Hamado Nabole and v The Queen and
[2014] VSCA 297
•21 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0012
| HAMADO NABOLE |
| Appellant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES: | REDLICH, WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 August 2014 |
| DATE OF JUDGMENT: | 21 November 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 297 |
| JUDGMENT APPEALED FROM: | DPP v Nabole (Unreported, County Court of Victoria, Judge Douglas, 17 October 2014 (Conviction)) |
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CRIMINAL LAW – Importing marketable quantity of a border controlled drug (cocaine) – Whether evidence of false statements made to Customs officer during baggage examination should have been excluded pursuant to s 23V of the Crimes Act 1914 (Cth) – Whether implied admission in making false statements constituted ‘confession or admission’ for the purpose of that section – Whether appellant was being questioned ‘as a suspect’ – Raso v The Queen (1993) 68 A Crim R 495, applied – Whether evidence of false statements should have been excluded pursuant to ss 85, 90 or 137 of the Evidence Act 2008 – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Holding | Slades and Parsons |
| For the Crown | Mr R J Bromwich SC with Mr Y K Hardjadibrata | Director for Public Prosecutions (Cth) |
REDLICH JA:
Following a trial, the appellant was convicted of importing a marketable quantity of a border controlled drug (cocaine) contrary to s 307.2(1) of the Criminal Code.[1] He was sentenced to 10 years’ imprisonment with a non-parole period of seven years.
[1]Schedule to the Criminal Code Act 1995 (Cth).
On 27 May 2014, a judge of this Court granted the appellant leave to appeal against his conviction on the following ground:
1.A substantial miscarriage of justice occurred as a result of the learned trial judge admitting evidence of alleged false statements made by the [appellant] to Customs Officer Bradley; namely that the [appellant] said:
(a) That he was travelling alone;
(b)That he and his mother-in-law had booked their travel separately; and
(c)That he and his mother-in-law paid for their airline tickets separately.
1.1The learned trial judge erred in failing to exclude the evidence on the basis that:
(a)Section 23V of the Crimes Act 1914 (Cth) required the [appellant’s] admissions to have been tape recorded or to have been later confirmed by being tape recorded; and/or
(b)Pursuant to s 85(2) of the Evidence Act 2008 the admission was made to an investigating official and the prosecution could not satisfy the Court that the circumstances in which those admissions were made were such as to make it unlikely that the truth of the admissions [was] adversely affected; and/or
(c)Pursuant to s 137 of the Evidence Act 2008, the probative value of the evidence was outweighed by the danger of unfair prejudice to the [appellant]; and/or
(d)Pursuant to s 90 of the Evidence Act 2008 in the exercise of discretion and having regard to the circumstances in which the admission was made it was unfair to the [appellant] to use the evidence.
I will refer to the three statements said to have been made by the appellant to Customs Officer Bradley as statements (a), (b) and (c) as particularised in the ground of appeal.
For the reasons that follow, I would dismiss the appeal.
Circumstances of the offending
On 11 June 2012, the appellant and his mother-in-law, Renate Neugebauer, travelled from Australia to Brazil via Dubai. They returned to Melbourne from Brazil via Dubai on 27 June 2012. For the determination of this appeal, it is necessary to briefly summarise the evidence concerning their arrival at Melbourne airport.
Australian Customs and Border Protection Service (‘Customs’) officers at Melbourne airport had received an anonymous ‘tip-off’ in relation to the appellant and Ms Neugebauer as a result of which they were placed on an ‘alert’. The tip-off did not include any allegation of any particular criminal conduct.[2] Upon arrival at the airport Customs officers separated the appellant and Ms Neugebauer from other passengers in order to carry out detailed baggage examinations. The appellant and Ms Neugebauer were taken to another room, and each was subject to a baggage examination at benches that were a short distance from one another. The appellant was able to view the search of Ms Neugebauer. The searches took place simultaneously. During Ms Neugebaur’s baggage examination, she pointed to the appellant and informed officers that they were travelling together. Subsequently, a quantity of white powder containing 870.4 grams of pure cocaine was found within the lining of Ms Neugebauer’s backpack. At that time, Ms Neugebauer told Customs officers that she had been given the backpack to carry by the appellant. Ms Neugebauer and the appellant were both cautioned and were then taken to private interview rooms for further questioning. The appellant was subsequently arrested by Australian Federal Police.
[2]The evidence of the content of the tip-off is outlined in more detail at paragraph [31] below.
