007] ACTSC 57 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Steen v The Queen [2020] SASCFC 60; 283 A Crim R 403 |
| Texts Cited: | D Mossop, The Constitution of the Australian Capital Territory (Federation Press, 2021) Explanatory Statement, Crimes Legislation Amendment Bill 2015 (ACT) International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) |
Parties: | Director of Public Prosecutions Emeka Okwechime (Accused) Bradley Flynn (Accused) |
| Representation: | Counsel |
| B Morrisroe (DPP) T Taylor (Mr Okwechime) | |
| E Wallis (Mr Flynn) | |
| Solicitors | |
| Director of Public Prosecutions Hugo Law Group (Mr Okwechime) Legal Aid (Mr Flynn) | |
File Number: | SCC 150 of 2023 SCC 214 of 2023 |
| SCC 215 of 2023 SCC 221 of 2023 | |
| MOSSOP J: |
1. Emeka Okwechime and Bradley Flynn are charged with the offences of aggravated
burglary, theft, and damage to property. The prosecution alleges the offending that
involved both of them was a burglary at the Southern Cross Club Jamison. The two
accused are listed to face trial by judge alone in August 2024.
2. On 18 April 2023, police executed a search warrant at Mr Okwechime’s residence in
Phillip, Australian Capital Territory (ACT) and seized a number of items. After the search
warrant had been executed, Mr Okwechime was placed under arrest for aggravated
burglary and transported to the ACT Watch House where police took photographs of him.
3. Mr Okwechime and Mr Flynn have each filed an application in proceeding seeking to
exclude evidence obtained during the course of, and subsequent to, the execution of the
search warrant. They seek rulings on the admissibility of evidence pursuant to s 192A of
the Evidence Act 2011 (ACT).
4. Mr Okwechime’s application seeks that all things said and done by Mr Okwechime and
his partner, KF, and all items seized during the execution of the search warrant, both
inside and outside of the premises the subject of the search warrant, be excluded.
Mr Okwechime also seeks that the identification material of him obtained at the ACT
Watch House be excluded. The application is made on the following grounds:
1. Questioning of the accused failed to comply with ss 23F, 23H and 23V of the Crimes Act 1914 (Cth).
2. The search warrant did not empower police to enter, search, and seize items from the basement carpark at 15 Bowes Street, Phillip ACT. Police entered, searched, and seized items from the basement carpark in contravention of section 195 of the Crimes Act 1900 (ACT).
3. The photographs are ‘identification material’ and were obtained while the accused
was in police custody, potentially in an impaired state, by a police officer below the
rank of Sergeant, and without obtaining the accused’s consent in writing. The
material was obtained in contravention of section 230(3) of the Crimes Act
1900 (ACT).4․ The undesirability of admitting evidence obtained in the ways above is not outweighed by the desirability of admitting the evidence.
5․ Admitting evidence of the admissions of the co-accused is also unfair to the accused
pursuant to section 90 of the Evidence Act 2011 (ACT).
Mr Flynn’s application seeks that the photographs of Mr Okwechime obtained at the ACT
Watch House be excluded, and further that evidence of all items seized during the search
warrant be excluded. The application is made on the following grounds:
1. The photographs of the co-accused being ‘identification material’ were obtained in
contravention of section 230 of the Crimes Act 1900 (ACT).
2. Police had no power under the issued search warrant for 15 Bowes Street on
18 April 2023 to obtain evidence from the co-accused’s vehicle. Evidence of items
seized from the vehicle was thus unlawfully obtained.
3. Police failed to comply with their legal obligations under ss 23F, 23H and 23V of the Crimes Act 1914 (Cth) during the questioning of the co-accused during the search warrant of 15 Bowes Street and therefore all evidence arising from that search was obtained in contravention of an Australian law.
4. The undesirability of admitting the evidence obtained in the ways above is not outweighed by the desirability of admitting the evidence in the case against the accused.
6. The applicants allege that the police officers failed to comply with ss 23F, 23H and 23V
of the Crimes Act 1914 (Cth) and s 230 of the Crimes Act 1900 (ACT). Section 23F
relates to the cautioning of persons who are under arrest or a “protected suspect”.
Section 23H contains provisions specifically targeted at police questioning of Aboriginal
persons and Torres Strait Islanders who are either under arrest or a “protected suspect”,
and also contains provisions concerning the presence of an “interview friend”.
Section 23V is a provision which generally excludes evidence of a confession or
admission by a suspect unless it is tape-recorded. Section 230 relates to the procedures
for obtaining “identification material” from an adult.
7. The respective burdens of proof in an application to exclude evidence under s 138 were
explained by French J in Parker v Comptroller-General of Customs [2009] HCA 7; 83
ALJR 494 at [28]:
The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two stage process. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained.
(Footnote omitted).
See also R v Coulstock (1998) 99 A Crim R 143 at 147; R v UD (No 4) [2020] ACTSC 226;
284 A Crim R 536 at [51].
8. The standard of proof is the balance of probabilities. This is determined by s 142 of the
Evidence Act, which provides:
142 Admissibility of evidence—standard of proof
(1) Except as otherwise provided by this Act, in a proceeding the court must find that the facts necessary for deciding—
(a)
a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or
(b) any other question arising under this Act;
have been proved if it is satisfied that they have been proved on the balance of
probabilities.
(2) In deciding whether it is satisfied, the matters that the court must take into account include—
(a) the importance of the evidence in the proceeding; and (b) the gravity of the matters alleged in relation to the question.
The prosecution case
9. The prosecution case is that early in the morning of Friday, 3 March 2023, two men
entered the Southern Cross Club as trespassers. It is alleged that the two men broke a
glass panel on the side entry door before crawling inside. Once inside the club, they
attempted to extract money from a Cash Redemption Terminal by hammering it and
attempting to pry it open using tools. They attempted to gain access to the cash drawers
within the machine. They were unable to gain access to those cash drawers so they
carried the top part of the machine, which contained the cash drawers, out to a ute that
they had arrived in before driving away. Unfortunately for the burglars, the machine only
contained various coins. However, the machine was so damaged that it was unrepairable
and cost $37,125 to replace.
10. The prosecution case is that the two men were Mr Okwechime and Mr Flynn. Both are
charged with aggravated burglary, damaging property and theft. Identification will be the
central issue at trial. The prosecution will contend at trial that Mr Okwechime was one of
the offenders, relying on:
(a) an association between him and Mr Flynn; (b) admissions made by Mr Okwechime that he has known Mr Flynn since they were young persons;
(c) the fact that each of them will be proved to be in the other’s company approximately 40 minutes after the offending;
(d) texts sent to each other within days of the offence; (e) tattoos on Mr Okwechime’s fingers, which are consistent with the tattoos on the fingers of the person captured on CCTV of the incident;
(f) distinctive items seized from the accused’s home and car which are consistent with items seen in the CCTV, including black “Harbinger” brand gloves and a
black and orange hammer;
(g) Mr Okwechime’s appearance on CCTV from his apartment complex shortly after the burglary, which is consistent with the appearance of the offender asserted
to be Mr Okwechime, in particular, his shape and build, his pants and shoes
with no socks; and
(h) the appearance of Mr Flynn on CCTV from Mr Okwechime’s apartment complex, which is consistent with the appearance of the other burglar in the
CCTV, in particular:
(i) black pants and black shoes with white socks and a white undershirt; (ii) a black hat with a reflective strip on the left side; and (iii) a white band on his left wrist.
11. For the purposes of the present application, the evidence most significant to the
prosecution case relating to identification is that concerning:
(a) the tattoos on Mr Okwechime’s fingers; and (b) the items seized during the search warrant, including clothing, gloves and the black and orange hammer.
12. Mr Flynn faces charges of aggravated burglary, damaging property and theft arising from
the events on 3 March 2023 as well as further charges relating to incidents on 2 and
8 March 2023 not alleged to have involved Mr Okwechime. In relation to the identification
of Mr Flynn at the Southern Cross Club, the prosecution relies upon:
(a) a comparison between the build and facial appearance of the person shown in the CCTV and Mr Flynn;
(b) an association between Mr Flynn and Mr Okwechime, including that they were in each other’s company approximately 40 minutes after the event and that they
were texting each other within days of the offence;
(c) coincidence reasoning in relation to the burglaries on the other dates; (d) tendency reasoning; (e) the similarity between a vehicle registered to Mr Flynn and the vehicle involved in the burglary;
(f) CCTV footage showing Mr Flynn returning to Mr Okwechime’s apartment 40 minutes after the burglary; and
(g) the similarity between the clothing and appearance of Mr Flynn captured on CCTV at Mr Okwechime’s apartment and the appearance of the person shown
in the CCTV of the burglary as described earlier.
The search warrant and its execution
13. The submissions of the accused were directed to the evidence obtained during the
execution of the search warrant and the photographic evidence obtained once
Mr Okwechime was arrested and taken to the ACT Watch House. The evidence of
significance derived from the search was the clothing found within the residential unit,
the hammer that was seized from a vehicle parked in the unit’s allocated car parking
space and an admission made by Mr Okwechime that the vehicle in which the hammer
was subsequently found was his. So far as the evidence obtained at the Watch House
was concerned, it is significant because it includes photographs of Mr Okwechime’s
tattooed hands which may be compared with the hands of one of the persons shown in
the CCTV footage of the burglary.
