R v Andrew Hamilton Welch
[2006] ACTSC 112
R v ANDREW HAMILTON WELCH
[2006] ACTSC 112 (10 November 2006)
CRIMINAL LAW – admissibility of record of interview – protected witness repeatedly cautioned – whether persistent cautioning a trick or ruse by police to elicit answers
Crimes Act 1914 (Cth), Pt 1C Div 3; ss 23B, 23F, 23V
Evidence Act 1995 (Cth), ss 85, 90, 138
R v Ireland (1970) 126 CLR 321
Lenthall v Curran [1933] SASR 248
Bailey v R [1958] SASR 301
Bunning v Cross (1978) 141 CLR 54
Plevac v R (1995) 84 A Crim R 570
Taylor (unreported, Court of Criminal Appeal, NSW, 18 April 1995)
R v Swaffield; Pavic v R (1998) 192 CLR 159
R v Waters (2002) 129 A Crim R 115
R v Rees [2005] ACTSC 91 (23 September 2005)
R v Lieske [2006] ACTSC 97 (4 October 2006)
Petty v R (1991) 173 CLR 95
No. SCC 55 of 2006
Judge: Higgins CJ
Supreme Court of the ACT
Date: 10 November 2006
IN THE SUPREME COURT OF THE )
) No. SCC 55 of 2006
AUSTRALIAN CAPITAL TERRITORY )
R
v
ANDREW HAMILTON WELCH
ORDER
Judge: Higgins CJ
Date: 10 November 2006
Place: Canberra
THE COURT RULES THAT:
The record of conversation, as proposed to be tendered should be admitted.
This is an application for pre-trial rulings concerning the upcoming trial of the accused for cultivation of cannabis.
The prosecution alleges that, on 27 April 2005, a search was conducted, pursuant to a warrant, of premises leased by the accused in the Australian Capital Territory. He was substantively the sole occupant, though his girlfriend, Ms L, stayed overnight sometimes.
Police discovered nine plants believed to be cannabis being hydroponically grown in a cavity adjacent to the garage. There were large electrical lights and other cultivation paraphernalia. Electrical bills for large amounts, yet unpaid, were found in the house, together with 11 small seedlings.
There was a taped record of the conversation, including questioning of the accused, which occurred in the course of the search. The accused made admissions that the plants in the house belonged to him. He said that he grew them for a hobby. The other plants, allegedly cannabis, he said were “for my wife’s morning sickness”. He said the electricity bills were so high “probably from what’s downstairs”.
Mr Gill, for the accused, first pointed to what he contended were discrepancies in the seizure records compared with the material delivered for analysis. That was despite evidence that the evidence bag seals were still intact on delivery.
That could well be a mystery worthy of Jonathon Creek as I commented during argument. However, such mysteries are often explained when more is known.
Clearly, the difficulty so flagged by Mr Gill could lead to uncertainty whether the material seized was that delivered and, consequently, whether the material allegedly possessed by the accused was that which was identified by the analyst or was some other product. That, it seems to me, can only be resolved at trial when evidence is called.
Accordingly, I make no ruling in respect of that proposed evidence at this pre-trial stage.
The second issue relates to the taped record of conversation, including questioning, taken by police during the search of the accused’s premises.
From that record it appears that the conversations recorded commenced at 11.18 am and concluded at 2.09 pm. Five police officers, the accused and Ms L were present.
At the outset the customary criminal caution, as required by s 23F Crimes Act 1914 (Cth) (Crimes Act), was administered to both the accused and Ms L.
Following that caution, Constable Curtis, who conducted the interview, proceeded to inform the accused and Ms L of their rights as required by Part 1C Crimes Act.
When asked to explain his understanding of the caution administered to him (Q12), the accused responded, “Ah, that I’m not going to say anything”. That answer could be construed as a statement of intent or a misstatement of “I don’t have to say anything”.
Constable Curtis moved then with the accused to the kitchen of the premises and, having reiterated the warning, proceeded:
Q48Okay. We’re in the kitchen …. Mate, we’ve got – appears to be a small hydroponic setup here with … eleven small plants with a fluorescent light. Is there anything you wish to tell me about this?
