R v CK
[2013] ACTSC 251
•13 December 2013
R v CK
[2013] ACTSC 251 (13 December 2013)
STATUTORY INTERPRETATION – whether obligation to notify an Aboriginal legal aid organisation in s 23H(1) Crimes Act 1914 (Cth) must be performed prior to police questioning a person of Aboriginal or Torres Strait Islander descent – s 23H must be read in context of Div 3, particularly s 23G: Right to communicate with friend, relative and legal practitioner – obligation to notify in s 23H(1) directed towards choice of interview friend – no purpose to contacting Aboriginal legal aid organisation after arrested person has expressly and voluntarily waived right to have interview friend present
CRIMINAL LAW – EVIDENCE – application to exclude evidence – whether admissions, made in course of police interview, evidence obtained in contravention of an Australian law or as a consequence of impropriety: s 138 Evidence Act 2011 (ACT) – limitations on questioning the accused found in s 23H(2), not in s 23H(1) – breach of s 23H(1) would lead to evidence being obtained following a contravention of Australian law, but not in contravention – questioning accused following waiver of right to interview friend in s 23H(2) not “quite inconsistent” or “clearly inconsistent” with requisite standard of propriety
Acts Interpretation Act1901 (Cth), s 15AA
Crimes Act 1914 (Cth), ss 3ZQA, 23A(6), 23B, 23B(1), 23B(6), 23G, 23H, 23H(1), 23H(1)(a), 23H(1)(b), 23H(2), 23H(2B), 23H(6), 23L; Div 3; Pt 1C
Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth)
Criminal Code 2002 (ACT), s 310
Evidence Act 2011 (ACT), s 138
Crimes Regulations 1990 (Cth), reg 6A; Sch 3A
Explanatory Memorandum, Crimes (Investigation of Commonwealth Offences) Amendment Bill 1990
Parker v Comptroller-General of Customs (2009) 83 ALJR 494
R (Cth) v Petroulias (No 8) [2007] NSWSC 82
R v Dalley [2002] NSWCCA 284
Robinson v Woolworths Ltd (2005) 158 A Crim R 546
No. SCC 13 of 2013
Judge: Burns J
Supreme Court of the ACT
Date: 13 December 2013
IN THE SUPREME COURT OF THE )
) No. SCC 13 of 2013
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: R
Respondent
AND: CK
Applicant
REASONS FOR JUDGMENT
Judge: Burns J
Date: 13 December 2013
Place: Canberra
THE COURT ORDERS THAT:
The application to exclude evidence is refused.
On 17 November 2012, the accused, CK, was charged with one offence of aggravated robbery, which is alleged to have been committed on 31 October 2012. He was committed for trial to this Court on 31 January 2013. By an Application dated 17 June 2013 (the application) he sought an order that certain evidence the Crown proposes to lead at his trial, being a tape recording of an interview between the accused and police, be excluded pursuant to s 138 of the Evidence Act 2011 (ACT) (the Evidence Act 2011) on the grounds that the recording was obtained as a result of an impropriety or a breach of an Australian law.
On 25 July 2013, I commenced hearing the application, but due to the unavailability of a Crown witness the matter could not be concluded on that date. Ultimately, the taking of evidence on the application was unable to be concluded until 31 October 2013, on which date I refused the application, indicating that I would publish my reasons at a later time. These are those reasons.
It was not in dispute that the accused is an indigenous man. As at 17 November 2012, the date he participated in his interview with the police, he was 19 years old. He voluntarily attended the Tuggeranong Police Station on that day and was arrested for the offence of aggravated robbery and conveyed to the City Police Station, where he voluntarily participated in an interview with police. As is customary in such processes, in the interview police initially addressed necessary procedural matters, such as administering a caution to the accused, and offering him the opportunity to obtain legal advice or to have an interview friend present during the interview. The accused declined the opportunity to get legal advice, and waived his right to an interview friend. I will return to the significance of these decisions later in these reasons. The police then questioned the accused about the alleged aggravated robbery. He made very clear admissions to participating in the aggravated robbery during questioning, and he was subsequently charged with the offence. For convenience, I will refer to the record of questioning of the accused as the evidence.
