Police v Beckett

[2012] NSWLC 5

Local Court

New South Wales

Medium Neutral Citation:	Police v Beckett [2012] NSWLC 5
Hearing dates:	02/03/2012
Decision date:	29 June 2012
Jurisdiction:	Criminal
Before:	Heilpern LCM
Decision:	The ERISP is admitted in evidence
Catchwords:	EVIDENCE - s 138 Evidence Act 1995 - admissibility of evidence improperly or illegally obtained - balancing exercise - whether desirability of admitting evidence outweighs undesirability of admitting evidence obtained improperly or illegally - failure of police to comply with LEPRA requirements - ALS not notified of Aboriginal defendant in custody for questioning - failure not deliberate - seriousness of offence charged
Legislation Cited:	Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	Bunning v Cross (1978) 141 CLR 54 Campbell v Director of Public Prosecutions (NSW) [2008] NSWSC 1284 DPP v Carr [2002] NSWSC 194 Parker v Comptroller-General of Customs [2007] NSWCA 348 R v Ali Alkan [2010] NSWLC 1 R v APC & CP (District Court, unreported, 7 April 2006, Nicholson SC DCJ) R v Camilleri [2007] NSWCCA 36 R v Dalley [2002] NSWCCA 284 R v Dorothy Riley (District Court, unreported, 12 February 2002, Shadbolt DCJ) R v Helmhout [2000] NSWSC 208 R v Phan [2003] NSWCCA 205 Ridgeway v R (1995) 184 CLR 19
Category:	Procedural and other rulings
Parties:	Police Dennis Beckett (the defendant)
Representation:	Ms Kennedy for the Police Mr Behan for the defendant
File Number(s):	2011/232421

Judgment

Reasons for Decision

1. This judgement follows a voir dire as to the admissibility of an ERISP in a criminal matter. The key section is section 138 of the Evidence Act 1995.

1. The defendant was arrested following an altercation. He was charged with three offences, however the charge being pursued is one of affray. The facts have not been tendered on the voir dire, however the ERISP has, and it contains significant admissions and a version of events.

1. Michael Dillon is the new partner of the defendant's ex. There has been tension between the defendant and Michael Dillon over the defendant's children. Gary Beckett is the defendant's brother. Michael Dillon is currently in the District Court awaiting trial for his role in the same events.

1. The defendant went to the house of his former partner with a view to sorting out some issues with his former partner's new partner, Michael Dillon. He had his brother Gary Beckett for back up. It was not perceived by either party to be a pleasant cup of tea. On arrival, the defendant was met at the front door by Michael Dillon, who had a hammer. The defendant had scissors. The hammer won in the first altercation, with the defendant being hit in the head, and the defendant and his brother retreated toward their car. The defendant got out an iron bar and threatened Michael Dillon and another man. Gary Beckett took the iron bar from his brother and fought for some time with Michael Dillon. The hammer won again with Gary receiving serous head injuries, and the brothers retreated to their car, which was then attacked. They drove off to the hospital. Most of the altercation took place in a residential street and the front yard of Michael Dillon's premises. There were children and other adults who witnessed the altercation cringing, crying and ducking for cover. On this version of events, the affray was serious involving weapons and serious injuries, and was over a significant period of time, in a suburban area, in daylight hours and in the presence of many members of the public.

1. The defendant was arrested, brought to the station and introduced to the custody officer. He was asked questions and I am satisfied on balance that the answers to those questions were faithfully recorded by Acting Sergeant Kelly Haines. When asked if he was Aboriginal or Torres Strait Islander at first he answered "no". When asked some few minutes later if he was Aboriginal or Torres Strait Islander he answered "yes", and then identified himself as "Aboriginal". These answers were typed on the custody record.

1. It is common ground that the defendant is not noticeably of dark skin colour, and is Aboriginal.

1. Under the Law Enforcement (Powers and Responsibilities) Regulation 2005, it is incumbent upon the custody manager or her delegate to contact the Aboriginal Legal Service (ALS) and to notify the defendant that the ALS has been notified:

33 Legal assistance for Aboriginal persons or Torres Strait Islanders

(1) If a detained person is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must:

(a) immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified:

(i) that the person is being detained in respect of an offence, and

(ii) of the place at which the person is being detained, and

(b) notify such a representative accordingly.