A48WELCH: Ah, nup.
Q49Does this belong to you?
A49WELCH: Ah, yep.
Q50So the plant’s yours? For what purposes do you use them?
A50WELCH: Ah, hobby.
Q51Hobby? Okay.
A51WELCH: As far as I know they’re just green vegetable matter.
Q52Okay. Is there anything else you with [sic] to say about this?
A52WELCH: Nup
It was suggested by one of the police officers present that during the course of the search, it was his understanding that the accused was not free to leave. That was not communicated by any officer to the accused. It would in fact have been an incorrect statement unless the accused had been placed under arrest.
After some delay the conversation resumed in the laundry. The accused was reminded once more of the caution that had been administered. Constable Curtis proceeded:
Q83Okay. We’re standing in the laundry … Can you just tell me what’s on the bottom shelf?
A83WELCH: Ah, green vegetable matter.
Q84Do you know where that came from?
A84WELCH: Ah, yeah.
Q85Where did it come from?
A85WELCH: I grew it.
Q86Where did you grow it?
A86WELCH: Ah, here.
Q87Whereabouts here?
A87WELCH: In the back yard.
Q88Okay. Is there any more?
A88WELCH: Ah, no.
Q89What do you use if for?
A89WELCH: It’s for my wife’s morning sickness.
Q90Okay, and how long have you been growing it for?
A90WELCH: Ah, six months.
Q91Does anyone else ever use it?
A91WELCH: No.
Q92Do you ever use it?
A92WELCH: Nup.
Q93Okay. Is there anything else you wish to tell me about this?
A93WELCH: Nup.
The parties to the conversation then moved to the garage under the house. Constable Curtis again reminded the accused of the caution previously given and continued:
Q97Mate, we’re just underneath the house in the garage …. Mate, can you tell me what – what’s that here?
A97WELCH: No, I don’t want to say anything.
Q98For the purpose of the tape, we have approximately – probably twenty or so cannabis plants, approximately a metre tall. They’re growing in yellow containers. There’s hose running from outside the house through the garage into a – a rear blocked off area. There’s approximately six large fluorescent lights set up, there’s a temperature controller, there’s a number of miscellaneous sort of – yeah, hydroponic plant food, et cetera. Andrew, there’s nothing you want to say in relation to this?
A98WELCH: Nup.
The conversation then moved to one of the bedrooms. The caution was repeated. Reference was made to the unpaid electricity accounts found there in the accused’s name. The accused was asked, concerning the amount of the bill.
Q125 Any reason why it would be so high?
A125 WELCH: Ah, probably from what’s downstairs.
Q126Okay, and for the purpose of the tape, can you elaborate on that?
A126WELCH: Ah, there’s a lot of lights down there.
Q127And what are the lights for?
A127WELCH: Growing plants.
Q128And how long have you been growing plants?
A128WELCH: About six to nine months.
…
Q131And what do you do with the plants?
A131WELCH: Um, I don’t smoke any of it.
The conversation with the accused resumed in the spare bedroom. The caution was again administered. The conversation concerned the accused’s means. It did adduce an admission that the accused was “struggling” financially.
Mr Gill’s objection was that, despite the accused having said at the outset that he did not wish to say anything, he was further questioned in a manner that, Mr Gill submitted:
… speaks of some degree of trickery in terms of trying to get around his assertion that he doesn’t want to speak about that particular issue. And so we say that by that point, if not before, that’s transgressed that point of either propriety, what is proper or improper, or transgressed the point of fairness and unfairness in terms of using his comments against him.
Section 23F Crimes Act does oblige a police officer before questioning a person to administer a caution in the terms given and as given and repeated in this case. That caution would, of course, be of no value if the effect of it was overridden by, say, persistent or oppressive questioning in the face of an apparent unwillingness to speak. That kind of conduct would deny to a person a right conferred by legislation.
