R v Alharbi

[2019] NSWDC 87

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Alharbi [2019] NSWDC 87
Hearing dates:	21 March – 22 March 2019
Date of orders:	26 March 2019
Decision date:	26 March 2019
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	Pursuant to s 138 of the Evidence Act 1995 (NSW) the ERISP is to be excluded and not admitted as evidence in the trial.
Catchwords:	CRIMINAL LAW - Judgment on voir dire - Admissibility of ERISP - LEPRA Regulations - Vulnerable person - Non English speaking background - non Compliance with Part 9 rights - Police Procedure - ERISP inadmissible
Legislation Cited:	Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act
Cases Cited:	Adams v Kennedy (2000) 49 NSWLR 78 R v FD [2013] NSWSC 1692 R v Phung & Huynh [2001] NSWSC
Texts Cited:	LEPRA Regulations
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (Crown) Muaddi Fahad Alharbi (Accused)
Representation:	Counsel: C Smith SC (Accused) D Clarke (Accused)   Solicitors: Director or Public Prosecutions
File Number(s):	2017/391396
Publication restriction:	Statutory non-publication pursuant to s 578A Crimes Act 1900 in relation to any matter that may identify the complainants.

Judgment

Introduction

1. By an indictment dated 21 June 2018 the accused is charged with four counts of indecent assault upon the first complainant and one count of sexual intercourse without consent of the second complainant knowing the second complainant was not consenting.

2. Each of the charges is said to have occurred on 26 or 27 December 2017.

3. On 27 December 2017 the accused took part in an electronic recorded interview (ERISP) at the Sydney City Police Station in Day Street.

4. Prior to the empanelment of the jury the accused seeks to have the ERISP excluded from the evidence. The basis for the accused's application is section 138 of the Evidence Act 1995 (NSW). By that section evidence obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law may be excluded. The accused argues that the ERISP was undertaken improperly or in contravention of an Australian law. More particularly the accused argues that the Law Enforcement (Powers and Responsibilities) Act 2002 and the Law Enforcement (Powers and Responsibilities) Regulation 2016 (the LEPRA Act and the LEPRA Regulation) have been contravened.

Background Facts

5. The alleged offences are said to have occurred on 26 and/or 27 December 2017. The following summary is based on Exhibit 1 which was the voir dire bundle tendered by the Crown, as well as the evidence of the accused which consisted of oral evidence from a Mr Alahmary. The Crown’s bundle Exhibit 1 contains a statement of Sgt Robert Wood who was the custody manager in the circumstances set out below and the Crown also called evidence from Detective Senior Constable James Dinnerville. Part of exhibit 1 were statements of each of the complainants as well as a statement from a Janice Gullick and of a Jasmine Watson.

6. The last two witnesses can be dealt with briefly. Ms Gullick's evidence went to show that the accused holds a PhD and seeks to and in my view does well establish that the accused has a very good command of the English language both orally and in writing. The evidence of Ms Watson goes to show that early in the morning of 27 December 2017 the accused’s mobile phone was being used. The point of this evidence was to show the accused was able to communicate with others at that time despite his apparent excessive intake of alcohol that evening.

7. On 26 December 2017 the accused communicated with the first complainant via an application known as the "couch surfing" app and as a result the two complainants and the accused met at Central train station at about 4:15 PM. In the following hours the three persons, and at times with an additional companion, toured the rocks and Circular Quay areas and points in between there and Central Station, sightseeing and drinking and eating some food. Later in the evening the two complainants and the accused sought out a hotel room, with ultimately the parties taking up a room at the Pullman Hotel. There is a dispute about just how the parties agreed and on what terms if any to do this but it seems on the current evidence that it was booked in the name of the accused and paid for by his credit card. There was some more drinking in the room and then there was some heightened familiarity between the parties involving kissing and hugging and ultimately it is alleged that the complainants objected to the accused’s conduct in that he touched them in a way that they say they did not consent to leading to the five charges before the court.

8. At approximately 4 AM the parties went to leave the hotel and there was a dispute as to who should pay and how the cost should be shared. At about this time the accused left the hotel. The complainants remained at the hotel.