14. The following police officers were involved in the execution of the search warrant:
(a) Constable Madison Carey, the warrant holder; (b) Detective Sergeant Mark Battye, the team leader for police attending; (c) Constable Nathanael Holdsworth, the case officer for the burglaries; (d) Senior Constable Beau Tennant; (e) Constable Kristopher Richardson; (f) First Constable Andrew Bishop; (g) Constable Bryce Vidler; (h) Constable Benjamin Sims; (i) Constable Michael Dawes; and
(j) members of the police Tactical Response Team. 15. Acting Sergeant Paul Calatzis was the Watch House Sergeant who authorised the taking
of the photographs of Mr Okwechime.
16. The evidence establishes the following chronology of events before, during and after the
execution of the search warrant at Mr Okwechime’s unit.
17. At about 1:30pm on 17 April 2023, Constable Holdsworth delivered a briefing to police
about the search warrant obtained pursuant to s 3E of the Crimes Act 1914 (Cth), to be
executed at a unit in Phillip the next day. Constable Carey was assigned as the warrant
holder.
18. At about 6:00am on 18 April 2023, police arrived at the unit in Phillip. When the door was
not answered, the police Tactical Response Team broke into the unit, damaging the
door. Mr Okwechime and his partner, KF, were in the unit. At some point, Mr Okwechime
was placed in handcuffs.
19. At around 6:13am, Mr Okwechime and KF were searched by police in the hallway outside
the unit.
20. At 6:24am, Mr Okwechime and KF were directed back inside the unit by a police officer
wearing a camouflaged uniform and holding a long gun. They were told to take a seat
on the couch.
21. At 6:25am, KF asked the police officers whether they could loosen the handcuffs on
Mr Okwechime, as she was worried that they would break his hands. Detective
Sergeant Battye responded that they could “try and take those off”. The handcuffs were
removed from Mr Okwechime.
22. At 6:25am, the members of the Tactical Response Team left the unit.
23. At 6:28am, Constable Carey commenced the Record of Search Warrant (ROSW).
24. At 6:31am, Mr Okwechime was cautioned and asked to repeat back his understanding
of the caution. Constable Carey specified that the caution “applies to any other police
here that ask you any questions”. Constable Carey then began to outline
Mr Okwechime’s rights. Mr Okwechime stated that he identified as Aboriginal, and
Constable Carey informed him that the ROSW needed to be suspended while police
notified the Aboriginal Legal Service (ALS). She asked whether Mr Okwechime had a
specific legal representative, and Mr Okwechime identified Tom Taylor as his legal
representative. Mr Taylor does not work for an Aboriginal legal assistance organisation.
25. At 6:32am, the ROSW was suspended.
26. At 6:33am, Constable Carey’s body worn camera captured her opening a police
document to a page headed: “Annex B: Aboriginal or Torres Strait Islander”.
Constable Carey asked whether Mr Okwechime had a phone number for Mr Taylor.
Mr Okwechime’s phone was retrieved by police so he could provide the phone number
from his contacts.
27. At 6:35am, Constable Carey attempted to call Mr Taylor. She left a voicemail message.
28. At 6:36am, Constable Carey provided Mr Okwechime with a copy of the search warrant.
29. At 6:36am, Detective Sergeant Battye asked Mr Okwechime if there was “anyone else
you wanted to call because you can’t get a hold of him”? Constable Carey asked whether
Mr Okwechime would like to talk to someone from the ALS. Mr Okwechime did not
respond to the question about contacting ALS, but identified his mother as a person he
might want to call.
30. At 6:38am, Constable Carey attempted to call Mr Okwechime’s mother. She left a
voicemail message.
31. At no time did police attempt to call ALS.
32. At 6:38am, Detective Sergeant Battye informed Mr Okwechime that, at the moment, he
was not under arrest. He advised that police were executing a search warrant and that
Mr Okwechime had rights as a suspect of an offence. Detective Sergeant Battye asked
whether there was anyone else Mr Okwechime would like to call.
33. At 6:40am, Constable Carey attempted to call Mr Okwechime’s brother. She left a
voicemail message. Detective Sergeant Battye said, “No what we can do, I reckon,
everyone is probably still sleeping … we can ring them a bit later if you want? Like I said,
you’re not under arrest anyway. You probably want to stay here while we do the search
warrant.”
34. At 6:41am, the ROSW was resumed. Constable Carey continued to inform
Mr Okwechime of his rights. She asked whether Mr Okwechime was “happy for us not
to continue” to attempt to contact Mr Okwechime’s lawyer, friends or relatives and
Mr Okwechime said, “Yeah”. Constable Carey confirmed that Mr Okwechime could
request to communicate with those people at any time and that the request would be
facilitated.
35. At 6:45am, Constable Carey read out the script describing to Mr Okwechime his rights
as an occupier and his rights in relation to being searched and provided Mr Okwechime
with documents outlining those rights. Mr Okwechime said, “Might just go back to sleep
while you guys continue”. Constable Carey replied, “No, because we need to talk to you”.
36. At 6:46am, the ROSW was suspended to allow Mr Okwechime to read through the rights
documents provided to him.
37. At 6:49am, the ROSW was resumed. Constable Carey reminded Mr Okwechime of the
caution given earlier. Constable Carey asked Mr Okwechime if there were any items
identified on the search warrant that he would like to declare to police prior to the
commencement of the search. Mr Okwechime identified a series of clothing items and
provided them to police from his closet.
38. At 6:53am, a male officer requested the fob to the building from Constable Carey. She
is heard giving the male officer the fob.
39. At 6:57am, Constable Carey directed Mr Okwechime to return to the living room. She
questioned Mr Okwechime and KF about some phones found at the premises. At
7:00am, Constable Carey informed Detective Sergeant Battye that police had located
five phones in total.
40. At 7:01am, Detective Sergeant Battye asked Mr Okwechime whether there were any
tools or gloves in the house. Mr Okwechime identified locations in the premises where
tools were stored, and provided Constable Carey with a pair of gloves from his bedroom.
Mr Okwechime continued to identify items that fit the description of items listed on the
search warrant.
41. At 7:08am, Constable Carey confirmed that two of the phones were Mr Okwechime’s
and two other phones were his old phones. When asked who currently owns the two old
phones, Mr Okwechime said “No – no comment”. Constable Carey presented
Mr Okwechime with two s 3LA orders made under the Crimes Act 1914 (Cth) and
requested the passwords for the phones. At 7:21am, Constable Carey provided
Mr Okwechime with the s 3LA orders and suspended the ROSW to allow him to read
them.
42. At 7:22am, the ROSW was resumed. Mr Okwechime provided Constable Carey with the
password for one of the phones. He was unable to provide passwords in relation to the
other phones.
43. At 7:28am, Mr Okwechime’s mother called Constable Carey. At 7:29am, the ROSW was
suspended to allow Mr Okwechime to speak with his mother.
44. At 7:34am, police located drug material in the bathroom. Constable Carey and Detective
Sergeant Battye asked KF to come into the bedroom to assist with the blinds.
45. At 7:36am, after KF had assisted with the blinds, Constable Carey resumed the ROSW
and cautioned KF. Constable Carey questioned KF about the drug material found in the
bathroom. At 7:37am, Constable Carey ceased the questioning and the ROSW was
suspended.
46. At 7:38am, Constable Carey directed Mr Okwechime to the bedroom and resumed the
ROSW. Constable Carey questioned Mr Okwechime about the drug material found in
the bathroom. At 7:40am, the ROSW was suspended.
47. At 7:41am, the ROSW was resumed. Constable Carey cautioned Mr Okwechime and
asked him about the clothing items listed on the search warrant that he had located for
police. Mr Okwechime confirmed where each item was located.
48. At 7:50am, Constable Carey suspended the ROSW.
49. At 7:56am, the ROSW was resumed. Constable Carey asked Mr Okwechime about two
of the phones located by police and KF identified that they belonged to her. At 7:58am,
the ROSW was suspended.
50. At 7:59am, Constable Carey asked KF to unlock the two phones found by police which
she identified as belonging to her. KF passed one of the phones to Mr Okwechime to
unlock, and Constable Carey asked Mr Okwechime to provide the passcode.
Mr Okwechime told Constable Carey the passcode.
51. At 8:08am, the ROSW was resumed. Constable Carey asked Mr Okwechime about a
safe located by police.
52. At 8:15am, Constable Carey reminded Mr Okwechime of the caution. She stated that
“the caution that I provided to you earlier still stands”. Constable Carey then asked
Mr Okwechime about some cash found by police. The ROSW was suspended at 8:22am.
53. At 8:23am, Constable Holdsworth arrived at the unit.
54. At 8:26am, Constable Richardson had a conversation with Mr Okwechime and KF about
alcohol. This was an informal conversation about their respective alcoholic preferences.
55. At 8:29am, Constable Carey resumed the ROSW and reminded Mr Okwechime of the
caution provided earlier. Constable Carey asked Mr Okwechime questions about a
laptop and notebook found by police. The ROSW was suspended at 8:37am.
56. At 8:45am, the ROSW was resumed. Constable Carey introduced Mr Okwechime to
Constable Holdsworth and reminded Mr Okwechime of the caution provided to him
earlier. Constable Holdsworth began questioning Mr Okwechime and outlined the
allegation of offences said to be committed by Mr Okwechime. The ROSW was
suspended at 8:57am.
57. At 8:58am, Constable Carey brought some of the phones found by police to
Mr Okwechime and asked him to try to unlock them.
58. At 9:06am, Constables Holdsworth, Dawes, Carey, Tennant and Vidler had a discussion
about searching downstairs.
59. At 9:07am, Constable Carey asked KF and Mr Okwechime about the storage shed
downstairs and how to access the shed. Mr Okwechime led Constable Carey to a set of
keys on the bed in the bedroom, and handed them to her. Constable Carey provided the
keys to another officer. An officer asked Mr Okwechime questions about the location of
the storage shed downstairs.
