R v Cooney

[2013] NSWCCA 312

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Jason Francis COONEY [2013] NSWCCA 312

Hearing dates:

2/12/2013

Decision date:

02 December 2013

Before:

Leeming JA at [1], [14];
Johnson J at [13];
Latham J at [11]

Decision:

(1) Appeal allowed.

(2) The ruling made by his Honour Acting Judge Solomon on 18 September 2013 be set aside.

(3) The matter be remitted to the District Court for determination in accordance with law.

Catchwords:

CRIMINAL LAW - evidence - discretion to exclude for unfairness - covertly recorded admission pursuant to lawful warrant while accused in custody - failure by police to tell accused that a barrister wished to speak with him - admission obtained shortly thereafter - application to exclude under ss 84, 90 and 138 - application determined solely pursuant to s 90 - Evidence Act 1995 (NSW), ss 84, 90 and 138

EVIDENCE - discretions to exclude under ss 84, 90 and 138 of Evidence Act 1995 (NSW) - application of unfairness test in s 90 and failure to apply balancing test in s 138 when basis for rejection was that the evidence was obtained in consequence of a contravention of an Australian law - error in excluding evidence by failing to address s 138

Legislation Cited:

Criminal Appeal Act 1912
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002

Cases Cited:

Em v The Queen [2007] HCA 46; 232 CLR 67
House v The King (1936) 55 CLR 499
Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452

Category:

Principal judgment

Parties:

Regina (appellant)
Jason Francis Cooney (respondent)

Representation:

Counsel:
JA Girdham SC (appellant)
T Gartelmann (respondent)
Solicitors:
Solicitor for Public Prosecutions (appellant)
Legal Aid Commission (respondent)

File Number(s):

2012/230180

Publication restriction:

Publication prohibited pending outcome of trial. Trial now concluded.

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-09-18 00:00:00

Before:

Solomon DCJ

File Number(s):

2012/230180

Judgment

1. LEEMING JA: This is an appeal pursuant to s 5F(3A) of the Criminal Appeal Act 1912 brought by the Crown against the ruling of the primary judge excluding evidence of admissions made by the respondent following his arrest and while in custody. It is common ground that excluding the evidence will "substantially weaken" the Crown case. Having regard to the nature and probative value of the admissions, I agree that the requirements of s 5F(3A) are satisfied.

1. The salient facts may be stated concisely. The respondent has been charged with six counts of armed robbery and two counts of motor vehicle stealing. On 12 July 2012, police obtained a surveillance device warrant for the purpose of recording conversations between the respondent and undercover police officers. It has not been suggested there was any unlawfulness in the warrant. The respondent was arrested on the morning of 24 July 2012 and at around 7.15am was placed in a cell at Hurstville Police Station. One police officer, "Chris", was already "detained". There was a conversation in which no admissions were made. "Chris" was then taken out of the cell, and returned with a second undercover police officer, "Reginald". In the course of building a rapport with the respondent, "Reginald" offered to provide the respondent with a barrister. Thereafter the respondent made admissions to participating in some six robberies including those for which he is standing trial.

1. Shortly before "Reginald" offered to provide the respondent with a barrister, an actual barrister, Mr Patrick Lott, who had been contacted by the respondent's brother that morning, rang Hurstville Police Station's general inquiry section. He rang, according to the findings of the primary judge, at 8.42am, 8.43am and 8.44am. On each occasion the connection went dead after attempts to transfer the call to the charge room. At 8.45am Mr Lott telephoned the cell section. He said, "I've been trying to call you guys, I understand Jason Cooney is in custody." He asked to speak with him but was told that he was still being processed. Mr Lott did not ultimately speak with the respondent until 10.22am.

1. Argument was advanced on the voir dire based on ss 84, 90 and 138 of the Evidence Act 1995. The primary judge rejected the evidence of the respondent's admissions pursuant to the s 90 of the Evidence Act and argument in this Court has been confined to that section. His Honour accepted that the procedure of obtaining admissions from detained persons in cells in certain circumstances was appropriate. However, his Honour considered that there had been a breach of s 127 of the Law Enforcement (Powers and Responsibilities) Act 2002 when the respondent was not informed in a timely fashion of Mr Lott's call. That section is in these terms:

"(1) The custody manager for a detained person must inform the person orally of any request for information as to the whereabouts of the person made by a person who claims to be:

(a) an Australian legal practitioner representing the detained person, or

(b) in the case of a detained person who is not an Australian citizen or a permanent Australian resident, a consular official of the country of which the detained person is a citizen, or

(c) a person (other than a friend, relative or guardian of the detained person) who is in his or her professional capacity concerned with the welfare of the detained person.