The evidence that is the subject of this appeal arose from the conversation between the appellant and Customs Officer Simon Bradley during the appellant’s baggage examination. Bradley conducted the examination of the appellant’s baggage, during which he asked the appellant a number of questions. In particular, Bradley gave evidence that the appellant initially told Bradley that he was travelling alone. This constituted statement (a). Upon further questioning after Ms Neugebauer had identified the appellant, the appellant told Bradley that Ms Neugebauer was his mother-in-law and that she had travelled to Brazil and Dubai with him. At this stage, the appellant told Bradley that their airline tickets were booked and paid for separately (statements (b) and (c)). All three statements were made before the discovery of the cocaine and before the appellant was cautioned.
The conversation between Bradley and the appellant during the baggage examination was recorded on CCTV, as was the baggage examination of Ms Neugebauer. They were not tape recorded. The further questioning of the appellant and Ms Neugebauer in the interview rooms was recorded on both video and audio.
The course of the proceedings
At trial, the appellant initially objected to the admission of the three statements he made to Bradley. He did so on a number of grounds. At the conclusion of the evidence on the voir dire, defence counsel clarified the appellant’s submissions as follows:
[DEFENCE COUNSEL]: Can I just make one clarification, Your Honour —
HER HONOUR: Of course you can, we’ve got time.
[DEFENCE COUNSEL]: And I’m not going to go back in, in any length, to the weeks we’ve spent but just to be clear. The subsequent bits that have been referred to about the booking, paying for things like that, that my learned friend relies upon, I say that if you found that 23V applies well it would all go out, but if you didn’t — there’s a reason to distinguish, I accept that there’s a reason to distinguish in the sense that you’ve only got evidence of him disputing one aspect of the conversation, he hasn’t disputed in the same way as other matters.
HER HONOUR: I’ll have a look at that. I haven’t turned my mind to that because in fact — I’ve got to have a look at it again, I haven’t focused on that but I’ll query that.
[DEFENCE COUNSEL]: I probably wasn’t as clear as I should have been.
HER HONOUR: No, but we weren’t focusing on that, that’s why.
[DEFENCE COUNSEL]: And I don’t say that — clearly the aspects of the unfairness that I put, in addition to 23V, related to the specific I was travelling alone, because that’s what the argument was about.[3]
[3]Emphasis added.
The appellant challenged the admissibility of statements (a), (b) and (c) because there had been no compliance with s 23V of the Crimes Act1914 (Cth) (‘Crimes Act’). He alternatively sought the exclusion of statement (a) pursuant to ss 85, 90 or 137 of the Evidence Act 2008 (‘Evidence Act’) as the context in which he made statement (a) was disputed. He submitted that it would be unfairly prejudicial if statement (a) were not excluded. No such argument was raised with respect to statements (b) and (c). It appears that the proper characterisation of statements (b) and (c) were accepted to be questions for the jury.
The trial judge ruled that the evidence of the appellant’s statement (a), that he was travelling alone, was admissible as an implied admission as s 23V did not apply. Her Honour rejected the application to exclude statement (a) pursuant to ss 85, 90 or 137.
After the ruling on statement (a), defence counsel did not contend that statements (b) or (c) were inadmissible as a consequence of s 23V even though the trial judge had not explicitly ruled on the appellant’s statements (b) and (c). But it followed from the conclusion that s 23V did not apply to statement (a) that it also did not apply with respect to statements (b) and (c). The appellant did not seek to have statements (b) or (c) excluded pursuant to ss 85, 90 or 137.
Before the jury, Bradley’s evidence was only challenged with respect to statement (a) and then only as to the context in which the statement was made. Following Bradley’s evidence, it more clearly emerged that he may have misunderstood the answer of the appellant constituting statement (a) and that the context of that answer, including any questions that may have preceded it, was uncertain. Largely as a consequence of that evidence, the judge revisited her earlier ruling. Her Honour ruled that statement (a) could not be relied upon by the Crown as an implied admission.
The revised ruling did not affect the conclusion that s 23V did not apply to the circumstances in which the statements were made. However the revised ruling that statement (a) could not be relied upon as an implied admission meant that s 23V and ss 85 and 90, which apply only to admissions,[4] had no application to statement (a).
[4]Section 23V is extracted at paragraph [16] below. Section 85 relevantly provides (emphasis added):
(1)This section applies only in a criminal proceeding and only to evidence of an admission made by an accused—
(a)to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b)as a result of an act of another person who was, and who the accused knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the accused should be brought or should be continued.
Note
Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.
(2)Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
Section 90 provides (emphasis added):
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a)the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
The issues for determination
This leaves for determination by this Court the following questions under the ground of appeal:
(i)Did the trial judge err in failing to exclude statements (b) and (c) pursuant to s 23V or ss 85, 90 and 137?
(ii) Did the trial judge err in failing to exclude statement (a) pursuant to s 137?
