R v Bevan Charles Doolan
[2014] NSWDC 170
•17 April 2014
District Court
New South Wales
Medium Neutral Citation: R v Bevan Charles DOOLAN [2014] NSWDC 170 Hearing dates: Thursday 17 April 2014 Decision date: 17 April 2014 Jurisdiction: Criminal Before: Tupman DCJ Decision: Evidence of admissions rejected pursuant to S281 of the Criminal Procedure Act, 1986
Catchwords: CRIMINAL LAW - Voir Dire ruling on admissibility - Special Hearing after found Unfit to Plead - Intent to Rob whilst armed, with wounding - Serious offence - Aboriginal offender with intellectual disability - admissions at scene of offence/arrest at Redfern to police officer after arrest not tape-recorded - S281 Criminal Procedure Act, 1986 - evidence that police on general duties not provided with tape recorders and for operational reasons instructed not to use personal mobile devices to record evidence at scene - no reasons given for decision not to provide tape recorders - accused tape recorded in dock at Redfern Police Station after arrest but admissions not put to him for adoption - evidence of admissions rejected - discussion of S281 generally. Legislation Cited: Crimes Act 1900 - s98, s21A
Criminal Procedure Act 1986 - s281
Evidence Act 1995 - s38, s85
Law Enforcement (Powers and Responsibilities) Act 2002 - Part 9
Mental Health (Forensic Provisions) Act, 1990 - s19Category: Procedural and other rulings Parties: The Crown
Bevan Charles DoolanRepresentation: Mr. G. Rowling (counsel for DPP)
Ms. C. Wasley (counsel for defence)
Ms. R. Buttini (DPP solicitor)
Ms. S. Crellin (Defence solicitor)
File Number(s): 2012/386752
Judgment
HER HONOUR: The accused is before the Court in a special hearing pursuant to s 19 of the Mental Health (Forensic Provisions) Act, 1990 after having been found unfit to plead.
He faces two charges in an indictment dated 14 April 2014. The first is a charge contrary to s 98 of the Crimes Act, 1900 that on 13 December 2012 being armed with an offensive weapon, namely a knife, he assaulted Michael Ryman with the intent to rob him and at the time of the assault he wounded that complainant. The second count, brought as an alternative, is that on 13 December 2012 he recklessly wounded Michael Ryman. No election has been made for a jury, and this special hearing is being conducted as a judge alone special hearing pursuant to s 21A of that same Act.
Pursuant to s 19(2) of the Act, the purpose of this hearing is to ensure that a person who is unfit to plead is acquitted unless it can be proved beyond reasonable doubt, on the limited evidence available, that the person committed the offence or alternative offence as charged.
When this hearing commenced the Crown tendered a folder of statements of witnesses whose evidence was not in dispute, and indicated that there were other witnesses who would give oral evidence. Amongst the statements tendered without objection were those of Constable Barry and Senior Constable Beltman. These were two officers rostered to perform police duties in the Redfern area on 13 December 2012. Constable Barry was working in a marked police vehicle from Redfern Local Area Command, rostered to work between 8am and 6pm and Senior Constable Beltman was working as part of a plain-clothes bike crew, also from the Redfern LAC.
Their statements were tendered without objection initially. Constable Barry had been called to attend the scene of the accused's arrest by Constable Beltman at about 10.45am on 13 December 2012 at 6/6 Redfern Street Redfern. When Constable Beltman was on duty in Redfern that morning, and at about 10.30am, he had received an image on his personal mobile phone which was one taken from closed circuit television inside the lift at 55 Moorehead Street Redfern earlier that day, being the premises at which the offences, the subject of these charges, were committed.
Senior Constable Beltman was told that the person depicted in that image was wanted in connection with a stabbing that had occurred there earlier in the day and that he may be living at 55 Walker Street Redfern. He patrolled the area near 55 Walker Street at about 10.45am. I accept that he did not necessarily expect to see the person depicted in the photograph there, but that this photograph was one of a number he had been given that day to have with him during his shift with the intention that, should he recognise any of the persons depicted in those photographs, he would take some action.
