R v Campbell, Campbell and Baka (No 1)

[2007] NSWDC 150

CITATION:	R v CAMPBELL, CAMPBELL & BAKA (No 1) [2007] NSWDC 150
HEARING DATE(S):	24 July 2007
JUDGMENT DATE:	24 July 2007
EX TEMPORE JUDGMENT DATE:	24 July 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Record of interview is excluded
CATCHWORDS:	Criminal Law - Trial - Admissibility of evidence - Record of interview - Opressive conduct - Admission
LEGISLATION CITED:	Evidence Act
CASES CITED:	McDermott v The King (1948) 76 CLR 501 R v Zhang [2000] NSWSC 1099 R v LL Unreported, Supreme Court, 1 April 1996
PARTIES:	Crown Belinda Mary Campbell Simon Phillip Campbell Judha Suryadhana Baka
FILE NUMBER(S):	07/11/0371; 07/11/0378
COUNSEL:	D Jordan - Crown R. Bromwich - Campbell & Campbell N Steel - Baka
SOLICITORS:	Commonwealth DPP Giddy & Crittenden - B M Campbell & S P Campbell Legal Aid Commission - Baka

JUDGMENT

1 HIS HONOUR: Yesterday a jury was empanelled and sent away until tomorrow in order that I could deal with a preliminary issue of evidence.

2 That issue concerned the admissibility of what the crown said were admissions made by Simon Campbell during the course of conversations with police officers. It was submitted that they should be rejected because of sections 84 and 90 of the Evidence Act.

3 This morning I viewed or listened to three conversations that Mr Campbell had with police. I heard submissions this afternoon. I am am in a popsition to five judgment immediately.

4 There are admissions, according to the crown, made in a document headed AFP Record of Conversation. Mr Bromwich who appears for Mr Campbell does not suggest that any admission in that document was obtained as result of oppression or unfairness. He does however suggest that I need to look at that document in order to put into context his objections to the admissibility of admissions which were later made.

5 Those later admissions were made in the course of an electronically recorded interview between two police officers and the accused at AFP headquarters, after the accused had been arrested earlier that day.

6 Before I turn to the particular matters in that interview, I want to make some general comments. Often in the course of a police investigation police are faced with a choice between acting in a way which advances the investigation and acting in way which produces admissible evidence. The two objects are distinct and often police do something which renders evidence inadmissible in an attempt to move an investigation forward.

7 I will give two examples to explain what I mean. Assume that a person is subject to a random act of violence on a street and is able to describe to police officers what his or her assailant was wearing. Police then arrest a person fitting that description. Police are then faced with a choice. If they produce the person they have arrested to the victim of the assault and ask whether the person they have in custody is the assailant, that advances the investigation. (If, for example, the victim says "no", then police know that they have to continue looking. If the person says "yes", then police can be excused for looking no further). However, by doing that, police may render inadmissible that act of identification.

8 Another example closer to the situation faced by police in the present case, concerns the situation where police wish to obtain admissions from a suspect and obtain assistance from that suspect in prosecuting others. They may therefore induce the person to assist them, knowing that anything said by the suspect whilst under the influence of that inducement cannot be used again the suspect.

9 In the present case it is clear that police, when interviewing Mr Campbell, were attempting to advance their investigation. At least towards the end of the interview they seemed quite keen to persuade him to co-operate with them, even to the extent of providing them with information about the activities of his wife, who had also been arrested.

10 That object of the police is, no doubt, a valid one and so I do not wish to be taken in anything I will say in this judgment to be suggesting that police have made the wrong decision. But what I am concerned about is the admissibility of what are said to be admissions made by Mr Campbell during the course of the recorded interview.

11 Those admissions were identified during the course of submissions from the crown. The admissions take various forms. Some are repetitions of admissions earlier made but the high point of the admissions seems to be an acknowledgement by Mr Campbell about his belief as to the contents of the boxes found in the container which he was observed to unpack.

