R v Dungay

[2001] NSWCCA 443

Reported Decision: 126 A Crim R 216

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Dungay [2001] NSWCCA 443
FILE NUMBER(S):	CCA 60814/00
HEARING DATE(S):	01/11/01
JUDGMENT DATE:	1 November 2001
PARTIES :	Regina v Ricky Mark Dungay
JUDGMENT OF:	Ipp AJA at 1; Studdert J at 53; Greg James J at 54

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0097
LOWER COURT JUDICIAL OFFICER :	Viney DCJ

COUNSEL :	P J D Hamill (Appellant) D M L Woodburne (Crown)
SOLICITORS:	K Byrnes (Appellant) S E O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW - arrest, illegality of - reasons for arrest to be given - arrest solely for investigative purposes - no intention to bring arrested person before a judicial officer - arrest illegal despite Pt 10A of the Crimes Act. - CRIMINAL LAW - confession - interview at police station - false statement by police officer - failure by police officer to disclose complainant's exculpatory statement - admissibility of evidence - test for unfairness - s 138(1) of the Evidence Act.
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995
CASES CITED:	Christie v Leachinsky (1947) AC 573 Adams v Kennedy [2000] 49 NSWLR 78 Williams v R (1986) 161 CLR 278 R v Foster (1993) 67 ALJR 550 R v Ainsworth (1991) 57 A Crim R 174 R v Kane [2001] NSW CCA 150 R v Lee (1950) 82 CLR 133 R v Jeffries (1946) 47 SR (NSW) 284
DECISION:	(1) Appeal upheld (2) Verdict of the jury set aside (3) Verdict of acquittal be entered.

60814/00

IPP AJA

STUDDERT J

GREG JAMES J

Thursday 1 November 2001

REGINA v RICKY MARK DUNGAY

Judgment

1 IPP AJA: On 14 December 2000, after a trial by jury in the District Court sitting at Port Macquarie, the appellant was convicted of sexual intercourse without consent. He was sentenced to four years imprisonment with a non-parole period of eighteen months to date from 13 December 2000 and to expire on 12 June 2002. He appeals against both the conviction and the sentence.

2 The complainant alleged that she had been sexually assaulted by a number of men on New Year’s Day in 1999 at two locations near Crescent Head, New South Wales. The assaults took place after the complainant had accepted a lift in a car driven by one Bobbie Jarrett and in which five other men, including the appellant, were sitting. She knew all of the men concerned. In consequence of her allegations, the appellant and four of the men were arraigned in relation to various sexual offences that they were alleged to have committed.

3 The complainant described various sexual acts committed upon her by a number of the accused persons. She asserted that she had not consented to any of these acts. Significantly, she gave evidence exculpating the appellant. Indeed, she said that during her ordeal the appellant showed her “respect”.

4 The sole evidence inculpating the appellant in the offence charged was a lengthy electronically recorded interview conducted with him by the police. The appellant had been arrested at about 9.00 am on 1 January 2000, and the interview was conducted at about 11.00 am. The Crown alleged that, in the course of that interview, the appellant confessed to the offence charged.

5 Difficulty has arisen in regard to the audio tape of the interview that was before the jury. This has been lost. The transcript of the interview was admitted into evidence but “as an aide memoire only”. The trial judge explained that the purpose of the transcript was to help the jury follow what was on the tape. He said:

“It is the evidence on the tape that is the evidence of these conversations and I think I might have said before if you detect any difference between the transcript and what you hear on the tape, well then what you hear on the tape is the evidence you act on.”

His Honour pointed out that this was an important issue because, in regard to answer 355, the parties could not agree what was said on the tape and what could actually be heard. His Honour told the jury that they had to make their own decision about what was said.

6 According to the transcript the question and answer to 355 were in the following terms:

“Q.355 What’d you, what, just tell me what you did?
A. I just touched her in the car.

The parties eventually agreed, however, that the words “in the car” were wrong and the words “on the cunt” should be substituted together with the words “I fingered her”. The exchange continued:

“Q.356 Yes, what put fingers inside her?
A. I fingered her.
Q.357 …..went inside?
A. Mmm, one.
Q.358 O.K. How long time, how long for?
A. Oh, about, five seconds.
Q.359 Not very long?
A. About ten seconds.”

7 It was said on behalf of the appellant during the appeal that the words from questions 356 to 359 were also not clear and the parties were speaking over each other. This proposition had not been advanced at trial and the transcript in these respects had not been challenged. The issue so raised pointed up the significance of the missing audio tape. The appellant contended that as the audio tape was missing this Court could not be satisfied of the appellant’s guilt. The respondent submitted to the contrary. In the light, however, of the conclusion to which I have come it is not necessary to examine this issue in any detail.