1. This was not done, and it is common ground that it should have been.

1. All the other LEPRA safeguards were applied, including a reading of the Caution and Summary form. This includes the following:

"While in police custody you do not have to say or do anything but anything you do say or do may be used in evidence.... If you are... an Aboriginal or Torres Strait Islander, you can have a support person with you while you are in custody. The police will help you to get a support person, if you ask for one"

1. Inspector Kehoe, the informant, then interviewed the defendant. He did not enquire as to the ATSI status of the defendant from the custody sergeant, and was not aware that the defendant was Aboriginal. He cautioned the defendant before interviewing him, and even asked the defendant if he wanted to seek legal advice. Following the interview Sergeant Haines was the independent officer who asked the defendant the "fairness questions".

1. My assessment of the evidence on the voir dire is that Sergent Haines' omission was an error and done without malice. She was surprised that the LEPRA requirements were not followed, and is unable to offer any explanation. She speculates that her attention may have been diverted by other events. Inspector Kehoe saw no need to check whether the defendant was Aboriginal, although he agrees that this was open to him. Further, he did not check the custody records, although agrees this was open to him. He contends that there was no reason for him to do so. I accept that he relied on the custody officer to undertake the appropriate steps, and saw no reason to crosscheck them. That reliance was not unreasonable in the circumstances of this case. In the end, the inconsistent answers were not a cause of the failure to comply.

1. The prosecution have rightly conceded that the LEPRA requirements were not met, and that the court would be satisfied on balance that an illegality or impropriety has occurred within the meaning of s 138.

Section 138(3) - Admissibility

1. The onus now shifts onto the prosecution to satisfy me that the evidence should be admitted notwithstanding the illegality or impropriety. The test under s 138 involves a balance between the desirability of admitting the evidence on the one hand and the undesirability of admitting the evidence that has been obtained illegally or improperly on the other.

1. As to (a) and (b), the admissions are highly probative and important. The alleged victim of the unlawful violence will not be giving evidence.

1. As to (c), the nature of the relevant offence, the offence of affray carries a maximum penalty of ten years imprisonment. The level of violence alleged, the use of weapons, the ongoing nature of the altercation, the place and time, the injuries involved and the presence of children places these allegations in a serious category.

1. As to (d), the breaches of law and the impropriety were significant. The safeguards designed to protect Aboriginal people in custody are the result of parliamentary concern following well-publicised issues raised by Royal Commissions and other research. It is important that these provisions are followed religiously. Parliament inserted the word "must" to reinforce this. The contravention cannot be categorised as merely technical or unimportant.

1. As to (e), the breach was not deliberate or reckless, in the sense that it was done with foresight however categorised. It was done in error. It is of concern that there is no crosscheck within the custody management system to "tick off" that the requirement has been complied with as soon as the person identifies at any stage as Aboriginal. This is evidence of systemic failure.

1. As to (f), the defendant has made no submission that 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.

1. As to (g), it is important to reiterate that the onus is on the prosecution on this portion of the test. Evidence is more likely to be admitted where the illegality or impropriety is being punished by other means. In Ridgeway v R (1995) 184 CLR 19 at 38, the High Court found that it was also relevant to consider whether the impropriety is "tolerated or encouraged by those in higher authority in the police force".

1. There is no evidence as to whether any or disciplinary proceeding has been or is likely to be taken in relation to the impropriety or contravention.

1. As to (h), the evidence may have been more difficult to obtain had the law not been breached. The defendant would likely have been advised not to say anything. He may have followed that advice. To suggest that he would have followed that advice is speculative.

1. Section 138(3) is not exclusionary, however, I have not been referred to any other matters by either party.

Authorities

1. In the case of R v Helmhout [2000] NSWSC 208 the charge was murder and the court allowed the admission in, despite a failure of similar requirements prior to LEPRA. Clearly the seriousness of the offence was a key factor. I note that Bell J in that case also commented at [19] on the lack of prompts to ensure that the requirement was not missed:

I do not consider that Sergeant Dagwell's neglect was either deliberate or reckless. He struck me as an officer who would faithfully comply with each of the requirements of the protocol given to him. It is unfortunate that none of the prompts drew attention to the requirements of cl 28. Sergeant Dagwell readily acknowledged his awareness of the terms of cl 28. I accept that, in the circumstances in which he found himself on this occasion, he simply forgot to do so.

1. Further, in that case, the defendant was informed that he had a right to make contact with a lawyer and he chose not to do so.

1. In Campbell v Director of Public Prosecutions (NSW) [2008] NSWSC 1284 Justice Hidden was dealing with an appeal from the Bega Local Court where ERISP's had been admitted despite a "deliberate" breach of the same LEPRA requirements. The defendants had been convicted of affray and one count of assault, and placed on s 9 bonds. The appeal does not disclose the seriousness and details of the charges. Hidden J found error in the way the Magistrate had dealt with the application of the test, particularly in terms of the gravity of the contravention by the police. He would have referred it back to the Magistrate to be dealt with according to law, but for the fact that the s 9 bonds had almost expired.

