R v Alkanaan

[2015] NSWSC 911

Supreme Court

New South Wales

Medium Neutral Citation:	R v Alkanaan [2015] NSWSC 911
Hearing dates:	16 February 2015, 26 February 2015
Date of orders:	27 February 2015
Decision date:	10 July 2015
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361
Catchwords:	CRIMINAL LAW – evidence – admissibility of ERISP – whether admissions made influenced by threats – whether extension of detention warrant valid – essential facts to exclude ERISP not proved – ERISP admitted
Legislation Cited:	Controlled Substances Act 1984 (SA) Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 Law Enforcement (Powers and Responsibilities) Regulation 2005 Listening Devices Act 1969 (Vic)
Cases Cited:	Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361
Category:	Procedural and other rulings
Parties:	The Crown Falah Alkanaan (Accused)
Representation:	Counsel: C Patrick (Crown) G Wendler (Accused) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2013/40590
Publication restriction:	Not Applicable

___________________________________________________________________

Judgment

1. Mr Falah Alkanaan has been indicted upon a charge that on 2 February 2013, he did murder Hussain Khanafer at Blackett in New South Wales. To that charge, he pleaded not guilty.

2. He has pleaded guilty to another charge which is not directly relevant to the present issue.

3. His co-accused, Mr Ben Toleafoa, has been indicted on a charge of being an accessory after the fact to the murder of Mr Khanafer. He has pleaded not guilty to that charge. Mr Toleafoa has taken no part in the submissions and argument to which this judgment relates.

4. Mr Alkanaan was indicted at the commencement of his trial on 16 February 2015. Before the jury was empanelled, his counsel made an application pursuant to ss 189 and 192A of the Evidence Act 1995 for an advance ruling on a preliminary question, namely whether the interview conducted on 8 February 2013 at the St George Police Station by Detective Sergeant James McLoughlin and Detective Sergeant Steven Peroni with Mr Alkanaan (“the ERISP”), is admissible in the trial of Mr Alkanaan.

5. There were two bases upon which it was sought to argue that the ERISP was inadmissible. The first basis is that the contents of the ERISP constitute an admission for the purpose of s 84 of the Evidence Act and that such admission or admissions were influenced by threats or conduct of a kind which contravened s 84 of that Act and, accordingly, the ERISP is not admissible. Mr Alkanaan argued that having regard to the circumstances in which the admission was made during the course of his ERISP, it would be unfair to use the evidence against him. In this respect he relied upon the provisions of s 90 of the Evidence Act. To like effect, he also relied upon the provisions of s 138 of the Evidence Act.

6. The second basis upon which counsel for Mr Alkanaan mounted a challenge to the admissibility of the ERISP was directed to whether a detention warrant to extend the time for detention of Mr Alkanaan, issued at 10.40pm on 8 February 2013, was valid. If the warrant was not valid, then it was submitted that the second part of the ERISP ought to be excluded.

Voir Dire

7. In order to determine whether the ERISP was admissible, evidence of Detective Sergeant McLoughlin and the accused, Mr Alkanaan, was taken on the voir dire. It was necessary and convenient to conduct the voir dire in two separate parts.

8. On 16 February 2015, after the completion of the evidence of the first witness, Detective Sergeant McLoughlin, I heard argument about the validity of the extension of the detention warrant. At the conclusion of the argument, I informed the parties that I would not exclude the ERISP, or any part of it, on the basis that the detention warrant was not valid. I indicated that I would deliver my reasons in due course.

9. On 26 February 2015, the hearing of the voir dire resumed. At that time, it was apparent that one police witness, Detective Sergeant Peroni, was medically unfit to give evidence. Accordingly, the Crown closed its case on the voir dire. The accused, Mr Alkanaan, then gave evidence. Submissions were then taken on the remaining issues.

10. On 27 February 2015, I informed the parties that, for reasons which would be delivered, I was satisfied that the admissions made by the accused, Mr Alkanaan, in the ERISP were not influenced by conduct proscribed by s 84 of the Evidence Act. I also informed the parties that I was not persuaded that any other submission of the accused, Mr Alkanaan, ought be upheld so as to preclude the tender of the ERISP.

11. What now follow are my reasons for those rulings.

Validity of Detention Warrant

12. It is necessary to set out some facts which were entirely uncontroversial.

13. The murder with which Mr Alkanaan was charged occurred on 2 February 2013. Mr Alkanaan was arrested at 4.10pm on 8 February 2013, some six days later, at Sydney Domestic Airport, in the process of, whilst disguised and carrying false identification material, boarding a flight to Darwin. Having been arrested, Mr Alkanaan was searched and a number of items removed from him. He was then transported to the St George Police Station at Kogarah.

14. Detective Sergeant McLoughlin and Detective Sergeant Peroni, the principal investigators of the crime, arrived at the St George Police Station at about 5.25pm. Having had an initial conversation with Mr Alkanaan, they took him to an interview facility within the Police Station and at about 7.38pm commenced the ERISP.

15. At 8.33pm the ERISP records Detective Sergeant McLoughlin informing Mr Alkanaan that the interview was being stopped “…for the purposes of applying for an extension warrant”. The interview was resumed at 8.44pm.

16. At 9.37pm Detective Sergeant McLoughlin again suspended the interview saying to Mr Alkanaan:

“We’re going to suspend this interview for the purpose of applying for an extension warrant, as I explained to you before. So we’ll do that now.”