THE OBJECTION
The accused complained that the evidence was improperly obtained or obtained in breach of an Australian law because, he said, the police had not complied with the provisions of s 23H(1) of the Crimes Act1914 (Cth) by not advising him before questioning that a representative of an Aboriginal legal aid organisation would be notified that the accused was under arrest, and by not notifying the Aboriginal Legal Service he was under arrest. The accused therefore argued that the evidence of those admissions should be excluded pursuant to s 138 of the Evidence Act2011.
Relevant statutory provisions
There are a number of statutory provisions which it is important to have reference to in this application:
23G Right to communicate with friend, relative and legal practitioner
(1) Subject to section 23L, if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, inform the person that he or she may:
(a) communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and
(b) communicate, or attempt to communicate, with a legal practitioner of the person’s choice and arrange, or attempt to arrange, for a legal practitioner of the person’s choice to be present during the questioning;
and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning.
(2) Subject to section 23L, if a person is under arrest or a protected suspect and wishes to communicate with a friend, relative or legal practitioner, the investigating official must:
(a) as soon as practicable, give the person reasonable facilities to enable the person to do so; and
(b) in the case of a communication with a legal practitioner – allow the legal practitioner or a clerk of the legal practitioner to communicate with the person in circumstances in which, as far as practicable, the communication will not be overheard.
(3) Subject to section 23L, if a person is under arrest or a protected suspect and arranges for a legal practitioner to be present during the questioning, the investigating official must:
(a) allow the person to consult with the legal practitioner in private and provide reasonable facilities for that consultation; and
(b) allow the legal practitioner to be present during the questioning and to give advice to the person, but only while the legal practitioner does not unreasonably interfere with the questioning.
23H Aboriginal persons and Torres Strait Islanders
(1) Subject to section 23L, if the investigating official in charge of investigating a Commonwealth offence believes on reasonable grounds that a person who is under arrest, or who is a protected suspect, and whom it is intended to question about the offence is an Aboriginal person or a Torres Strait Islander, then, unless the official is aware that the person has arranged for a legal practitioner to be present during the questioning, the official must:
(a) immediately inform the person that a representative of an Aboriginal legal aid organisation will be notified that the person is under arrest or a protected suspect (as the case requires); and
(b) notify such a representative accordingly.
(2) Subject to subsection (7) and section 23L, if an investigating official:
(a) interviews a person as a suspect (whether under arrest or not) for a Commonwealth offence, and believes on reasonable grounds that the person is an Aboriginal person or a Torres Strait Islander; or
(b) believes on reasonable grounds that a person who is under arrest or a protected suspect is an Aboriginal person or a Torres Strait Islander;
the official must not question the person unless:
(c) an interview friend is present while the person is being questioned and, before the start of the questioning, the official has allowed the person to communicate with the interview friend in circumstances in which, as far as practicable, the communication will not be overheard; or
(d) the person has expressly and voluntarily waived his or her right to have such a person present.
(2A) The person suspected, or under arrest, may choose his or her own interview friend unless:
(a) he or she expressly and voluntarily waives this right; or
(b) he or she fails to exercise this right within a reasonable period; or
(c) the interview friend chosen does not arrive within 2 hours of the person’s first opportunity to contact an interview friend.
(2B) If an interview friend is not chosen under subsection (2A), the investigating official must choose one of the following to be the person’s interview friend:
(a) a representative of an Aboriginal legal aid organisation;
(b) a person whose name is included in the relevant list maintained under subsection 23J(1).
(3) An interview friend may be excluded from the questioning if he or she unreasonably interferes with it.
(4) In any proceedings, the burden lies on the prosecution to prove that an Aboriginal person or Torres Strait Islander has waived the right referred to in subsection (2) or (2A), and the burden is not discharged unless the court is satisfied that the person voluntarily waived that right, and did so with full knowledge and understanding of what he or she was doing.
(5) In any proceedings, the burden lies on the prosecution to prove that, at the relevant time, a person who is under arrest or a protected suspect had, to the knowledge of the investigating official concerned, made an arrangement of the kind referred to in subsection (1).
(6) The rights conferred by this section are in addition to those conferred by section 23G but, to the extent (if any) that compliance with this section results in compliance with section 23G, the requirements of section 23G are satisfied.
(7) If the person is under 18, subsection (2) does not apply and section 23K applies.