In R v Ireland (1970) 126 CLR 321 the accused had, after a lengthy interrogation, refused to answer further questions but was further questioned in any event. He had stated “I don’t wish to answer any more questions tonight as I am tired”. It was then towards midnight. The exercise of discretion to exclude the responses to that further questioning was upheld.
In Ireland (supra) reliance was placed on two prior South Australian cases. In Lenthall v Curran [1933] SASR 248 Angas Parsons J, at 255, had commented:
I think much of this questioning and assertion went too far. It was right to give him an opportunity to explain, but when he had said he wished to say nothing, further questioning or assertion is an improper attempt to make evidence.
In the same case Napier J, at 260-1, described the questioning as a situation where “zeal” had “outrun discretion”.
Barwick CJ considered that case and Bailey v R [1958] SASR 301 and decided (Ireland (supra) at 333):
… that it was improper for police investigating the commission of a crime to persist in questioning a suspect after an indication that he did not wish to answer any more questions.
His Honour considered it was right in such circumstances, as a matter of judicial discretion, to exclude evidence otherwise admissible “because of the unlawfulness or unfairness of the manner of its discovery or creation”. It is not, however, the rule that such evidence must be excluded rather that it may be excluded in the exercise of a judicial discretion. McTiernan, Windeyer, Owen and Walsh JJ agreed.
Mr Gill also pointed out that, despite the response of the accused, the further questions asked of him such as “Are you an Aboriginal or a Torres Strait Islander?” were such as to require an answer thus giving the appearance that his apparent refusal to answer any questions was irrelevant.
It is true that the asking of formal questions is of a different character than questions concerning matters in issue which latter questions could, if answered, provide relevant evidence. Nevertheless, it is also true that such questioning may give the impression to a vulnerable person, as most suspects are likely to be, that a refusal to answer questions will not curtail or deter the interrogation.
Certainly, in so far as the discretion to exclude the results of the interrogation may have been enlivened by the apparent breach of the rule of practice affirmed in R v Ireland (see also Bunning v Cross (1978) 141 CLR 54), the Evidence Act 1995 (Cth) (Evidence Act) reverses the burden of establishing that evidence unlawfully or unfairly obtained should be excluded (see s 138, Evidence Act). The prosecution must undertake the burden of persuading the court that the evidence in question should not be excluded once the accused has demonstrated that the discretion to exclude the evidence has been enlivened.
Mr Gill also referred to Plevac v R (1995) 84 A Crim R 570. In that case the Court of Criminal Appeal (Badgery-Parker, Dunford and Simpson JJ) made observations concerning the permissible limits applicable to police interrogations. Of particular relevance is par 3 (at 580):
Police should not persist with such an interrogation after the suspect has indicated that he or she does not wish to answer further questions: Ireland (1970) 126 CLR 321 at 331-332; although merely because a suspect says he does not wish to answer, or will not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise admissible.
Generally, as also observed (at par 2), “questioning is not to be regarded as unfair merely because it is persistent: Taylor (unreported, Court of Criminal Appeal, NSW, 18 April 1995)”.
In that respect Mr Gill submitted that, not only at the outset of questioning, but on seven occasions, the accused, before making admissions in response to further questioning, declined to comment. Persistence in questioning thereafter, he submitted, amounted to an attempt to override the accused’s attempts to exercise his right to silence. It was, he contended, equally as objectionable as the use of deception for the same purpose. See R v Swaffield; Pavic v R (1998) 192 CLR 159.
The extent of the impropriety must be balanced against the probative value of the evidence under challenge. I agree with Mr Gill that the probative value of the evidence, though significant if it stood alone, adds little to the strength of the prosecution case.
On this aspect of the case, Mr Lawton, for the DPP, submitted that the refusal of the accused to answer questions should be regarded as having been selective. The accused, he submitted, clearly understood the caution and chose to answer some questions but not others. As further discoveries were made in the course of the search, Mr Lawton contended, it was proper for the police officer to point out that discovery and, subject to the reiterated caution, give the accused the opportunity to comment.