8 At the trial counsel for the appellant objected to the interview being admitted into evidence. A voir dire was held and the appellant’s objection was overruled. The trial judge said that at the forefront of the submissions advanced on the appellant’s behalf was the illegality of the arrest of the appellant. It seems that the principal point raised was a submission that the police failed to tell the appellant why he was being arrested. It is apparent, however, from the judge’s reasons, that counsel for the appellant also argued that the arrest was unlawful because the appellant had been arrested solely for the purposes of being questioned.

9 The trial judge found that the arresting police officer, Constable Senz, had reasonable cause to suspect and did suspect that the appellant was involved in the alleged assault on the complainant. This fact appeared to have led his Honour to conclude that if there was an illegality “it was only marginally so”.

10 I shall first deal with the argument that the arrest was unlawful because the appellant was not told of the reasons for his arrest.

11 In the reasons for his decision in regard to the voir dire, the trial judge said:

“A person is entitled to be told what he is being arrested for, but failure to do so does not, in every case, make the arrest unlawful”.

His Honour was presumably referring to Christie vLeachinsky (1947) AC 573 where Viscount Simon at 587-88 recognised that circumstances may arise where it would be inappropriate for a person to be advised immediately of the true ground of the arrest. His Honour seems to have formed the view that because Senz was outnumbered it was reasonable for him not to have given the appellant reasons for his arrest.

12 When the appellant was arrested, he was in the company of two of the other persons who were accused of sexual assault. Senz said that he was concerned if he arrested the men all at once some or all would abscond. He called for back-up and made no arrest until another police officer arrived. It was in these circumstances that he omitted to inform the appellant of the reason for his arrest. He merely took the appellant, together with the other men to the police station, telling them that they were required to be spoken to there by one of the detectives.

13 It can be seen that, whatever the position might have been earlier, by the time the appellant was arrested there were two police officers present, namely, Senz and the newly arrived officer. At that stage there was no reason for the police to refrain from informing the appellant of the reason for his arrest.

14 The trial judge appears to have confused the period prior to the arrest when only one police officer, Senz, was present, with the moment of the arrest when the police considered it safe enough to arrest all three men. I consider therefore that his Honour erred in this respect.

15 Ms Woodburne, who appeared for the Crown, pointed out, however, that Sergeant Kenny, who in effect was the senior police officer involved, told the appellant at about 9.30 am on 1 January 2000 that he was suspected of having sexually assaulted the complainant. Sergeant Kenny said that he cautioned the appellant and told him that he was under arrest.

16 I will, for the purposes of these reasons, accept that the appellant, in these particular circumstances, was told within a reasonable time of his arrest why he was arrested.

17 I turn now to the issue whether the arrest was unlawful because the purpose of the arrest was merely investigative.

18 The lawfulness of an arrest is to be determined by the common law as stated in Christie v Leachinsky: Adams vKennedy (2000) 49 NSWLR 78. An arrest solely for the purposes of questioning a person or to obtain evidence is unlawful: Williams v R (1986) 161 CLR 278; R v Foster (1993) 67 ALJR 550.

19 The arresting officer must take the person arrested “before an authorised justice to be dealt with according to law”: s 352(1) of the Crimes Act. The combined effect of s 352 and the common law is that a person arrested without a warrant is to be taken before a justice to be dealt with according to law as soon as is reasonably practicable: R vAinsworth (1991) 57 A Crim R 174.

20 Despite the fact that, in the voir dire, the legality of the arrest was challenged, the Crown led no evidence to the effect that there was any intention on the part of the arresting police officer or any other police officer to take the appellant before a justice or any other judicial officer so that he could be charged with the offence of which he was suspected of having committed.

21 Sergeant Kenny was the officer in charge who instructed Constable Senz to arrest the appellant. Sergeant Kenny told Senz that the appellant and the other men who had been seen together in a car should be arrested “so that we could detain them for the purpose of investigation”. Under cross examination Sergeant Kenny agreed that he wanted the appellant arrested so that he could be taken to the Police Station and asked questions so as to assist the police in their further investigations. He made no mention of the appellant being arrested so that he could be taken before a magistrate.

22 Sergeant Kenny was also cross-examined as to whether, at any time while the appellant was in detention, he intended that the appellant be taken before a justice “or something like that”. Sergeant Kenny replied, “No, it wouldn’t have crossed my mind”.