60. At 9:08am, Constables Dawes and Vidler left the unit to search downstairs.
Constable Holdsworth asked Mr Okwechime his height.
61. At 9:11am, Constable Carey asked Mr Okwechime and KF questions about the cars
parked downstairs in the unit’s allocated car parking spaces. Constable Carey said,
“what, um, cars do you guys have parked downstairs”. KF responded, “Ford Focus and
a Nissan Navara”. Constable Carey then said, “Ok, so who, who owns those cars” and
KF and Mr Okwechime responded, but what they said was not captured by the audio on
the body worn camera footage. Constable Carey said, “Ok, I’ll just take down … it’s not,
um, going to get you into any trouble or anything like that”. Constable Carey then
recorded details relating to the two cars provided by KF and Mr Okwechime.
62. At 9:14am, Constables Vidler and Dawes searched the storage shed downstairs.
63. At 9:18am, Constables Carey and Richardson joked with Mr Okwechime and KF about
a bag on a scooter in the living room.
64. At 9:21am, Constables Dawes and Vidler re-entered the unit.
65. At 9:22am, Detective Sergeant Battye asked KF for the keys to her car.
66. At 9:24am, Detective Sergeant Battye and Constables Dawes and Vidler left the unit to
search the cars parked downstairs.
67. At 9:27am, Constables Dawes and Vidler began searching the Ford Focus.
68. At 9:29am, Detective Sergeant Battye re-entered the unit. He asked about the car key to
the Nissan and KF directed him to where it was located on the bed. Detective
Sergeant Battye said, “Do you want to come down while we search the car Emeka … up
to you mate”. Detective Sergeant Battye then asked Mr Okwechime about a key for a
toolbox behind the car, and Mr Okwechime provided him with the code to access the
toolbox. Detective Sergeant Battye exited the unit at 9:30am.
69. At 9:32am, Detective Sergeant Battye and Constables Vidler and Dawes began
searching the Nissan.
70. At 9:41am, Detective Sergeant Battye and Constables Vidler and Dawes re-entered the
unit with the hammer located in the Nissan.
71. At 9:42am, the ROSW was resumed. Constable Carey cautioned Mr Okwechime.
Constable Holdsworth asked Mr Okwechime questions about the hammer located in the
car and the CCTV footage of the offending. Mr Okwechime answered some of the
questions, but refused to answer all of them, instead saying, “No comment”.
72. At 9:45am, First Constable Bishop went through the property seized by police with
Mr Okwechime. Constable Carey asked Mr Okwechime if he could tell police anything
about each item as they were identified by First Constable Bishop, and Mr Okwechime
responded, “No comment” to each question.
73. At 9:54am, the ROSW was suspended. Constable Holdsworth placed Mr Okwechime
under arrest. Police departed from the unit shortly after.
74. At about 10:40am, Mr Okwechime was lodged at the ACT Watch House. He tested
positive for COVID-19.
75. At 1:40pm, Acting Sergeant Calatzis charged Mr Okwechime for the offence of
aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT). Acting
Sergeant Calatzis directed Constables Tennant and Holdsworth to take photographs of
Mr Okwechime and they did so. The photographs included pictures of his tattooed
fingers.
Overview of the positions adopted
76. In summary, both accused submitted that:
(a) There had been non-compliance with s 23F, which requires cautioning of persons under arrest and protected suspects.
(b) There was non-compliance with s 23H, said to arise from the fact that Mr Okwechime was a protected suspect and that an Aboriginal legal assistance
organisation was not notified, and that as an Aboriginal suspect he was not
offered an interview friend.
(c) There was non-compliance with the obligation under s 23V to record questioning because some of the audio quality of the recording was insufficient
to make out what was said.
(d) The taking of the photographs at the ACT Watch House was not authorised, pursuant to s 230 of the Crimes Act 1900 (ACT).
77. Counsel for Mr Flynn submitted that, even if there was not a contravention of s 23F in
relation to the cautioning of Mr Okwechime, there was an impropriety arising from the
fragmented nature of the questioning and the failure to adopt a consistent approach to
the repetition of the caution.
78. It was also contended by counsel for Mr Okwechime that:
(a) the warrant did not extend to a search of the car parking spaces and hence did not extend to the cars; and
(b) there was active misleading of Mr Okwechime and KF prior to them giving answers to questions about the cars in the basement.
79. In final submissions, the position adopted by the prosecution was to accept that
Mr Okwechime was a protected suspect as a result of falling within the definition of that
term in s 23B(2)(c)(iii), because the police had given Mr Okwechime reasonable grounds
for believing that he would not be allowed to leave if he wished to do so. Accepting that
to be the case, police had the obligation to notify the ALS and to allow him to have an
interview friend. Those obligations were not complied with. As a result, counsel for the
prosecution indicated that she would not seek to use, or rely upon, evidence of any
admissions made by Mr Okwechime during the course of the execution of the search
warrant on 18 April 2023. The only exception to that was a single question and answer
in which Mr Okwechime was asked his address and he gave the address of the unit.
That would be relied upon in order to establish that he was an occupant of those
premises. The prosecution would still seek to rely upon the fact that, as a result of the
execution of the search warrant, certain items were found at the premises. Counsel did
not concede that any other aspects of the conduct of police during the search would
justify the exclusion of evidence. She contended that there had not been any
contravention of the law by the taking of photographs at the Watch House, relying
specifically on the definition of “take” in s 185 of the Crimes Act 1900 (ACT).
Was Mr Okwechime under arrest or a “protected suspect”?
80. For the reasons that follow, the concession made by the prosecution in relation to the
status of Mr Okwechime as a “protected suspect” was an appropriate one.
Statutory provision
81. Central to the operation of ss 23F and 23H is the concept of a “protected suspect”. That
is because, even if Mr Okwechime was not under arrest, the obligations in ss 23F(1)
and 23H(1) would apply if the person is a “protected suspect”. Section 23B(2) defines a
protected suspect as follows:
(2) A person is a protected suspect if:
(a)
the person is in the company of an investigating official for the purpose of being questioned about a Commonwealth offence; and
(b) the person has not been arrested for the offence; and
(c) one or more of the following applies in relation to the person:
(i)
the official believes that there is sufficient evidence to establish that the person has committed the offence;
(ii)
the official would not allow the person to leave if the person wished to do so;
(iii)
the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so; and
(d) none of the following applies in relation to the person:
(i)
the official is performing functions in relation to persons or goods entering Australia, and the official does not believe that the person has committed a Commonwealth offence;
(ii)
the official is performing functions in relation to persons or goods leaving Australia, and the official does not believe that the person has committed a Commonwealth offence;
(iii)
the official is exercising a power under a law of the Commonwealth to detain and search the person;
(iv)
the official is exercising a power under a law of the Commonwealth to require the person to provide information or to answer questions; and
(e) the person has not ceased to be a suspect under subsection (4).
82. Subsections 23B(3)-(6) are relevant to the definition of a protected suspect, but are not
relevant in the circumstances of this case.
Submissions concerning s 23B(2)
83. Mr Okwechime and Mr Flynn submitted that Mr Okwechime was a “protected suspect”
because he fell within s 23B(2)(c)(iii). They submitted that the police had given him
reasonable grounds for believing that he would not be allowed to leave if he wished to
do so. In particular, the submissions pointed to:
(a) the forced entry into the premises involving the breaking of the door; (b) the fact that Tactical Response Team members in paramilitary uniforms carrying weapons were involved in the entry into the unit;
(c) the fact that those officers took custody of Mr Okwechime, searched him and handcuffed him before returning him to the unit;
(d) the fact that, when he was returned to the unit, he was led to sit down on the couch before having his handcuffs removed;
(e) the fact that, while he was told at one point that he was not under arrest, he was never told that he was free to leave the unit or that he was free to go somewhere
else in the unit and rest or sleep; and
(f) when he asked if he could go to sleep while the search was being performed, he was told, “No, because we need to talk to you”.
84. These circumstances were collectively said to give rise to reasonable grounds for a belief
on Mr Okwechime’s part that he would not be allowed to leave if he wished to.
Consideration and decision
85. So far as the requirements of s 23B(2) are concerned, the position is as follows:
Section 23B(2)(a)
86. Mr Okwechime was in the company of an investigating official. The investigating official
was Constable Carey, but there were also times when Detective Sergeant Battye was
present and asked him questions. Much later during the execution of the search warrant,
Constable Holdsworth asked questions of Mr Okwechime. I consider that the questions
were “about” the Commonwealth offence, even in circumstances where the questions
were directed to the conduct of the search and hence only indirectly relevant to the
offending. The prosecution did not submit that the questioning was not “about a
Commonwealth offence”.
Section 23B(2)(b)
87. Mr Okwechime had not been arrested for the offence and therefore this element is
satisfied.
