R v Eliot (No. 1)

[2022] NSWDC 327

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Eliot (No. 1) [2022] NSWDC 327

Hearing dates:

1 August 2022

Date of orders:

4 August 2022

Decision date:

04 August 2022

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

I exclude the evidence obtained from the computer of the accused.

Catchwords:

CRIMINAL PROCEDURE – evidence – s 138 of the Evidence Act 1995 – improperly obtained evidence – conspiracy to murder – conduct of law enforcement officers – inconsistent with the minimum standards society should expect – vulnerable accused – public interest in admitting relevant evidence – desirability of admitting the evidence does not outweigh the undesirability

Legislation Cited:

Evidence Act 1995

Cases Cited:

Bunning v Cross (1978) 141 CLR 54

Pearse v Pearse (1846) 63 ER 950

R v Coulstock (1998) 99 A Crim R 143

Ridgeway v The Queen (1995) 184 CLR 19

Robinson v Woolworths Limited (2005) 60 NSWLR 612

Category:

Procedural rulings

Parties:

Regina (Crown)
Thomas Eliot (a pseudonym) (Accused)

Representation:

Counsel:
Mr P Kerr (Crown)
Ms C Mendes (Accused)

Solicitors:
Solicitor for the Director of Public Prosecutions
Legal Aid Commission

File Number(s):

2020/00222503

Publication restriction:

Pursuant to section 7 of the Court Suppression and Non-Publication Orders Act 2010, there be no publication, except for the proper conduct of these proceedings, of:
a. The city in which the school is located and any information that would tend to identify the city;
b. The name of the school and any information that would tend to identify the school;
c. The defendant’s plan for the carrying out of the attack including, but not limited to:
i. The date of the attack
ii. The existence of persons who were also involved in the planning of the attack
iii. The planning undertaken by the defendant and any associates in preparing for the attack
iv. The year group or age of the students to be targeted by the attack
v. The method of attacking students to be used by the defendant

JUDGMENT

Introduction

1. Thomas Eliot has pleaded not guilty to conspiring with William Yeats (a pseudonym) between 1 June 2020 and 30 June 2022 to murder John Keats (a pseudonym) and other people. He has pleaded not guilty to the alternative count of solicit William Yeats to murder John Keats and others. On 30 June 2020, KT, as a result of what she read in her son's journal, took her son to a hospital in regional New South Wales. The journal expressed wanting to [redacted] his school. He was admitted as a voluntary mental health patient.

2. [Redacted], a mental health nurse, read the journal and out of his concern he contacted police. Senior Constable Michael Blacker, in company with Constable Skinner, attended the hospital and spoke to nurse [redacted] at 4:10pm. Senior Constable Blacker then reviewed the journal. There were a large number of diagrams and notes that detailed a plan “to cause a mass harm incident” at Thomas Eliot’s school. Senior Constable Blacker contacted Sergeant Bosch and Detective Senior Constable Smith to attend the hospital, which they did.

3. The police officers had a conversation with KT, which was recorded on a body worn camera. The journal was seized. During the conversation, Ms T told police she was aware that Thomas Eliot had recently been researching the Columbine High School shooting incident on his laptop computer. The following extract appears in Senior Constable Blacker’s notebook,

“I, KT give police consent to enter my house at [address omitted], to seize a laptop computer used by my son Thomas Eliot and for police to seize and analyse/retain the laptop to assist with investigations to Thomas Eliot's mental state”.

4. The extract was signed by Ms T. The computer was seized and analysed. The Crown seeks to use the internet search history as but one particular in proof of its case. Ms Mendes, who appears for the accused, seeks exclusion of the material on the basis of improper conduct of the police and the desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence: s 138 Evidence Act 1995. The onus lies on the accused to establish the impropriety before any onus is placed on the Crown to persuade the trial judge that the evidence should nevertheless be admitted: R v Coulstock (1998) 99 A Crim R 143.

Evidence on the voir dire

5. The following materials are placed before me:

1. VD 1 statement of Senior Counsellor Blacker dated 25 August 2020, plus notebook;

2. VD 2 statements Senior Constable Blacker 29 July 2022;

3. VD 3 transcript of interview with Ms T, 30 June 2020 commencing at 5.25pm;

4. VD 4 transcript of interview with Ms T, 30 June 2020 commencing 4.37pm. Senior Constable Blacker and Ms T gave evidence before me.

The hospital interview

6. Ms T said she had a long conversation with the police. They asked questions which she answered. She told Senior Constable Blacker about what her son was looking up on his computer. She did so because she wanted assistance for his mental health. She thought the police were trying to help him with his mental health. She felt intimidated. She was seated and there were three to four police officers standing asking her questions. She agreed in cross‑examination that she had never told anyone before she gave evidence that she felt intimidated. Part of the recorded conversation contained in VD 4 at pp 14 to 15 is as follows:

"SENIOR CONSTABLE SMITH: The computer that's at home, is that his computer?