17. The interview resumed at 10.50pm. At that time, Detective Sergeant McLoughlin told Mr Alkanaan this:

“Falah, as you are aware, we applied for an extension warrant to an authorised justice and he’s granted a further two hours investigation time.”

Mr Alkanaan indicated that he was aware of that process.

18. The interview continued until 11.45pm when the questioning by the investigators ceased, and an independent police officer, Sergeant Hodder, was asked to enter the room and make enquiries of Mr Alkanaan as to the process of interview. Ultimately, the independent officer concluded the interview at about 12.05am.

19. It is apparent that Detective Sergeant McLoughlin made an application for a detention warrant on the evening of 8 February 2013. The evidence suggests that he faxed a copy of a written application to the authorised officer. The authorised officer spoke with Detective Sergeant McLoughlin over the telephone. After that, the authorised officer spoke to Mr Alkanaan over the telephone. There is no evidence before me as to the contents of either of these conversations.

20. At 10.40pm, the authorised officer issued a detention warrant that extended the maximum investigation period beyond four hours by an additional two hour period.

21. It will be necessary to refer to the terms of the detention warrant shortly.

Relevant Legislation

22. The legislation relevant to the issue of the detention warrant is the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”). Part 9 of LEPRA deals with investigations and questioning.

23. The objects of the Part are set out in s 109. They are to provide for the period of time that a person who is under arrest may be lawfully detained by a police officer to enable an investigation of the person’s involvement in the commission of a crime, and to allow for that detention to continue without the necessity to bring the person before a Magistrate without delay. As well the objects provide for the rights of the person so detained.

24. Section 115 of LEPRA provides that the maximum investigation period is four hours unless extended by a detention warrant.

25. The principal sections which deal with detention warrants are to be found in ss 118-120 of LEPRA. They are as follows:

“118    Detention warrant to extend investigation period

(1)   A police officer may, before the end of the investigation period, apply to an authorised officer for a warrant to extend the maximum investigation period beyond 4 hours.

(2)    The person to whom an application for a detention warrant relates, or the person’s legal representative, may make representations to the authorised officer about the application.

(3)    The authorised officer may issue a warrant that extends the maximum investigation period by up to 8 hours.

(4)    The maximum investigation period cannot be extended more than once.

(5)    An authorised officer must not issue a warrant to extend the maximum investigation period unless satisfied that:

(a) the investigation is being conducted diligently and without delay, and

(b) a further period of detention of the person to whom the application relates is reasonably necessary to complete the investigation, and

(c) there is no reasonable alternative means of completing the investigation otherwise than by the continued detention of the person, and

(d) circumstances exist in the matter that make it impracticable for the investigation to be completed within the 4-hour period.

(6)    As soon as reasonably practicable after a detention warrant is issued, the custody manager for the person to whom the warrant relates:

(a) must give the person a copy of the warrant, and

(b) must orally inform the person of the nature of the warrant and its effect.

119    Detention warrants

(1)    An application for a detention warrant may be made by the applicant in person or by telephone.

(2)    In any criminal proceedings, the burden lies on the prosecution to prove on the balance of probabilities that the warrant was issued.

(3)    In the case of an application made for a detention warrant by telephone, the applicant for the warrant must, within one day after the day on which the warrant is issued, give or transmit to the authorised officer concerned an affidavit setting out the information on which the application was based that was given to the authorised officer when the application was made.

120    Information in application for detention warrant

(1)    An authorised officer must not issue a detention warrant unless the application for the warrant includes the following information:

(a) the nature of any offence under investigation,

(b) the general nature of the evidence on which the person to whom the application relates was arrested,

(c) what investigation has taken place and what further investigation is proposed,

(d) the reasons for believing that the continued detention of the person is reasonably necessary to complete the investigation,

(e) the extent to which the person is co-operating in the investigation,

(f) if a previous application for the same, or substantially the same, warrant was refused, details of the previous application and of the refusal and any additional information required,

(g) any other information required by the regulations.

(2)    The applicant must provide (either orally or in writing) such further information as the authorised officer requires concerning the grounds on which the detention warrant is being sought.

(3)    Nothing in this section requires an applicant for a detention warrant to disclose the identity of a person from whom information was obtained if the applicant is satisfied that to do so might jeopardise the safety of any person.”

26. Section 132, which is the final section in Part 9 of LEPRA, enables regulations to be made, but dealing with guidelines to be observed by police officers exercising functions under Part 9 and the keeping of various records relating to detained persons. Section 132 makes no specific reference to the provisions of ss 118-120.

27. Section 238 of LEPRA is the section dealing, generally, with a regulation‑making power. It is in the following form:

“238    Regulations

(1)    The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.”

28. A regulation has been made under LEPRA. Clause 4.3 of the Law Enforcement (Powers and Responsibilities) Regulation 2005 (“the Regulation”) provides that an application for a detention warrant issued under Part 9 of LEPRA is to be made in the form of Part 1 of Form 8 of the prescribed forms.

29. Clause 5(h) of the Regulation provides that a record is to be made by or on behalf of an eligible issuing officer in relation to an application for a detention warrant in accordance with Part 2 of Form 8 of the prescribed forms. Clause 6(1)(e) of the Regulation provides that for the purposes of s 66 of LEPRA, the form for a detention warrant issued under Part 9 of LEPRA is Form 13.