He saw the accused in the vicinity 55 Walker Street and formed the view, I accept from the version of the statement tendered on the voir dire, and in any event from the evidence given by Constable Beltman on the voir dire, that the person whose photo he had been given from the CCTV footage was the accused, who he could then see in the vicinity of 55 Walker Street. He saw the accused walk to the rear yard of 6 Redfern Street and he followed him, approached him and asked his name. I accept that at the time he in fact believed that it was the same person he had seen in the photo from the CCTV footage, and was firmed in that view because of a distinctive tattoo he saw in that photograph and on the person he could see at 55 Walker Street.
Constable Beltman immediately arrested the accused, told him he was under arrest for a stabbing and cautioned him. He had already recognised that the person was a person of Aboriginal appearance. He asked him to take a seat whilst he waited for a caged truck, and that brought Constable Barry to the scene as well in a Redfern vehicle, with handcuffs. After arresting him, and whilst waiting for the handcuffs and the caged truck, Senior Constable Beltman saw that the accused had blood on his hands and fingernails which appeared fresh, and again cautioned him.
It is the question and answer, at this stage that is the subject matter of the first challenge. He said to him,
"Were you involved in a row today morning at number 55 Moorehead Street?"
and the answer he was given by the accused was,
"Yeah, I had a fight there this morning."
He then took a photograph of his hands with his mobile phone.
After Constable Barry arrived she gave handcuffs to Senior Constable Beltman and he then placed them on the accused. He had already arrested the accused, I accept from the context of his evidence and statement, and in fact from exhibit B on the voir dire, that is that version of his statement on the voir dire, I accept that Senior Constable Beltman knew that the person was in fact Bevan Doolan, this accused, and that was the reason why he arrested him immediately on confronting him at 6/6 Redfern Street.
At that stage Senior Constable Beltman's obligation was either to take the arrested person immediately to a police station to be charged, or to arrange for that to occur. He did the latter by calling for a caged truck. Senior Constable Beltman was on a bicycle and so therefore could not do that himself. The accused was not putting up any resistance and was sitting on the ground waiting. It was whilst he was waiting for the caged truck that Beltman noticed the blood on his hands and took a photo of them and the conversation occurred which is the subject matter of part of this challenge. Taking the photograph it seems to me would appear to have been an appropriate thing to do in the circumstances and came in any event after issuing another caution.
However he went further and asked questions specifically directed to investigating the accused's involvement in the offence namely,
"Were you involved in a row today morning at number 55 Moorehead Road?"
which produced the response.
That conversation was not tape-recorded. I accept on the evidence that Senior Constable Beltman did not have a tape recorder with him and, whilst he had a personal mobile phone which he used to take a photograph of the accused's hands, I accept that there is an instruction by the police management given to officers not to use their personal mobile phones on duty to record conversation at the scene of arrest or with offenders. I accept from the evidence given that this is to avoid the problem of personal mobile phones being subpoenaed on subsequent occasions. That is an operational decision taken by the Police Service, just as it is an operational decision that officers on general duties such as Constables Beltman and Barry are not provided with tape recording devices to use during the course of these general duties.
There are no doubt operational reasons for this decision, just as there are operational reasons for the fact that similar devices are in fact provided to all highway patrol vehicles so that the initial interaction between any highway patrol officer and a member of the public is always video and sound recorded. What those operational reasons are, for not issuing tape recorders to officers on general duties, is not before me in evidence, nor does it seem to me to be relevant. The fact is that neither Constable Beltman nor Barry had a tape recorder.
After Constable Barry arrived and gave Beltman the handcuffs he placed them on the accused and according to the statement of Constable Barry then repeated the arrest procedure. Just why that was necessary is far from clear because he had already arrested the accused. But in any event he arrested him again telling him that it was for an incident that had occurred at 55 Moorehead Street that morning and again cautioned him.