(8) An investigating official is not required to comply with subsection (1), (2) or (2B) in respect of a person if the official believes on reasonable grounds that, having regard to the person’s level of education and understanding, the person is not at a disadvantage in respect of the questioning referred to in that subsection in comparison with members of the Australian community generally.
(9) In this section:
interview friend, in relation to a person to whom subsection (2) applies, means:
(a) a relative or other person chosen by the person; or
(b) a legal practitioner acting for the person; or
(c) a representative of an Aboriginal legal aid organisation; or
(d) a person whose name is included in the relevant list maintained under subsection 23J(1).
23L Exceptions
(1) Subject to subsections (2) and (4), if a requirement imposed on an investigating official by this Part is expressed as being subject to this section, the requirement does not apply if, as for so long as, the official believes on reasonable grounds that:
(a) compliance with the requirement is likely to result in:
(i) an accomplice of the person taking steps to avoid apprehension; or
(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or
(b) if the requirement relates to the deferral of questioning - the questioning is so urgent, having regard to the safety of other people, but it should not be delayed by compliance with that requirement.
(2) If the requirement relates to things done by or in relation to a legal practitioner, subsection (1) only applies:
(a) in exceptional circumstances; and
(b) if:
(i) an officer of a police force of the rank of Superintendent or higher; or
(ii) the holder of an office prescribed for purposes of this section, other than an office in the police force;
has authorised the application of subsection (1) and has made a record of the investigating official’s grounds for belief.
(3) If the application of subsection (1) is so authorised:
(a) the record of the investigating official’s grounds or belief must be made as soon as practicable; and
(b) the investigating official must comply with the requirement as soon as possible after subsection (1) ceases to apply.
(4) if the application of subsection (1) results in:
(a) preventing or delaying the person from communicating with a legal practitioner of his or her choice; or
(b) preventing or delaying a legal practitioner of the person’s choice from attending at any questioning;
the investigating official must offer the services of another legal practitioner and, if the person accepts, make the necessary arrangements.
It is common ground that the police officer’s involved in questioning the accused were investigating officials for the purposes of s 23H: s 3ZQA Crimes Act1914. It is also accepted that the accused was under arrest prior to police questioning him about the aggravated robbery. The offence of aggravated robbery is an offence under ACT law (s 310 Criminal Code 2002 (ACT)), but Pt 1C of the Crimes Act1914, which includes s 23H, is given an extended application by s 23A(6) of that Act:
(6) If an offence against a law of the Australian Capital Territory is punishable by imprisonment for a period exceeding 12 months and the investigating official concerned is a member or special member of the Australian Federal Police, this Part applies to that offence as if:
(a) references to the Commonwealth offences included references to that offence; and
(b) references to a law of the Commonwealth included references to a law of that Territory.
The offence of aggravated robbery under s 310 of the Criminal Code 2002 carries a maximum penalty of 25 years imprisonment, so that the provisions of s 23H applied to the questioning of the accused assuming the other requirements of that section were satisfied.
The term “Aboriginal legal aid organisation” in s 23H(1)(a) is defined in s 23B of the Crimes Act1914 to be an organisation that provides assistance to Aboriginal persons “being an organisation identified in the regulations for the purposes of this definition”. The Crimes Regulations 1990 (Cth), in reg 6A, provides that for the purposes of s 23B(1) of the Crimes Act1914, an organisation identified in Schedule 3A to the Regulation is an Aboriginal legal aid organisation. The following organisations are listed in Schedule 3A:
Aboriginal and Torres Strait Islanders Corporation (Q.E.A) for Legal Services
Aboriginal Legal Rights Movement Incorporated
Aboriginal Legal Service Ltd
Aboriginal Legal Service of Western Australia (Inc.)
Central Australian Aboriginal Legal Aid Service Incorporated
Charleville and South West Queensland Aboriginal and Torres Strait Islander Corporation for Legal Services
Ipswich Regional Aboriginal and Torres Strait Islanders Corporation for Legal Services
Katherine Regional Aboriginal Legal Aid Service Inc.
Mackay and Districts Aboriginal and Torres Strait Islanders Corporation for Legal Aid Services
Njiku Jowan Legal Service (N.Q.) Ltd
North Australian Aboriginal Legal Aid Service Inc.