30. It is necessary to refer to s 66 of LEPRA which falls within Part 5, Div 4 of the Act. Section 66 of LEPRA applies to detention warrants issued under Part 9 of LEPRA by virtue of s 59(4) of LEPRA. Regrettably, neither counsel for Mr Alkanaan nor counsel for the Crown drew attention to this provision.

31. Section 66 is in the following form:

“66    Form of warrant

(1)    A warrant is to be in the form prescribed by the regulations.

(2)    ...”

32. The detention warrant that was issued, it is accepted, was in accordance with Form 13 as prescribed by cl 6(1)(e) of the Regulation.

33. It contained the following words of substance:

“On 8 February 2013, I, Rory Evans, an authorised officer empowered to issue detention warrants under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002, granted this warrant to extend the maximum investigation period in relation to Falah ALKANAAN of 20 Boldrewood Road, Blackett (detained person) beyond the 4 hours by TWO HOURS ONLY (excluding times that are not to be taken into account under s 117 of the Law Enforcement (Powers and Responsibilities) Act, 2002 from 10.40pm on 8 February 2013.”

Argument as to Invalidity

34. Counsel for Mr Alkanaan without reference to the relevant statutory provisions, argued that the warrant on its face was defective because, having regard to the provisions of s 118(5)(a)-(d) of LEPRA, the jurisdictional basis upon which the warrant was issued should have been reflected upon the face of the warrant.

35. Counsel argued that s 118(5) of LEPRA sets out the minimum requirements which must be met before the authorised officer can issue a warrant. Accordingly, so the argument proceeded, for a valid warrant to exist, the authorised officer’s satisfaction of each of the matters set out in that sub‑section must be stated on the face of the warrant.

36. Without reference to s 66 of LEPRA, counsel for Mr Alkanaan argued that to the extent that the Regulation provided a form of warrant, and the warrant in fact issued complied with that Regulation, the Regulation was ultra vires because it did not reflect the requirements of the statute.

37. In support of the application, counsel relied upon the decision of the Full Court of the Supreme Court of South Australia in Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361.

38. In that case, Jacobs J, at first instance, held that the warrant on its face failed to disclose compliance with the requirements of the requisite legislation, namely s 52(5) of the Controlled Substances Act 1984 (SA), and so determined that the warrant was thereby invalid.

39. Jacobs J said at p.370

“Where, however, as in the present case, the statute is silent as to the form of the warrant, what is to appear on the face of the warrant should be determined by reference to the statute itself, and the nature of the warrant. What is necessary in the case of a warrant under a particular statute may not be sufficient in the case of a warrant which confers different powers, or is issued under the authority of a different statute; but the person who is required to submit to the warrant is entitled to know – and therefore the warrant should show on its face – the statutory authority under which it has been issued, and if the issuing officer chooses to recite compliance with the statutory requirements of it issue – even though that may not be a strict requirement of the statute … a recital which can only be construed as non‑compliance must in my opinion invalidate the warrant.”

40. A more recent, and more relevant, decision is that of the High Court of Australia in Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69.

41. The issue for consideration by the High Court was whether two warrants issued by judges of the Supreme Court of Victoria pursuant to the Listening Devices Act 1969 (Vic) were valid, in circumstances where the form of warrant referred only to one of the two jurisdictional matters of which a judge had to be satisfied.

42. Toohey J, one of the justices in the majority, concluded that notwithstanding that the subject warrants had been issued by a Supreme Court judge, the act of the judge issuing the warrant was an administrative, and not judicial, act. His Honour then went on to say:

“It follows … that there is no bar to collateral review by a trial judge of the validity of a warrant on its face. However, it is not open to the judge to adjudicate on the sufficiency of a warrant whether the issuing authority was in fact satisfied as to any statutory requirements. The first of these propositions must be read subject to what follows later in these reasons as to whether the Act requires that a warrant disclose jurisdiction on its face.”

43. His Honour turned to the question of whether a warrant must disclose jurisdiction on its face. At p.82, his Honour said:

“There are two aspects to the question posed in the heading:

Does the Act provide a code of the matters which a warrant must state on its face?

If the Act does not exclude matters which are required at common law, what are those matters?”

44. His Honour went on to note that the Act in question did not expressly require that the basis of jurisdiction be disclosed on the face of the warrant. His Honour held that the legislation set out comprehensively all the matters to be stated in a warrant, and there was otherwise no statutory requirement to disclose jurisdiction on the face of the warrant. His Honour held that the omission of one precondition to jurisdiction could not of itself invalidate the warrant.

45. McHugh J at p.108, although inclined to the view that a collateral attack on a warrant may be on a ground broader than a defect appearing on the face of the warrant, expressed the view that the correct principle to be applied was that enunciated by Lord Diplock in Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1008, where his Lordship held that what had to be disclosed upon the face of a search warrant depended upon the true construction of the statute authorising the warrant.

46. After referring to the decision in Tran Nominees, McHugh J said at p.110:

“On the other hand, where the statute prescribes the form of warrant, a warrant in this form will be valid even when it does not recite all the jurisdictional conditions: re BX Development Inc and The Queen (1976) 70 DLR (3d) 366 at 372. Similarly, where the legislation specifies what the warrant must contain, nothing more can be required. Thus in Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 at 488, the Full Court of the Federal Court held that the provisions contained in s 71(7) of the Proceeds of Crime Act 1987 (Cth) exhaustively describe what the warrant must contain.