12 The prosecution case against Mr Campbell is that he was involved in the importation of tablets containing tablets containing pseudoephedrine, and that he knew when he did the things which are said to amount to that involvement, that it was pseudoephedrine which had been imported from overseas.

13 The crown needs to prove not only that the accused did something in relation to the boxes, but also, the crown needs to prove the accused’s mental state in relation to the contents of those boxes. Thus the statement by the accused that he thought it was “dodgy” is a very important part of the crown case.

14 In considering the question as to whether s 84 renders the admissions inadmissible, I have to first identify whether there was conduct which was oppressive and then, if I do find that, whether the prosecution is able to prove to me on the balance of probabilities that the admissions made by Mr Campbell were not influenced by that oppressive conduct.

15 I repeat it may be quite appropriate for police to act oppressively if their object is to further an investigation, but where oppressive conduct influences the making of an admission, that admission is not to be put before a jury.

16 In this case the interview proceeds on fairly standard terms. Police quite appropriately caution Mr Campbell that he need not say anything unless he wishes to. They advise him of his right to have a lawyer present and it is quite apparent that Mr Campbell is anxious to convey to police a willingness to assist them. When told that he can seek legal advice he says,

“I just think they’ll say, ‘say nothing’, but I’m not here to say nothing. I want to help basically if I can”.

17 Mr Campbell is clearly paying attention to what is going on between him and police officers, to the extent that when at question 53 of the transcript of the interview police say that they had already told him something, Mr Campbell corrects them and says, “no you didn’t”. Police also make it clear that the accused is a suspect. They tell him that they are investigating his involvement in the importation of a multiple kilo importation of a prohibited precursor product. It is in that context that the accused is apparently happy to speak to police. Things take a turn for the worse however, once the preliminary questioning is over.

18 At question 108 the interview takes a surprising turn. I say surprising because there are many things said to the accused which can only be designed to put pressure on him to make admissions. That itself is not improper, of course. It is part of good police practice I presume to seek to obtain an admission, where that can legitimately be done. But the pressure being applied to the accused by police, I am satisfied, commencing from question 108, goes beyond what is proper. The police officer says this,

“Okay now Simon, this is the part of the interview where you have to tell me what’s going on. You know what I think is happening here, and what’s been going on. You have to explain to us and convince us that what you’ve telling us is the truth, because I think there’s a lot more to it than, than what you’ve been telling us. There’s a lot at stake in terms of what’s happening to you and your family today and you have to turn your mind to what’s going to happen in the future, and how you can help yourself and your family, and, you know, do the right thing.”

19 It is no part of a police officer’s legitimate function to tell a person in the recorded interview that he has to explain to police, and convince them, that what is being said is the truth. At least it is no part of the legitimate function of a police officers to do that, if they hope to use what is later said against that person.

20 The reference to what was happening to the accused and his family, was probably designed to, and certainly would have had the effect of, placing pressure on the accused. I should interpolate that this statement was in the context of police knowing that the accused, who had four daughters, was quite anxious about whether his youngest daughter would be collected from a party. A significant interruption early in the interview was necessary in order that arrangements could be made for the accused’s daughter to be collected, the accused being unable to collect her because he was under arrest.

21 The first of the admissions relied on by the crown comes only a very short time after the interview takes, what I said, is a surprising turn.

22 Police also, on numerous occasions, tell the accused that they are not being convinced, and that they believe the accused is telling them lies. They express the firm belief to the accused that he is not being frank with them. There would have been clear pressure put on the accused, therefore, to tell police what they wanted to hear.

23 Mr Bromwich asked that I not just read the transcript of the interview, but that I listen and watch as well. Having done so I can understand why Mr Bromwich wanted me to hear the words spoken, rather than just read them on the printed page, because it is clear that at times the police adopt an aggressive tone of voice, almost hectoring on occasions. Voices are raised and a tone of frustration creeps into many of the questions asked by police officers. Not every question can be categorised in that way, and much of the interview proceeds on a relatively friendly basis. Indeed, and I have firmly taken this into account, at the end of the interview Mr Campbell says that he has got no complaint, that his answers have been given of his own free will, and that he had not been threatened or subjected to any promise or inducement.