Section 23B(2)(c)
88. Subparagraph (i) does not apply because I am not satisfied that either Constable Carey,
Detective Sergeant Battye or Constable Holdsworth held the relevant “belief” during the
questioning. The most obvious candidate for holding such a belief is
Constable Holdsworth. He gave evidence that he clearly suspected that Mr Okwechime
was involved in the offending, but that it was only immediately prior to the arrest that he
turned his mind to the ultimate question of whether he believed there was sufficient
evidence to establish that Mr Okwechime had committed the offence. He gave evidence
that he had not had time to process the information obtained during the search warrant
until shortly prior to making the arrest. I accept that evidence. I accept that there may be cases in which a court will find that an officer did hold such a belief, notwithstanding that
the officer denies it. One example is R v Hunt [2014] NTSC 19; 286 FLR 59 at [130]. I
do not accept the submission that it is permissible for the court to find that the officer
constructively held such a belief. Rather, the question is one of actual belief. It is,
however, possible for a court to reject an officer’s denial of holding such a belief if the
circumstances warrant it. I accept that the formulation of subpara (i) is such that there is
an incentive for police officers to defer full consideration of whether or not there is
sufficient evidence to establish that a person has committed the offence. However, in the
context of the execution of a search warrant, it is not unreasonable for an officer to defer
consideration of that issue until the outcome of the search is known. That is what
Constable Holdsworth did in the present case.
89. In relation to subpara (ii), no officer gave evidence that he or she would not allow
Mr Okwechime to leave if he wished to. However, I consider that the police had given
Mr Okwechime reasonable grounds for believing that he would not be allowed to leave
if he wished to do so, thus enlivening subpara (iii). Having regard to s 23 of the Acts
Interpretation Act 1901 (Cth), the reference to an investigating official can be read in both
the singular and plural form. Having regard to the structure of s 23B(2), the official or
officials who have given the person reasonable grounds for the belief they are not free
to leave must be the same official or officials as those whom the person is in the company
of. At different times, Mr Okwechime was in the company of Constable Carey, Detective
Sergeant Battye and Constable Holdsworth for the purposes of being questioned about
a Commonwealth offence. While not all of the factors relied upon by the applicants to
establish that reasonable grounds had been given arose because of the conduct of each
of those officers, whether or not subpara (iii) is satisfied must be assessed in light of the
whole of the circumstances, including what had occurred prior to the point at which the
investigating official came into the company of the accused for the purposes of
questioning.
90. I consider that the circumstances were such that Mr Okwechime had reasonable grounds
for believing that he would not be allowed to leave if he wished to do so and that, to the
extent to which those grounds arose from other police who were not questioning
Mr Okwechime, the questioning police were aware of those circumstances and did not
take steps to remove that impression. That is essentially because of the various factors
relied upon by the applicants set out above. The bare list of circumstances does not fully
capture the combined effect of the circumstances that existed. Those are usefully
demonstrated by the body worn camera footage, which shows that the police, for
understandable operational reasons, had attended the unit in overwhelming force. Even
after the Tactical Response Team departed, there were a significant number of police in a relatively small unit. At all times, a number of police were standing around in the kitchen
or the living room while Mr Okwechime and KF were seated on the couch.
91. What the accused was told by Constable Carey, Detective Sergeant Battye and
Constable Holdsworth was not explicit enough to indicate to him that, notwithstanding all
of the circumstances outlined earlier, he was nevertheless free to leave. It would have
been easy for the police to make that clear. Detective Sergeant Battye did refer to
Mr Okwechime not being under arrest, but did not do enough to effectively convey to him
that he had that freedom. When Mr Okwechime asked if he could go to sleep, Constable
Carey’s reply was directly contrary to him having that freedom. Overall, the
circumstances were such that the threshold in s 23B(2)(c)(iii) was satisfied.
Section 23B(2)(d)
92. None of the four different circumstances in this paragraph apply.
Section 23B(2)(e)
93. This paragraph relates to voluntary participation in covert investigations and has no
application in the circumstances of this case.
94. As a consequence, Mr Okwechime was a protected suspect within the meaning of
s 23B(2). It follows that the cautioning obligation in s 23F applied. Similarly, the
obligations in s 23H(1) also applied.
Alleged breach of s 23F
Statutory provision
95. Section 23F provides:
23F Cautioning persons who are under arrest or protected suspects
(1) Subject to subsection (3), if a person is under arrest or a protected suspect, 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.
(2) The investigating official must inform the person of the caution in accordance with subsection (1), but need only do so in writing if that is the most appropriate means of informing the person.
(3)
Subsections (1) and (2) do not apply so far as another law of the Commonwealth requires the person to answer questions put by, or do things required by, the investigating official.
Submissions concerning s 23F
96. Counsel for Mr Okwechime submitted that the police officers had a continued obligation
to caution Mr Okwechime at the beginning of each individual digital recording. He also
submitted that each of the police officers were subject to the same obligation when they questioned the accused in circumstances where that questioning was not audio
recorded, even though it might be recorded on a body worn camera or in a police officer’s
notebook. This is said, in particular, to have applied to the questioning of Mr Okwechime
by Constable Carey about the vehicle located in the basement car park and the
questioning by Constable Holdsworth about Mr Okwechime’s height. In support of those
submissions, counsel relied upon the decision in R v Barklimore [2007] ACTSC 3; 167
A Crim R 377. For these reasons, the ultimate submission was that s 23F had not been
complied with in relation to the questioning.
Consideration and decision
Barklimore was a case in which there was a preliminary interview which was not
tape-recorded, followed by a recorded interview. The evidence of the subsequent
recorded interview was ruled inadmissible. The preliminary interview was undertaken by
the police officer to assist her to conduct a formal recorded interview more efficiently by
knowing, in general terms, what the accused would say. The decision in Barklimore does
not provide support for the proposition that Mr Okwechime should have been cautioned
on multiple different occasions whenever he was spoken to by police during the course
of the search. The caution that he received at the beginning of the search was:
… Emeka, I must caution you, you do not have to say or do anything, but anything you do
say or do may be used in evidence. Do you understand that caution?
98. Constable Carey also indicated that the caution would apply both in relation to questions
from herself and from other police officers. I consider that this was sufficient to make
Mr Okwechime aware of his entitlement to say nothing. He subsequently exercised that
right. I do not consider that the occasions when recordings were made were so separate
as to require a further caution notwithstanding the earlier statement by Constable Carey
that the caution would apply to questions asked by other police officers.
99. In summary, although s 23F applied to Mr Okwechime because he was a protected
suspect, the obligation to provide a caution was not breached.
Impropriety arising from administration of cautions
100. Counsel for Mr Flynn made the submission that, even if there was no breach of s 23F,
there was an impropriety arising from the manner in which the cautions were
administered. She drew attention to the fact that cautions were not uniformly given at the
commencement of each period of questioning. She submitted that, by creating this
distinction between occasions on which questioning occurred after a caution and
occasions when questioning occurred when a caution had not been administered, the
questioning involved an impropriety because of the potential that, unless a caution was administered immediately prior to the particular set of questions, a person being
questioned may not be aware that any answers he gave may be used against him.
101. Consistent with the form of words set out in the AFP operational resource document titled
“Search Warrant Execution – Long Guide”, the caution initially given to Mr Okwechime
was in general terms and also expressly stated to apply to questions asked by other
police officers. The form of words used was:
Q 10. Okay. All right. So I’m gonna caution you. So as I’m going to be asking some questions in relation to the offence listed within the warrant that I’ll give you a copy of soon – but before I do, I’m going to give you the formal caution and provide you with your rights as well. So, Emeka, I must caution you, you do not have to say or do anything, but anything you do say or do may be used in evidence. Do you understand that caution? A OKWECHIME : Yes. Q 11. Okay. Can you tell me in your own words what that caution means to you? A OKWECHIME: I don’t have to say or do anything. If I do, can be used against me in court. Q 12. Great. Okay. So just for your awareness as well, that caution also applies to any
other police here that ask you any questions. Okay?A OKWECHIME: Yeah.
102. Any other questioning took place in the context of the execution of the search warrant.
On some occasions, such as when there was questioning about the vehicles in the car
parking area, there was no additional caution given, but on other occasions when there
was further questioning, a caution was given.
103. I am not satisfied that the conduct of police amounted to an impropriety. While I accept,
as a matter of theory, that there may be a pattern of inconsistent formal and informal
questioning which is such as to undermine the significance of the caution given in relation
to the formal questioning, that situation did not arise here. I do not consider that the
differing approaches taken to cautioning before questioning on some occasions during
the execution of the search warrant gave rise to an inconsistency which would undermine
or detract from the very clear caution given at the commencement of the search. That
caution applied both to questions by Constable Carey and by other police officers.
Alleged breach of s 23H
Statutory provision
104. Section 23H of the Crimes Act 1914 (Cth) provides:
23H Aboriginal persons and Torres Strait Islanders
(1) Subject to section 23L, if the investigating official in charge of investigating a Commonwealth offence believes on reasonable grounds that a person who is under arrest, or who is a protected suspect, and whom it is intended to question about the offence is an Aboriginal person or a Torres Strait Islander, then, unless the official is aware that the person has arranged for a legal practitioner to be present during the questioning, the official must, before starting to question the person:
(a)
inform the person that a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located will be notified that the person is under arrest or is a protected suspect (as the case requires); and
(b)
notify such a representative that the person is under arrest or is a protected suspect (as the case requires).
(1A) To avoid doubt, the obligations imposed by subsection (1) do not limit and are not limited by any other obligations imposed, or rights conferred, by this section. (1AB) If a representative of an Aboriginal legal assistance organisation is notified under subsection (1), the investigating official must not question the person until the earlier of the following times:
(a) the representative has communicated with the person;
(b) 2 hours have elapsed since the representative was notified.
(2) Subject to subsection (7) and section 23L, if an investigating official:
(a)
interviews a person as a suspect (whether under arrest or not) for a Commonwealth offence, and believes on reasonable grounds that the person is an Aboriginal person or a Torres Strait Islander; or
(b)
believes on reasonable grounds that a person who is under arrest or a protected suspect is an Aboriginal person or a Torres Strait Islander;
the official must not question the person unless:
(c)
an interview friend is present while the person is being questioned and, before the start of the questioning, the official has allowed the person to communicate with the interview friend in circumstances in which, as far as practicable, the communication will not be overheard; or
(d)
the person has expressly and voluntarily waived his or her right to have such a person present.