Against the background of the common law tradition of invalidating warrants, a legislature’s statement as to what a warrant must contain should be regarded as exhaustive. Expressio unius est exclusio alterius. No doubt in interpreting legislation the expressio unius est exclusio alterius rule is one to be applied with caution … But given the history of the common law on this subject matter, it seems safe to proceed on the assumption that, when a legislature specifies what must appear in a warrant, it intends its statement to be exhaustive of the matters that the warrant must disclose.”

47. Gummow J, who was also in the majority, identified a number of relevant principles. He said (at p.118):

“Lord Wilberforce pointed out in Inland Revenue Commissioners v Rossminster Ltd … that any inquiry into the form of search warrants at common law is of limited assistance where the form of the warrants in question is prescribed by statute. The matter is one of statutory interpretation …, giving proper weight to the precept that a legislative intention to interfere with fundamental rights by the commission of what otherwise would be tortious or criminal acts ‘must be clearly manifested by unmistakable and unambiguous language’.”

48. His Honour then turned to consider the terms of the enabling statute and said (at p.128):

“The matters listed in s 4A(3) and (4) constitute a comprehensive list of the matters that must appear on the face of the warrant for it to be a ‘warrant granted under s 4A’ within the terms of s 4(3) of the Act. The comments of Lord Wilberforce in Rossminster … made in the context of a challenge to search warrants issued under the Taxes Management Act 1970 (UK) are apt: ‘It would be wise to add to [the warrant] a statement of satisfaction on the part of the judicial authority as to the matters on which he must be satisfied that this is not a requirement and its absence does not go to validity.”

49. At p.130, his Honour doubted the continuing relevance of the decision of the Full Court of the Supreme Court of South Australia in Tran Nominees saying:

“However, there is a more significant reason why those decisions do not provide assistance in this appeal. In 1990, after the decisions in Tillett and Tran Nominees, this Court held in Love v Attorney-General (NSW) … that the issue of warrants under legislation such as the act involves an exercise of power which is essentially administrative in nature. Once that is understood, 19th century decisions which proceed on the basis that the issue of warrants is a judicial act, are of limited relevance. The earlier decisions in Tillett and Tran Nominees and the later decision of O’Loughlin J in Karina Fisheries … did not proceed upon a full appreciation of the administrative nature of the activity in question. Distinctions between inferior and superior courts, and presumptions of regularity in relation to the acts of superior courts, but not those of inferior courts, do not assist a case such as the present.

The more appropriate principle is that the validity of an administrative act or decision and the legality of steps take pursuant to it, are presumed valid until the act or decision is set aside in appropriate proceedings …”

Discernment

50. The warrant in question is clearly issued as an administrative act by an authorised officer. Accordingly, it is presumed to be regular unless the contrary is shown, and it is set aside.

51. In determining this challenge, it is necessary to examine the statute. LEPRA provides specifically in s 66 that the form of the warrant will be as set out in the Regulation. The Regulation provided for the form of the warrant. The warrant complied with the form prescribed by the Regulation. There is thus a code by which LEPRA fully provides for the requisite contents of a warrant.

52. There is therefore no basis for attacking the validity of the warrant issued here for an absence, on its face, of a statement of its jurisdictional basis.

53. It is unsurprising that the Regulation does not require a statement of the jurisdictional basis on the face of the warrant, because the scheme of the records to be kept with respect to the issuing of the warrant provides that all of the matters which are necessary with respect to the appropriate jurisdictional satisfaction are to be stated and preserved in another document. No doubt, if there was a challenge of substance to the administrative act, as McHugh J suggests, that document would be relevant. No such challenge was made here.

54. Even if LEPRA did not create a code which governed the application and the terms of the warrant, I would not be satisfied upon examination of the statute, that it requires a statement of the jurisdictional basis to be made on the face of the warrant. There is nothing in the terms of the statute requiring the warrant to contain such a statement. It is true that the authorised officer must be satisfied of certain matters before issuing the warrant, but as Gummow J noted in Ousley, having regard to the presumption of regularity, the older authorities (including the only one relied upon by the applicant) are of limited assistance in statements with respect to whether jurisdictional facts are required to be stated on the record. There is simply no basis in the interpretation of the statute to require a statement on the face of the warrant of the jurisdictional basis for its issue.

55. Finally, having regard to the fact that the warrant complied with the Regulation, even if I was persuaded that the jurisdictional facts ought be stated on the warrant, and I am not, I would not have been disposed to exercise my discretion under s 138 of the Evidence Act to exclude the material.

56. At best, the omission is an unintentional omission of a technical requirement which does not go to the real substance of the nature of what the warrant permitted, namely the extension by two hours of the period of detention.

57. In all of the circumstances, this basis for an attack on the validity of the warrant must be dismissed.

Voluntariness of ERISP

58. Counsel for the accused, Mr Alkanaan, alleged that Detective Sergeant McLoughlin confronted the accused and, through a verbal threat to charge his partner with a crime, coerced him into making the interview during which the accused made admissions which formed part of the Crown case against him. Such admissions as were made were recorded on the ERISP.

59. The admissions were said to be constituted by a series of lies told by the accused in relation to the offence of murder, and the circumstances surrounding that offence and his conduct.

60. Counsel for the accused relied upon some or all of the provisions of ss 84, 85, 90 and 138(2) of the Evidence Act as the basis of his challenge to the admissibility of the ERISP.

