R v El-Debel; R v Kahlon (No 4)
[2022] ACTSC 149
•27 June 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v El-Debel; R v Kahlon (No 4) |
Citation: | [2022] ACTSC 149 |
Hearing Date: | 22, 23, 24 June 2022 |
DecisionDate: | 27 June 2022 |
Before: | Elkaim J |
Decision: | (i) Questions 86 to 98 are permitted to remain in the interview; (ii) Questions 1272 to 1279 together with questions 1282 and 1283 are permitted to remain in the interview; (iii) Questions 1296 and 1297 are excluded from the record of interview; (iv) The whole of the interview after the answer to question 1352 is excluded. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Record of interview – whether the accused’s record of interview should be wholly or partially excluded |
Legislation Cited: | Acts Interpretation Act 1901 (Cth) s 25D Crimes Act 1914 (Cth) ss 23C, 23D, 23DA Evidence Act 2011 (ACT) s 138 |
Cases Cited: | R v El-Debel; R v Kahlon (No 2) [2022] ACTSC 134 Williams v The Queen (1986) 161 CLR 278 |
Texts Cited: | Explanatory Memorandum, Crimes (Investigation of Commonwealth Offences) Amendments Bill 1990 (Cth) |
Parties: | The Queen ( Crown) Raminder Singh Kahlon ( Accused in SCC 296 of 2021) Abdul Aziz El-Debel ( Accused in SCC 297 of 2021) |
Representation: | Counsel D Staehli SC, A Haban-Beer and S J Young ( Crown) M Kalyk ( Accused in SCC 296 of 2021) C Newman ( Accused in SCC 297 of 2021) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Murphys Lawyers ( Accused in SCC 296 of 2021) Kamy Saeedi Law ( Accused in SCC 297 of 2021) | |
File Numbers: | SCC 296 of 2021 SCC 297 of 2021 |
Elkaim J:
Mr Kahlon was arrested at 12:24 PM on 10 June 2020. He was taken to the Canberra City Police Station where he was interviewed by AFP officers. He entered the interview room at 12:50 PM.
From 12:50 PM until 6:24 PM the officers conducted a record of interview with Mr Kahlon. The record of interview did not occupy the whole of the period between the above two times. There were interruptions for breaks and for a conversation with a magistrate.
The officers had also spoken to Mr Kahlon earlier in the day, but before his arrest, apparently beginning at 7:15 AM.
Mr Kahlon objects to the whole of the record of interview being placed into evidence, but alternatively he objects to portions of the interview. The objections are taken on a number of bases, including the calculation of relevant times necessary for the application of ss 23C and 23D of the Crimes Act 1914 (Cth).
The objection to the whole of the interview is based upon the interview being conducted at all. It was submitted that the police had, prior to the arrest, already formed a conclusion that Mr Kahlon had committed the offence with which he was to be charged. Accordingly the continued questioning of him was contrary to s 23C(2)(a) which permits further investigation of an offence, by questioning, in order to answer the question of “whether the person committed the offence”.
It was submitted that because Mr El-Debel was arrested and charged without a record of interview and because Mr Kahlon was to be “lodged in the ACT Watch House” (statement of Officer Johnston dated 15 July 2020 at [14]) it was apparent that a view had already been formed about Mr Kahlon and therefore his continued questioning was unlawful. I was also informed that Mr Kahlon had been involved in a search warrant interview from about 7:15 AM on the same morning during which he had answered a number of questions.
Heavy reliance was placed on the decision of the High Court in Williams v The Queen (1986) 161 CLR 278 where the Common Law right not to be detained merely for the police to interrogate a person was emphasised. For example Wilson and Dawson JJ said at page 305:
It is beyond question that at common law no person has power to arrest a person merely for the purpose of questioning him.
Gibbs CJ, at page 285, had already said:
The critical question is whether the arrested person was detained any longer than was reasonably necessary to enable him to be brought before a justice if he is detained for the purpose of enabling him to be brought before a justice, the fact that he is questioned, whether about the offence for which he was arrested, or about other offences, will not necessarily mean that there has been a failure to bring him before a justice as quickly as was reasonably practicable. On the other hand, if he is detained, not for that purpose, but solely for the purpose of questioning him, the detention will be unlawful.
Section 23C allows for a period of questioning of a person following an arrest. Mr Kahlon submitted that this questioning was not unrestricted. As mentioned above the submission was that the questioning was not to establish whether the offence had been committed because this decision had already been made.