(2A) The person suspected, or under arrest, may choose his or her own interview
friend unless:(a) he or she expressly and voluntarily waives this right; or (b) he or she fails to exercise this right within a reasonable period; or
(c) the interview friend chosen does not arrive within 2 hours of the person’s
first opportunity to contact an interview friend.
(2B)
If an interview friend is not chosen under subsection (2A), the investigating official must choose a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located to be the
person’s interview friend. (3) An interview friend may be excluded from the questioning if he or she
unreasonably interferes with it.(4)
In any proceedings, the burden lies on the prosecution to prove that an Aboriginal person or Torres Strait Islander has waived the right referred to in subsection (2) or (2A), and the burden is not discharged unless the court is satisfied that the person voluntarily waived that right, and did so with full knowledge and understanding of what he or she was doing.
(5)
In any proceedings, the burden lies on the prosecution to prove that, at the relevant time, a person who is under arrest or a protected suspect had, to the knowledge of the investigating official concerned, made an arrangement of the kind referred to in subsection (1).
(6)
The rights conferred by this section are in addition to those conferred by section 23G but, to the extent (if any) that compliance with this section results in compliance with section 23G, the requirements of section 23G are satisfied.
(7) If the person is under 18, subsection (2) does not apply and section 23K
applies.(8)
An investigating official is not required to comply with subsection (1), (2) or (2B) in respect of a person if the official believes on reasonable grounds that,
having regard to the person’s level of education and understanding, the person is not at a disadvantage in respect of the questioning referred to in that subsection in comparison with members of the Australian community generally.
(9) In this section: interview friend, in relation to a person to whom subsection (2) applies,
means:(a) a relative or other person chosen by the person; or (b) a legal practitioner acting for the person; or
(c)
a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located.
105. Section 3 of the Act defines an “Aboriginal person” as “a person of the Aboriginal race of
Australia”.
106. The section contains two separate regimes. The first is that principally contained within
subs (1)-(1AB), relating to the notification of Aboriginal legal assistance organisations.
That regime applies where the person is under arrest or a protected suspect. The second
is that principally contained within subs (2)-(4), and (9), which relate to the presence of
an “interview friend”. The second regime applies when an investigating official interviews
a person “as a suspect” and hence does not require any enquiry as to whether the person
was under arrest or a “protected suspect”. An important exception to the obligations
contained in these two regimes is that provided by subs (8). The exception is applicable
in a significant number of cases, but does require a foundation to be laid for its
application, either as a result of prior knowledge of the individual or through the
questioning of the individual in order to provide reasonable grounds for the opinion.
Submissions concerning s 23H
107. Counsel submitted that police failed to comply with s 23H because they did not:
(a) inform Mr Okwechime that a representative of an Aboriginal legal assistance organisation would be notified that he was under arrest or was a protected
suspect; or
(b) notify such a representative that Mr Okwechime was either under arrest or was a protected suspect; or
(c) ensure that Mr Okwechime understood his rights in relation to the presence of an interview friend before questioning was commenced; or
(d) ensure questioning did not proceed without Mr Okwechime selecting an interview friend to be present or voluntarily and freely waiving that right.
Consideration and decision
108. During the initial questioning by Constable Carey, Mr Okwechime said that he was “part
Aboriginal”. Apart from the answers given during the course of the interview with
Constable Carey, there was no evidence that Mr Okwechime was “a person of the
Aboriginal race of Australia” within the meaning of s 3 of the Crimes Act 1914 (Cth).
However, no point was taken about that issue and the prosecution accepted for the
purposes of this application that Mr Okwechime fell within the scope of that definition.
That was consistent with the approach adopted in the AFP guide relating to search
warrant execution, which was based upon whether or not the person identified as an
Aboriginal or Torres Strait Islander, rather than upon any other enquiry.
109. Following Mr Okwechime’s indication that he was Aboriginal, Constable Carey did not
attempt to contact an Aboriginal legal assistance organisation. She noted on the AFP
guide the name Tom Taylor, the solicitor who Mr Okwechime asked the police to contact.
However, having left a message for Mr Taylor, she did not do anything to contact an
Aboriginal legal assistance organisation or arrange an interview friend. The AFP guide
provided, after the question as to whether or not the person identified as an Aboriginal
or Torres Strait Islander:
(Note: must notify an Aboriginal legal assistance organisation before questioning commences; must allow arrested/protected person to communicate with Aboriginal legal assistance organisation; arrange interview friend or Aboriginal legal assistance representative; unless an exemption applies under 23(L) or it is reasonable to waiver by request of ATSI person and it is established they would not be disadvantaged by this 23(H)(8))
110. Those obligations are expanded upon in “Annex B” to the guide, which describes the
legal obligations arising as a result of the provisions of Pt 1C relating to Aboriginal
persons or Torres Strait Islanders. This includes forms of words to be said both in relation
to the notification of an Aboriginal legal assistance organisation and in order to address
whether or not the suspect wishes to have an interview friend present. It also addresses
the exception in s 23H(8), including suggestions as to questions that might be asked
about the suspect’s level of education, when they finished school and what, if any,
training they have had since.
111. There was no questioning of Mr Okwechime about his level of education or
understanding for the purposes of s 23H(8).
112. Section 23L provides exceptions from the obligations in specified exceptional or urgent
circumstances which are not relevant to the present case. Section 23H(8) is the provision
which requires reasonable grounds for a belief that, as a result of the person’s level of
education and understanding, the person would not be disadvantaged in respect of
questioning in comparison to members of the Australian community generally.
113. The explanations given by Constable Carey and Detective Sergeant Battye in relation to
these issues were as follows.
114. Constable Carey gave evidence that there was no requirement to notify ALS because
Mr Okwechime was not under arrest or a “protected suspect”. In cross-examination, it
became clear that Constable Carey did not have a complete understanding of who fell
within the definition of a “protected suspect”. Constable Carey conceded that she did not
offer Mr Okewchime an interview friend, but noted that she:
… offered him many opportunities to notify friends and family and a legal practitioner of where
he is and what was happening. I think he had ample opportunity to have someone to speak
with, as well as have his partner [KF] there for support in answering any questions.115. Detective Sergeant Battye gave evidence that he had considered the issue of whether
Mr Okwechime was a protected suspect and determined that he was not. Detective
Sergeant Battye said this was because he was not under arrest, police did not give him
any basis for thinking that he was under arrest, and police did not hold the requisite belief
“that there was evidence to suggest he committed the offence”. Detective Sergeant
Battye could not recall any discussions about whether Mr Okwechime was free to leave.
116. In cross-examination, Detective Sergeant Battye demonstrated a complete
understanding of who fell within the definition of a protected suspect. He maintained that,
in the circumstances, Mr Okwechime did not fall within this definition.
117. In relation to the provision of an interview friend, Detective Sergeant Battye said that
police went out of their way to accommodate everything Mr Okwechime wanted at all
times, and noted that his partner, KF, was present. When asked about whether police
would furnish a request for an interview friend, he said that he would have provided
Mr Okwechime with an “additional person” if requested, but emphasised that
Mr Okwechime was neither under arrest nor a protected suspect.
118. In summary, the position is as follows:
(a) Police left a message for Mr Okwechime’s nominated lawyer but did not talk to him.
(b) Police were not aware that Mr Okwechime had arranged for a legal practitioner to be present during the questioning, as there was no such arrangement.
(c) Police did inform Mr Okwechime that “we’ve got to notify ALS”, but said nothing more about their obligation.
(d) Police did not, in fact, notify a representative of an Aboriginal legal assistance organisation.
(e) Police did not refrain from questioning the accused until either a representative from an Aboriginal legal assistance organisation had talked with Mr Okwechime
or two hours had elapsed since the representative was notified: s 23H(1AB).
119. The failure to inform Mr Okwechime that a representative would be notified, to inform an
Aboriginal legal assistance organisation, and the questioning of him in circumstances
where those obligations had not been complied with involved a breach of s 23H of the
Crimes Act. As indicated earlier, counsel for the prosecution said that she would not seek
to lead evidence of things said by Mr Okwechime during the execution of the search
warrant.
Alleged breach of s 23V
Statutory provision
120. Section 23V of the Crimes Act 1914 (Cth) provides:
23V Tape recording of confessions and admissions
(1)
If a person who is being questioned as a suspect (whether under arrest or not) 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:
(a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission—the
questioning of the person and anything said by the person during thatquestioning was tape recorded; or
…
…
(5)
A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, 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.
(6)
A court may admit evidence to which this section applies even if a provision of subsection (2) has not been complied with if, having regard to the reasons for the non-compliance and any other relevant matters, the court is satisfied that it was not practicable to comply with that provision.
(6A) To avoid doubt, subsection (6) does not limit subsection (5). (7)
If a judge permits evidence to be given before a jury under subsection (5) or (6), the judge must inform the jury of the non-compliance with the requirements of this section, or of the absence of sufficient evidence of compliance with those requirements, and give the jury such warning about the evidence as he or she thinks appropriate in the circumstances.
Submissions concerning s 23V
121. Counsel for Mr Okwechime submitted that the questioning by police officers about the
vehicle in the basement car park and the location of its keys was either not the subject
of audio recording or was recorded in a manner which was indecipherable.