61. Whilst in some cases, a challenge of this kind to the admissibility of an admission can be confined to the particular admission itself, in this case, because of the more generalised nature of the admissions and the impossibility of separating them out from the balance of the interview, the challenge was made to the entirety of the contents of the ERISP.

62. Counsel for Mr Alkanaan accepted that he needed to persuade the Court that, as a matter of fact, the verbal threat upon which he relied was made, as an essential part of the success of his submissions. In submission, counsel for Mr Alkanaan was asked to identify the particular statements made by the police upon which he relied. He did so. He then added:

“Now, I have to accept, if your Honour was to not accept those statements were ever made by police, I cannot succeed at all.”

63. As will become apparent from what follows, I do not accept that the statements identified and relied upon were made by Detective Sergeant McLoughlin. Accordingly, the factual basis relied upon to exclude the ERISP has not been established, and the Crown has persuaded me that the admissions in the ERISP are admissible in the trial.

64. Detective Sergeant McLoughlin gave evidence on the voir dire. In his evidence-in-chief he denied putting any pressure upon Mr Alkanaan to give the answers that he did, namely, those answers in which he denied any involvement in the shooting.

65. In cross-examination, he was asked whether he used words to this effect “Falah, we’ve got you cold”. He denied using those words. He was then asked this question:

“Did you say to him you were going to sink him if he didn’t make an interview, and you’d also charge his wife?”

He denied saying any such thing.

66. It was put to him that this conversation occurred at the St George Police Station at Kogarah, and after he had introduced himself, and Detective Sergeant Peroni, to the accused. It was put that the words were spoken to the accused soon after the accused was asked if he wanted to make a telephone call. Detective Sergeant McLoughlin denied this.

67. For entirely proper reasons, Detective Sergeant Peroni was unable to give evidence. No adverse inference can be drawn against the Crown because of his absence.

68. The accused was called to give evidence on the voir dire on the issue of what was said between the investigating police, Detective Sergeant McLoughlin Detective Sergeant Peroni and himself.

69. His evidence was as follows:

“Q   … can you tell us as best you are able to remember, what happened when he came onto the scene.

A   He came on, he said a few things and then he told me I have to make an interview. I said ‘No, I’m not doing no interview. I want to talk no-one. I want to speak to a lawyer’ or something ‘or Legal aid’.

…

Q   I’ll take you to the point when Sergeant McLoughlin came onto the scene. Tell us again what happened when introduced himself to you? What happened after that?

A   All he told me ‘You have to make interview’, I told [him] ‘No, I didn’t do nothing – I don’t have to do nothing’.

Q   ‘You don’t have to do nothing’, is that what you said?

A   Yes.

Q   To Sergeant McLoughlin?

A   Yes.

…

Q   What other words did he say to you and what did you say to him?

A   I told him ‘I need to make a phone call to a lawyer or to Legal Aid first’.

…

Q   What other words were said by Sergeant McLoughlin, and what did he say to you and what did you say to him?

A   After that he said ‘No you have to do interview’. I told him ‘I wish to speak to no-one at the moment’. Then he said ‘I’m going to arrest your missus’ for the same thing I done.

Q   What other words like that did he say to you?

A   ‘I’ve got you cold’.

Q   ‘I’ve got you cold’?

A   Yeh, ‘I’m going to sink you if you don’t’.

Q   ‘If you don’t do’ what?

A   ‘I’m going to sink you’ like ‘If you don’t, like do the interview’.

Q   Did he say any other words of that kind to you before the interview commenced?

A   Yes he did.

Q   What did he say as best you remember?

A   ‘We got you cold. If you don’t make an interview, I’m going to arrest your missus’.

Q   Why did you make the interview after he said those words?

A   So I can help my missus. I was too scared for her.

Q   You agree that in due course you did in fact make an interview?

A   Yes I did.”

70. In cross-examination, the accused said that he could not remember the custody officer reading out to him his rights, well before the interview, and showing him a document headed “Caution and Summary of Part 9” (“the Caution”).

71. The accused gave quite inconsistent answers on this issue. Initially, he told the Crown prosecutor that after he arrived at the police station, a police officer had read out his rights to him but the police officer did not show him, or give him, any document. Within a few further questions, he denied that anybody at the police station had read his rights out to him and said that the only time that he had heard his rights was when he was arrested at the airport. The arrest occurred before he was taken to the St George Police Station.

72. And then finally, in further cross-examination, the accused said he could not remember whether his rights were read out to him. After giving this answer, the accused again denied that the custody officer had ever told him about his rights, and that the custody officer had not done so at any time before the ERISP commenced.

73. The accused also gave evidence that there was a break during the course of the interview. During the break he was approached by Detective Sergeant McLoughlin and informed that it was necessary for an extension of time for his detention to be obtained so that the interview could be continued. Mr Alkanaan agreed that he was told by Detective Sergeant McLoughlin that he needed to talk to the “judge” about extending the interview. The accused also agreed that he was also told that the “judge” would talk to him about extending the interview. He was then asked this question, and he gave this answer:

“Q   You were happy for the interview to be extended weren’t you?

A   Yeh, that’s after what he said to me before the interview so I had to do it.”

74. I am satisfied that the authorised officer spoke with the accused by telephone about extending the interview, and the accused did not oppose the extension sought by the authorised officer. I am also satisfied that the accused did not mention to the eligible justice any concern which he had about being coerced into participating in the ERISP against his will. I am satisfied of this because the accused himself didn’t suggest that he did, no submission was made that he did, and had such a complaint been made, it would not have been open to the authorised officer to issue the detention warrant.