The Crown acknowledged the statement of rights set out in Williams but, also relying on Williams, submitted that the accused’s fundamental rights were subject to statutory amendment. I was taken to this passage from the judgment of Mason and Brennan JJ, at page 296:
The jealousy with which the common law protects the personal liberty of the subject does nothing to assist the police in the investigation of criminal offences. King C.J. in Reg. v. Miller (1980) 25 SASR 170, in a passage with which we would respectfully agree (at p 203) pointed out the problems which the law presents to investigating police officers, the stringency of the law's requirements and the duty of police officers to comply with those requirements - a duty which is by no means incompatible with efficient investigation. Nevertheless, the balance between personal liberty and the exigencies of criminal investigation has been thought by some to be wrongly struck: see, for example, the Australian Law Reform Commission Interim Report on "Criminal Investigation", Report No. ALRC 2, Ch.4. But the striking of a different balance is a function for the legislature, not the courts. The competing policy considerations are of great importance to the freedom of our society and it is not for the courts to erode the common law's protection of personal liberty in order to enhance the armoury of law enforcement. It should be clearly understood that what is in issue is not the authority of law enforcement agencies to question suspects, but their authority to detain them in custody for the purpose of interrogation. If the legislature thinks it right to enhance the armoury of law enforcement, at least the legislature is able - as the courts are not - to prescribe some safeguards which might ameliorate the risk of unconscionable pressure being applied to persons under interrogation while they are being kept in custody.
Wilson and Dawson JJ then said at page 313:
If the law requires modification then it is better done, as Mason J. and Brennan J. have pointed out, by legislation. For there must be safeguards, if necessary in the form of time limits, and they must be set with a particularity which cannot be achieved by judicial decision. Moreover, it is better that legislative change should take place against the background of the common law as it has been understood in this country, which has consistently viewed detention for the purpose of investigation as an unwarranted encroachment upon the liberty of the person. The experience of the common law is something which, in our opinion, should be borne steadily in mind if and when the changing needs of society appear to require statutory adaptation of the existing rules.
In further support of the Crown submissions I was referred to the Explanatory Memorandum to Parliament when the relevant provisions were originally introduced:
The purpose of this is to provide a necessary and reasonable pre-charge investigation period before a suspect must be released, either unconditionally or on bail, or brought before a magistrate. The Bill has the effect of providing a lawful period for investigation as opposed to that which occurred widely as a matter of practice, on the assumption that it was in fact lawful, before the High’s decision in Williams v The Queen (1986) 161 CLR 278 established that the assumption was erroneous.
Mr Kahlon submitted that the memorandum did not overrule the fundamental message to be taken from Williams, but rather was concerned with imposing a time-limit for otherwise lawful questioning. I prefer the Crown’s interpretation to the effect that the amendments permitted further questioning but placed a time restriction upon the questioning.
This being the case, I think that the questioning of Mr Kahlon, at least for four hours, was lawful.
The next issue is whether or not the questioning continued for more than four hours before an extension was sought from a magistrate. According to Exhibit A, which is a timeline from the arrest of Mr Kahlon at 12:24 PM until the interview was suspended at 4:47 PM, more than four hours past before the interview was suspended to make the application under s 23D to a magistrate for an extension of time.
The period between 12:24 PM and 4:47 PM is obviously more than four hours. However the calculation is subject to the exemption of the periods, as set out in s 23C(7). In my view the suspension of the interview for nine minutes at 1:14 PM together with 10 minutes of the 28 minutes at the break which began at 3:14 PM are sufficient to reduce the overall time period to 4 minutes short of the four hours made available by s 23C(4)(b).
In respect of the suspension of the interview at 3:14 PM for 28 minutes it was submitted that the 10 minutes attributed to a rest break should not be so attributed because it was not clear that the break was for the benefit of the accused. I reject this argument. The fact that the police officers may also have had a rest break does not necessarily preclude the rest break also being for the benefit of the accused.
The next argument concerns the application to a magistrate for an extension of time pursuant to s 23D. The requirements for such an application are set out in s 23D. The Crown conceded that the requirements had not been met because Mr Kahlon had not been informed of all of the matters required by s 23D(5). The Crown further conceded that the magistrate had erroneously been informed that Mr Kahlon had “had the opportunity to contact a lawyer and had done so”. It was common ground that Mr Kahlon had not contacted a lawyer.