23 In further answers to cross-examination Sergeant Kenny made it plain that he believed the police were entitled to arrest a suspected offender and detain him for up to four hours for the purposes of investigation without there being any intent on the part of the police to take the offender to a judicial officer to be dealt with according to law. This testimony supported the inference that, from the time of the appellant’s arrest until at least the interview, Sergeant Kenny never considered taking the appellant before a judicial officer.

24 The investigative purpose of the interview is also apparent from an examination thereof. Very few questions concerned the participation of the appellant in the events on the day in question. By far the majority of the questions were directed to ascertaining whether the appellant was able to cast any light on the involvement of others.

25 In my opinion, it is apparent from the evidence that the state of mind of the police was such that, from the time of the arrest to the completion of the interview, no relevant police officer had the intention of taking the appellant before a magistrate or justice at any time. This is a major point of distinction between this case and R v Kane (2001) NSW CCA 150 to which Ms Woodburne referred. In R v Kane the police officer concerned had such an intention from the moment of the arrest.

26 Accordingly, the police arrested the appellant solely for the purposes of investigating the complainant’s allegations and did not have any intention of taking him before a judicial officer.

27 During the course of the argument at the voir dire, counsel for the appellant submitted, as the judge remarked:

“That police are not permitted to arrest people for the sole purpose of questioning them”.

His Honour accepted that there was “abundant authority to support that proposition” but appeared to consider that the point was answered by the finding that the police had reasonable cause to suspect that the appellant was involved in the alleged assault on the complainant. In this, the learned judge was plainly wrong.

28 The trial judge did not bear in mind that it is a requisite for a valid arrest that the arrest be for the purpose of taking the arrested person before a judicial officer to be dealt with according to law as soon as is reasonably practicable. As the arrest of the appellant was solely for investigative purposes, it was unlawful.

29 I appreciate that Pt 10A of the Crimes Act provides for the detention (for a limited period) of a person after arrest for the purposes of investigation. But such a lawful detention is dependent upon a lawful arrest having been effected (see s 356B(1)(a) and s 356C(1) and (2)).

30 I have pointed out that the trial judge said that if the arrest were illegal because the appellant was not informed of the grounds for his arrest then that illegality was only marginal. For that reason, his Honour said that illegality did not “require the evidence [of the interview] to be excluded”.

31 I have concluded that his Honour erred in his view as to the illegality of the arrest. In the circumstances, this Court is required to exercise its own discretion as to whether the evidence of the interview (that was obtained “in contravention of an Australian law” within the meaning of s 138(1) of the Evidence Act) should be admitted (cf R vFoster at 553).

32 The test under s 138(1) of the Evidence Act is whether “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”. Unless the Crown can show that it is desirable, in accordance with the test so laid down, that the evidence of the interview be so admitted, it should be excluded.

33 In determining whether the evidence should be admitted, factors of fairness and public policy are relevant (cf R vFoster, albeit that the High Court was there dealing with what evidence should be excluded rather than admitted). In the present case it is the issue of fairness that is predominant.

34 I shall first mention those factors, relied on by the Crown, which tend to support the admission of the evidence.

35 Accepting the transcript of the interview at face value, the probative value of the admission is fairly strong, although regard must be had to the appellant’s assertions throughout the interview that he “touched”, “rubbed” and “fingered” the complainant on the vagina (which assertions were inconsistent with penetration).

36 The offence itself is a most serious one and the evidence of the confession is crucial. Without it, as the Crown accepts, the prosecution must fail. This an important factor to be taken into account.

37 I also accept that the fact that the police had reasonable cause to suspect that the appellant had committed a crime of a sexual nature in regard to the complainant tends to support the desirability of admitting the evidence.

38 Another factor in favour of the Crown is, as Ms Woodburne pointed out, the fact that the manner and type of questions were entirely fair. They were not leading questions and the answers on which the Crown relies were volunteered by the appellant.

39 I now come to the factors which militate against the admission of the evidence.

40 The gravity of the illegality is an important factor under s138. Ms Woodburne submitted that the existence of Part 10A diminished the gravity of the unlawfulness of the arrest. She pointed out that, subject to a lawful arrest, the police were entitled to detain for the purposes of investigation. Accordingly, she submitted, if they arrested a person for that purpose alone (and the arrest for that reason was unlawful), the departure from the law should not be regarded as being particularly serious.

41 I disagree with this submission. Section 356C(1) of the Crimes Act makes it clear that Pt 10A does not confer any power upon the police to detain a person who has not been lawfully arrested. The common law has always jealously guarded citizens against arbitrary arrest: Williams v R. The duty to bring an arrested person before a judicial officer as soon as is reasonably possible is one of the foundations of a democratic society. Our law recognises that no person should be arrested merely for the purposes of investigating whether he or she has committed a crime. Part 10A does not detract from this fundamental principle. In my opinion, the illegality involved in the appellant’s arrest has to be regarded as being serious indeed.