9. The police subsequently attended at the Pullman Hotel and the complainants made statements at the Sydney City Police Station in Day Street.

10. At approximately 11:55 AM on 27 December 2017 the accused was arrested at his home in Ultimo. In cross examination of Detective Senior Constable Dinnerville it was agreed that at that time the lights of the apartment were not on, that the accused's wife and child were asleep and that the accused had the appearance of having been disturbed from sleep. Detective Senior Constable Dinnerville gave evidence that the officer accompanying him, plainclothes Senior Constable Emma Rodger issued a caution to the accused. There was no evidence though from DSC Dinnerville as to what words were used for that caution. However, question 35 of the ERISP interview provides evidence that the caution then (at Ultimo) given was in terms that the accused concedes satisfies section 139 of the Evidence Act. The point being made by the accused in this regard would appear to be that given the apparent state of the accused in the ERISP interview video and given some of his early answers in that interview and given also that the offender alleges the part 9 obligations of the LEPRA Act and Regulations had not been complied with, a query arises as to just how meaningful a caution given at 11:55 AM or thereabouts is in the circumstances of this case to an interview that commences at 1:46 PM. Ultimately in my view nothing turns on this in this application. That said, the appearance of the accused in the ERISP video is something that I do take into account. The accused appeared dishevelled and at least at the beginning of the video appeared to be bordering on disorientated. The accused certainly appeared to at the very least to be nursing a significant hangover, consistent with drinking possibly almost a bottle of whiskey, some vodka and numerous beers. The obligations of the custody manager are referred to below, but the essence of this application is that the custody manager is required to assist the accused in this case. That assistance needs to be meaningful and will obviously vary depending on the circumstances of the accused in question. There is no suggestion of whatever assistance that was provided taking into account the state of the accused as just described.

11. The ERISP concluded at 3.02PM.

12. Part of Exhibit 1 is a 19 page custody management record. It shows that the accused arrived at the Day Street Police Station at 12:25 PM on 27 December 2017. Page 2 of the custody management record shows that the brief assessment, visual assessment and vulnerability assessment were completed by 12:30 PM. The accused’s point overall in this matter is that the police have simply paid unacceptable lip service to the obligations of part 9 of the LEPRA Act and the accused relies upon the speed of carrying out the three assessments within five minutes as indicative of this.

13. Next the custody management record at page 4 shows that by 12:35 PM the caution and summary had been read. That is a reference to a document headed “Form 31 Summary of Part 9 of act for detained persons” which also forms part of Exhibit 1. That is a closely typed and in small font document approximately one and a quarter A4 pages and which in this case is signed at 12:35 PM. In other words the whole of the document has been read and the accused has been asked if he has any questions (the evidence of Sgt Wood) within five minutes. It is probably physically possible to do that, that is to read each of the words on the form 31 within five minutes, and included in those words are words that satisfy the requirements of Part 9, including a caution meeting the requirements of section 139 of the Evidence Act; see paragraph 3 of the Form 31. The argument for the accused is that the provisions of the LEPRA Act and Regulations are not satisfied merely by reading out the words and relies in this case in particular upon regulation 29 which requires the custody manager for a detained person who is a vulnerable person (such as the accused) to, as far as practicable, assist the person in exercising the person's rights under part 9 of the Act. Coupled with this is the repeated reference in the form 31 to the fact that the custody manager "will help" the detainee in a range of matters including to speak to a lawyer, to speak to a friend or relative or guardian or Independent person, or if not an Australian citizen (such as the accused) to speak to a consular official.

14. The evidence called by the accused from Mr Alahmary followed on from some evidence gained in cross examination from Detective Senior Constable Dinnerville. DSC Dinnerville gave evidence of having witnessed the accused in his home make a telephone call to a friend before being taken away under arrest by the police officers. In the evidence of Mr Alahmary he said he became aware of the accused being arrested because he received a call from his friend Hamza Alharthi in the early afternoon; see transcript page 47. The plain inference is that it was either Mr Alharthi or some other friend that the accused rang before leaving his home and Mr Alharthi either therefore knew directly or was told by someone else that the accused had been arrested, and he subsequently told Mr Alahmary. MrAlahmary’s evidence was that upon learning of the accused’s arrest in the early afternoon, he then met Mr Alharthi only 10 or 15 minutes later near World Square on George Street. Thereafter both of these men walked to the Day Street Police Station which took them about another 15 minutes. When pressed in cross examination as to what time these events occurred Mr Alahmary was unable to say whether it was after 1 o'clock or after 2 o'clock and could not remember if he had had lunch. As already noted the ERISP began at 1:46 PM and concluded at 3:02 PM.