I note that in R v Waters (2002) 129 A Crim R 115, Gray J rejected evidence of admissions made during the course of a search of that accused’s premises. It appeared that there had been no caution administered after arrest (though a caution had been administered before then at the outset of the search). The interrogating officer conveyed by his attitude that he expected the accused to confess. The interrogation was only partly recorded. There was some indication that off-tape comments had made the accused apprehensive. The interrogator conceded that he had gone through with the accused the reasons why he disbelieved his story. That established, s 138 Evidence Act was enlivened. Gray J was not satisfied that no undue pressure to confess had been placed on the accused. Thus the prosecution had failed to discharge its onus of establishing that the evidence should be admitted.
In R v Rees [2005] ACTSC 91 (23 September 2005) evidence of admissions obtained following a search was also rejected by Gray J. The conversation had been noted but not tape-recorded. The interrogating officers had had a tape-recorder in their car but chose not to take it to the interview at the accused’s place of employment. They said this was to avoid embarrassment to the accused. Gray J noted that as a result of that s 23V(1)(a) Crimes Act was not complied with. There was a caution. No direct question was asked following that caution but Gray J considered that the giving of the caution was an implicit invitation to comment. Thus the evidence obtained by way of response to the caution was inadmissible by virtue of s 23V unless, of course, the discretion to admit the evidence under s 23V(5) was exercised in favour of the prosecution. That his Honour declined to do.
I also note that in R v Lieske [2006] ACTSC 97 (4 October 2006), Gray J rejected evidence of alleged admissions obtained by way of a “pretext” phone call, secretly recorded between the alleged victim and the accused person. The admissions obtained were not unequivocal and the persistence in attempting to obtain them led Gray J to reject the evidence pursuant to s 85 of the Evidence Act.
That is not a relevant provision in these proceedings but his Honour also considered that s 90 Evidence Act would be applicable. Section 90 provides:
90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a)the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
It is also right to observe that the right to silence is more particularly deserving of respect from both the questioner and the questioned where a person is a suspect rather than merely a “person of interest” (to use a newly popular euphemism for a potential suspect) – see Petty v R (1991) 173 CLR 95, 99 per Mason CJ, Deane, Toohey and Mc Hugh JJ.
The point there is that a suspect unaware of his or her status as such may be less attentive to the desirability of exercising the right to silence than a person who is aware that he or she is not merely “assisting police with their inquiries” (to use another popular euphemism) but is a suspect.
Nor is it, of itself, improper for police to use a subterfuge, ruse or trick to obtain admissions, including the use of covert electronic surveillance. The question, as Kirby J expressed it in R v Swaffield (supra) at 221, is:
Whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value.
In the present case, the question is whether the refusal to answer questions, initially expressed by the accused in the context of the search of his premises, reiterated as it was in the sense that the accused declined to comment upon or to answer some questions, was unfairly or improperly ignored or disregarded.
It is not a case where the nature and mode of questioning gives rise to any concern. Nor was there a questioning without a caution after it might be thought that some need to state or restate the caution had arisen. Nor is it suggested that any relevant conversation was not tape-recorded.
Nevertheless, Mr Gill submitted, Constable Curtis used the occasion and pretext of a search and the discovery of apparently incriminating evidence, not once but in several successive episodes, to build up pressure on the accused to resile from his initially stated and then apparently confirmed intention not to respond to police questions at a time when he had no legal advice nor was told what, if anything, might be the consequence of the search and discovery of items as the search progressed.
I appreciate that the right to seek legal counsel was addressed at the outset. However, that offer was made before the various suspect plants and associated paraphernalia were noted and made the subject of questioning. The discovery of those items and the questions posed regarding them raised legal issues that might not have been apparent at the time the search warrant was first presented and read.
The usual process would be to conduct the search as was done. A warning and notification of rights was appropriate and, indeed, required by Part 1C Division 3 of the Crimes Act. Certainly the accused could not be said to have been under arrest, though it appears that attending police (wrongly) believed that he was, nevertheless, not free to leave.