122. He submitted that there was no practical reason why Constable Richardson or any other
officer could not have recorded the conversations, as each was equipped with a body
worn camera. He made reference to the decisions in Steen v The Queen [2020] SASCFC
60; 283 A Crim R 403, R v JF [2009] ACTSC 104, and R v Salcedo (No 2) [2018] ACTSC
104.
Consideration and decision
123. Having regard to the fact that the prosecution does not intend to adduce evidence of
what Mr Okwechime said in relation to the Nissan or its keys, it is not necessary to
determine the merits of these submissions. Given the use of the body worn camera, it
may be that the basis for exclusion would not have been non-compliance with s 23V, but
rather s 137 of the Evidence Act, if it was the case that the quality of the recording was
poor enough to create uncertainty as to the content of any admission or the context in
which it was made.
Was there active misleading about the search of the cars?
124. Counsel for Mr Okwechime made the submission that Constable Carey had engaged in
actively misleading conduct by assuring Mr Okwechime and KF that “it’s not going to get you into any trouble”, in relation to the search of their vehicles prior to questioning them
further about the vehicles. That was said to be misleading because they self-evidently
did have something “to worry about” because the police intended to search the vehicles
and use any incriminating evidence found during the search against them.
125. If such a false statement was made and the police officer ought reasonably to have
known that the statement was false and that the making of the false statement was likely
to cause Mr Okwechime to make an admission, then it would amount to an impropriety
pursuant to s 138(2)(b). It may also amount to an impropriety in a broader range of
circumstances than those specifically described in s 138(2)(b), however, having regard
to the conclusion reached below, it is not necessary to explore that issue further.
126. This submission relates to what was said at 9:11am (see [61] above) when
Constable Carey can be heard on body worn camera footage saying the words: “it’s not,
um, going to get you into any trouble or anything like that”. Constable Carey was asked
about this exchange in cross-examination as follows:
What did you mean by that, 'not going to get into any trouble'?---I think it was just more asking around who the cars were registered to, who was using them. It didn't attribute to any guilt, from my understanding of anything.
127. There was no challenge to this answer. As pointed out at [61] above, the audio does not
capture what statement was made by KF or Mr Okwechime that Constable Carey was
responding to.
128. In those circumstances, I am not satisfied on the balance of probabilities that the words
said by Constable Carey were misleading. In particular, I am not satisfied on the balance
of probabilities that:
(a) the words were such, or said in such a context, that they would give the impression that a police search of the vehicles would not get KF or
Mr Okwechime into any trouble; and
(b) KF or Mr Okwechime believed that when answering police questions about the vehicles, they would not get into any trouble as a result of the search or items
found by police during any search.
129. As a consequence, I am not satisfied that there was any impropriety on the part of
Constable Carey in relation to the words that she said that would trigger the operation of
s 138.
Was the car park part of the “premises” covered by the warrant?
Submissions about the search of the vehicle
130. Counsel for Mr Okwechime submitted that, as the warrant referred to “the premises
located at … Unit 2104 of 15 Bowes Street, Phillip, in the Australian Capital Territory
(ACT)”, that description only authorised a search of the residential unit itself and not any
associated car parking space or storage shed. Further, he submitted that
Mr Okwechime’s provision of the keys to a motor vehicle was not sufficient to indicate
that he had consented to a search of that motor vehicle. He submitted that any apparent
consent was induced by a belief engendered by police that they otherwise had lawful
authority to search the vehicle pursuant to the search warrant. In support of that
submission, he referred to the decisions in R v Williams [2007] ACTSC 57 and Parker v
Comptroller-General of Customs [2007] NSWCA 348; 232 FLR 362 at [56].
131. A further submission was made that there was no authority to use the car keys that were
located within the unit to open the vehicles. That was because the keys themselves were
not listed in the first condition of the search warrant. The contention was that there was
no authority to use items found on the premises to gain access to other items on the
premises. The submission had the consequence that, if there was a locked jewellery box
the contents of which police sought to examine, they would not be entitled to use a key
found next to the box to open it.
132. Counsel for the prosecution submitted that the warrant authorised such conduct because
the first condition in the warrant, after listing the items for which searches were to be
made, included the phrase: “Together with any manual, instruction, password or other
thing that assists to gain access to or interpret or decode any of the above things”. The
submission was that a key was an “other thing that assists to gain access to” one of the
items listed in the first condition, namely, a “[h]ammer with black and orange handle”,
which had been found in one of the motor vehicles searched by police.
Consideration and decision
133. Ultimately, in their final submissions, counsel for each accused did not press the
submission that the search warrant did not authorise using the keys to open the vehicle.
They appeared to accept that the use of keys found in the unit to open a vehicle would
fall within the scope of a search permitted by the warrant. It is therefore not necessary to
address the prosecution contention relating to the wording of the search warrant.
134. The issue that needs to be decided is whether the allocated car parking space is within
the scope of the description of the premises set out in the warrant. The search warrant
identified the premises as being “Unit 2104 of 15 Bowes Street, Phillip, in the Australian Capital Territory (ACT)”. While executing the search warrant, police gained access to
and searched a vehicle located in a car parking space numbered “2104” in the basement
car park of the apartment complex. Police located and seized an item from the car, which
is described in the property seizure record as a “Hammer black and orange handle”. That
is significant so far as the prosecution case is concerned, because the black and orange
hammer was of an appearance consistent with the hammer seen in the CCTV footage
of the burglary.
135. Section 3E(1) of the Crimes Act 1914 (Cth) empowers an issuing officer to issue a
warrant to search “premises” in the circumstances set out in that section. Section 3C
defines “premises” as including “a place and a conveyance” for the purposes of Pt 1AA,
within which s 3E is located. Section 3 includes further definitions that apply to the whole
of the Act, and relevantly defines a “conveyance” as including “an aircraft, vehicle or
vessel”.
136. However, these definitions are directed to the kinds of places that are capable of being
regarded as “premises” for the purposes of a s 3E search warrant. The definitions are
not directed to what is included within the scope of the premises actually stated on the
search warrant (here, the address in Phillip).
137. No submission was put that the reference to a conveyance as an extension of the
concept of “premises” had the effect of excluding conveyances from the scope of what
might be searchable “premises”. In other words, no submission was put that where a
conveyance is to be searched, that can only be done where there is a specific warrant
to search that conveyance. It appeared to be accepted that where a conveyance was on
the premises identified in a search warrant, then it could be searched: see, for example,
Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 402.
138. So far as the searching of the vehicles in the car park of the building is concerned, the
position appears to be as follows. The two vehicles were in car parking spaces which
bore the same number as the unit. There was also a storage shed behind one of the car
parking spaces which bore the same unit number. A storage box was also searched.
The evidence is unclear as to the storage box’s precise location, but such evidence as
there was indicated that it was somewhere between the storage shed and the vehicles,
most likely within part of the allocated car parking space. It is really only the car parking
spaces which are of significance, because it was within one of the cars parked in the car
parking spaces (the Nissan Navara) that the black and orange hammer was found.
139. The submission made on behalf of Mr Okwechime was that the description of the
premises in the warrant as “Unit 2104 of 15 Bowes Street, Phillip, in the Australian Capital
Territory (ACT)” did not include the car parking spaces allocated to that unit.
140. The units plan for the apartment complex was not put into evidence. However, I take
judicial notice of the fact that in multi-storey apartment buildings in the Territory, it is
routine for there to be allocated car parking spaces for a particular residential unit, which
are identified in the units plan. The legal consequences of the identification of allocated
car parking spaces are set out in the Unit Titles Act 2001 (ACT). It is that Act which
provides for strata title subdivision in the Territory. Sections 9, 10, 12 and 12A of the Act
provide:
9 Units
(1) A unit is a part of a parcel shown in a unit title application or a units plan as a
unit.(2) After a units plan is registered, a unit of the units plan includes any unit subsidiary shown on the units plan as annexed to the unit.
10 Class A units
(1) A class A unit is a unit that is identified as a class A unit— (a) before a units plan is registered—in the relevant unit title application; or (b) after the relevant units plan is registered—in the units plan. (2) After a units plan is registered, a class A unit of the units plan includes any unit
subsidiary shown on the units plan as annexed to the unit.
Note A unit title application must show a class A unit as part of a building bounded
by reference to floors, walls and ceilings (see s 18).
12 Unit subsidiaries
A unit subsidiary is a part of a parcel identified as a unit subsidiary annexed
to a unit—
(a) before a units plan is registered—in the relevant unit title application; or
(b) after the relevant units plan is registered—in the units plan.
Note A unit title application must show a unit subsidiary as a building (or part of a building) of a kind prescribed by regulation, or as a building (or part of a building) or land suitable for a purpose prescribed by regulation (see s 19 and Unit Titles Regulation 2001, s 3).
12A Meaning of annexed A unit subsidiary or an easement that is stated by this Act to be annexed to a unit, common property or an estate in leasehold is taken to be appurtenant to the unit, common property or estate.
Note Property in a unit subsidiary or easement that is, at law, ‘appurtenant’ to a unit, common property or a leasehold estate is transferred with that estate
when the unit, common property or lease is transferred.
141. The significant points for present purposes are that:
(a) Pursuant to s 9(2), a unit registered on the units plan includes any unit subsidiary shown on the units plan as “annexed” to the unit.
(b) Where, as here, the unit is a “class A unit”, s 10(2) provides that the unit includes any unit subsidiary shown on the units plan.
(c) A “unit subsidiary” is part of the parcel identified as such in the units plan: s 12. (d) A unit subsidiary is taken to be appurtenant to the unit and hence transferred when the unit is transferred: s 12A.