Pitjantjatjara Council Incorporated
Q.E.C. Aboriginal and Torres Strait Islanders Corporation for Legal Services
South Coast Aboriginal Legal Service Ltd
South East Queensland Aboriginal Corporation for Legal Services
T.S.N.P. Torres Strait Islanders and Aboriginal Corporation for Legal Services
Tasmanian Aboriginal Centre Incorporated
Tharpuntoo Legal Service Aboriginal Corporation
Townsville and Districts Aboriginal and Torres Strait Islanders Corporation for Legal Aid Services
Victorian Aboriginal Legal Service Co-operative Limited
West Queensland Aboriginal and Torres Strait Islanders Corporation for Legal Aid
Western Aboriginal Legal Service Ltd
THE EVIDENCE
Although the accused was the moving party, on whom the onus fell to establish that the evidence had been improperly obtained, or obtained in contravention of an Australian law, the Crown quite sensibly agreed to lead evidence first. Detective Senior Constable Joseph Zeller testified that he participated in the arrest of the accused, and in the investigation of the charge of aggravated robbery. The accused attended the Tuggeranong Police Station in company with his girlfriend, his mother and other family members at 2:00 PM on 17 November 2012. He was then arrested for the aggravated robbery. Police allowed the accused to speak with his family for about 50 minutes before conveying him to the ACT Regional Watch house at the City Police Station, arriving there at about 3:05 PM. The interview commenced at 4:19 PM and concluded at 4:38 PM. During that interview he was questioned about the aggravated robbery.
Detective Zeller testified that he was aware on 17 November 2012 that the accused was an Aboriginal person. He said that the usual procedure when dealing with an Aboriginal person is to notify the “Aboriginal Legal Service” (ALS) by telephone and fax upon arrival at the watch house. It was generally the role of the police corroborator to make contact with ALS. Detective Zeller said that, “to my knowledge, Aboriginal Legal Service were notified upon our attendance at the watch house”.
In cross-examination Detective Zeller confirmed that he was the officer in charge of the investigation into the aggravated robbery, and that Detective Senior Constable Matthew Challenger was the corroborating officer. Detective Zeller agreed that nowhere in the record of interview was the accused told that police had contacted the ALS. Detective Zeller said that he had spoken to the ALS on many occasions, and was familiar with the 24-hour a day in custody notification line provided by ALS. Detective Zeller said he had no recollection of speaking to the ALS on 17 November 2012. On occasions in the past, Detective Zeller had left messages on a message service provided by ALS notifying them that an Aboriginal person had been arrested, and on other occasions had been able to speak to an ALS lawyer. Prior to the 12 months before he gave evidence on 25 July 2013, Detective Zeller said it had been considered sufficient to notify ALS by fax.
Detective Zeller was questioned about whether he had telephoned ALS and spoken to a lawyer, Jeanna Walsh, at about 5:18 PM on 17 November 2012. He had no recollection of making such a call, and agreed that it would be unusual to call the ALS after an interview had taken place.
Detective Challenger also gave evidence on 25 July 2013. He agreed that on 17 November 2012 he assisted Detective Zeller interview the accused with respect to the charge of aggravated robbery. By reference to contemporaneous notes, he stated that the ALS were notified that the accused was in custody at 3:45 PM. He could not recall the exact circumstances of notification, but said the standard procedure was to make a phone call, and to send a fax as well. Detective Challenger’s notes, in the form of a running sheet in his official notebook, were tendered, and show an entry at “1545” of “Aboriginal Legal Aid notified”. Detective Challenger was unable to recall contacting ALS that day, and assumed from the fact that he had made no notes of any conversation with a lawyer at ALS that he left a message. He also accepted that it was usual practice to send a fax to ALS, but he had no copy of any fax he may have sent on 17 November 2012 concerning the accused.
The final Crown witness was Sergeant Craig Baird, the officer in charge of the watch house on 17 November 2012. He completed a Reception and Lodgement of Detainees Form when the accused was received at the watch house. In the form it is noted that the accused identifies as both Aboriginal and Torres Strait Islander, and notes “ATSI notified”. This evidence really did not assist in determining whether the ALS had been contacted.