42 In considering the question of fairness further, the testimony of the complainant has to be taken into account. Her evidence was to the effect that the appellant was not guilty of the offence charged. Firstly, the complainant, as I have mentioned, stated that the appellant had not participated in any of the sexual acts performed upon her. Secondly, she testified that some person unknown to her inserted two fingers in her vagina at a time when she was on the bonnet of the car and the driver, Jarrett, was performing a sexual act upon her. According to the complainant it could not have been the appellant who inserted his fingers in her vagina because he was too far away at the time. There was evidence on the part of the appellant himself that was consistent with him not being at the scene at the relevant moment.

43 A further important factor involves the conduct of Detective Gilmour. Prior to the interview Detective Gilmour said to the appellant:

“I am going to ask you some questions about an allegation that has been received that earlier today when you were with [the men in question] in a black Ford sedan you sexually assaulted [the complainant]. Do you understand that?

The appellant replied in the affirmative. Detective Gilmour then said:

“I am going to ask you some questions. You do not have to say or do anything if you do not want to. Do you understand that?”

The appellant again replied in the affirmative.

44 The statement by Detective Gilmour that he had received an allegation that the appellant had sexually assaulted the complainant was false. No such allegation had been made by the complainant. Detective Gilmour made the statement as a result of a misunderstanding on his part that I accept may have been reasonable. That, however, is not a satisfactory answer to the point. The fact is that, prior to the interview, the appellant was falsely told that the complainant had asserted that he had sexually assaulted her. This was unfair.

45 Ms Woodburne pointed out that, in his testimony during the voir dire, the appellant had not said that Detective Gilmour’s false statement had influenced him in making the admission. While this fact is not without weight, it is apparent from the interview that the appellant, who is an Aborigine, is not an educated person and it is not likely, in my opinion, that he would have appreciated the need to draw attention to Detective Gilmour’s false statement. True it is that the appellant’s counsel said nothing about the issue at the trial, but it seems that its significance was simply not appreciated by those then representing the appellant. Common sense tells one that such a statement could well have had a bearing on the appellant’s responses in the interview.

46 Ms Woodburne drew attention to evidence that, when Detective Gilmour administered the caution, the appellant was not listening to what was being said. That is not to say, however, that the appellant did not hear the false statement by Detective Gilmour.

47 According to the appellant, at the time of the interview he was scared. It is again common sense that, had he been told that the complainant had not made any allegation of sexual assault against him, his fear would have been alleviated to a significant degree. Had that occurred, the appellant may have answered the questions in the interview differently.

48 Ms Woodburne drew attention to the test for unfairness laid down in R v Lee (1950) 82 CLR 133. I accept that that is the test that should be applied. The High Court said there (at 154) that the requisite question is, “[W]hether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused.” Their Honours stated that they knew of no better exposition of the whole matter than that which is to be found in the judgment of Street J in R vJeffries (1946) 47 SR (NSW) 284 at 311-14. Street J said, relevantly:

“It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him.”

49 In applying that test it is also salutary to bear in mind what was said in R v Lee at 159 and repeated in R v Foster at 555, namely:

“The uneducated – perhaps semi-illiterate – man who has a record and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a ‘statement’ may be ‘taken’ which seems very damning but which is really very unreliable. The case against an accused person in such a case sometimes depends entirely on the ‘statement’ made to the police. In such a case it may well be that his statement, if admitted, would prejudice him very unfairly. Such persons stand often in grave need of that protection which only an extremely vigilant court can give them.”

50 In my opinion, the force of the nature of the illegality, the false statement by Detective Gilmour, the omission to tell the appellant of the complainant’s statement exculpating him, the nature of her evidence generally and the other statements made by the appellant in the interview, outweigh the factors relied on by Ms Woodburne who, in a cogent argument, said everything that could possibly have been said on behalf of the Crown.

51 In all the circumstances I consider that it would be unfair to the appellant to admit the evidence of the interview.

52 Once the evidence of the interview is excluded there is no evidence inculpating the appellant. Accordingly, the appeal should succeed, the verdict of the jury should be set aside and a verdict of acquittal should be entered.

53 STUDDERT J: I agree with the orders proposed and I agree with the reasons expressed by Ipp AJA.

54 GREG JAMES J: As do I.

: Those will be the orders of the Court.

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