R v Myers (No 3)
[2022] ACTSC 195
•27 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Myers (No 3) |
Citation: | [2022] ACTSC 195 |
Hearing Date(s): | 27 July 2022 |
DecisionDate: ReasonsDate: | 27 July 2022 2 August 2022 |
Before: | Mossop J |
Decision: | The Bimberi telephone call is not inadmissible under s 138 of the Evidence Act 2011 (ACT). |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility of telephone call containing admission of alleged offending – whether telephone call was obtained improperly or in contravention of an Australian law – consideration of information sharing powers in the Children and Young People Act 2008 (ACT) and the Crimes (Sentencing) Act 2005 (ACT) – consideration of s 138 of the Evidence Act 2011 (ACT) – no impropriety or contravention established – desirability of admitting evidence not outweighed by the undesirability of admitting evidence in the way in which the evidence was obtained – telephone call not inadmissible |
Legislation Cited: | Children and Young People Act 2008 (ACT), ss 8, 9, 10, 94, 197, 200, 843, 844, 845, 846, 847, 848, 865, 865A, Ch 25, Pt 25.4 Crimes (Sentencing) Act 2005 (ACT), s 136 Legislation Act 2001 (ACT), s 142 |
Cases Cited: | R v Myers (No 2) [2022] ACTSC 194 |
Texts Cited: | Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 10 December 2009 Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 25 February 2010 |
Parties: | The Queen ( Crown) Thomas Myers (a pseudonym) ( Accused) |
Representation: | Counsel B Morrisroe ( Crown) R Baldeo ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Hugo Law Group ( Accused) | |
File Number: | SCC 61 of 2022 |
MOSSOP J:
Introduction
The accused is charged with aggravated robbery. He is alleged, along with others, to have robbed the complainant at knifepoint and to have physically assaulted him. The complainant’s car was taken from him. The complainant hung on to the antenna of the vehicle as it was being driven away. He subsequently fell onto the road and was injured.
On 27 July 2022 I ruled under s 192A of the Evidence Act 2011 (ACT) that “The Bimberi telephone call is not inadmissible under s 138 of the Evidence Act 2011 (ACT).” The Bimberi telephone call is a call recorded in exhibit A9. The content of the call is set out in the reasons that I gave earlier that day for refusing to rule the recording inadmissible under s 137 of the Evidence Act: see R v Myers (No 2) [2022] ACTSC 194. It is sufficient to say that it contains what on its face is a straightforward admission of involvement in the offending with which the accused is charged. The most relevant passage is “We robbed this cunt, and he was on the roof and then we done a drift and he fell off the roof while we were going like 150”.
The accused sought an advance ruling as to whether this evidence was admissible under s 138 of the Evidence Act. That section requires a determination of whether or not the evidence was obtained “improperly or in contravention of an Australian law” and, if so, 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”.
The facts
The principal issue in the trial will be identification, that is, whether the accused was one of the people who robbed the complainant.
The recording was made while the accused was detained at the Bimberi Youth Justice Centre (Bimberi) at a time after the incident had occurred but prior to being charged with the current offence. The recording was made on 22 July 2021. In earlier reasons given in this matter I referred to it being made on 20 July 2021 but the parties now agree that it was made on 22 July 2021. It was a telephone call between the accused and his mother. At some point during the conversation the accused also talks to people other than his mother, one of whom is identified as his aunt. The relevant admission is made at the end of the telephone call. At the beginning of a telephone call the following computerised message was given:
You are about to receive a phone call from a young detainee from the Bimberi Youth Justice Centre. Your conversation will be recorded and may be monitored. If you do not wish to receive this call please hang up now.
The call was in fact recorded.