1. It is clear that this case is not authority for the proposition that the evidence should not have been admitted - the finding is that the Magistrate erred in the application of s 138(3) by placing insufficient weight on the gravity of the breach by the police.

1. There are two noteworthy decisions of the District Court, which I have also considered. In the case of R v Dorothy Riley (unreported, 12 February 2002, Shadbolt DCJ) an Aboriginal woman was charged with robbery in company. She made admissions in an interview, after the police failed to contact the Aboriginal Legal Service. They did so because the defendant had consented to being interviewed and "because they knew that the ALS would have advised her to remain silent". His Honour specifically found that the breach was deliberate and conscious. He excluded the interview. It was in that context that Shadbolt DCJ made the following comments:

Any instance of the breach of those regulations will weaken those regulations beyond repair. Police officers, and particularly those in such stations as Redfern where at least half of the persons who enter are Aboriginal, must become aware that the regulations must be applied strictly and in every respect. It is not a matter of lip service. Application to the letter is required. Any failure in that regard will have disastrous consequences on their investigations and the preparation of cases for court.

1. In R v APC & CP (unreported, 7 April 2006, Nicholson SC DCJ), an ERISP was rejected by the court following evidence of a number of breaches involving two Aboriginal young people charged with a serious robbery offence. The notification to the ALS was inadequate and non-compliant, however there were a raft of other breaches in that case. The court at [22] stressed that the application of the balancing test needs to take into account the particular vulnerability of the individual:

Some human beings are more vulnerable in facing police interrogation than others.... That means a contravention of any of the obligations, including the obligation to notify a representative of the ALS may have different consequences, depending upon the particular characteristics of the individual being interviewed by the police. The consequences in question may make it unfair for the evidence to be admitted.

1. Further, the court acknowledged at [23] that:

I accept that the provisions such as those required by Part 10A and the various regulations are frequently regarded by police as a roadblock impeding effective police investigation

1. In that case, the evidence was excluded, the court finding at [26] that:

It appears to me the breaches have an aura of endemic about them.

1. There is a fine balance which is difficult to apply. On the one hand, in judgments such as Parker v Comptroller-General of Customs [2007] NSWCA 348, Basten J found (at [65]):

What can be said without equivocation is that obtaining evidence in deliberate, wilful or even reckless disregard on an individual's civil rights is likely to be a strong factor against the exercise of the discretion to admit the evidence.

1. On the other hand it has been found that where police were neither reckless nor dishonest, but inexperienced and inadequately trained was a significant matter tending toward the admission - R v Dalley [2002] NSWCCA 284 at [93] per Simpson J.

1. In R v Phan [2003] NSWCCA 205 the court quoted with approval the following comments of Stephen and Aickin JJ in the seminal case of Bunning v Cross (1978) 141 CLR 54 at 78:

the courts should not be seen to be acquiescent in the face of the unlawful contact of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.

1. In this case, whilst the failure was not deliberate, it cannot be seen as being isolated.

1. In R v Camilleri [2007] NSWCCA 36 the court found at [35]:

Where the breach of the law is innocent, and the alleged offence serious there must be powerful countervailing considerations before the evidence should be rejected.

1. I have carefully considered these authorities the statutory considerations above and confess to wavering on the ultimate decision. On the one hand I am concerned that the breach in this case was significant and there ought be evidentiary consequences of that breach. The police ought to have systems in place to ensure that vulnerable persons are treated in accordance with law, and those systems ought include crosschecks. Bell J commented as much back in the year 2000. Nicholson DCJ commented similarly in 2006. It is likely that the breach led to the confession, in the sense that the likely advice would have been to say nothing. Of course this may or may not have been followed. It would be of concern if the police thought that "error" could be an advantageous position to assist with confessions.

1. On the other hand, this is a serious affray - far more serious than the charges in DPP v Carr [2002] NSWSC 194, or in R v Ali Alkan [2010] NSWLC 1 for example. Further, there were a series of other safeguards that were applied to the defendant, in the case of Inspector Kehoe, beyond the requirements of LEPRA. Further the beach was procedural and accidental - it was not an unlawful arrest or deliberate malfeasance.

1. I am satisfied, particularly given the above matters and in particular the seriousness of the matter and the accidental nature of the breach, that the evidence ought be admitted. I have not reached this decision lightly, or without doubts. However, I have balanced two undesirable outcomes, noted that the onus is on the prosecution, and determined that it would be more undesirable to exclude the evidence.

Orders

1. The ERISP will be admitted in evidence.

Magistrate D Heilpern

Ballina Local Court

29 June 2012

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Decision last updated: 02 July 2012