Whether the evidence of statements (b) and (c) ought to have been excluded pursuant to s 23V
Relevantly, s 23V 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 that questioning was tape recorded; or
(b) in any other case:
(i)when questioning the person, or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person during questioning, of the things said by or to the person during questioning; and
(ii)as soon as practicable after the record was made, it was read to the person in the language used by him or her during questioning and a copy of the record was made available to the person; and
(iii)the person was given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading; and
(iv)a tape recording was made of the reading referred to in subparagraph (ii) and of everything said by or to the person as a result of compliance with subparagraph (iii), and the requirements of subsection (2) were observed in respect of that recording; and
(v)before the reading referred to in subparagraph (ii), an explanation, in accordance with the form in the Schedule, was given to the person of the procedure that would be followed for the purposes of compliance with that subparagraph and subparagraphs (iii) and (iv).
…
(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.
The statements, not having been tape recorded or later confirmed by way of tape recording, ought to have been excluded pursuant to s 23V if:
(i) the statements constituted ‘admissions’ for the purposes of s 23V;
(ii)the appellant was being questioned as a suspect by an investigating official at the time of making the statements; and
(iii) no exception to the obligation to tape record the statements applied.
Were the statements ‘admissions’?
During the oral hearing, the question arose whether s 23V, which is expressed to apply to a ‘confession or admission’, could have been intended to apply to implied admissions, such as statements (b) and (c). Supplementary submissions on this issue were requested from the parties. The Director conceded that s 23V does apply to implied admissions and the appellant thus found it unnecessary to file any further submissions. Notwithstanding this concession, I do not consider that the question of the applicability of s 23V to implied admissions is closed.
Neither ‘confession’ nor ‘admission’ is defined in the Crimes Act.[5] No authority need be cited for the long established common law proposition that an exculpatory lie, namely a false denial or false assertion of fact, may constitute an implied admission if it reveals a realisation or consciousness of guilt by the maker of the statement. But differing views have been expressed as to whether the term ‘admission’ in various statutes also includes this form of admission. R v Bertrand[6] contains the following pertinent footnote:
The New South Wales Court of Criminal Appeal has consistently held that where evidence of a lie told by the accused is adduced as consciousness of guilt, the evidence constitutes an admission within the meaning of the Evidence Act 1995 (NSW): R v Esposito (1998) 45 NSWLR 442 at 459–60 per Wood CJ at CL; R v Adam (1999) 106 A Crim R 510 at 517–23; R v Esho [2001] NSWCCA 415 at [129]–[130]; and R v Fernando [1999] NSWCCA 66. To the same effect is R v Horton (1998) 45 NSWLR 426, where it was held that the meaning of the term ‘admission’ in relation to New South Wales legislation that required tape recording of interviews was the same as that in the Evidence Act and therefore included both inculpatory statements and exculpatory lies. In R v GH (2000) 105 FCR 419, the Full Court of the Federal Court, sitting on appeal from the Supreme Court of the Australian Capital Territory, came to precisely the opposite conclusion. The approach taken by the Full Federal Court is supported by a decision of the Tasmanian Court of Criminal Appeal in Carr v R (2002) 11 Tas R 362.
[5]See Crimes Act s 23B.
[6](2008) 20 VR 222, 229 n 1.
In Raso v The Queen,[7] Ormiston J made some obiter observations to the effect that an implied admission was captured by s 23V.[8] The matter was not put in issue in that case and the Court had not been referred to any authority on the question. However Ormiston J referred to authority that would support the view that ‘an attempted exculpatory statement made by a person under investigation’ did not come within the meaning of confession or admission in similar legislation.[9] His Honour did not consider it necessary to further investigate the question and proceeded on the basis that nothing had dissuaded him from the view that the statement was subject to s 23V.
[7](1993) 68 A Crim R 495 (‘Raso’).
[8]Ibid 523–4.
[9]Ibid 523, citing A-G (NSW) v Martin (1909) 9 CLR 713; R v McKay [1965] Qd R 240; R v Doyle; Ex parte A-G (Qld) [1987] 2 Qd R 732.
The fact that implied admissions have been held to fall within the definition of an ‘admission’ in other legislation does not illuminate the question which arises under the distinctive regime established by s 23V. Allowing that the protective purpose of s 23V is achieved by requiring admissions to be recorded once the person is a suspect, the section assumes that the investigating officer is able to identify a statement made as an admission and hence that it should be recorded. Thus where it is not reasonably practicable to tape record admissions when initially made, s 23V(1)(b) prescribes a method for the investigating official to record and verify the admissions that were not tape recorded.