75. The accused agreed that he did not at any time during the ERISP raise any objection to it being conducted because he felt compelled to undertake it. He agreed that he did not make any reference during the ERISP to the remarks allegedly made by Detective Sergeant McLoughlin. The accused agreed that he did not raise those remarks with anybody at any time prior to the end of the interview at which point Sergeant Hodder, an independent officer, entered the interview room and attempted to ask the accused the standard questions asked at the end of such interviews.

76. The exchange between the accused and Sergeant Hodder at the end of the interview was, relevantly, to the following effect:

“Q1205   Have you made this record of interview of your own free will?

A   Not at all.

Q1206   OK.

A   No.

Q1207   Now you just said you didn’t make this record of interview of your own free will.

A   Yes.

Q1208   Do you understand that question?

A   Yes.

Q1209   … So what I’m asking you there is did you come into this room with the police officers and speak to them because you wanted to speak to them?

A   Yeah.

Q1210   Yes, or no?

A   (NO AUDIBLE REPLY)

Q1211   You did?

A   Hey? No, I didn’t.

Q1212   OK. Do you understand what I mean by your own free will?

A   - (stutter) – if someone ask you, you can say yes or no.

Q1213   Yes.

A   Yeah.

Q1214   Did --

A   I said No but they said, Oh, no, no, no, it’s the only thing…

Q1215   Did the officers ask you if you wished to participate in an interview?

A   Yeah.

Q1216   Did they, they did?

A   Yeah.

Q1217   OK, then.

A   And, an, and, and then I said no.

Q1218   OK. Did the officers ---

A   …speak to –(inaudible)- one of my family or a lawyer.

Q1219   Just one second. Yeah. Did the officers inform you that you were not obliged to say or do anything unless you wished to, but anything you did say would be recorded on this electronic device?

A   Yeah … but at same time, they forced me.

Q1220   They forced you?

A   Yes, yes, sir.

Q1221   How did they force you?

A   … you go in, or … ---

Q1222   Sorry?

A   … they’re asking me the questions that, that, I don’t know, if they can’t remember yesterday, or today … --

Q1223   That they can’t remember yesterday or today?

A   Yeah. Ask ‘em. Rewind the CD.

Q1224   All right. What I’m more concerned with is the conduct of the interview. I’m not concerned with the contents of the interview. OK? I don’t need to know what questions they’ve asked you. I don’t need to know ---

A   … you ask me question, I gave you answer.

Q1225   OK.

A   That’s fine.

Q1226   Has any threat been held out to you to give the answers provided in this interview?

A   Yeah. Them two.

Q1227   Has any promise been held out to you to give the answers provided in this interview?

A   (NO AUDIBLE REPLY)

Q1228   Do you understand that question?

A   Yeah. No.

Q1229   Have they promised you anything in return for your answering questions.

A   No.

Q1230   No. Has any offer of advantage been held out to you to give the answers provided in this record of interview?

A   It’s the same question, isn’t it?

Q1231   It’s similar, but they have offered you any advantage? Have they offered you that you would gain anything by participating in the interview?

A   Yeah.

Q1232   What did they offer you?

A   Hey?

Q1233   What advantage have they offered you? You just said yes. What advantage ---

A.   Protection and that.

Q1234   Sorry?

A   Protection and that.

Q1235   Protection?

A   Yeah.

Q1236   In terms of?

A   … like … they, they will put me somewhere safe.

Q1237   OK. That’s ---

A   OK. And they just walk away, like ---

Q1238   Well, they’ve only walked, they’ve only walked out of the room, so I can ask you these questions without them being here.

A   Yeah. Yeah, I’m not talking to ‘em. That’s it.

Q1239   OK. That’s fine.

A   Yeah, and they told me nothing happens to, to my missus and now my missus got arrested.

…

Q1247   You said, you said to me that there’d been a threat made to you to give the answer that you gave in this interview.

A   Yeah.

Q1248   I’m asking you, what was that threat?

A   … that if I didn’t do it –(stutter)- they’re going to … it’s going to be worser than there is.

Q1249   Yeah. What was the threat? You said there was a threat made.

A   Yeah. Yeah. … if I don’t do the, there interview … that’s why, I said it before, I don’t want to do it. To you.

Q1250   To me?

A   Yeah, and, an … ---

Q1251   At no stage … --

A   -- … cigarette, and that. … just before … ---

Q1252   The cigarette?

A   --- just prior, the cigarette, I, I told ‘em, I don’t want to do it. Cancel it.

Q1253   Cancel the?

A   … the interview, and that.

Q1254   The interview?

A   Yeah.

Q1255   OK. So when the officers said to you they were going to continue the interview, what was your response?

A   … I didn’t want … that’s why, I thought … it’s going to be exactly like the beginning.

Q1256   OK. All right. You’ve lost me a little bit. I want to try and ---

A   … They promised me something and they ---

Q1257   What did they promise you?

A   Hey?

Q1258   What have they promised you?

A   They, they, to be safe … and, and don’t touch, to, to my missus … they charge … to my missus, and I … at the moment.”

77. At that stage in the interview, Sergeant Hodder left the room and the interview was suspended. He returned to the interview room and attempted to elicit accurately and with specifics what the accused, Mr Alkanaan, was saying about what had been said to him. That task, engaged in patiently by Sergeant Hodder, was largely unsuccessful. When he first asked the accused, Mr Alkanaan, to provide him with specifics, Mr Alkanaan by telling Sergeant Hodder to “forget it”.