15. Mr Alahmary's evidence was that when he and Mr Alharthi asked the police officer at the Day Street Police Station reception if they could meet the accused they were told that they needed to wait which they did. There was no further conversation with the police officer at that time and they then waited around 2 to 3 hours before leaving the police station. Upon leaving Mr Alahmary gave a piece of paper to a police officer with four names on it which included the name and number of himself and Mr Alharthi, the accused’s wife and a contact number from the embassy.

16. Page 9 of the custody management record records that at 16:25 PM two telephone calls were made. As I understand this document these are calls made by the accused though contrary to what the record says they could not have been made at the same time and I note one ends at 16:27 PM and the other at 16:33 PM. Presumably the call ending at 16:27 PM ended first which was to the consulate and resulted in leaving a message and the second was then made which ended at 16:33 PM which was to Mr Alharthi. The clear inference is that the message left by Mr Alahmaryof the four phone numbers was provided to the accused and he then utilised those numbers to make contact. If one takes the outer estimate of the time that Mr Alahmary waited of three hours then it can be deduced that he and Mr Alharthi were waiting from approximately 1:25 PM, which is prior to the commencement of the ERISP. If a two-hour estimate is taken then Mr Alahmary and Mr Alharthi were waiting from approximately 2.25PM, a little more than half an hour after the ERISP began. There must be a real prospect that for the whole of the time of the ERISP or at least a significant part of it two people wanting to assist the accused were sitting in the waiting room of the police station.

The legislation and regulations

17. Section 109 of the LEPRA Act provides that the objects of part nine are to provide for the period of time the person under arrest may be detained by a police officer to enable the investigation of that person's involvement in the commission of an offence. That section also provides for the rights of a person so detained.

18. By section 111 the part applies to a person who is under arrest by a police officer for an offence such as the accused in this case. Section 112 provides that the application of the part can be modified for certain persons including persons of non-English-speaking background such as the accused as is conceded to be the situation here.

19. Section 123 provides for a right to communicate with a friend, relative, guardian or Independent person and an Australian legal practitioner. By subsection 3 the custody manager must defer for a reasonable period any investigative procedure (which includes an ERISP) to allow the detained person to make or attempt to make a communication referred to in subsection 1 which is the provision to communicate with a friend, relative, Guardian or Independent person, so as to inform them of their whereabouts and if they wish, to ask the person to attend at the place where they are being detained. Subsection 3 also provides for the custody manager to defer the investigative procedure to allow the person communicated with to attend at the place of detention. By subsection 7 the period of deferment is not to be more than two hours. Section 123 (9) provides that the duties (emphasis added) of a custody manager provided for by section 123 are in addition to the duties owed to a person under section 124.

20. Section 124 deals with foreign nationals and their entitlement to communicate with a consular official. Page two of the custody management record records that the accused is a Saudi Arabian National in Australia since 2006 on a student visa which expires in March 2018. This was known at the time of the vulnerability assessment no later than 12:30 PM. Despite this the vulnerability assessment at paragraph 4 states in answer to the question "is this person from a non-English-speaking background" gives the answer "no". The point of this evidence for the accused’s argument is to show the lack of care and perhaps the speed with which the assessment was carried out given that the correct information was known yet the form was filled out incorrectly. It supports the idea that the process was gone through rapidly and as a matter of form only, rather than in a substantial and meaningful way.

21. Section 124 applies to the accused as it he is not an Australian citizen or permanent resident. By subsection 2 it provides in effect that before any ERISP the custody manager must inform the detained person orally and in writing that he may communicate or attempt to communicate with a consular official of the country of which the person is a citizen and may ask the consular official to attend and should the person wish to so communicate then reasonable facilities to enable that to occur are to be provided.