On behalf of the accused, Ian Rodgers gave evidence. An affidavit affirmed by Mr Rodgers on 24 July 2013 was received into evidence. In that affidavit he deposed to being a solicitor employed by “Aboriginal Legal Service NSW/ACT LTD”. Interestingly, the affidavit is expressed to have been filed on behalf of the accused by “Tom Quilter, Solicitor - Aboriginal Legal Service (NSW/ACT) Limited.” Neither “Aboriginal Legal Service NSW/ACT LTD” or “Aboriginal Legal Service (NSW/ACT) Limited” are listed in Schedule 3A of the Crimes Regulations 1990 as an Aboriginal Legal Aid organisation. I will return to this topic later. For convenience, I will refer to the witnesses who gave evidence on behalf of the accused as employed by the ALS, which was the approach adopted by the parties in the hearing of the Application.
Mr Rodgers affirmed in his affidavit that as part of his duties he was required to complete shifts monitoring the Custody Notification Service (CNS), a telephone number available to all police officers in NSW and the ACT. Lawyers from his organisation were rostered to answer calls to that number on a 24-hour day basis. Each lawyer completed an eight hour shift, and at the commencement of their shift the lawyer directed calls from the CNS number to the lawyer’s mobile phone. For the duration of that shift, all calls to the CNS number then went to that lawyer’s mobile phone, and messages could be left on their message bank. All phone calls received during a shift were recorded by the lawyer on a log sheet, which was subsequently sent to the ALS Redfern office. Mr Rodgers reviewed these records and ascertained that he was the lawyer monitoring the CNS from 8:00 AM to 4:00 PM on 17 November 2012. The records showed that during that time he received phone calls in relation to 9 clients, but there was no record of any call concerning the accused. Whilst Mr Rodgers could not recall his phone shift that day, it was his usual practice to record all calls on the log sheet, and to call back a police station at the earliest opportunity where a message was left on his message bank.
In oral evidence Mr Rodgers said that if an ALS lawyer missed a call, there was a voice message on the CNS identifying it as the CNS, asking police to leave a message and requesting police to call again if the message was not responded to by ALS “within a short period of time”.
In cross-examination Mr Rodgers said that he did the CNS shift on 17 November 2012 from his home, so he would not have received any fax that day. He accepted that a fax could have been sent to an ALS office, but he had no knowledge of that.
The next witness for the accused was Jeanna Walsh, a lawyer employed by the ALS. She was the lawyer who took over the CNS after Mr Rodger’s shift ended at 4:00 PM on 17 November 2012. Ms Walsh apparently did not keep her mobile phone on her person at all times on the afternoon of 17 November 2012, but she kept it close by. She testified that she received a call on her mobile phone at 5:16 PM which she was unable to answer. A message was left with a phone number. She returned the call at 5:18 PM and spoke to a person who identified himself as Detective Zeller, the officer in charge of the investigation of a charge of aggravated robbery against the accused. Detective Zeller advised her that the accused was in custody, had participated in an interview with police and had been charged with the offence of aggravated robbery. Ms Walsh made contemporaneous notes of this conversation, which were admitted into evidence.
Ms Walsh testified that she was advised by Detective Zeller that the accused did not want to speak to ALS. She said in evidence that if she had spoken to the accused before he was interviewed by police she would have advised him not to participate in the interview.
A significant piece of evidence was the record of calls made to the CNS line as produced by Telstra. It showed only one call from an AFP number to the CNS between 2:00 PM and 6:00 PM on 17 November 2012. That call is recorded as having been made at 5:15 PM, lasting for 53 seconds. This significantly corroborates the evidence of Mr Rodgers and Ms Walsh that they received no notification that the accused was in custody until the message was left on Ms Walsh’s phone at about 5:16 PM.
SECTION 23H CRIMES ACT 1914
Section 23H is found in Div 3 of Pt 1C of the Crimes Act1914, a Division headed “Obligations of investigating officials”. Some of the obligations imposed in Div 3 apply in all cases where a person is under arrest. For example, s 23G imposes on an investigating official an obligation, before starting questioning, to inform all arrested persons that they may communicate, or attempt to communicate, with a friend or relative to inform that person of their whereabouts, and to communicate, or attempt to communicate, with a legal practitioner. That section obliges an investigating official to defer questioning the arrested person for a reasonable time to allow the arrested person to make, or attempt to make, the communication. Section 23H imposes additional obligations where the investigating official believes on reasonable grounds that the arrested person is Aboriginal or a Torres Strait Islander.