The obligation to warn (s 23F Crimes Act) applies to any person under arrest or “a protected suspect”. The definition of a “protected suspect” is to be found in s 23B(2). The provisions of (2)(c)(i) and (ii) – belief that there was evidence the person had committed an offence or that the officers would not have allowed the person to leave – were satisfied, whether the questioning related to a Territory offence or a Commonwealth offence, the standards imported by Div 3 of Pt 1C of the Crimes Act were applicable.
It may be accepted that at all times during the search the accused was “a protected suspect”. However, his appreciation of the nature or gravity of the situation facing him would clearly differ depending on the stage the search had reached.
It is also apparent that to continue questioning in the face of an expressed desire to say nothing without reiterating the right to obtain legal advice could be regarded as being “unfair” so as to activate s 138 Evidence Act assuming that, by then, additional matter uncovered raised a further or different need for it.
The foundation for Mr Gill’s argument commences with Q12, when the accused was asked what he understood by the caution administered in compliance with s 23F Crimes Act. He replied:
A12 WELCH: Ah, that I’m not going to say anything.
Obviously enough, that was not going to be literally the case. It seems to me to convey and have been intended to convey that the accused understood that he was at liberty to say nothing in response to any question or questions not that he would not respond to any further question or questions.
The search was thereafter conducted. The first questioning related to the kitchen. After a reiteration of the caution, the accused was asked if he wished to tell Constable Curtis anything about it. He replied, merely, “ah, nup”.
Despite that, Constable Curtis asked further questions eliciting an admission that the incriminating items were found (Q and A 46–52). In my view, whilst the first exchange at Q and A 12 did not evince a desire not to answer any questions, Q and A 48 evinced a desire not to answer questions but merely those concerning the items found in the kitchen. There was in fact no reiteration of questions concerning those items.
At Q and A 81–94 the subject of questioning was the “green vegetable matter” found in the laundry. The accused expressed no reluctance to answer questions concerning it. The only issue is whether the disregard of A48 ([14] supra) was such as to represent to the accused that the desire he expressed not to answer questions concerning the items found in the kitchen was such as to indicate a desire to answer no further questions concerning anything else.
The next conversation concerned items found in the garage (Q and A 98–101). There were 20 or so (alleged) cannabis plants apparently under cultivation in the garage. The accused (at A98) declined to offer a comment though questioning continued thereafter, albeit innocuously.
That indicates to me that the accused remained aware that he could decline comment if he wished to do so and that he did so selectively. There is nothing to suggest that his desire to remain silent (or not comment) was adversely affected by the course of questioning. Indeed, I am satisfied that the contrary was the case.
The next caution administered related to items indirectly incriminatory found in the bedroom (Q and A 116–133). The accused did not decline to comment on the items found. His answers were incriminatory.
There was a second conversation in that room, again preceded by a caution, concerning the accused’s finances. That questioning was potentially supportive of a case (if presented) that the accused had a commercial intent in respect of the cannabis crop found on and about the premises under search. He answered those questions without demur (Q and A 158–192).
There are other questions answered without demur. They do not seem however to have produced any answers supportive of the prosecution case.
I conclude that whilst a discretion to exclude the responses following Q and A 46 is apparently enlivened by the initial response to the first caution, I am persuaded by the totality of those responses that the evidence should not be excluded. A46 is not to be interpreted as a complete objection to questioning, though the questioning officer should have clarified the ambiguous answer. The questioning was not unfair. It did not override the accused’s understanding that he could decline to answer any particular question or, indeed, any questions at any time. Despite Mr Gill’s able and persuasive argument I rule that the record of conversation, as proposed to be tendered, should be admitted.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 10 November 2006
Counsel for the plaintiff: Mr J Lawton
Solicitor for the plaintiff: Director of Public Prosecutions for the ACT
Counsel for the defendant: Mr S Gill
Solicitor for the defendant: Rachel Bird & Co
Date of hearing: 25 July 2006
Date of ruling: 10 November 2006
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