No difficulty arises where the statement constitutes an admission of actual guilt or of an obvious fact that tends to prove guilt. But the statutory obligation and its exceptions are not easily reconciled with its application to implied admissions, as demonstrated by the facts of this case. It may not be possible to characterise a statement as an implied admission until well after it is made when the falsity of the denial or assertion of fact is discovered. The confirmation procedure under s 23V(1)(b) may be impractical if it only becomes clear upon further investigation that the statements constitutes an implied admission.
Section 23V(5) enables the judge to admit an implied admission into evidence, notwithstanding the absence of a tape recording, where it would not be contrary to the interests of justice. The fact that the falsity of an exculpatory statement does not become known until sometime after the statement was made when it is no longer practicable to seek confirmation of the making of the statement may inform the discretionary question whether to admit the evidence.
In view of the conclusion I have reached on the primary issue in the appeal, and as the Director concedes that the statements were admissions for the purpose of s 23V, I shall assume, without deciding the question, that each of the statements were admissions.
Was the appellant a suspect at the time of questioning?
The core of the dispute between the parties was whether the appellant was being questioned as a suspect during the baggage examination. The trial judge found that Bradley’s questioning should be viewed as a function of the powers conferred upon him pursuant to s 195 of the Customs Act 1901 (Cth) (‘Customs Act’). Section 195 relevantly provides:
195 Power to question passengers etc
(1) An officer of Customs may question:
…
(b)any person who has, or who the officer has reason to believe has, got off a ship or out of an aircraft; …
as to whether that person or any child or other person accompanying him or her has on his or her person, in his or her baggage or otherwise with him or her any:
(d) dutiable goods; or
(e) excisable goods; or
(f) prohibited goods.
(2)A person shall answer questions put to him or her in pursuance of subsection (1).
Penalty: 30 penalty units.
(3) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
The questions asked by Bradley were asked in accordance with that section and were well within its purview.[10] The judge found that Bradley’s questions ‘were in relation to where the accused had visited, the confirmation of the particulars in his incoming passenger card, reference to the stamps in his passport and as to the packing of his luggage’.
[10]See Raso (1993) 68 A Crim R 495, 520 (Ormiston J).
It is convenient to extract that part of the trial judge’s ruling setting out the evidence before her in the voir dire in relation to Bradley’s questioning of the appellant:
Mr Bradley stated he did not suspect the [applicant] of committing any offence at the relevant time and that the questions he asked were standard questions in relation to the information given on the incoming passenger card. The reference in the passport to where he had been and as to the contents of his luggage. He said what he did was merely standard procedure and that he is not an investigator.
As to the notes, in the statement of Mr Bradley, Mr Bradley stated he asked the [the applicant] the ten standard questions and then took into his possession three mobile telephones which were in the possession of the [applicant]. In his notes he said this:
‘I examined Nabole’s passport and incoming passenger card. He also said that he had nominated United Arab Emirates as the country in which he spent most of his time abroad.’
And this was noted:
‘I then observed entry/exit port stamps in Nabole’s passport and asked him about his travel to Sao Paulo, Brazil. Nabole states that he had travelled to Sao Paulo, Brazil for sightseeing. Nabole could not name any sights or places that he visited in Brazil. Nabole had no photos of his holiday. I then had a conversation with Nabole regarding his travel. Nabole again stated that he travelled alone and he had not travelled with anyone whilst overseas. I asked Nabole if he travelled to Dubai alone, to which he replied “Yes”. Nabole then stated that he had visited his wife in Dubai; she is employed as a teacher there.’
He then noted he commenced examining [the appellant’s] black carry bag, and emptied the contents of that bag on to the bench. He then put in his notes:
‘A short time later it was identified that Nabole was in fact travelling with a person I now know to be Ms Renata Neugebauer, who was the subject of baggage examination being conducted by Customs Officer Vanessa Simone Paola. I then had a conversation with Nabole in relation to Ms Neugebauer. Nabole informed me that Ms Neugebauer is his mother-in-law and that she travelled to Brazil and Dubai with him. Nabole stated that while in Brazil they did their own thing and they did not spend all of their time together. Nabole stated that their airline tickets were booked and paid for separately. I noted Nabole had put on his incoming passenger card that he’s a student. Nabole stated that he saved the money for travel and friends had loaned him some. A short time later Officer Scantlebury informed me that there may be a possible concealment within one of the bags in Ms Neugebauer’s possession. I then issued Nabole with a caution.’
In Mr Bradley’s statement that he said was prepared after he had made the notes, he put the events about which he had written in a different order from the notes. He set out verbatim the questions that he asked and answers given in relation to the incoming passenger card and the contents of the baggage. He then asked [the appellant] to empty the contents of his pockets, including the three mobile phones, and he then put this in his statement:
‘I then examined Mr Nabole’s passport and incoming passenger card and noted he had nominated the United Arab Emirates as the country in which he had spent most of his time abroad. After observing entry and exit port stamps for Brazil on his passport, I asked Mr Nabole about his travel there. Mr Nabole confirmed he travelled to Sao Paulo, Brazil for sightseeing.’