Mr Kahlon submitted that in addition to the above defects the magistrate had not given reasons for his decision, as required by s 23DA(3)(b). The only reasons coming from the magistrate (as seen in Exhibit B), are essentially constituted by the filling in of a pro forma standard form. These ‘reasons’, do not, prima facie, amount to reasons as defined by s 25D of the Acts Interpretation Act 1901 (Cth):
Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
The Crown did not accept that there had been a failure to give reasons. However as already mentioned the Crown did concede the omission and the wrong information set out above. I do not think that I need to decide the ‘reasons’ issue. I think the omission and wrong information are sufficient for me to find that the extension of time was invalid, and consequently that all questions asked after the suspension of the interview in order to seek the extension should be excluded.
The Crown had resisted such a conclusion, relying on s 138 of the Evidence Act 2011 (ACT). I was referred to the (non-exclusive) considerations set out in subsection (3). The most significant of these was said to be (a), namely “the probative value of the evidence”. The Crown however, at least by inference, did not allege any particularly significant probative value in the questions and answers that occur after the granting of the extension.
More important I think is subsection (d), namely the “gravity of the impropriety or contravention”. Whether under this subsection or simply related to a matter not contained within subsection (3), I think the significance of the fundamental rights described in Williams requires the strictest adherence to any legislative provisions that seek to restrict these rights. While the failure to comply with s 23D(5) may not be seen as of much import, I think the incorrect informing of the magistrate that the accused had spoken to a lawyer is most important.
The magistrate hearing an application under s 23D could well be significantly influenced by the knowledge that the arrested person had had the benefit of talking to a lawyer and being comfortable with responding to questions in an interview with the police. It is apparent that after talking to Mr Kahlon, and being told that he was very tired, the magistrate reduced an initial extension of four hours down to 2 hours. Had he been told that Mr Kahlon had not spoken to a lawyer it could well be contemplated that the extension may not have been granted.
In addition to the objections set out above, there were some more specific objections to certain questions in the record of interview. The first of these relates to Questions 86 to 96. These questions concern money transfers of certain sums to places outside of Australia. As anticipated by counsel for Mr Kahlon this objection is not upheld in line with my rulings on the same subject when raised in relation to the telephone intercepts (R v El-Debel; R v Kahlon (No 2) [2022] ACTSC 134).
The next objection relates to questions 1272 to 1279 together with questions 1282 and 1283. These questions relate to a sum of money allegedly sent by Mr Kahlon from India to Australia to be picked up by Mr El Debel.
The questions followed the playing of portions of the intercepted telephone calls to Mr Kahlon. The complaint is that the questions do not accurately reflect the calls and should therefore be excluded under either or both of ss 90 and 137 of the Evidence Act 2011 (ACT). The officer puts to Mr Kahlon as a direct quote that Mr Kahlon says to Mr El Debel; “How much has he paid you?”.
The transcript of the telephone intercepts records the question asked by Mr Kahlon of Mr El Debel, as: “So how much he has ….you?”, To which he replies “Three four he reckons”. The Crown case is that three four refers to $34,000. This is strenuously contested by both accused.
It was submitted that the use of the word “paid” alters the context of the question so as to make it prejudicial or unfair to Mr Kahlon.
I think any unfairness or prejudice can be cured by a concession by the Crown that the word paid is not used and that is it is a matter for the jury as to whether or not paid or any other word was used. My conclusion is reinforced by the fact that Mr Kahlon, having heard the question from the officer does not make any admission. In fact he says he cannot remember the conversation. When it is then played back to him and Question 1282 is asked he plainly says it is not about cash.
The next objection relates to Questions 1296 and 1297. Once again ss 90 and 137 are relied upon. The submission is that the question (1297) is misleading because there was no evidence that Mr Kahlon had not previously had business dealings with Mr Vilayur. My view is that Question 1297 is simply vague and ultimately meaningless. Accordingly Questions 1296 and 1297 should be removed from the record of interview.
The remainder of the objections relate to specific questions which fall within the extended period of the interview. As I have already ruled that these questions should be excluded it is not necessary to deal with any of the specific objections.
Accordingly I make the following orders:
(i)Questions 86 to 98 are permitted to remain in the interview;
(ii)Questions 1272 to 1279 together with questions 1282 and 1283 are permitted to remain in the interview;
(iii)Questions 1296 and 1297 are excluded from the record of interview;
(iv)The whole of the interview after the answer to question 1352 is excluded.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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