He then went on to question him further asking him where he had come from and where he had been before that after receiving the response that he had come from his mother's place. The conversation that then follows is recorded in the statement of Constable Barry on pp 2 and 3 and is the subject matter of the second part of this challenge to admissibility. None of this conversation was tape recorded either by any of the officers at the scene.
During this conversation the accused said that he had had an argument with the person he described as "matey", that that person had head butted him and that he had stabbed him. Officer Barry made notes of the conversation in her notebook and showed it to other officers at the scene who read them and one of them signed the top of those notes. No one asked the accused apparently to either read or sign the notebook entry.
The caged truck then took the accused to Redfern Police Station. I accept that at Redfern Police Station the accused was entered into custody-by-custody Sergeant Howle who notified the Aboriginal Legal Service and informed the accused of his rights under Part 9 of LEPRA. His hands were bagged for later forensic examination. The copy of the Part 9 LEPRA rights is exhibit 2 on this voir dire, not signed by the accused because his hands were bagged, but nonetheless I accept having been provided to him by Custody Sergeant Howle. She also organised for a disability support worker to attend that being the person identified in the record as Mitch Fraser who now is known as Mitch Mulqueen and who has given evidence on this voir dire.
I infer from the fact that the custody sergeant notified both the Aboriginal Legal Service and Ms Mulqueen that she was able to identify that the accused was both an Aboriginal person and also a person with an intellectual disability. As such under the provisions of LEPRA there are certain additional rights afforded to an accused person in custody in those positions.
The accused was in the dock at Redfern Police Station following his initial interaction with the custody sergeant. The officer-in-charge of this investigation, Detective Sergeant Walker, initially spoke to the custody sergeant and was informed that the ALS had spoken to the accused and then spoke to the accused in the dock. He was carrying a hand held voice recorder at the time. He had some conversation with the accused, which is the subject of some other objections and will be the subject of later determinations by me.
Of relevance to his initial part of the voir dire however is that he did not during the conversation he had with the accused and which is recorded by him and tendered on this voir dire, ask him to adopt the admission made at the scene of the arrest to Senior Constable Beltman and Constable Barry. It may be, on the evidence, that he did not know the specifics of those admissions but I accept from Detective Sergeant Walker's statement that he had at the very least been informed that the accused had made admissions at the time of his arrest. I also accept that at the very least he knew that the accused was Aboriginal and possibly ought to have known that he had an intellectual disability given that the custody sergeant had already apparently arranged for a disability support worker to attend.
There is objection on behalf of the accused to the admissibility of the answers given by the accused to the police at the scene of the actual arrest by Constable Beltman alone and then the re-arrest and interaction of Beltman and Barry shortly afterwards.
The Crown seeks to rely on what is recorded of those conversations as admissions. The objection is taken to their admission because they were not tape-recorded and as argued there is no reasonable excuse as to why a tape recording could not be made. Thus it is an objection contrary to s 281 of the Criminal Procedure Act, 1986, which requires that in such circumstances any statements alleged to be admissions must be presented to the Court by way of a tape recording unless the prosecution establishes that there was a reasonable excuse as to why a tape recording could not be made. In this case there is no doubt that what was said to Constable Barry and Senior Constable Beltman was not tape-recorded. The issue to determine therefore is whether or not there was any reasonable excuse as to why a tape recording could not be made.
The Crown seeks to rely on what was said to Beltman at the time he noticed the blood on the hands of the accused and what was later said to Beltman in the presence of Barry and others as admissions of the accused's presence at the scene of the offence and of having been involved in an altercation with the victim during which he stabbed him. Initially there was no objection to this evidence being admitted because it appeared to raise an issue of self defence in circumstances where counsel for the accused felt obliged to pursue this on behalf of the accused, again in circumstances where she is not permitted to obtain instructions. This would appear to have been a decision made on the basis of what was expected to be given as evidence by the complainant.