Paragraph 7: ‘I then had a conversation with Mr Nabole regarding his travel overseas. Mr Nabole informed me that he was travelling by himself and had not travelled with anyone else whilst overseas. Mr Nabole stated that he was returning from a holiday in Sao Paulo, Brazil and Dubai.’
Paragraph 8: ‘Mr Nabole stated he was in Brazil for six days for sightseeing. Whilst in Brazil he visited some markets, a statue and a shopping centre but could not remember the names.’
Paragraph 9: ‘I then asked Mr Nabole again if he travelled to Brazil and Dubai alone, to which he replied, “Yes”. Mr Nabole stated that he did not meet up with other people whilst in Brazil. Mr Nabole stated that whilst in Brazil he stayed at a hotel but could not recall the name or how much it cost per night.’
Paragraph 10: ‘Mr Nabole stated he travelled to Dubai after Brazil to visit his wife as she is employed there.’
Paragraph 11 he noted that Senior Customs Officer Scantlebury approached the bench and took possession of [the appellant’s] passport, incoming passenger card, airline ticket and three mobile phones and then left.
Paragraph 12 he said this: ‘I then commenced examining Mr Nabole’s black carry bag and emptied the contents of the black carry bag on to the bench.’
In Paragraph 13 he said: ‘A short time later it was identified that Mr Nabole was in fact travelling with a person I now know to be Renata Neugebauer, who was the subject of a baggage examination being conducted by Customs Officer Vanessa Simone Paola.’
Paragraph 14 he stated that after the [appellant] was identified he informed Mr Bradley that Ms Neugebauer was his mother-in-law and that she travelled to Brazil with him.
Mr Bradley said he made his statement from his recollection and from the notes he took. He said the statement was initially in draft form earlier than the date he signed it. During cross-examination he said it was not until Ms Neugebauer identified the [appellant] that the [appellant] told him he was travelling with her.
Mr Bradley said initially the [appellant] said he was travelling alone. It was put to Mr Bradley during cross-examination that he asked the [appellant] at that stage, that is when the mother in law pointed at him. I will read the question, ‘Look, I thought you said before that you were travelling alone. Why didn’t you tell me you were travelling with Ms Neugebauer?’
Mr Bradley said in answer to that, ‘I did say that to him and it is clear on the CCTV footage that that became apparent’. [Defence counsel] then put to him that the [appellant] said, ‘Look, you’ve misunderstood me. I’ve never said that. You put words in my mouth’, or something like that. Mr Bradley said in answer that he did not recall the exact conversation and said this, ‘It could have been, but I don’t recall. In the circumstances it could have been, but I don’t recall’. He admitted he did not have that exchange either in his notes or in his statement.[11]
[11]Emphasis added.
In this Court, the appellant submits that Bradley was questioning the appellant as a suspect. It is not in dispute that Bradley fell within the meaning of an investigating official for the purposes of the provision. But as the appellant relies upon s 23V to demonstrate a miscarriage of justice, it is for the appellant to demonstrate from the evidence that there exists a factual basis for the conclusion that the appellant was being interviewed as a suspect and that, notwithstanding s 23V(5), the statements would not or very likely would not have been introduced.[12]
[12]Raso (1993) 68 A Crim R 495, 505, 506 (Phillips CJ and Marks J).
The appellant contends he was a ‘suspect’ within the meaning of the provision from the very start of the baggage examination, as he had been selected for the examination because of the anonymous tip. The appellant relies upon Bradley’s evidence, elicited in cross-examination during the voir dire, that he was questioning the appellant to determine whether there was substance to the tip.
Section 23B(6)(a) makes clear that the reference to a person being questioned in s 23V is to be read as a reference to
questioning the person, or carrying out an investigation (in which the person participates), to investigate the involvement (if any) of the person in any Commonwealth offence (including an offence for which the person is not under arrest) …
The paucity of detail contained in the tip is clear from the judge’s summary of the uncontested evidence on the voir dire in relation to the tip:
Another Customs officer, Joel Scantlebury, gave evidence that he commenced work that day around 5 am. He was the supervisor on duty that morning for Customs at Melbourne Airport. Upon arrival at work he was provided with information that a baggage examination would be conducted on two passengers on flight EK406, the accused and Ms Neugebauer. The information, which was from an anonymous source, was that the [appellant] had recently travelled overseas and had appeared rushed, that it was suspicious, as the [appellant] had left one of his children at home. Mr Scantlebury said there was [sic] no further details given to him.