22. The argument for the Crown is that paragraph 8 of the form 31 states precisely this entitlement of the accused, so that it is argued the section has been complied with. That may be correct however, it does not account for the impact of the regulations. Before turning to the regulations section 131 of the LEPRA Act should be noted which provides that the custody records are to record by subsection (2) (g) if the person is denied any rights under this part the reason for the denial of those rights and the time when the person was denied those rights. The Crown would argue that that is not applicable here because there was never a denial of any rights but rather a failure on the part of the accused to seek to exercise the rights which were read out to him by the reading out of the form 31.

23. Division 3 of the LEPRA regulations deals with vulnerable persons and includes by regulation 28 persons who are of non-English-speaking background. It is conceded that the accused is a vulnerable person. By way of observation only, it may appear somewhat otiose in the circumstances where the person from the non-English-speaking background actually holds a PhD from an English speaking university and is clearly well versed in the English language. That however would be to take too narrow an overview of what is intended by the reference to non-English-speaking background. A person from a non-English-speaking background may well not have a full appreciation of their rights and entitlement in New South Wales due to the fact that they come from a non-English-speaking background. In any event the accused is relevantly a vulnerable person for the purposes of the LEPRA regulations.

24. Crucially in this case is regulation 29 which by sub regulation (1) provides

"the custody manager for a detained person or protected suspect who is a vulnerable person must as far as practicable assist (emphasis added) the person in exercising the person's rights under part 9 of the Act including any right to make a telephone call to a legal practitioner, support person or other person"

25. The Crown says that the Act has been complied with and that the assistance has been provided by making the accused aware of those rights.

26. The accused on the other hand argues that the timeline set out above namely of the Form 31 part 9 document being read in no more than five minutes shows that there has been nothing but a token attempt to comply with the significant matters dealt with by part 9.

27. The accused relies on the fact that once telephone numbers had been provided to him he took advantage of that opportunity and telephoned those persons.

28. The accused also relies on the opening questions and answers in the ERISP as showing that the accused did not have a clear grasp on his rights. For example in answer to question 2 the accused asks "do I need anyone? I don't know about the procedure". The next question is somewhat irrelevant to the present consideration but gives the impression that the police officers wish to proceed with the interview and deal with the rights of the accused at a later time. The application however is not seeking to have the interview excluded for the lack of the appropriate caution due to the answer referred to above at question 35.

29. The answer to question 7 as to whether the accused understands he is about to be asked questions about a sexual assault is "what?" The answer to question 10 asking if he wants to exercise any of his rights is "if I need to what I will speak to. I don't know what is the procedure". Then at question 14 the answer was "well and then what is the process I have to go out then I arrange it and then come back to the interview?” This was an answer to some questions and answers concerning wanting a lawyer then at question 15 having just asked what the process was he was told that he would still be in custody, would need to use the telephone and go through the phone book. He was told he would have to arrange that himself over the phone to which he says in answer “maybe at the end maybe I want to speak to my counsellor or I will….And then I'll just let my Counsel know I am in here”.

30. The accused relies on this evidence as demonstrating that the custody manager did not provide the sort of assistance that is required by regulation 29. I accept this submission, for the comments of the accused are indicative of not having been assisted. This is a conclusion more easily reached as the onus of showing compliance with LEPRA lies on the Crown.

25. In R v Phung & Huynh [2001] NSWSC 115 the Chief Judge at common law Justice Wood excluded an ERISP interview under the equivalent regulations as those which we are dealing with. The accused relies heavily upon paragraphs 36 to 39 inclusive which provide as follows:

The role of the support person is to act as a check upon possible unfair or oppressive behaviour; to assist a child, particularly one who is timid, inarticulate, immature, or inexperienced in matters of law enforcement, who appears to be out of his or her depth, or in need of advice; and also to provide the comfort that accompanies knowledge that there is an independent person present during the interview. That role cannot be satisfactorily fulfilled if the support person is himself or herself immature, inexperienced, unfamiliar with the English language, or otherwise unsuitable for the task expected, that is, to intervene if any situation of apparent unfairness or oppression arises, and to give appropriate advice if it appears the child needs assistance in understanding his or her rights.