However, when the complainant was called to give evidence as the first oral witness, during the course of his cross-examination, his evidence was that the person who had come up in the lift with him that morning, not long before the offence was committed, was not in fact the accused sitting in the dock, but in any event that the person who had been in the lift with him did not follow him to his door and that he did not see where the person had come from who had attacked him.
The Crown was given leave pursuant to s 38 of the Evidence Act, 1995 to cross-examine the complainant in the light of this evidence, but his evidence became even more unfavourable to the Crown because during the course of that cross-examination he went further and said that the person who had come up in the lift with him and who, on the closed circuit television recording could be seen getting out of the lift immediately behind him and apparently walking in the same direction, did not in fact follow him to his door but stopped outside the adjacent lift, there being two lifts immediately beside each other.
That evidence of course in the trial in due course must be assessed as to its weight and viewed in the light of the fact that the complainant is a person who suffers from schizophrenia requiring medication, that he made a statement initially that the person in the lift was the person who attacked him and that the blood found on the hands of the accused matched the DNA of the complainant.
Nonetheless once that evidence was given by the complainant, counsel for the accused sought that the admissions previously tendered without objection through the statements of Constables Barry and Beltman be withdrawn from me as the tribunal of fact and be ruled inadmissible pursuant to s 281 of the Criminal Procedure Act, 1986. This course would normally not be expected to occur in any trial because instructions could be and ought to have been obtained from an accused person and acted on, but in this case it is not possible and counsel is in a difficult position attempting to test the evidence on behalf of the accused without the benefit of instructions.
So then I come to the subject matter of the first part of this voir dire, namely an objection to the admission of the conversations had with the accused by Constables Beltman and Barry. They are admissions as defined in the Evidence Act, 1995 and they are sought to be relied on by the Crown. There is no tape-recording of them. Thus, as a first point, they are not admissible pursuant to the provisions of s 281 of the Criminal Procedure Act, 1986. They may become admissible if there was a reasonable excuse for not tape recording them.
Section 281 (4) defines reasonable excuse as including a mechanical failure or a refusal to have questions electronically recorded. Neither of those applies here. It also includes the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. I do not understand that to have been argued in this case.
It is somewhat difficult to determine exactly the basis on which the Crown, if at all, seeks to establish reasonable excuse here, but on whatever basis that might be I do not accept that a reasonable excuse for not tape recording these conversations has been established. The fact that the second conversation in the presence of Constable Barry was recorded in a police notebook does not overcome the provisions of s 281.
The fact is, that for operational reasons, officers on general duties are not provided with hand held tape recorders. That means that they should not be investigating the circumstances of an offence beyond satisfying themselves of the identity of an individual and forming sufficient grounds for arresting a person for an offence, because it means that they will never be able to comply with s 281 using approved equipment, or at all if they follow instructions not to use personal equipment.
By extension, that means further, that their obligation is therefore to arrest and then take the arrested person immediately to a police station without further questioning so that the provisions of LEPRA can be properly put in place. That is particularly so if an arrested person falls into one of the special categories referred to in part 9 of LEPRA which includes juveniles, Aboriginal people and people with various disabilities. There are good policy reasons for this and good reasons why compliance with s 281 is mandatory and does not involve the exercise of discretion.
In fact, anywhere in Redfern and Waterloo is no more than about 2 kilometres from Redfern Police Station. There is a significant police presence in that area, as the facts of this case attest. It is not difficult to convey an arrested person to Redfern Police Station quickly and commence the investigation there after complying with the provisions of LEPRA. No reasonable excuse has been demonstrated in this case for failing to tape record the conversations.
What should have occurred is that, after Senior Constable Beltman arrested the accused initially, for him to call for handcuffs and a caged truck, which he did. He had already told the accused that he was under arrest. He noticed that there was blood on the fingers and it was appropriate to take the photograph immediately because that is something that can be recorded and tested.