142. The use of the word “appurtenant” needs some explanation. At common law, it is used
to describe an incorporeal hereditament (a non-tangible right which may be inherited),
which is annexed to land by an express deed of grant or by prescription. An example is
a right of way. However, the use of the word in s 12A is not intended to refer to such
incorporeal rights, but rather to an area of the unit which is attached but subsidiary to the
main area of the unit. Having regard to the terms of ss 9 and 10, it is not clear why s 12A
was necessary in addition to ss 9(2) and 10(2). It is possible that the definition is a
redundant hangover from Sch 2 of the Real Property (Unit Titles) Act 1970 (ACT),
however, any such conclusion would require a careful examination of the legislative
history, something not necessary to engage in for present purposes.
143. The things which are capable of becoming part of the parcel of land as unit subsidiaries
are defined by regulation: s 19 of the Unit Titles Act and s 3 of the Unit Titles Regulation
2001 (ACT) include a “garage or carport”, “storeroom” or part of the relevant parcel that
is suitable for “a car space or parking area”.
144. The effect of registration of the units plan is that a lease is granted for each unit in the
units plan: Unit Titles Act s 33(2). By reason of the above-mentioned provisions, that
means that the lessee of the unit has a lease which includes any unit subsidiary. Thus,
if a car parking area or storage area is identified as a unit subsidiary, it is held as part of
the lease of the relevant unit.
145. In those circumstances, when the unit is identified in the search warrant, the “premises”
identified include both the residential part of the unit as well as the parking and storage
areas if those are identified as unit subsidiaries on the units plan. Because of the
prevalence of unit developments with allocated car parking spaces, having regard to the
evidence that the car parking spaces and storage units were identified by reference to
the unit number, I am prepared to infer that these areas were unit subsidiaries identified
in the units plan, even though that document was not in evidence. Put more correctly, in
the context of an application brought by the two accused, I am not satisfied on the
balance of probabilities that the car parking spaces are not identified as part of the unit
on the units plan. In those circumstances, a reference to the premises by reference to a
particular unit number is sufficient to identify all parts of those premises, including the subsidiary areas that are statutorily included as part of those premises. That means that
the warrant covered the car parking space labelled “2104” and hence the search of the
vehicle did not amount to a trespass and thereby a contravention of an Australian law.
Alleged contravention of s 230
Statutory provision
146. As at the date the identification material was obtained, s 230 of the Crimes Act 1900
(ACT) provided:
230 Identification material—person at least 18 years old
…
(3) A police officer may take identification material from a person who is at least 18 years old and in police custody for an offence only if—
(a)
the officer is an officer of or above the rank of sergeant, or is the officer in charge of a police station at which the person is in custody; and
(b) any of the following apply:
(i) if the person is not in an impaired state—the person consents, in
writing, to the material being taken;
(ii) the material is limited to a print of the person’s fingers or a
photograph of the person (or both);
(iii) either—
(A) the officer believes on reasonable grounds that taking the material is necessary to identify the person, or identify the person as having committed the offence for which the person is in police custody; or
(B)
the officer suspects on reasonable grounds that the person has committed another offence and that the material is likely to identify the person as having committed the other offence.
…
Submissions concerning s 230
147. Counsel for Mr Okwechime submitted that the photographs taken of him at the ACT
Watch House were taken contrary to s 230(3) because:
(a) first, the officers that took the photographs were not at or above the rank of Sergeant nor the officer in charge of the police station;
(b) second, there was no statutory capacity to delegate the power given under s 230 to a more junior officer;
(c) third, the applicant was “arguably in an impaired state” and, if he was, could not have consented to the taking of the photographs;
(d) fourth, the applicant’s consent was not obtained for the purposes of para (b)(i) and both paras (b)(ii) and (iii) need to be satisfied in order for the exercise to be
lawful; and
(e) fifth, an Acting Sergeant was not a Sergeant and hence Acting Sergeant Calatzis could not be justified in taking photographs on that basis.
148. The first submission was that neither of the officers who physically took the photographs
were of or above the rank of Sergeant or in charge of the police station. Therefore, they
did not fit within the requirement of s 230(3)(a).
149. The second submission was that s 230 did not provide any express power to delegate
the power to take photographs, and that the provisions relating to delegation in the
Legislation Act 2001 (ACT) would not be effective to authorise the delegation.
150. The third submission was based upon the appearance of Mr Okwechime in the body
worn camera footage and the fact that he subsequently tested positive to COVID-19.
151. The fourth submission was based upon the contention that ss 230(3)(b)(ii) and (iii) both
needed to be satisfied. The submission referred to the Explanatory Statement for the
Crimes Legislation Amendment Bill 2015 (ACT) which was intended to “restructure and
modernise” the provision. That provided:
Where consent is not given, the material must be limited to a print of the person’s fingers or
a photograph of the suspect, or both. A print or photograph can only be taken in circumstances where a police officer believes on reasonable grounds that the taking of material is necessary to identify the person, generally or in connection with an offence, or where a police officer suspects on reasonable grounds that the person has committed another offence and that the material is likely to identify a person as having committed the other offence.
152. The point about this passage is that it treats the requirements in ss 230(3)(b)(ii) and (iii)
as being cumulative requirements rather than separate requirements, when the actual
text of s 230(3)(b) is such that either of which may be satisfied to engage the provision.
153. The fifth submission was that an “Acting Sergeant” was distinct from a “Sergeant”, and
therefore Acting Sergeant Calatzis did not satisfy that requirement, and also that the
evidence did not establish that he was the “officer in charge” of the police station.
154. Counsel for the prosecution pointed to the definition of “take” in s 185 of the Crimes Act.
That provides: “take, identification material, includes requesting another person to take
the material”. It was therefore not necessary to identify any power of delegation because
built into the concept of “take” as defined is the proposition that this may occur by
requesting other people to take photographs.
Consideration and decision
155. The first and second submissions are both answered by the definition of “take” in s 185.
An “officer of or above the rank of Sergeant” may “take” the identification material by
“requesting another person to take the material”. What occurred in this case was that
Acting Sergeant Calatzis requested the more junior officers to take the material, and
hence it was not necessary that the Acting Sergeant physically take the photographs
himself.
156. The third and fourth submissions are both answered by the proposition that s 230(3)(b)
makes it absolutely clear that only one of the subparas of (b) needs to be satisfied (“any
of the following apply”). To the extent that the Explanatory Statement suggests the
contrary, it is wrong. It cannot be substituted for the text of the statute: Re Bolton; Ex
parte Beane (1987) 162 CLR 514 at 518. That means that issues of impairment as
referred to in para (b)(i) or the requirement for one of the beliefs specified in para (b)(iii)
are not relevant where the material is limited to that specified in para (b)(ii), namely, a
photograph of the person.
157. The fifth submission, relating to the status of an “Acting Sergeant”, requires a somewhat
more detailed answer. There was no challenge to Acting Sergeant Calatzis’ evidence
that he was in fact an “Acting Sergeant” on the relevant day. The issue is whether or not
that designation is sufficient to satisfy the requirement that he be “an officer of or above
the rank of Sergeant”. That an officer be of or above that rank is significant for a number
of provisions in the Crimes Act: ss 210F, 226, 230, 230A. “Sergeant” is not a defined
term in the Act nor the Legislation Act 2001 (ACT). Having regard to the arrangements
for the provision of police services in the ACT, which has them provided by police of a
different polity (see The Constitution of the Australian Capital Territory (Federation Press,
2021) at 115-116), it is necessary to interpret what is meant in ACT law by the reference
to “Sergeant” as being a rank which exists pursuant to the Commonwealth laws that
establish and empower the Australian Federal Police.
158. Given that there was no objection or challenge to the evidence of the officer that he was
an “Acting Sergeant”, it was not necessary, in order to prove that fact, to establish by
other evidence that he was appointed to that position or to establish the statutory
mechanics by which that was achieved. However, on the assumption that he was validly
appointed on an acting basis to the rank of Sergeant and that was done pursuant to a
Commonwealth Act, then ss 33A(1)(e) or (2)(a) of the Acts Interpretation Act 1901 (Cth)
would give him “all the powers” of the holder of the office. Anything done by him under a
Commonwealth Act would not be invalidated by any defect or irregularity in his appointment: s 33AB. It is in those circumstances that s 9(1)(b) of the Australian Federal
Police Act 1979 (Cth) (AFP Act) operates. That provides:
9 Laws conferring powers on members
(1) In addition to any other powers and duties, a member has:
…
(b) when performing functions in the Australian Capital Territory—the powers and duties conferred or imposed on a constable or on an officer of police
by or under any law (including the common law) of the Territory; …
159. “Officer of police” is defined in s 4(2) as “including a reference to a police officer, or to
any member of a police force, however described”. That means that the powers picked
up by s 9(1)(b) are not confined to those which specifically refer to a “constable”, but
extend to powers given to police officers however described. Section 230(3) of the
Crimes Act gives a power to a “police officer”. That power is picked up by s 9(1)(b). The
power given by s 230(3) is conditional upon satisfaction of the conditions in subss (3)(a)
and (b). The condition in subs (3)(a) is satisfied in relation to an acting appointment
because:
(a) as a matter of Commonwealth law, the AFP Act “applies in relation to the appointee as if the appointee were the holder of the office”: Acts Interpretation
Act 1901 (Cth) s 33A(1)(e)(ii); and
(b) therefore, s 9(1)(b), picking up the powers conferred by the law of the Territory, applies as if the holder of the acting appointment were the holder of the office.