78. The following exchange took place, amongst others which were less successful:

“Q1311   What I’m saying to you is you’ve said that you were threatened to make, to participate in this interview.

A   Yeh.

Q1312   What I need you to do is explain to me how you were threatened.

A   OK. Ask them, they’re the one …

Q1313   No. You’re, I’m concerned with you, you’re saying you were threatened.

A   Yeh.

Q1314   I need you to explain to me how you were threatened.

A   Can I say it in front of them.

Q1315   No. I just want you to say it to me.

A   … Why not? … Right, I say it in front of them.”

79. Sergeant Hodder went on to explain that the purpose of his being present in the interview room with the accused without the interviewing police officers was to enable the accused to speak freely with him about anything that was said or done which he thought constituted a threat.

80. The following exchange then took place:

“Q1319   What story?

A   Do I need to explain it again?

Q1320   I want you to explain the threat.

A.   Come on mate. Can I go back to my cell?

Q1321   Can you go back to your cell?

A   Yeh.

Q1322   You’re interested in explaining -

A   Yeh. I am. Yeh.

Q1323   OK. Well, if you’re interested in explaining things to me.

A   OK … tomorrow I’ve got to be in court anyway, am I?

…”

81. It then became apparent that Mr Alkanaan did not wish to speak further with Sergeant Hodder. However, the interview continued, and the following exchange took place:

“Q1337   Yeah. But do you wish to speak to me further about those threats?

A   … you told me –(stutter)—they will tell you a question –(stutter)—you told me the answer. That’s it. You, you didn’t tell me to explain it.

Q1338   Well, I’m asking you ---

A   Don’t worry, sir.

Q1339   I’m asking you --

A   Yeah.

Q1340   You’ve said that you were threatened.

A   Yeah.

Q1341   I’m asking you to explain that threat to me.

A   Yeah.

Q1342   I want you to tell me what threats were made.

A   --(stutter)—I don’t talk.

Q1343   Sorry?

A   If I don’t have the interview. I’m going to cop it …

Q1344   What did they say to you?

A   … that if I’m not going to make the interview --

Q1345   Yeah.

A   -- I’m going to cop it.

Q1346   Cop what?

A   Hey?

Q1347   Cop what?

A   … the charges …”

82. Thereafter the accused, Mr Alkanaan, agreed he had been offered the opportunity to contact a lawyer. He was then asked to tell Sergeant Hodder what promises were made to him. His response to that was “Can I go back to my cell”.

83. A number of things can be observed about this exchange between the accused and Sergeant Hodder. The first is that nowhere does the accused articulate the words and their sequence or coherence upon which he now relies as the basis for his allegation of threat or coercion by Detective Sergeant McLoughlin. The second is that to the extent that he does say anything about such a threat, the words he does use bear little similarity or similar effective meaning to the threat of which he gave evidence to the Court. The third is that the time at which the threat is said to have occurred, i.e. when having a cigarette, which was during a break in the interview, is quite different from that now claimed.

84. A number of contemporaneous documents were tendered during the voir dire. A printed version of the Caution was tendered. On the second page, it had been completed by Sergeant Quinn at 1700 hours on 8 February 2013. The signature of Sergeant Quinn attested to the following:

“Acknowledgement

Custody Manager – at 5pm on the 8.2.13 I informed the detained person of the information contained on the front of this form entitled ‘Caution and Summary of Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002’ by reading it to him/her and by giving him/her a copy of this form.”

85. Sergeant Quinn also noted that Mr Alkanaan (the detained person) had refused to sign an acknowledgement accepting that a copy of the document had been given to him, and that he understood the information that he had been given.

86. That document included the following:

“3.   While in police custody, you do not have to say or do anything, but anything you say or do may be used in evidence. Do you understand that?

…

6.   I will help you speak to a lawyer of your choice if you want legal advice, or if you want to ask the lawyer to come here. I will let you do this without being overheard, if I can. If your lawyer comes here, I will allow you to speak to the lawyer in private. Your lawyer may be present during any investigative procedure you participate in, such as an interview or identification parade and give you advice.

…”

87. The Custody Management Record, which is a document upon which entries are made from time to time for the purpose of noting what occurred with the accused whilst in custody, records that at 16.56 on 8 February 2013, Sergeant Quinn read the Caution to the accused and gave him a copy of it. I accept the accuracy of both the writing on the Caution by Sergeant Quinn, and also the entry in the Custody Management Record. The difference in the recorded time of 16.56 as against 5pm does not cause me to doubt the accuracy of the documents. I am unable to accept Mr Alkanaan’s evidence that he did not have his rights read to him and that he did not receive a copy of the Caution.

88. Similar warnings or cautions to that effect were contained in the opening questions of the ERISP. As well, in the ERISP at Q50, Mr Alkanaan acknowledged that at the time of his arrest at Sydney Airport, the detective who arrested him had given him a caution to the effect that he was not obliged to say or do anything, as anything he said or did would be recorded and might be used in evidence in court. The arresting detective asked him if he understood that, and he acknowledged that he did.

89. A transcript of the ERISP, and the DVD of it, were tendered, and I have carefully watched the DVD. I have the clear impression from watching the DVD that the accused, Mr Alkanaan, freely answered the questions which he was asked, up until a time after 11pm. Around Q940 and following on the ERISP, the accused apparently starts to get annoyed with the questions which he is being asked. In the answer to Q940, he starts to contest the legitimacy of the question with the questioner and starts to suggest that the questioner is setting out to confuse him.