He was asked, during the voir dire if the source is identified, and he said such information can fall into several categories. From agents such as the Australian Federal Police, Immigration, Victoria Police and anonymous information. He said in this particular instance it was roughly a paragraph stating what he had set out in his evidence and that it was something to do with tiles. He said in his experience there have been anonymous tip-offs that have been accurate and then there have been others that, in his opinion, were probably malicious. He said whenever a person is placed on alert there has to be a category nominated.
He said in this case it was under the heading, narcotics. He said when a person places an alert it cannot be without a category, and there is no category labelled miscellaneous. He said there are several categories: currency, terrorism, people smuggling, narcotics. He said this alert was a little different from other anonymous tip-offs due to the fact that anonymous tip-offs usually stipulate, for example, he said, this person will be carrying cash, or, this person will be carrying performance enhancing drugs, but in this case the anonymous tip-off was that his travel was suspicious, and Mr Scantlebury said that is all they had. He said that that information was forwarded to Mr Bradley and another Customs officer, Sallemi, who was originally directed to examine the baggage of Ms Neugebauer. However, that task was later given to another Customs agent, Ms Paola.
Ms Scantlebury said that each day there would be [anywhere] between a half a dozen to 15 such alerts. So they ordinarily just issue a baggage search to any officer who is rostered. In this case, once it was ascertained that there were drugs in Ms Neugebauer’s backpack, Mr Scantlebury directed Mr Bradley to caution the [appellant]. He said that before that took place he did not hold a belief that the [appellant] had committed any breach of a Commonwealth or any other law. Mr Bradley in evidence said that he carried out the search as the [appellant] was subject to a Customs examination. He was told by his supervisor it was an anonymous information regarding the [appellant] and a possible travel companion. He said not much more was disclosed at that time. He said before he administered a caution, which was at the direction of Mr Scantlebury, he did not believe that the [appellant] had committed any offence contrary to the Commonwealth law or any law.[13]
[13]Emphasis added.
The tip was from an anonymous source, the reliability of which was unknown. It was an assertion without any content that two persons’ travel was ‘suspicious’. Thus it was clear that no conduct was disclosed sufficient to warrant suspicion that an offence had been committed.
In Raso,[14] in circumstances not dissimilar to the present, the conclusion was reached that the Customs officer was not questioning a ‘suspect’. In that case, the applicant sought leave to appeal her conviction for importing a prohibited import (heroin). Upon her arrival at Melbourne airport, the applicant’s baggage had been searched. The search resulted in the discovery of a soft toy turtle, which Customs officers considered to have an unusual density and odour. In response to questions about the turtle, the applicant stated that she had purchased the turtle at Changi airport and gave a receipt for the purchase. Heroin was subsequently discovered in the turtle, after which the applicant was cautioned. The receipt related to another item. The Crown relied upon the applicant’s statement that the turtle was purchased at the airport as demonstrating consciousness of guilt. The issue raised, as in this case, was whether the relevant statement was admissible, not having been recorded. The Court held that the statement was admissible. Phillips CJ and Marks J in their joint reasons considered that the applicant was not being interviewed as a suspect within the meaning of s 23V(1).[15] Their Honours observed that ‘there is a clear distinction between a reason for suspicion that a person has committed an offence and a reason for investigating whether a person has done so’, with s 23V applying only to the former.[16]
[14](1993) 68 A Crim R 495.
[15]Ibid 506.
[16]Ibid, citing Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, 303 (Kitto J).
Ormiston J, in a concurring judgment, found that the applicant was not a suspect for the purpose of s 23V until the heroin was found inside the toy turtle. Even though the relevant statements occurred after a suspicion had arisen that there was something inside the turtle, ‘[u]ntil the bag was opened no factual foundation existed for a suspicion that any particular offence had been committed’.[17] Ormiston J held that ‘the word “suspect” requires a degree of conviction extending beyond speculation as to whether an offence has been committed and requiring that it be based upon some factual foundation’.[18] The officer must have formed a positive opinion that the person is a suspect based upon a factual foundation. Until the discovery of the heroin itself, the officers were questioning the applicant pursuant to s 195,[19] rather than as a suspect. Significantly, the mere fact that the applicant was on an ‘alert’ and singled out to have his baggage checked was not regarded as sufficient to qualify the passenger as a ‘suspect’.[20]
[17]Raso (1993) 68 A Crim R 495, 529.
[18]Ibid 527.
[19]Ibid 520.
[20]Ibid 506 (Phillips CJ and Marks J), 529 (Ormiston J).
This approach is consistent with the reasoning of the Court of Criminal Appeal in R v Heaney[21] which considered the meaning of the word ‘suspected’ in the similar but not identical terms of s 464H of the Crimes Act 1958. That section did not concern a state of mind founded upon speculation but was concerned with ‘a state of mind arrived [at] upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence’.[22]
[21][1992] 2 VR 531.