Section 23H(1) imposes on an investigating official, relevantly for present purposes, an obligation to immediately notify the arrested person that a representative of an Aboriginal legal aid organisation will be notified that the arrested person is under arrest, and then obliges the investigating official to notify such an organisation. It may be inferred from the terms of s 23H(1) that the obligation to inform the arrested person that a representative of an Aboriginal legal aid organisation will be notified is to be satisfied prior to the commencement of questioning the arrested person. It is not so clear from the test of s 23H(1) whether the obligation to notify such a representative must be satisfied prior to the commencement of questioning. The word “immediately” in s 23H(1)(a) only governs the obligation cast on an investigating official to inform the arrested person that such a representative will be notified. The adverb “accordingly” means, in my opinion, “in due course”: see The Macquarie Dictionary, 5th Edition. The use of the adverb accordingly in s 23H(1)(b) does not convert the obligation to immediately inform the arrested person into an obligation to immediately notify a representative. The plain words of s 23H(1) do not require an investigating official to notify a representative of an Aboriginal legal aid organisation of the arrested person’s presence in custody before questioning commences.
There are other guides to the intention of Parliament beyond the plain words of a provision. Indeed, s 15AA of the Acts Interpretation Act1901 (Cth) requires me in interpreting s 23H(1) to adopt the interpretation that will best achieve the object or purpose of the Act. What, then, is the purpose of the requirement that an investigating official notify a representative of an Aboriginal legal aid organisation? In other words, to what end is it directed? Some things are clear. Section 23H does not oblige an arrested Aboriginal or Torres Strait Islander to speak to, or take advice from, a representative of an Aboriginal legal aid organisation. In common with all arrested persons, they have a right to communicate with, or attempt to communicate with, a legal practitioner of their choice (s 23G), but they may choose not to exercise that right. It is also clear that s 23H(1) does not give the arrested person the right to choose which Aboriginal legal aid organisation, or which representative of any such organisation, will be notified. Section 23H(1) is not intended to be a substitute for the rights provided by s 23G, as is made clear in s 23H(6). As such, the notification obligation is not directed to ensuring that an arrested Aboriginal or Torres Strait Islander has access to legal advice or representation prior to being interviewed by police.
Section 23H was introduced into the Crimes Act 1914 by the Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth). This Act came into force upon the passage of the Crimes (Investigation of Commonwealth Offences) Amendment Bill 1990. Section 23H remains in the same form today as it was when it was inserted into the Crimes Act 1914. The Explanatory Memorandum which accompanied the Bill had this to say about s 23H(1):
Proposed subsection 23H(1) requires (subject to proposed section 23L) that an investigating official who believes on reasonable grounds that a person under arrest whom it is intended to question concerning a Commonwealth offence is an Aboriginal person or a Torres Strait Islander must, unless he or she is aware that the person has arranged for the attendance of a legal practitioner, immediately inform the person that, unless he or she objects, the official will notify a representative of an Aboriginal legal aid organisation, and the official must accordingly do so if the person does not object.
Interestingly, the Explanatory Memorandum suggests that the obligation imposed on an investigating official by s 23H(1) to notify an Aboriginal legal aid organisation is not absolute, and may be waived, or vetoed, by the arrested person, suggesting that the provision is to be read in conjunction with the remainder of s 23H. There are also indications within s 23H(1) itself that the provision is not intended to be read in isolation from the rest of s 23H, and the provisions surrounding it. For example, there is no requirement in s 23H(1) that an investigating official notify the Aboriginal legal aid organisation closest to the location where the arrested person is being held. If s 23H(1) were to be considered in isolation, its requirements for notification for an arrested person in Canberra could be satisfied by notifying the Aboriginal Service of Western Australia (Inc).