160. It is therefore as a consequence of the operation of Commonwealth law that, for the
purposes of the condition in s 230(3)(a), Acting Sergeant Calatzis is treated as satisfying
the condition, rather than because Territory legislation recognises an Acting Sergeant of
the AFP as being a Sergeant. Had the AFP been governed by Territory legislation, then
s 220 of the Legislation Act 2001 (ACT) would have resolved the question of
interpretation in a less roundabout way.
161. The end result is that each of the arguments put forward on behalf of Mr Okwechime and
Mr Flynn concerning the obtaining of identification material must be rejected.
Application of s 138
Statutory provision
162. Section 138(1) of the Evidence Act 2011 (ACT) provides that evidence obtained
improperly or in contravention of an Australian law, or in consequence of such an
impropriety or contravention, must not 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. Subsection (3) provides a list of matters
which the court must take into account for the purposes of the admissibility assessment
outlined in subs (1). Section 138(3) provides:
(3) Without limiting the matters that the court may take into account under subsection (1), it must take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)
the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f)
whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)
whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)
the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
What has triggered its operation?
163. Section 138 only has any application if evidence has been obtained “improperly or in
contravention of an Australian law”. The reasons given above indicate that a
contravention of an Australian law has been established in relation to s 23H of the Crimes
Act 1914.
164. On the other hand, no impropriety or contravention of ss 23F and 23V of the Crimes Act
1914 has been established in relation to the cautioning of Mr Okwechime or the recording
of the interview with Mr Okwechime. Further, it has not been established that the warrant
was limited to the residential part of the unit and, as a consequence, there is no
impropriety or contravention relating to the search of the vehicles in the car parking
spaces. Finally, it has not been established that there was a contravention of s 230 of
the Crimes Act 1900 when photographs were taken of Mr Okwechime at the ACT Watch
House.
165. Therefore, the operation of s 138 arising out of the contravention of s 23H must be
considered. However, so far as that contravention is concerned, s 138 operates only in
relation to the evidence sought to be adduced by the prosecution and the prosecution
has indicated that (with one minor exception) it does not intend to adduce evidence of
things that Mr Okwechime said during the execution of the search warrant. It therefore
only operates to the extent that the accused contends that all evidence obtained during
the execution of the search warrant should not be admitted into evidence.
Consideration and decision
166. Given the position adopted by the prosecution, the evidence to which s 138 could relate
is limited to the single answer in which Mr Okwechime gives his residential address and
the evidence that particular items were found in the residential part of the unit or within
the vehicle in the car parking space of the unit.
167. The parties made competing submissions as to whether or not there was a sufficient
causal link for the purposes of s 138 between the location of the items and the
contravention of the law. That was because the prosecution contended that, even without
the contraventions of the law, each of the relevant items would have been found in any
event. That is because, even without getting information about the location of the items
or information about the location of the car keys, police would have conducted a thorough
search sufficient to have located each of the items that were ultimately seized. I am
satisfied on the balance of probabilities that that is in fact the case. Police would have
found all of the items ultimately seized even if Mr Okwechime and KF had remained
silent.
168. Because the items would have been found and seized in any event, it is not a case in
which a “but for” test could be satisfied. It is not possible to conclude that “but for” the
contraventions of the law, the items would not have been found. Each item would have
been found whether or not there was a contravention of the law.
169. On the other hand, the finding of the items was in fact associated with assistance given
by Mr Okwechime or KF. That assistance involved directing police as to where to find
particular items within the residential part of the unit, the identification of who owned the
vehicles in the car parking spaces and the identification of the location of the keys to
those vehicles. Therefore, as a matter of fact, information given by Mr Okwechime or KF
did play a role in the location of the seized items.
170. Section 138 applies to “evidence that was obtained … in consequence of” an illegality or
impropriety. The use of the words “in consequence of” is sufficiently broad to extend
beyond evidence that would not have been obtained unless there was a contravention.
In Martin v The Queen [2015] ACTCA 38 at [64], the court described the requirement as
being that “[a] causal link must be demonstrated between the illegality or impropriety and
the obtaining of the evidence”. In Heyward v Bishop [2015] ACTCA 58; 73 MVR 426 at
[75], the court described the test by reference to the statutory language: “by or as a
consequence of”. While a number of cases have referred to the “but for” test (see, for
example, Employment Advocate v Williamson [2001] FCA 1164; 111 FCR 20 at [79]; R v
Grech [2017] NSWCCA 288 at [118]-[119], [138] (with no issue taken about the use of
the test in the High Court appeal, Kadir v The Queen [2020] HCA 1; 267 CLR 109 at [34]-[35], [41])), the language of the section does not confine the test of causation in that
way. It does not preclude from the operation of s 138 situations in which the evidence
was obtained as a result of a causal chain involving impropriety or illegality, even though
in the counterfactual circumstance in which the unlawful conduct had not occurred, it
would have been obtained in any event.
171. In the present case, there was a causal chain involving the contravention. However, it
has not been proved and it cannot be inferred that, with the benefit of advice from an
Aboriginal legal assistance organisation and an interview friend, Mr Okwechime would
have chosen to remain silent about his residential address, matters relating to the
location of items matching those listed in the warrant or the location of the car keys. In
those circumstances, it has not been established that the evidence was obtained “in
consequence of” the contraventions. Therefore s 138 does not apply in relation to that
evidence.
172. In case I am wrong about that conclusion as to causation, I record my conclusion that
the evidence would be admitted under s 138. That would be the case if the causal
connection required by s 138 had been satisfied, either as a result of it having been
proved that Mr Okwechime would not have provided the assistance that he did or
because, having regard to the purpose of s 23H, it is not necessary to prove that he
would not have provided that assistance in order for s 138 to apply.
173. In either case, for the purposes of the balancing exercise required by s 138(1), the
strength of the causal link between the contravention and the evidence is a matter which
is capable of affecting the weighing of the public interest in “not giving curial approval or
encouragement to the unlawful conduct”: Kadir at [41].
174. So far as the matters referred to in the paragraphs of s 138(3) are concerned, the position
would have been as follows:
(a) The probative value of the items located at the unit are of variable significance. The probative value of distinctive items such as the Harbinger gloves and the
black and orange hammer are significant components of the circumstantial
prosecution case. The answer given by Mr Okwechime as to his address is of
significant probative value in relation to his ownership of the items found during
the search.
(b) The evidence is important for the prosecution case in the proceedings. (c) The offence is a serious criminal offence, namely, aggravated burglary. The gravity of the impropriety or contravention has different aspects to it. The obligations in s 23H are obviously significant. Their significance for
Mr Okwechime as an individual is not clear.
(d) I am not satisfied that the contravention was deliberate. The evidence of Constable Carey and Detective Sergeant Battye leads me to the conclusion that
Detective Sergeant Battye considered that Mr Okwechime was not a protected
suspect because he was not within the scope of s 23B(2)(c)(iii). It was for that
reason that he did not ensure that Constable Carey followed through on the
requirements of the search warrant guide that she was operating from by
contacting an Aboriginal legal assistance organisation and providing an
interview friend. Detective Sergeant Battye recognised that subpara (iii)
provided a more uncertain test as to whether or not a person was a protected
suspect. Because he recognised that uncertainty, I consider that he adverted to
the possibility that the threshold for the application of s 23H was met but decided
to proceed with the search and allow Constable Carey to proceed with the
search anyway. In that sense, the contravention was reckless.
(e) Although Art 17 of the International Covenant on Civil and Political Rights protects privacy and the home from unlawful or arbitrary interference, s 23H
relates to different issues. The contravention of s 23H was not contrary to or
inconsistent with a right recognised by the International Covenant on Civil and
Political Rights.
(f) It is unlikely that any other proceedings, whether or not in a court, will be taken in relation to the contraventions identified.
(g) It would not have been difficult to obtain the evidence of the seized items without any contravention of an Australian law. The search could have proceeded
without questioning of Mr Okwechime. Alternatively, had the required notice
been given and an interview friend provided or offered and refused, then any
questioning would have been lawful. So far as the answer about his address
was concerned, the evidence did not disclose whether or not that would have
been easy to obtain by other means.
175. Given the nature of the contraventions and the uncertainty surrounding the operation of
s 23B(2)(c)(iii), the absence of evidence that the contraventions of s 23H gave rise to
any unfairness or different course of conduct on the part of Mr Okwechime, the
significance of the physical items seized for the prosecution case and the fact that all of
the physical items seized would have been seized in any event, the desirability of
admitting the evidence would clearly have outweighed the undesirability of admitting evidence that had been obtained in the way that it was. The result would have been
similar in relation to the single answer given about Mr Okwechime’s residential address.
Although, unlike the physical items seized, it was not inevitable that this evidence would
have been obtained in any event, the tenuous causal connection between that answer
and the contraventions of Australian law would mean that the balance would be in favour
of admitting the evidence.
Orders
176. Having regard to the fact that the prosecution does not intend to lead certain evidence,
it is not necessary to make a ruling under s 192A of the Evidence Act concerning the
admissibility of that evidence. So far as the evidence that remains in contest is
concerned, namely, the items seized and the single question and answer by
Mr Okwechime about his residential address, the appropriate rulings are as follows:
1. Evidence of the items seized during the execution of the search warrant by
police on 18 April 2023 is not inadmissible by reason of the contravention of
s 23H of the Crimes Act 1914 (Cth).
2. Question and answer 3 in the transcript at Exhibit TXT 3 is not inadmissible by
reason of the contravention of s 23H of the Crimes Act 1914 (Cth).
I certify that the preceding one hundred and seventy-six [176] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.
Associate:
Date: 21 February 2024
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