T: That's his computer.

SENIOR CONSTABLE SMITH: Or is that a family computer?

T: That's his.

SENIOR CONSTABLE SMITH: Possibly what we would like to do, and we will clarify it in a little while, is seize the computer with your permission which would take the unit itself and it would be to have it examined in relation to what he has been looking at. Okay? But I will liaise with Sergeant Bosch, and we will have a chat about that whether we go that far. I just want to see if you're happy with us. It would be that you would give us permission to.

T: Is he going to get in a lot of trouble for this? What's going to happen?

SENIOR CONSTABLE SMITH: Look, at the end of the day, he is a 14-year-old kid and that's what I was asking you about him, um.

SERGEANT BOSCH: Just going through here, there is obviously a lot of concern, but when you are looking at the majority of this, it's probably more about trying to have an intervention and get a good outcome for him before it gets to a bad spot.”

7. She signed the notebook entry giving consent. It was her understanding the conversation with police and the giving of consent was to help her son's mental health. She was not told by police that they were investigating a crime, nor was she told that she had a choice not to give consent. The police asked and she thought she had to give consent. She did not know that she had a choice. She thought the police were only concerned with his mental health. It was her belief that changed when Thomas Eliot was an inpatient in the mental ward of the [redacted] Hospital.

8. She took him to the hospital for his mental health. The police attended and she thought they were there to help for his mental health. She agreed in cross‑examination the police do not investigate mental health.

9. It was the evidence of Senior Constable Blacker that he attended the hospital. He read the diary and because of its contents he called his supervising officers (Sergeant Bosch and Detective Senior Constable Smith) to attend the hospital. Senior Constable Blacker is a police officer with 14 years’ experience as at 2020.

10. While speaking to Ms T, she indicated that she was aware Thomas Eliot had recently been researching the Columbine High School shooting incident on his laptop computer. In the recorded conversation, commencing 5.25pm (VD 3), he recorded T’s consent in his notebook for the seizure of the laptop, “to assist the investigation of Thomas Eliot's mental state.” At 5.35pm Senior Constable Blacker attended T’s home and with the assistance of her daughter, [redacted], he conducted a preliminary view of the internet search history of the computer revealing a large amount of Columbine School shooting related searches. He seized the computer.

11. In summary, an experienced police officer read the journal and as a result of his concerns, he had his superior officers attend the hospital. After they attended, a lengthy conversation took place with Ms T. During the course of that conversation and prior to gaining consent, Mr T asked, “Is he going to get in a lot of trouble for this? What's going to happen?” Neither Sergeant Bosch, Detective Senior Constable Smith or Senior Constable Blacker informed Ms T it was a criminal investigation.

12. None of the police officers informed her she had the right to refuse to give consent. Immediately after the question was asked, the police response was that he was a 14-year-old kid and that it was “about trying to have an intervention and get a good outcome for him before it gets to a bad spot.”

Submissions of the parties

Accused’s Submissions

13. Ms Mendes submits there was impropriety on the part of the police. She submits the question asked by Ms T whether her son was going to get into trouble was a “trigger” question and she should have been informed that it was a criminal investigation, and her son was at risk of being charged. In failing to so inform Ms T and telling her that the investigation was into Thomas Eliot’s mental state, she has been misled into giving consent. She submits the seizure of the computer came about due to impropriety of the police by omitting to inform Ms T about the true nature of the investigation and that her son was at risk of being charged. The choice she made was not an informed choice. It was not proper consent.

Crown Submissions

14. The Crown has submitted that there was no impropriety on the part of the police. The Crown relies upon Ms T’s evidence in cross‑examination, that police investigate crime and not mental health. The rejoinder to that submission is that although police do not investigate mental health, at all times this is what the police were telling Ms T.

Determination

15. What is improper? The Evidence Act 1995 does not define what is improper and so recourse may be had to the general law: Robinson v Woolworths Limited (2005) 60 NSWLR 612 at 618; [2005] NSWCCA 426. In Ridgeway v The Queen (1995) 184 CLR 19 at 36, Mason CJ, Dean and Dawson JJ spoke of conduct by law enforcement officers that was not illegal but improper in terms of it being “quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement.”

16. I do not accept the evidence of Senior Constable Blacker that he formed the belief that a criminal offence had been committed after he left work that day. I do not accept that evidence for the following reasons:

1. He was requested to attend the hospital because Thomas Eliot had a journal with him wanting to [redacted] his school;

2. He attended the hospital and spoke to nurse [redacted] and was informed Thomas Eliot was a voluntary mental health patient and [redacted] found concerning handwritten notes in a personal diary;

3. Senior Constable Blacker reviewed the rear section of the diary and saw there, “was a large number of diagrams and concerning notes that appeared to be a detailed plan to cause a mass harm incident at [name of school omitted]”;

4. At that time, Senior Constable Blacker had 14 years in the police force. He was an experienced police officer;

5. Due to the concerning notes and diagrams in the diary, he contacted his supervisors, Sergeant Bosch and Detective Senior Constable Smith, to attend the hospital for assistance;

6. After the attendance of the superior officers, Senior Constable Blacker had a conversation with Ms T, who indicated that, ”she was told that Thomas Eliot had recently been researching the Columbine High School shooting incident on his laptop computer”;

7. An officer of his experience would have known at that stage the conduct of Thomas Eliot could constitute a criminal offence.