24 I mentioned before that the high point of the admissions relied on by the crown was the accused saying that he thought there was something dodgy going on. It is quite instructive to see how that admission came about. This is an example where the tone of the questioner did become aggressive. During an answer the accused was interrupted. He said something which the police did not like, and so at question 206 he is told, “I can’t believe you, Simon, and I think - I think you know what it sounds like. You knew it was dodgy.” He is cross-examined as to how it would be that he could have thought that there was nothing improper about the extra boxes being found in the container. At quesstion 220 he is asked, “None of the manifests said toys on it. What do you think was in it?” He said, “I don’t know, I really didn’t know.” Then the police make it quite clear to him, yet again, that this is not the answer that they want to hear. At question 221 the officer says, “I don’t think that dog will hunt, Simon. I think you know that it was dodgy.” It is immediately after that question that the accused makes a significant admission.

25 There are other examples throughout the transcript of police expressing their personal belief in making it clear to the accused that they expect him to confirm that their belief is correct. At question 232: “I’m having trouble buying that you or Belinda didn’t know more about it.”

26 Section 84 Evidence Act replaces what at Common Law used to be a test of voluntariness of admissions. Although there are some risks in looking at cases concerning the Common Law when dealing with the Evidence Act, both the Crown and Mr Bromwich have referred to decisions such as McDermott v TheKing (1948) 76 CLR 501 as assisting me in determining whether the conduct of the police should be regarded by me as oppressive. The authorities relied on by Mr Bromwich are conveniently collected in a decision of Smart J, R v L, Unreported, Supreme Court, 1 April 1996. His Honour presumably looked at those pre Evidence Act cases because at the time of his Honour’s decision there were not too many cases about the Evidence Act around.

27 I am satisfied that the police intended to break down the answers of Mr Campbell by cross-examining him during the course of their interview. They expressed repeated disbelief in his denials of knowledge of what was in the boxes. He was accused explicitly of lying and there was cross-examination during the interview, the tendency of which was to get admissions from him and to overcome the mental resistance of Mr Campbell to making admissions. As I understand it if this was a case that was being dealt with under the Common Law, the authorities would have required me to exclude the admissions because they were not voluntary. Although the test under s 84 is not voluntariness and requires me to consider the issues that I have earlier raised. I have found the Common Law cases referred to by both sides helpful.

28 Mr Bromwich also relied on a decision of R v Zhang [2000] NSWSC 1099, Simpson J’s decision, where her Honour looked at s 84 and said:

“Section 84 does not require the isolation of a single reason or a single event or incident or instance of conduct provoking the confession. There may be a number of factors working together that combined cause the admission to be made. If oppressive conduct on the part of the police is one of those factors, or, more accurately, if the crown has failed to negative such conduct as one of the factors, then the evidence is inadmissible.”

29 I am of that view. There is no single reason or event which is determinative. It is a combination of what was said by the police, the way they said it, their reference to things such as the accused’s family, their expressions of disbelief, their raised voices, and their aggressive questioning, which all combine, in my view, to result in the situation where their conduct was oppressive and did influence the making of admissions by the accused in the record of interview.

30 The result is, therefore, that I propose to exclude from evidence the entirety of the AFP record of interview. As I see it, there is no relevance of the interview apart from the admissions. However, for the reasons I gave at the very beginning of this judgment, I do not propose to exclude from evidence the conversations between the police and the accused contained in the document headed AFP Record of Conversation, the transcript of which is exhibit 1B, or the taped record of conversation, the transcript of which is exhibit 2B if those documents are relevant. I presume that exhibit 1B is relevant because it contains admissions and I will hear argument as to whether exhibit 2B is relevant.

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