[22]Ibid 547–8.
In its submissions the appellant attempts to distinguish Raso on the basis that, in that case, there was no issue as to what was said by the appellant to the Customs officer, whereas in this case there was uncertainty, at least in relation to statement (a). But we are not presently concerned with statement (a). There was no dispute that the appellant made statements (b) and (c). As in Raso, it was open to the jury to treat statements (b) and (c) as false and constituting implied admissions. The reliability of Bradley’s evidence, whilst relevant to other exclusionary provisions, was not therefore relevant to the applicability of s 23V where the only live question was whether the appellant was a suspect.
The appellant further points to Bradley’s evidence in cross-examination that Bradley understood the recording of questions and answers made by another Customs official subsequent to Bradley’s questioning to be in accordance with the procedure mandated by the Crimes Act. Bradley acknowledged that a purpose of the procedure was to confirm the admissions that were not initially tape recorded.
The procedure followed was entirely in accordance with the obligations flowing from the provisions in s 23V. Once a specific offence had been identified and the appellant was cautioned, he was taken to an interview room to be questioned. That questioning, as required, was recorded. But until the point at which a real suspicion arose that the appellant had committed a Commonwealth offence, s 23V did not require questioning to be tape recorded. The subsequent procedure that was followed once the drugs were discovered did not have the effect of converting the appellant’s earlier status to one of a ‘suspect’.
Here, as in Raso, until the discovery of the cocaine there was no factual foundation for a suspicion that any particular offence had been committed. While the tip was sufficient to support some generalised suspicion to justify a baggage examination, the questions asked during that examination were a function of Bradley’s powers under s 195 of the Customs Act. In my view, the trial judge correctly concluded that the tip was insufficient to render the appellant a person being questioned as a suspect for the purposes of s 23V(1). It was not until the discovery of the cocaine in Ms Neugebauer’s luggage and her identification of the appellant as having given her the baggage to carry that the appellant could be considered to have been a suspect in relation to any specific offence. At the time that the appellant made statements (b) and (c), s 23V had not been enlivened. Bradley was not questioning the appellant as a suspect for the purpose of investigating his involvement if any in a Commonwealth offence. The appellant not being a suspect for the purposes of s 23V, there was no obligation to tape record the statements relied upon as admissions.
Would an exception apply?
If, contrary to my view, the appellant was a suspect, the question arises whether the statements would have been admitted, notwithstanding that they were not recorded. The appellant does not dispute that he made the statements. The purpose of s 23V would not have been frustrated by the admission of the statements into evidence. The section is directed to the exclusion of confessions and admissions where there may be doubt over what was said or disputes over the fairness of the questioning. Section 195 abrogated any right to silence in response to the relevant questions authorised by s 195(1). It could not have been in issue that the falsity of the statements only became clear upon an examination of the appellant’s financial records and the information of the travel agent through whom the appellant booked the tickets. At that time it was impractical to have sought to record the statements. Nothing emerged at the trial or on the hearing of the appeal to suggest that it would have been contrary to the interests of justice to have admitted the statements pursuant to s 23V(5). Even if the appellant were a suspect, the admission of the statements into evidence did not give rise to a substantial miscarriage of justice.
Whether the evidence of statement (a) ought to have been excluded pursuant to s 137
As already mentioned, following Bradley’s evidence at trial in relation to statement (a), the trial judge ruled that that statement did not constitute an admission as there was insufficient evidence of the circumstances in which the statement was made or of the question or questions that preceded it. However, Bradley’s evidence in relation to statement (a) remained before the jury.
Once the trial judge in her revised ruling had excluded statement (a) as an admission, ss 85 and 90 would have had no application to that statement. But the appellant now submits that the evidence of statement (a) should have been excluded pursuant to s 137 of the Evidence Act as it was productive of unfair prejudice — no longer on the ground that the evidence was unreliable but on the different ground that it had limited probative value and the jury was likely to attach excessive weight to it. The theme permeates the appellant’s submission that the evidence of statements (a), (b) and (c) was inseparable; that, having been told that they could draw adverse inferences from the evidence of statements (b) and (c), it was inevitable that the jury would have had regard to Bradley’s evidence as to statement (a). Defence counsel made no such application to the trial judge.