(2) The custody manager must provide, or arrange for the provision of, that information to the person who made the request unless:

(a) the detained person does not agree to that information being provided, or

(b) the custody manager believes on reasonable grounds that the person requesting the information is not the person who he or she claims to be."

1. His Honour's conclusion was in these terms:

"The inducement of an offer of the provision of a barrister to Cooney by 'Reginald' was made literally within minutes prior to Cooney making admissions regarding the involvement in robberies.

The offer of the provision of a barrister to Cooney by 'Reginald' prior to making the admissions would have, in all probability, been considered by Cooney in a different light had he been made aware, as he should have been, that a barrister, Mr Lott, had contacted Sergeant Levar in the police cells about him, prior to the offer of the provision of a barrister being made by 'Reginald'.

I find having regard to the circumstances in which the admissions were made that it would be unfair to Cooney for the Crown to use the evidence of the admissions at the trial."

1. Appellate courts must give deference to the decisions of trial judges, especially in matters such as the reception of evidence. The trial judge had the benefit of lengthy voir dire in which he heard Mr Lott, the police officer who was the custody manager at the time and the two undercover police operatives. The discretion conferred by s 90 is based on "unfairness" which is an "amorphous" term whose metes and bounds cannot be described exhaustively, as was said in Em v The Queen [2007] HCA 46; 232 CLR 67 at [56], [74] and [109]. See also Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452 at [30]. It will be seen from the above that the primary judge was persuaded by (a) the seeming contravention of s 127, (b) the fact that a barrister was offered minutes after the call by Mr Lott, and (c) the likelihood that the offer of provision of a barrister would have been considered differently had the respondent been aware that Mr Lott had been attempting to contact him. On a fair reading of his reasons it would appear that the second and third of those elements were regarded by his Honour as a direct consequence of the first. His Honour's reasoning therefore amounts to a conclusion that the admissions were obtained "in consequence of ... a contravention of an Australian law" answering the description of s 138.

1. The primary judge's concluding paragraph accords with the language of s 90, which required unfairness at the trial, as Gummow and Hayne JJ insisted in Em at [107] and [112]. However, the dispositive reasoning of the primary judge focuses on matters occurring in Hurstville Police Station on 12 July 2012 and in particular the contravention of s 127.

1. Gummow and Hayne JJ in Em were of the view that s 90 was not available where there was illegal or improper conduct by police: see [109]. That was a point not determined by the other members of the majority, Gleeson CJ and Heydon J. In my view, at least in its operation to the present facts, it is not possible to rely exclusively on s 90, thereby sidestepping s 138. Section 138 was squarely directed to the facts as found by the primary judge. It is specific. It imposes a different test from that in s 90, including a balancing process, and requires regard to be had to the factors set out in s 138(3). Central to the reasons of the primary judge was the contravention of s 127 and what followed thereafter. That is a consideration which is highly relevant to s 138 and regard to those matters through the prism of s 90 by the primary judge in my view amounts to error which engages House v The King review. For those reasons the order should be set aside.

1. It is not possible for this Court to re-exercise that discretion despite the Crown's request that it do so. The primary judge had the benefit of a very lengthy voir dire over a number of days. The primary judge's reasons do not deal with ss 84 or 138 which had been fully argued before him as well. The matter, in my view, must be remitted for determination in accordance with law. Lest there be any doubt, nothing in this judgment is intended to speak to the other submissions which were advanced and which may be advanced again in relation to other sections of the Evidence Act.

1. I invite Latham J to give the second judgment.

1. LATHAM J: I agree with the orders proposed by Leeming JA and with his reasons. I would only add the following.

1. Apart from noting the foundations of the application to exclude the evidence no reasons were provided for the implicit rejection of ss 84 and 138 as a prospective basis for the exclusion of the admissions. To the extent that there was a discussion between bench and bar concerning ss 84 and 138 prior to the provision of formal reasons I do not regard that discussion as a proper basis for the disposition of the argument advanced below. As Leeming JA has noted the formal reasons of the judge do not address ss 84 and 138 at all.

1. JOHNSON J: For the reasons given by both Leeming JA and Latham J I also agree with the orders proposed by the presiding judge.

1. LEEMING JA: I agree with the further remarks of Latham J. The order of the Court therefore will be:

(1)   Appeal allowed.

(2)   The ruling made by his Honour Acting Judge Solomon on 18 September 2013 be set aside.

(3)   The matter be remitted to the District Court for determination in accordance with law.

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Amendments

16 December 2013 - Correct paragraph references in coram

Amended paragraphs: Coversheet

Decision last updated: 19 August 2014