17. I am satisfied that at that point, Senior Constable Blacker, Sergeant Bosch and Detective Senior Constable Smith had sufficient information that Thomas Eliot may have committed a criminal offence. I accept Ms Mendes submission that when Ms T asked, “Is he going to get in a lot of trouble for this? What’s going to happen?” was a trigger question. It was at that stage she should have been informed that it was a criminal investigation, and her son was at risk. She should also have been informed that she did not have to consent to the seizure of the computer.

18. In my view, the omission of the police to give a true picture to Ms T was quite inconsistent with the minimum standards which a society, such as ours, should expect and require of those entrusted with powers of law enforcement. This is particularly so when they are investigating the conduct of a vulnerable 14-year-old, who was a voluntary patient in a mental health facility.

19. I am unable to determine that their conduct was deliberate, but I am satisfied that there was gross recklessness on their part when one takes into account their ranks and level of experience.

20. The gross recklessness continued with officers Smith and Bosch telling Ms T it was about an intervention and getting a good outcome for Thomas Eliot. Further, when Senior Constable Blacker obtained signed consent for the seizure of the computer on the basis that it was, “to assist with the investigation of Thomas Eliot's mental state”, Ms T had been grossly mislead. It was not an informed consent. She was not given the true picture, nor the opportunity to refuse consent. The police acted improperly, and the computer was obtained as a result of that impropriety.

21. Once it is established that the evidence has been improperly obtained, the onus is on the prosecution to satisfy the Court that it should be admitted. The shifting of the onus means that it is necessary for such conduct to be justified and explained for the Court to be persuaded that such evidence be admitted despite the impropriety through which it was obtained.

22. Section 138 of the Evidence Act 1995 sets out the factors that must be considered by a Court in exercising its discretion to admit the improperly obtained evidence. Subsection (3) identifies what factors and policy concerns must be taken into account in exercising the discretion. The parties have made submissions on section 138.

Section 138(3) of the Evidence Act 1995

(a) The probative value of the evidence. The evidence is probative and is one of three particulars relied upon by the Crown and proof of the count or alternative count.

(b) The importance of the evidence. Although the evidence has some importance in the proof of a conspiracy to murder and the alternative count, there is other evidence available to the Crown. The Crown has the journal entries of the accused, and the co-conspirator (William Yeats) will give evidence on behalf of the Crown. In my view the exclusion of the internet search history would not be fatal to the prosecution of the accused;

(c) The allegations are serious. Conspiracy to murder has a statutory maximum of 25 years. Presently, I am unaware of the defence. This is a pre-trial ruling. At this point, the Crown is being put to proof by virtue of the plea of not guilty;

(d)–(e) The gravity of the impropriety and whether it was deliberate or reckless. The police were dealing with a 14-year-old child who was vulnerable. He was an in-patient in a mental facility. Society expects the protection of the vulnerable. Senior and experienced police officers did not protect this vulnerable child. Contrary to their protestations that it was about this mental state, it was obvious that this was a criminal investigation with potentially dire consequences. They knew that once they had read the diary, which had occurred before seeking consent for the seizure of the computer. They were grossly reckless in their improper conduct. It was quite inconsistent with the minimum standards which a society, such as ours, should expect and require when dealing with a 14-year-old with mental health issues. Rights against self-incrimination disappeared into the ether. It was a grave omission on the part of senior and experienced police officers;

(h) If the police believed the evidence was relevant, and with the information they had prior to the impropriety (namely the journal and information that he had been searching his computer) they could have applied for a warrant to obtain the computer. This was not done. The computer was not in his possession and could not be tampered with.

23. After careful consideration of s138(3) and recognising the public interest in admitting relevant evidence, “truth, like all good things, may be loved unwisely, may be pursued too keenly, may cost too much”: Pearse v Pearse (1846) 63 ER 950 at 957, noted in Bunning v Cross (1978) 141 CLR 54 at 72. Expediency dominated the rights of a vulnerable accused. In this case, the conduct of the police is of such nature, that there is a need for discipline to avoid the appearance that the Court is condoning that conduct.

24. Thomas Eliot was a vulnerable child in need of protection. He had rights which were circumvented by the conduct of the police. I am not persuaded that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in a way in which the evidence was obtained.

Amendments

10 August 2022 - Redaction

17 August 2022 - Redactions made and pseudonyms added

17 August 2022 - Topographical errors amended

Decision last updated: 17 August 2022