On 22 July 2021 Constable Blake McClintock was involved in an investigation of a matter unrelated to the current allegations. It was a homicide investigation. On that afternoon he sent an email to the intelligence officer at Bimberi requesting ongoing provision of the phone calls made by the accused. The request form was entitled “ACT Corrective Services Intelligence and Integrity Unit ‘Request for Information’”. Under the heading “What information do you need?” was “Ongoing calls from 19/07/2021.” Under the heading “Why do you need this information?” was “Ongoing investigation”. This rather uninformative request occurred in a context in which Constable McClintock had spoken to Mr Ashley Payne, the Intelligence and Classifications Officer at Bimberi, and identified that he was involved in a homicide investigation. That is consistent with, but not demonstrated by, the terms of the email that accompanied the request for information.
Mr Payne received the request and responded the next day sending three MP3 audio files and two PDF documents to Constable McClintock. Mr Payne could not recall whether he had listened to the files prior to providing them to Constable McClintock.
It was only a year later, on 22 July 2022, that Constable McClintock reviewed the calls for information which might have been relevant to the aggravated robbery alleged in the present proceedings. On that date the relevant recording was identified and communicated promptly to the Director of Public Prosecutions.
In cross examination, Mr Payne identified that he was a delegate of the Director-General and that he understood the source of power to monitor as being s 200 of the Children and Young People Act 2008 (ACT) (CYP Act) and the power to disclose material as being s 136 of the Crimes (Sentencing) Act 2005 (ACT) (CS Act). He understood that the interests of the child were an important consideration. He was asked in cross‑examination how he considered the interests of the young person in relation to the disclosure. He said that he did not believe there were any actions that he could take in relation to the interests of the young person and that as a result of the legislation and advice from senior officers of Bimberi he understood that he had authority to action the request. He considered that he should only disclose personal calls and not protected calls to professionals such as lawyers or health workers. He said “obviously the request for an ongoing investigation along with our policy and legislation meant that I was required to provide that information, yes.”
Submissions
The submission put on behalf the accused was that the CYP Act provided a detailed and restrictive regime for disclosure of material collected as a result of the exercise of functions under that Act. Particular reference was made to the objects of the Act (s 7) and the duty to regard the best interests of the child or young person as the paramount consideration (s 8). References were also made to the principles applying to the Act in s 9 and to the position of Aboriginal and Torres Strait Islander children specifically addressed in s 10. Reference was then made to the general considerations relating to monitoring of telephone calls of detainees in s 197 and the power to do so in s 200. In particular, reference was made to the obligation in s 200(4) which provides: “If the communication reveals information about the commission of an offence, the director‑general must give information to the chief police officer.” Counsel for the accused relied upon the fact that Mr Payne could not recall whether he had listened to the relevant call prior to providing it to police. He submitted that Mr Payne could not have concluded that the communication revealed information about the commission of an offence if he had not listened to it.
Because of that, the accused then pointed to the provisions in Ch 25 of the CYP Act governing the disclosure of information. “Protected information” referred to in that Chapter is information gathered because of the position of the person as an “information holder” under the Act: s 844. “Information holders” include the Director-General: s 843. There are various categories of information which are “sensitive information”: s 845. The present information on the telephone call is not within the definition of sensitive information.
There is a general offence provision protecting the recording or divulging of protected information: s 846. Section 847 is an exception which permits the recording or divulging of protected information if it is done under the Act or in the exercise a function under the Act.
Section 848 is a similar exception provision but it relates to recording or divulging protected information under another territory law or in the exercise a function under another territory law.
Part 25.4 is headed “Courts and investigative entities”. Section 865(1)-(2) provide obligations to give protected information or a document containing protected information to an investigative entity “if required to do so for this Act or another territory law.” As the terms of the provision indicate, these are mandatory obligations. Section 865(3)-(4) also provides a power to give or produce protected information or a document containing protected information to an investigative entity “if authorised to do so by this Act or another territory law”. As the terms of the provisions indicate these are discretionary powers.
Section 865A gives a power to the Director-General to give protected information to the chief police officer if satisfied that information is materially relevant to an investigation a police officer is carrying out. A note to the provision says that the Director-General must have regard to the best interests of the child pursuant to s 8. The power is a provision that is generally applicable to protected information and is a discretionary one based on material relevance to an investigation the police officer is carrying out. It may be contrasted with the mandatory obligation under s 200(4) which is limited to monitoring of electronic communications where such a communication reveals information about the commission of an offence.