The submission now made should be rejected. As a result of the revised ruling, the unfairness arising from statement (a), namely the uncertainty surrounding the making of the statement, fell away. The inability to show the context in which statement (a) had been made was successfully exposed in cross-examination. The prosecution thereafter accepted and dealt with that evidence on the basis that it reflected a misunderstanding between the appellant and Bradley. It was not suggested to the jury that it could be used as an implied admission. No application was made following the revised ruling to exclude the evidence on the ground of unfairness now asserted. It was not suggested that the evidence could be used in a manner adverse to the appellant. No objection having been taken to the evidence remaining before the jury, the forensic decision not to seek its exclusion must be given great weight.[23]
[23]Ulutui v The Queen [2014] VSCA 110, [21]–[37] (Redlich JA, Neave and Tate JJA agreeing).
It was said on appeal that the evidence was productive of injustice as it may have been misused. It should be observed that the judge in her charge comprehensively set out those parts of the evidence that the jury could rely upon to find that the appellant engaged in incriminating conduct. That conduct did not include the evidence of statement (a). At no time following the revised ruling did experienced defence counsel perceive any unfairness in relation to that evidence. No objection was taken to the evidence and no exception was taken to the jury directions. There is no substance in the complaint that the evidence was productive of any injustice.
Whether statements (b) and (c) ought to have been excluded pursuant to ss 85, 90 or 137
In relation to statements (b) and (c), the submission that those statements ought to have been excluded pursuant to ss 85, 90 or 137 is without substance. It is apparent that defence counsel did not consider any unfairness productive of injustice to arise as a result of the admission of statements (b) and (c). Before the judge’s initial ruling, defence counsel acknowledged in the passage earlier set out that that he was relying only upon s 23V as a basis for excluding statements (b) and (c) and that unfairness considerations related only to statement (a). After the ruling, which dealt only with statement (a), counsel made no application for the exclusion of statements (b) and (c) on any basis. Furthermore, no persuasive reason has been advanced why statements (b) and (c) should have been excluded, had such an application been made.
I would dismiss the appeal.
WEINBERG JA:
I have had the advantage of reading in draft the reasons for judgment prepared by Redlich JA. I agree with those reasons and with the order proposed. I also agree with Priest JA’s additional observations.
PRIEST JA:
I have had the considerable advantage of reading in draft the reasons of Redlich JA. Substantially for the reasons advanced by his Honour, I agree that the appeal should be dismissed. I wish, however, to add some brief observations of my own.
When I granted leave to appeal in this matter ‘on the papers’, I was attracted to the notion that, Customs having received a ‘tip-off’, Customs Officer Bradley’s questioning of the appellant must have been directed to determining whether the appellant was involved in bringing illicit substances into Australia; and that, therefore, Customs Officer Bradley was an ‘investigating official’ questioning the appellant ‘as a suspect’. With the benefit of full argument on the appeal, however, and the added benefit of the analysis carried out by Redlich JA, I am persuaded that that a conclusion that the appellant relevantly was a ‘suspect’ when initially questioned by Mr Bradley is not warranted.
But I wish to make this clear. The power of an officer of Customs to question a person under s 195 of the Customs Act 1901 (Cth) — and the corresponding obligation of a person to answer — is limited. The Crimes Act 1914 (Cth) — including s 23V — imposes certain duties on investigating officials which are designed to protect the rights of suspects. Once an officer of Customs has a conviction or apprehension, based upon an adequate factual foundation, that a person may have committed a Commonwealth offence,[24] s 195 of the Customs Act
cannot justify the officer in circumventing the requirements of s 23V (and complementary provisions).[25]
[24]See Customs Act 1901 (Cth), s 23B(6)(a). See also R v Raso (1993) 115 FLR 319 (‘Raso’), 329 (Phillips CJ and Marks J), 350 (Ormiston J); R v Heaney [1992] 2 VR 531, 547–8 (Phillips CJ, Crockett and O’Bryan JJ).
[25]Cf Raso, 329 (Phillips CJ and Marks J).
It is unnecessary in this case, however, to assay the limitations of the questions that might be asked under s 195, but I note that Ormiston J briefly discussed the kinds of questions that might be justified pursuant to s 195 in Raso:[26]
[26]Ibid 342–3.
It was suggested both in the court below and on appeal that the questioning by the Customs officials had gone beyond that contemplated by s 195. It was said, as I understand it, that the only questions permitted to be asked of a person arriving by ship or aircraft are as to the nature of any goods brought by that person, as to the ownership of those goods, and as to who packed the goods. Although again no authorities were cited to the Court on the meaning of s 195 I cannot read it as having such a restricted meaning, the right of a Customs officer being to ‘question … any person who has … got off a ship or out of an aircraft … as to whether that person … has on his person, in his baggage or otherwise’ any dutiable, excisable or prohibited goods. To ascertain whether goods brought by such a passenger are dutiable, excisable or prohibited it would clearly be necessary and appropriate for those officers to ask questions as to the source of the goods, their price and the manner in which they were obtained, to give but a few relevant examples of the type of question which would be appropriate under the section. …
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