That position is reinforced by the requirements of the regulations so far as they apply in relation to vulnerable persons, of which a child is one. In particular regulation 20 requires the custody manager to assist a vulnerable person in exercising that person's rights, and regulation 26 requires the custody manager to explain to a support person that his or her role is not confined to acting merely as an observer, but also extends to doing the other things specified.

It is important that police officers appreciate that the regime now established is designed to secure ethical and fair investigations, as well as the protection of individual rights, of some significance, which attach in particular to children. Those rights, obviously, are of great importance when a child is facing a charge as serious as murder or armed robbery.

The provisions need to be faithfully implemented and not merely given lip service or imperfectly observed. The consequences of any failure to give proper regard to them is to risk the exclusion of any ERISP, or the product of an investigative procedure, which is undertaken in circumstances where there has not been proper compliance with the law.

32. The accused also relies upon paragraphs 60 to 64 inclusive:

I observe that the present is very much a case on its own special facts. It does, however, point to the need for custody managers to provide a contemporary statement of what occurred in relation to each case in which they become involved, and not merely to rely at some later date, when an issue arises, on computer generated or standard summary forms which, in many instances, require little more than a tick or cross in a box. If left until an issue arises, it is unlikely that these documents will be sufficient to refresh the custody manager as to precisely what was said or done.

Wherever possible it would be highly prudent for custody managers to record by audio or video tape, their conversations with an accused, and with his or her support person in those circumstances where an interview occurs or investigative procedures are undertaken during a detention period. Preferably this should occur in all such cases but certainly it should be done in those involving serious offences.

Moreover, it is important for investigating police to give full effect to the legislative regime now in force, and to ensure that not only do they understand and comply with it, but also to see that the custody manager does what is expected of him or her. Had contemporary records been kept or statements prepared concerning the relevant dealings with the accused and with the support persons, it may well have been the case that some of the matters, identified as problems in this case, would have been answered.

Additionally, I observe that police should not automatically assume that their obligations under the legislation, can be met by a rote reading of the requisite cautions and advice, or by the handing over of printed forms for an accused to read for himself or herself. Nor should they assume that compliance can be proved by the securing of a simple signature or initial on the custody management report. There is a positive obligation, under the legislation, to ensure that a child or vulnerable person can understand what is being said - for example see regulation 29. That may extend to satisfying themselves that he or she can speak English or can read. Moreover, the regulations give rise to a positive obligation to assist a vulnerable person in exercising his or her rights - see regulation 20.

The final observation that needs to be made, in this context, is that the onus of proving compliance with the legislative regime rests upon the Crown. That means that it will need to have the necessary evidence available, if an issue is taken up in relation to the interview of a child as well as in relation to all other accused who are interviewed or subjected to forensic tests in circumstances attracting the legislation. Unless police secure that evidence, then it may well be necessary, as in this case it was, for the evidence to be excluded.

33. In R v FD [2013] NSWSC 1692 Justice Adamson was dealing with an application to exclude an ERISP interview as being improperly obtained pursuant to section 138 of the Evidence Act. In deciding that case Justice Adamson adopted the passages from Phung at paragraphs 34 and 38.

34. In another field entirely I would also note the comment made in Adams v Kennedy (2000) 49 NSWLR 78 at 87 at paragraph 36. That was a case of wrongful arrest and some behaviour of police officers which was described as reprehensible. In assessing damages the court stated

"the amount should also be such as to bring home to those officials of the state who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that the abuses of the kind that occurred in the present case do not happen".

35. The submission of the accused in our present case makes the same point. That is that the provisions of the LEPRA Act have been in force now for some 17 years. Like regulations were in place prior to that time. The judgment of Justice Wood at paragraph 38 bears repeating:

"it is important that police officers appreciate that the regime now established is designed to secure ethical and fair investigations as well as protection of individual rights of some significance which attach in particular to children. Those rights obviously are of great importance when a child is facing a charge as serious as murder or armed robbery"

and he went on to say at paragraph 39 that the provisions need to be faithfully implemented

"and not merely given lip service or imperfectly observed. The consequences of any failure to give proper regard to them is to risk the exclusion of any ERISP or the product of an investigative procedure which is undertaken in circumstances where there has not been proper compliance with the law”.