90. The ERISP continues with the interviewing police describing what various witnesses, some named and some not named, had seen and inviting the accused to make a comment with respect to the various versions of the witnesses. During the course of this process, the accused sometimes answers argumentatively, and sometimes poses rhetorical questions.

91. It seems clear on the DVD that as the questioner persists in putting various additional versions, the accused becomes more and more annoyed. A dispute erupts as to whether a question has been asked or something said previously. At Q1079 the accused accuses Detective Sergeant Peroni of confusing him. At Q1094 the accused suggests that the police must be getting a bonus for arresting someone, but they had arrested him incorrectly.

92. By Q1114, it seems that the accused is confronted with the contents of one or more recorded telephone calls in which he was involved. He asks to hear them. He is informed that they are not able to be played but the contents are then described to him. By Q1131, the accused suggests to the interviewing police that they are apparently putting to him material which cannot be correct. By about Q1160 and following, it appears that the accused, Mr Alkanaan, is challenging the police to prove that he is guilty in circumstances where he is asserting his continued innocence. The interview seems then to descend into an argument. The accused, Mr Alkanaan, seems to persist in asking questions of the interviewing police and, at that stage, a decision is made by the interviewing police to terminate the interview and Sergeant Hodder is summoned to the room.

93. Whilst Sergeant Hodder was being summoned, and after the accused was warned that the tapes were still running, the accused said this:

“I know. It’s OK. You want to play with my head, that’s why youse two fucking let me get a fucking lawyer or legal aid. It’s going to be a cigarette to shut me up. No way. Why us? Why a person who wants to do shit like that? I wouldn’t do it in front of my fucking mum.”

94. When Sergeant Hodder enters the room and the accused is informed that he is going to ask some questions about the conduct of the interview, for the first time the accused says this:

“All wrong. OK. Youse didn’t let me get a fucking lawyer. OK? Yeh, yeh, yeh he shut me up with a cigarette. OK.”

95. From this review of the evidence, I have reached the conclusion that I do not accept the evidence of Mr Alkanaan given in this Court on the voir dire, that he was forced by threats made by Detective Sergeant McLoughlin to undertake the ERISP. I do accept the evidence of Detective Sergeant McLoughlin that he made no such threats.

96. There are a number of reasons for this. First, Mr Alkanaan was a thoroughly unimpressive witness. He appeared to me to struggle to give direct answers in cross-examination to straight forward questions in circumstances where he had no difficulty in giving a clear answer to his own counsel as to what the threat was, when giving evidence in chief. His evidence in cross-examination to me was evasive and unconvincing. On the other hand, the evidence of Detective Sergeant McLoughlin was not to be doubted by anything to do with his demeanour or the manner of his answers to questions.

97. Secondly, as the material which has been reviewed demonstrates, the accused was informed on at least two occasions prior to entering the interview room for the ERISP that he was no obliged to say or do anything whilst in custody. He was told that on the first occasion at the airport by the police who arrested him, and I am satisfied that he was told that by the custody manager when he first arrived at the St George Police Station. I am also satisfied that he was given a copy of the Caution shortly after his arrival at the Police Station. I am well satisfied that the accused knew that at all times whilst he was in custody, he did not have to say anything to police or engage in an interview with them. The receipt of that information stands against the probability that he was coerced into giving the interview.

98. Thirdly, I am satisfied that had the threat been made to him, as he now asserts, he had the opportunity to raise that with the authorised officer engaged in the task of considering whether to authorise an extension of the time for his detention by granting a detention warrant. He did not do so. I am satisfied that had he been threatened as he now says, he would have informed the authorised officer of it.

99. Fourthly, I am satisfied that Mr Alkanaan only commenced to make complaints when the ERISP continued to a point where he must have realised that the police had a significant number of accounts which inculpated him in the offence, and in particular, that they had recorded telephone conversations of him speaking to others about the events in question. The police declined to play the recorded telephone conversations to Mr Alkanaan. At that point, it appears that he declined, in effect, to further participate in the interview, and commenced to complain about the conduct of the police.

100. Finally, when invited by Sergeant Hodder, an independent officer, to articulate the basis of his complaints about what had been said to him by Detective Sergeant McLoughlin, the accused did not articulate the words which he now claims were said to him. He commenced to articulate something to a different effect, and when given more than one opportunity, did not articulate what he now says was in fact what occurred.

101. It is the combination of each of these things, but particularly his evidence in Court, which I am unable to accept, which leads me to the firm conclusion that, as a matter of fact, the threat relied upon to justify the ERISP being excluded from evidence did not occur.

102. Thus, there is no factual basis for the exclusion of the ERISP. It is unnecessary to examine the variety of legal bases relied upon, because the essential facts have not been proved.

103. For that reason, there is no basis to conclude that the contents of the ERISP, which are relied upon by the Crown as being admissions against interest, were not voluntary, or that in any way it would be unfair to the accused to admit the ERISP. Accordingly, the ERISP is admissible.

Conclusion

104. Neither of the bases argued by counsel for Mr Alkanaan has succeeded. Accordingly, the ERISP will not be excluded from being tendered by the Crown at the trial.

105. In my view the ERISP is admissible.

**********

Decision last updated: 10 July 2015