All of the officers who were then involved should have simply taken the accused back to the police station. There was no need for further questioning unless there was a tape recorder to record that questioning. There was no doubt about his identity so far as Senior Constable Beltman was concerned and no doubt in his mind that he was connected with a serious offence that had occurred that morning. He also knew that he was Aboriginal and that there were special provisions, which needed to be followed according to LEPRA, for Aboriginal people.
As an officer in the Redfern area, that is something that no doubt all officers know, or ought to know, and again there are extremely good policy reasons why these provisions should be strictly complied with.
There is no discretion in the Court to admit the evidence if it does not otherwise comply with the provisions of s 281. For those reasons I reject the evidence of the conversations sought to be relied on by the Crown as admissions in the statements of Officers Barry and Beltman.
As a result I also reject that portion of para 11 of Detective Sergeant Walker's statement in which he puts to the accused that he has been informed that the accused made admissions to police at the scene earlier.
Further on this voir dire, I am to determine the remaining objection, namely what the Crown seeks to rely on as admissions arising from the conversation Detective Sergeant Walker had with the accused in the dock at the police station, which was recorded on a handheld recorder.
The objection to the admissibility of these statements is brought on a different ground. It is brought on the basis of s 85 of the Evidence Act, 1995. Pursuant to S85 (2) of that section, evidence of an admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. I accept from the evidence overall that the accused is in fact a person with a significant intellectual disability. Ms Mulqueen, who was known as Ms Fraser at the time of the accused's arrest, is a qualified disability support worker whose expertise has not been challenged. She was familiar with the accused before 13 December 2013 and with his intellectual disability. I accept from her evidence that he was in fact at the time and remains, a person with a significant intellectual disability with an IQ of less than 70.
She was summoned to the police station by the custody sergeant as the support person to be present with him and as such, conducted an assessment of him and in particular, as to whether or not he did understand the proceedings that were then occurring and specifically whether he understood the caution that he was given and the rights that he had. By the time she arrived at the police station, the accused had already been questioned by Detective Sergeant Walker and the conversations had occurred which are the subject matter of this additional challenge. The subject matter of the challenge is found in exhibit A on that voir dire and specifically the portion on page 5 as identified by counsel for the accused.
As summarised earlier, I accept that Detective Sergeant Walker saw the accused in the dock at Redfern police station, some time not long after 10.45. He introduced himself, he knew that he had spoken to the Aboriginal Legal Service and he asked the accused what they had told him. The accused, I accept, repeated what he had been told by the ALS namely, not to interview, which he explained meant
"Don't make interview if I don't want to".
At page 3 of the transcript of this recording it is clear that Detective Sergeant Walker then went on to say these words
"Mate you don't have to at all and I just want to make sure that you understand that."
That would appear to be in accordance with the obligation he agreed he had to ensure that the accused understood the nature of the caution he had been given. However he did not wait for a reply. He then immediately launched into further questions, which amounted to, in my view, an investigation of the offence. He went on to inform the accused that he was going to give him the chance to be interviewed and then started to investigate the offence, initially by telling him that he understood that the accused had told the police something about the stabbing when he spoke to them earlier that day. He did not, as I have said already, put the specifics of that to the accused so that they could be adopted. He also told the accused that there would be a forensic procedure and asked whether he consented. The accused said he did not want to. I infer that this was a further indication by the accused that he was intending to accept the advice he said he had been given by the ALS, not to engage in an interview.
Detective Sergeant Walker then continued to ask him questions about the offence, again said that he intended to interview him, to ask him questions and to record them. By that stage I accept it ought to have been clear to Detective Sergeant Walker in the circumstances, that the accused was indicating to him that he did not want to engage in an interview. He then went on and said
"Are you happy to come and give me your side of the story".