Counsel for the offender emphasised that the accused had an interest in maintaining his privacy and that this was not considered during the process of the disclosure of the telephone record. He also made reference to the accused being Aboriginal but did not explain how any of the matters referred to in s 10 of the Act might have been relevant to the decision to disclose the material.
The principal contention of counsel for the Crown was that s 136 of the CS Act was, as Mr Payne thought, an available power that authorised the disclosure of the information. Section 136 provides:
136 Information exchanges between criminal justice entities
(1)This section applies to any information in relation to an offence (including an alleged offence) in a record of a criminal justice entity, including information about –
(a)a person charged with the offence; and
(b)a victim of the offence; and
(c)and a person convicted or found guilty of the offence.
(2)The criminal justice entity may give the information to another criminal justice entity for the purposes of the other entity.
(3)This section is additional to any other Act that provides for information to be given by, or to, a criminal justice entity.
The expression “criminal justice entity” includes “the CYP director-general” and “the chief police officer”: s 136(4).
Counsel for the Crown submitted that in the circumstances of this case the provision would apply in the following manner: “This section applies to any information in relation to [the alleged homicide] in a record of [the CYP director-general].” The persons listed in (a)-(c) were not relevant as these paragraphs had, as a result of the use of the word “including”, the effect of extending rather than qualifying the scope of the subsection.
Thus, the Crown contended that s 136 of the CS Act was a generally available provision which applied in addition to the provisions of the CYP Act. As a consequence, it was available for use by Mr Payne in the manner that he thought it was.
No impropriety or contravention
I accept the submission impliedly made by the Crown that the disclosure of telephone calls made by the accused was “in relation to” the alleged homicide that the police were investigating. “In relation to” is a broad connecting phrase and there was no challenge to the reasonableness or good faith of the police request for ongoing disclosure of the contents of the telephone calls made by the accused for the purposes of the homicide investigation.
There is an obvious tension between the operation of s 136 of the CS Act which is confined in its operation to information in relation to an offence or alleged offence and the generally applicable provisions of the CYP Act. That is because s 136 provides a general discretionary power to provide information which is unqualified by the various restrictions and considerations required by the CYP Act. If it is available it means that the provisions of the CYP Act are not engaged by a disclosure between criminal justice entities in relation to an offence or alleged offence. It therefore has the potential to avoid the apparently carefully worked out regime of disclosure under the CYP Act. In particular it contrasts with the discretionary power in s 865A which requires, in order for there to be a discretionary power to provide information to the chief police officer, that the Director‑General be “satisfied that the information is materially relevant to an investigation a police officer is carrying out.” As the note to the provision makes clear, that discretionary power picks up the obligation under the CYP Act to regard the best interests of the child or young person as the paramount consideration. That is not a requirement imposed under s 136 and s 136 covers “information in relation to… an alleged offence” which is somewhat broader than “information [which] is materially relevant to an investigation a police officer is carrying out.”
The tension is between two Acts of the same legislature. Can it be said that the terms of the CYP Act qualify the otherwise general terms of the CS Act where the information relates to an offence? In my view the answer is “no”.
In reaching this conclusion, there are two significant features of s 136.
First are the terms of s 136(3) which make it clear that the section is additional to any other Act that provides for information to be given by or to a criminal justice entity. The inclusion of this provision makes it clear that the power is one that supplements, rather than is qualified by, the provisions of other legislation.
Second, the other feature of the provision is that although s 136 was first enacted prior to the enactment of the CYP Act, it was amended upon the enactment of the CYP Act and has been subsequently amended. Most notably the CYP Act itself amended the terms of the definition of criminal justice entity in s 136(4) of the CS Act so as to include “the CYP director-general”. In those circumstances it must be assumed that the legislature intended that the provision continue to operate in its terms alongside the CYP Act rather than to be impliedly qualified by it.