Assistance in determining the purpose of the obligation to notify in s 23H(1) is found in the remainder of that section. Section 23H(2) provides, subject to presently irrelevant exceptions, that an investigating official is not to question an arrested person unless an interview friend is present and has had an opportunity, before the start of questioning, to communicate with the arrested person. The arrested person may, however, expressly waive their right to have an interview friend present: s 23H(2)(d). The arrested person may choose their own interview friend unless: they waive the right to choose, they fail to exercise the right within a reasonable time, or the interview friend chosen by the arrested person does not arrive within 2 hours of the arrested person’s first opportunity to contact an interview friend: s 23H(2A). Where an interview friend is not chosen under s 23H(2A), the investigating official must choose an interview friend for the arrested person, who must be either a representative of an Aboriginal legal aid organisation, or a person whose name is found on a list of persons suitable to be interview friends established by the Minster: s 23H(2B). An investigating officer is not obliged to comply with s 23H(1), (2) or (2B) with respect to an arrested person if the official believes, on reasonable grounds, that, having regard to the persons level of education and understanding, the person is not at a disadvantage in respect of the proposed questioning in comparison with members of the Australian community generally: s 23H(8). For the purposes of s 23H, an interview friend may be a relative or other person chosen by the arrested person, a legal practitioner acting for the arrested person, a representative of an Aboriginal legal aid organisation or a person whose name is found on the list of suitable interview friends established by the Minister: s 23H(9).
When looked at within the context of surrounding provisions, it becomes apparent that the obligations imposed on an investigating official by s 23H(1) are a step in the process of ensuring that an interview friend is available to be present during the proposed questioning, unless the arrested person chooses to waive the right to have such a person present. Whilst an interview friend may be a legal practitioner acting on behalf of the arrested person, in which case it may be expected that they will also provide the arrested person with legal advice, this will often not be the case. Either by reason of the arrested person’s choice or, where s 23H(2B) applies, that of the investigating official, the interview friend may be someone who is incapable of providing legal advice. The provisions of Div 3 of Pt 1C of the Crimes Act 1914 anticipate that this may be the case, so that the effect of s 23H(6) is that if the interview friend is not a legal practitioner acting for the arrested person, the official must still comply with their obligations under s 23G.
Once it is accepted that the obligation to notify imposed by s 23H(1) is directed towards the choice of an interview friend, the better view of s 23H(1)(b) is that it requires notification prior to commencement of questioning, unless the right to have an interview friend present is expressly and voluntarily waived. Where that right is waived, as occurred here, there is no obligation to comply with s 23H(1). The accused, in these proceedings, does not dispute that prior to him being questioned about the offence of aggravated robbery, he expressly and voluntarily waived the right to have an interview friend present.
It will be noted that s 23H(2) draws a distinction between police interviewing an arrested person, and questioning them. “Questioning” has a particular meaning in this context. Section 23B(6) of the Crimes Act1914 provides that, in Pt 1C, a reference to questioning a person is a reference to questioning to investigate the involvement of the person in any Commonwealth offence. By virtue of the extended operation of
Pt 1C provided for by s 23A(6) of the Act, the definition of questioning found in s 23B(6) also applies to the investigation of ACT offences carrying more than 12 months imprisonment by members of the AFP. As such, the interview of the accused conducted by police did not become “questioning” for the purposes of the application of s 23H(2) until police actually asked questions directed towards ascertaining the accused’s involvement in the offence. By that time, the accused had waived his right to an interview friend. It cannot be said that until the police had completed the preliminary procedures at the commencement of the interview, and had ascertained that the accused did not want legal advice and had waived his right to the presence of an interview friend, that they intended to question him for the purposes of s 23H(1).
There can be no purpose in requiring an investigating official to comply with s 23H(1) where an arrested person has expressly and voluntarily waived their right to have an interview friend present. The purpose cannot be to ensure that the arrested person has access to legal advice. The obligation to ensure that an arrested person has access to legal advice or representation is found, not in s 23H, but in s 23G. The purpose of the obligations found in s 23H(1) is to ensure that an interview friend is available and provided, should that be necessary. Where an arrested person expressly and voluntarily waives the right to have an interview friend present, an investigating official is relieved of the obligations imposed by s 23H(1).
It follows from this analysis that there was no breach of the obligations imposed by s 23H(1), as they did not arise because of the accused’s waiver of his right to have an interview friend present. It therefore becomes unnecessary to resolve the factual dispute about whether the police did in fact notify the ALS prior to questioning the accused.