After that, the accused I accept, either verbally or non-verbally indicated that he was not. The accused then immediately gave a version of events which appears on page 5 of the transcript and which is the subject of this objection. The Crown seeks to rely on that version of events as an admission. It is that which is objected to pursuant to s 85 of the Evidence Act, 1995.
The question for consideration is whether the admission was made in circumstances, which would make it unlikely that the truth of the admissions was adversely affected. I have concluded that that has not been established. In other words, I am not satisfied that the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admissions were adversely affected and I will be rejecting those submissions.
The reasons for that finding are as follows:
(1) When the accused made the admissions, he was in fact a person with a significant intellectual disability. Whether or not that was known or ought to have been known to Detective Sergeant Walker, it seems to me is not relevant. Objectively he was in fact a person with a significant intellectual disability with an IQ of less than 70.
(2) Shortly after this conversation, within two hours or so, the accused was seen by Ms Mulqueen, who made an assessment of him and his understanding of the caution and determined that he did not understand the caution and, significantly, did not understand properly that he had the right to say nothing. I accept her opinion as given in evidence in that regard.
(3) I accept that in general terms the accused had already indicated to Detective Sergeant Walker when repeating to him what he had been told by the ALS and indicating that he did not consent to the forensic procedure, that in fact he did not want to engage in an interview.
(4) The circumstance that in fact he continued to answer questions ultimately providing the answers which are objected to, which was not strictly in answer to a question, nonetheless are provided in the context of ongoing questioning about the offence after the accused had, on my finding, indicated that he did not want to engage in a record of interview.
(5) The fact that the content of what he said to Detective Sergeant Walker when compared to what had been said to Constables Rottnam and Barry are different. There is some commonality and specifically, namely, that there is an admission of presence, but there are significant differences about the surrounding circumstances. One version includes an allegation of sexual advances made by the complainant. A version alleges that the first physical contact was made by the complainant. A version alleges that they had been smoking cannabis together before physical interaction between them and another version alleges simply that there was a fight. These versions were all given by the accused within the space, as I understand the evidence, of about an hour, but given by an accused as a person with an intellectual disability and an IQ of less than 70. These differences are also relevant in determining whether the circumstances in which the admissions were made affect the likelihood that the truth of those admissions was adversely affected.
(6) The fact that the accused continued to answer questions, coupled with his significant intellectual disability, seems to me of itself is a factor to take into account, indicating that he did not understand the nature of the caution, and particularly did not understand that he could refuse to say anything. It takes a certain firmness of mind to refuse to answer questions put by persons in authority to those in custody. This accused did not at the time, because of his intellectual disability, have anything approaching that requisite firmness of mind.
I am entitled to take certain matters into account to determine whether or not the truth of any admission is likely to have been adversely affected by the circumstances in which the admissions were made. There are some specifics referred to in s 85(3) of the Evidence Act. I should indicate that there is no suggestion that the questioning was done in a threatening way, or that there was any promise or inducement made to the accused. I do accept for those reasons that I have set out however that the circumstances in which the admissions were made are likely to have adversely affected the truth of those admissions.
It would appear that there is no room for the exercise of discretion in the application of s 85 of the Evidence Act, 1995. That section is also part of the general legislative provisions affecting the questioning of individuals in custody and is there for good policy reasons. It is not a question of balancing the value of admissions as against the circumstances of an offence. It is also particularly important in my view that these provisions be very strictly complied with in proceedings of this type, namely, a special hearing involving an accused who is not fit to plead, who has a significant intellectual disability and who, because of the legislation otherwise, is not permitted to and not capable of giving any instructions. It is important that the Court apply the legislative provisions strictly to ensure that the rights of an individual in such a position are properly respected.
For the reasons that I have set out, I will reject that portion of Detective Sergeant Walker's evidence, and the transcript and recording of it, which appears on p 5 of his statement, which the Crown sought to rely on as admissions.
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Decision last updated: 22 October 2014
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