Finally in relation to the purpose of s 865A(2), which is the provision which might otherwise have been seen as inconsistent with the general discretionary power in s 136, the Legislative Assembly debates (to which reference may be had under s 142 and table 142, items 5 and 6 of the Legislation Act 2001 (ACT)) indicate that the intention behind s 865A was to expand the regime of permissible disclosure so as to ensure that reports of child abuse may be passed on to police if relevant to a police investigation. There is nothing in the debates which would indicate an intention to qualify the pre-existing power in s 136 of the CS Act: Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 10 December 2009 at 5657‑5658, and 25 February 2010 at 734, 737, 741.
In light of these two features of s 136 and the purpose of s 865A, it is not possible to reach a conclusion that the provisions of the CYP Act were intended to supersede or impliedly qualify the provisions of s 136 insofar as they applied to records held by the CYP Director-General in relation to a detainee in the Director-General’s custody.
I do not accept the submission made on behalf of the accused that even if s 136 was an available provision that the operation of that provision was required to be filtered through the operation of s 865 and thereby qualified by whatever obligations were contained within s 865. Rather, s 865 simply recognises the existence of other territory laws and makes it clear that the obligation or power to provide protected information under that other law is not constrained by the obligations under Pt 25.4 of the CYP Act.
Contingent s 138 balancing exercise
Given that s 136 of the CS Act was a provision which was available to authorise the disclosure of information, there was no impropriety or contravention of an Australian law in disclosing it in that manner.
In case I am wrong in my conclusion that there was no impropriety or contravention of an Australian law in the provision of the Bimberi telephone call by Mr Payne to the Australian Federal Police, I will record my reasons for concluding that even if such a breach had been established the desirability of admitting the evidence outweighs the undesirability of admitting evidence that had been obtained in the way in which the evidence was obtained. In order to do this it is necessary to have regard to the various matters set out in s 138(3) of the Evidence Act. I will deal with each one of those matters in turn.
(a) the probative value of the evidence
The evidence is, on its face, highly probative. It involves an admission of the offending alleged against the accused by the accused in circumstances where it is unlikely that the statements were other than truthful. It must be accepted that the accused has not yet had an opportunity to examine other records of conversations in order to determine whether there is a basis for undermining or qualifying the reliability of the statement. However, as far as the matter can currently be assessed, the evidence is of high probative value.
(b) the importance of the evidence in the proceeding
The evidence is of high importance to the Crown case. The balance of the Crown case is a circumstantial one. The case statement referred to an identification of the accused by the complainant by reference to a Facebook photo. That is no longer part of the Crown case. The Crown case will seek to link the accused to the offending by reference to his name, the use of that name on social media, the description given by the complainant of him when compared with evidence of his appearance at the time, being found soon after the offending close to where the offending occurred, his palm prints being on the driver side of the stolen motor vehicle, the fact that the Snapchat application was installed on his phone and the existence of a search undertaken on his phone for an address close to the location of the offending. That modest circumstantial case will be substantially strengthened by the admission made in the telephone call. It therefore must be categorised as of high importance in the proceeding.
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding
The relevant offending is an allegation of a very serious aggravated robbery involving weapons and causing significant injuries to the complainant and the theft of valuable property, namely a motor vehicle.
(d) the gravity of the impropriety or contravention
For the purposes of considering the operation of s 138, I have assumed that there was a contravention of s 846 of the CYP Act because the disclosure of the telephone call was not authorised by s 200(4), 865A or s 136 of the CS Act. I have assumed for the purposes of the exercise that s 200(4) would not authorise the disclosure of the telephone call because it was not established that Mr Payne had reached any conclusion that the communication revealed “information about the commission of an offence” and hence the mandatory obligation to disclose was not triggered. I have assumed for the purposes of the exercise that the discretionary power to make a disclosure in s 865A(2) was not triggered because Mr Payne did not reach the state of satisfaction “that the information is materially relevant to an investigation a police officer is carrying out” because, notwithstanding the terms of the request and the information that he had been given orally, he had not himself listened to the audio to reach that conclusion and further had not had regard to the best interests of the child as the paramount consideration in deciding whether to release information.