36. The passages at paragraph 63 to 64 of Justice Wood's judgement are akin to a practice manual for the correct police procedure in circumstances such as the present. I accept the submission on behalf of the accused that the purpose of the legislation is to protect significant rights of an accused and the failure to comply with the act and regulations has the known risk of the exclusion of the ERISP. The argument, in this respect at least, boils down to saying if the ERISP is not excluded then the non-compliance is likely to be continuing, if not encouraged. I hasten to add that in this case the relevant custody manager had no indication of being anything other than well-meaning but the concern is that if this was his usual practice it is simply not good enough. I would also hasten to add further to that that whilst this is a sound policy ground for the exclusion of the ERISP an even more to the point basis for its exclusion is the willingness of the accused to contact people when he was provided with their telephone numbers. From this I find that the accused most likely would have done this had he been properly assisted and "helped" by the custody manager in the way that the regulations provide.

37. In addition to all of the above it is to be remembered that the accused does not bear the onus in this debate but rather the Crown does. I am not satisfied that the Crown has met any onus to maintain the admission of the ERISP by having complied with the LEPRA Act and Regulations.

Section 138 Evidence Act 1995 (NSW)

38. Turning then to section 138. For the reasons set out above I am satisfied that the evidence was obtained in contravention of an Australian law in particular the LEPRA and regulations and more particularly still, in disregard of Regulation 29

39. In those circumstances the ERISP is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. In my view the reasoning set out above as to both the policy concern as well as the fact that it would appear the accused would have taken advantage of rights he did not take advantage of had the provisions been complied with is enough to answer that question.

40. Section 138(3) sets out matters that may be taken into account in determining this issue. The main point here made by the accused was that in the absence of the ERISP there is still a significant case against the accused. In relation to the nature of the offence (subsection(c)) the point is made is that the more serious the offence the more this factor on the authorities favours the Crown. Here the maximum penalty is significant but nevertheless 14 years and not 25 years or more so that it is said that this factor favours that the accused. I accept that argument but would also suggest that the offence being dealt with is very serious and a maximum penalty of 14 years is clearly very significant and in a case as here on my findings where the ERISP may well not have taken place had LEPRA been complied with. That is, it is likely that had LEPRA been complied with the accused would have obtained assistance from friends, the consulate and a lawyer and there must be a real prospect that he would have refused to undertake the interview. That fact or conclusion alone in my view would mean that this factor favours the accused.

41. Subsections (d) and (e) deal with the gravity of the impropriety or contravention and whether it was deliberate or reckless. The accused here says that Sgt Wood’s evidence amounts to showing that the contravention is actually standard practice and therefore deliberate and if accepted also very grave. My impression of the Sergeant’s evidence was that it was his regular practice. There seems to be little regard for the substance or purpose of the procedure. This was demonstrated by question and answer 390 to 392 when asked if he had any complaints and the accused responded “that's an unusual question”. Rather than following up as to whether there was any complaints the answer of the police officer was simply to say all right and as can be seen in the video to simply move on.

42. I would note that that part of the video is obviously at the end of the ERISP and therefore subsequent to the requirements of the part 9 procedure and the form 31 process. However, given the speed with which that part of the process was carried out as recounted earlier in these reasons, I am prepared to accept that the part of the video just referred to is representative of the process adopted by Sergeant Wood.

43. As to subsection (g) the evidence does not suggest there will not be any other accounting for the breach of the procedure. As to subsection (h) there is no difficulty in obtaining the evidence without the contravention other than of course the prospect that the accused may make use of the rights which were not sufficiently explained to him, which cannot sensibly be said to favour the admission of the ERISP.

Determination

44. For all these reasons the ERISP that took place on 27 December 2017 will, pursuant to section 138 of the Evidence Act, be excluded and will not be admitted into evidence.

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Amendments

29 March 2019 - Spelling correction on cover sheet

Decision last updated: 21 September 2020