138 EVIDENCE ACT 2011SECTION
It is strictly unnecessary, because of my findings regarding the alleged breach of s 23H(1) of the Crimes Act1914, to consider the application of s 138 of the Evidence Act. I will, however, briefly note that even if I had found that there had been a breach of s 23H(1) as alleged, I would have found that s 138 of the Evidence Act did not apply so as to provide for the exclusion of the evidence. Section 138 relevantly provides:
(1) Evidence that was obtained –
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
The accused submitted that the evidence was unlawfully obtained, on the basis that s 23H(1) had not been complied with. Assuming, for present purposes, that s 23H(1) was not complied with, it does not necessarily follow that the evidence was obtained in contravention of an Australian law. In Parker v Comptroller-General of Customs (2009) 83 ALJR 494 French CJ said regarding the meaning of “contravention” in s 138 of the Evidence Act1995 (Cth), which is in the same terms as s 138 of the Evidence Act2011 (ACT) (at [30]):
Without essaying an exhaustive definition, the core meaning of “contravention” involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention.
It was not unlawful for the police to interview the accused. If the accused had not waived his right to have an interview friend present, then it would have been unlawful for the police to interview him without such a person being present: s 23H(2). It could then properly be said that any admissions made by the accused in the interview were obtained in contravention of an Australian law. The only prohibition on interviewing the accused was that found in s 23H(2), and that was removed by the accused waiving his right to have an interview friend present. The police were not contravening any law when they questioned the accused about the alleged offence. If there was a breach of the requirements of s 23H(1), the evidence was obtained following a contravention of an Australian law, but not in contravention of any such law.
Whilst the majority of the appellant’s submissions were directed towards the proposition that the evidence had been obtained in contravention of an Australian law, the application also alleged that the evidence was obtained improperly. This suggestion must also be rejected. Failure to comply with the provisions of s 23H(1) did not make it improper on the part of the police to interview the accused. In Robinson v Woolworths Ltd (2005) 158 A Crim R 546, Basten JA, with whom Barr J agreed, said that in determining whether evidence was obtained improperly for the purposes of s 138 (at [23] and [82] respectively):
First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards.
The standard of propriety required of the police in questioning the accused were, in this case, set by the provisions of s 23H(2), in that they were obliged to refrain from questioning him unless either an interview friend was present, or the accused waived his right to have such a person present. Not only were the actions of the police in questioning the accused not “quite inconsistent” or “clearly inconsistent” with that standard, they were perfectly consistent with it.
Although it was not argued by the accused, I make it clear that there can be no suggestion that the evidence was obtained in consequence of a contravention of an Australian law (assuming there had been a contravention of s 23H(1)). The accused must establish that there is a causal connection between the contravention and the obtaining of the impugned evidence: R v Dalley [2002] NSWCCA 284 per Simpson J (at [86]), with whom, on this issue, Spigelman CJ (at [1]) and Blanch AJ ( at [102]) agreed; R (Cth) v Petroulias (No 8) [2007] NSWSC 82 at [25]. It is, in the context I have set out above, quite impossible to argue that the evidence was obtained as a consequence of any purported breach of the provisions of s 23H(1).
For these reasons I was satisfied that the provisions of s 138 were not engaged, even if there had been a failure to comply with the provisions of s 23H(1).
For these reasons I refused the application to exclude the record of the police questioning of the accused concerning the alleged aggravated robbery.
POSTSCRIPT – ABORIGINAL LEGAL AID ORGANISATIONS
During the writing of these reasons it became apparent to me that the corporate entity that conducts the CNS is not listed in Schedule 3A of the Crimes Regulations 1990 as an Aboriginal legal aid organisation. The closest entity listed in the Schedule was “Aboriginal Legal Service Ltd”. I reconvened the hearing of the application to confirm the correct name of the entity conducting the CNS, and whether it was a separate legal entity to Aboriginal Legal Service Ltd. I was ultimately advised that the correct entity is Aboriginal Legal Service (NSW/ACT) Ltd, and that this corporate entity was created at the request of the Commonwealth Attorney-General’s Department to rationalise Aboriginal legal service providers in NSW and the ACT into one entity. I was advised that the reference to Aboriginal Legal Service Ltd in Schedule 3A is a mistake, and that a submission will be made to the Commonwealth Attorney-General requesting Schedule 3A be amended. This issue has no bearing on the outcome of these proceedings, but it has the potential to cause confusion in future matters and should be addressed as soon as possible.
I certify that the preceding forty one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 13 December 2013
Counsel for the Applicant: Mr T Quilter
Solicitor for the Applicant: Aboriginal Legal Service (NSW/ACT) Limited
Counsel for the Respondent: Mr M Fernandez
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 25 July, 11 and 31 October 2013
Date of Judgment: 13 December 2013
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