So far as s 136 of the CS Act is concerned, I have assumed for the purposes of the exercise that this section was somehow qualified by the terms of the CYP Act and either had no application at all or was qualified via s 865 by the requirement that the best interests of the child be a paramount consideration in making a decision under that section.
On these assumptions, plainly the disclosure of the information contrary to the detailed regime in the CYP Act involved a contravention of the law and was contrary to the intention of the legislature as reflected in that detailed regime. However, the following comments may be made in relation to each of the hypothetical contraventions:
(a) So far as s 200(4) was concerned, if Mr Payne had listened to the audio then he clearly would have been statutorily obliged to give the information to the chief police officer. That obligation was not qualified by any duty to consider the best interests of the accused.
(b) So far as s 865A was concerned, if Mr Payne had listened to the audio then he would have been readily satisfied that the information was materially relevant to the commission of an offence. He may not have been aware of the investigation of the aggravated robbery and hence may not, under this provision, have been aware that it was relevant to an investigation already under way. Those circumstances (where the communication reveals information about an offence but the Director-General is not aware whether a police investigation is already under way) are dealt with in s 200(4). However, if Mr Payne was aware of such an investigation and went on to consider as the paramount consideration the best interests of the child, then the relevant interest was identified by counsel for the accused as the interest of the accused in the privacy of his conversations. It could not have been an interest in avoiding accountability for an offence which he had committed. Although the objects and principles of the Act in ss 8 and 9 do not make reference to the importance of accountability for criminal offending. The youth justice principles in s 94 which apply for the criminal matters chapters “in deciding what is in the best interests of a child or young person” make specific reference to the fact that “if a child or young person does something that is contrary to law, he or she should be encouraged to accept responsibility for the behaviour and be held accountable”. So far as the extent of the young person’s interest in privacy is concerned, regard would have to be had to the automated statement made at the beginning of his telephone call that indicated that it would be recorded and may be monitored.
(c) So far as s 136 is concerned, this is the provision that Mr Payne thought he was acting under. The terms of the provision itself are consistent with the position that he adopted in making the disclosure. There is no judicial authority of which he ought to have been aware indicating that the power was not available. If the power was impliedly qualified by the terms of the CYP Act so that it was not an available power or so that it was qualified by the obligations under ss 8, 9 or 10 of the CYP Act, then the reliance upon the power or the failure to properly have regard to the privacy interests of the accused in s 136 were understandable and non-deliberate errors on the part of Mr Payne.
(e) whether the impropriety or contravention was deliberate or reckless
For the reasons given in relation to the previous item, any impropriety or contravention was neither deliberate nor reckless. Rather, it involved a reliance upon what would have been an apparently available source of power to do what Mr Payne did.
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights
No submission was made that the impropriety or contravention would have been contrary to or inconsistent with one of these rights.
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention
No action has been or would be likely to be taken in relation to the assumed improprieties or contraventions.
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law
As pointed out earlier, ss 200(4) and 865A were available powers that would have authorised the disclosure of the recording had the officer listened to it prior to its disclosure and formed the state of mind required by one or other of those provisions. The audio would also have been available for the purposes of the homicide investigation if a warrant had been obtained for its production. Although the evidence about the basis for the obtaining of the warrant was limited, it is likely that, in the circumstances, a warrant would have been obtained.
Conclusion on balancing exercise
Balancing these factors it is a case in which it would have been clear, if a contravention of one of the relevant provisions had occurred or there was otherwise an impropriety associated with those provisions, that the desirability of admitting the evidence outweighed the undesirability of admitting evidence that involved that contravention or impropriety. In summary, that is because of the high probative value of the evidence, the importance of the evidence to the Crown case, the gravity of the alleged offence, the nondeliberate and non-reckless nature of the contravention or impropriety and the fact that had the audio been listened to prior to disclosure, there would have been a statutory obligation to make the disclosure.
Conclusion
For these reasons, I was satisfied that there was no impropriety or contravention of Australian law and, even if there was, the evidence was not required to be excluded under s 138 of the Evidence Act. I therefore made the order that I did.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 2 August 2022 |
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