R v Neil Gordon CAMM; R v Harold Charles CARY; R v Elizabeth May QUINCE
[2008] NSWDC 40
•19 February 2008
Reported Decision:
7 DCLR (NSW) 100
District Court
CITATION: R v Neil Gordon CAMM; R v Harold Charles CARY; R v Elizabeth May QUINCE [2008] NSWDC 40 HEARING DATE(S): 7 February - 28 March 2008 - Trial
JUDGMENT DATE:
19 February 2008JURISDICTION: Criminal JUDGMENT OF: Goldring DCJ DECISION: Direct that evidence of the record of interview with accused Cary and Quince be excluded. CATCHWORDS: EVIDENCE - exclusion of record of interview - improperly or unlawfully obtained - right to communicate with legal practitioner - Aborigine - protected suspect LEGISLATION CITED: Crimes Act 1914 (Cth)
Crimes Act 1958 (Vic)
Evidence Act 1995 (Cth)CASES CITED: Pollard v The Queen (1992) 176 CLR 177
R v Markovina (1996) 93 ACR 149
R v Yu Tit Hoi NSWSC 11 April 1997PARTIES: Crown
Neil Gordon Camm (Accused)
Harold Charles Cary (Accused)
Elizabeth May Quince(Accused)FILE NUMBER(S): 07/11/0355 COUNSEL: P Roberts SC with C A Webster (Crown)
C Miralis (Camm)
G Newton (Cary)
J Trevallion (Quince)SOLICITORS: Commonwealth DPP
Nyman Gibson (Camm)
John Klees & Assoc (Cary)
Ross Hill & Assoc (Quince)
JUDGMENT
1 HIS HONOUR: In this case the Crown seeks to tender the record of an interview conducted by Federal police officers and others with the accused Cary and Quince, while the police were executing a search warrant, properly obtained, on the property occupied by the accused, ‘V’ near Hay. There is no challenge to the validity of the search warrant or to the way in which it was executed, nor to the admissibility of any material seized in the course of the execution of the warrant because of the manner of seizure.
2 The objection is taken to the admission of the record of interview on the basis that the interview was conducted improperly, unlawfully. The accused rely on the provisions of s 23G of the Crimes Act, which reads:
- “Right to communicate with friend, relative and legal practitioner
- (1) Subject to s 23L, if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, inform the person that he or she may:
- (a) communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and
(b) communicate, or attempt to communicate, with a legal practitioner of the person’s choice and arrange, or attempt to arrange, for a legal practitioner of the person’s choice to be present during the questioning.
3 The next subsection deals with the obligation on the police to give the person reasonable facilities to exercise those rights. S 23L (3) provides that:
“ Subject to s 23L, if a person is under arrest or a protected suspect and arranges for a legal practitioner to be present during the questioning, the investigating official must:
(a) allow the person to consult with the legal practitioner in private and provide reasonable facilities for that consultation.
(b) allow the legal practitioner to be present during the questioning and to give advice to the person, but only while the legal practitioner does not unreasonably interfere with the questioning.”
4 Ms Quince who, and there is no dispute about this, is Aboriginal, also relies on s 23H of the Crimes Act, which specifically refers to Aboriginal and Torres Strait Islander people, and it gives them even more protection than s 23G, and is much more explicit, but I do not need to deal in detail with that section.
5 It is not in dispute that both Mr Cary and Ms Quince were protected suspects within the meaning of s 23C(2) because the officer in charge of executing the search warrant, Sergeant Sands, gave evidence that, at the time, she was of the view that there was “sufficient evidence to establish that the person has committed the offence”.
6 In my view, the words of s 23G are quite clear and must be applied if their plain meaning can be given effect. The Crown Prosecutor relies on the High Court decision of Pollard v The Queen (1992) 176 CLR 177 which concerned the interpretation of a similar provision in the Victorian Crimes Act, but a provision which did not refer in terms to the rights of people who were ”protected suspects”, as the Commonwealth Act describes them. These provisions have in common that they give rights to people who are in custody.
7 It is not in dispute that neither Mr Cary nor Ms Quince were ever arrested. They were charged by summons with these matters. However, they clearly fell within the definition of the term “protected suspect”, and therefore it is important that the words of s 23G, and 23H in the case of Ms Quince, be given full effect.
8 When the accused were informed of their rights in relation to the search warrant and given an occupier’s notice, Ms Quince indicated that she wished to contact her legal adviser, Mr Gordon Duff. Mr Duff, it appears, may not be a qualified legal practitioner, but he certainly worked in the office of a firm of solicitors and had been retained by Mr Cary and Ms Quince to do some other legal work.
9 Sergeant Sands advised her that at the same time as she was executing the search warrant at ‘V’, a search warrant was being executed at Mr Duff’s office in relation to these matters. Ms Quince, nevertheless, rang Mr Duff’s office and was told that he was not available. She left a message for him to call back, and Sergeant Sands then indicated that Mr Duff’s office was being searched. Notwithstanding the clear intent of s 23G, the accused were not informed of their right to request that the questioning be delayed until the arrival of a lawyer, and in fact the questioning continued for several hours.
10 It was conceded that Mr Cary and Ms Quince were interviewed for the most part in the presence of each other. Little distinction was made between the process of asking them about material recovered during the execution of the search warrant and asking them about the commission of the offences.
11 It is also apparent from the record of interview that over several hours some matters were recorded, but at times the tape recorder was turned off. Sergeant Sands conceded that there were conversations with both or either of these accused when the tape recorder was turned off.
12 It is clear that during the course of what was recorded the accused were informed of their right to remain silent on at least three occasions.
13 Sergeant Sands indicated that when she was executing the search warrant she did not have with her a video camera.
14 The accused rely primarily upon s 138, which gives the Court a discretion to exclude improperly or illegally obtained evidence. That provision reads in part:
- “(1) Evidence that was obtained:
- (a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of Australian law,
- (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
- (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known the statement was false and that making a false statement was likely to cause the person who was being questioned to make an admission.”
I interpose that it is not suggested that the police did anything of that nature.
Subsection (3) provides:
“Without limiting matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless ...”
I will not read the remainder of that subsection because the provisions do not apply here.
15 The Crown referred me to two cases, one a decision of the Court of Criminal Appeal in Western Australia in Markovina (1996) 93 ACR 149 and a decision of Barr J in the Supreme Court Yu Tit Hoi delivered on 11 April 1997. In both those cases there was a continuing request on the part of the person being interviewed for legal advice, and a refusal on the part of the police to allow that advice. For that reason it seems to me that those cases are not directly in point here, because it is quite clear on the facts of this case that the situation is rather different.
16 Before considering whether or not there is an impropriety, and therefore any call for the application of s 138, I wish to point out that in New South Wales where police are investigating a crime, it is usual for them to interview suspects individually, and certainly not in the presence of other suspected persons. When a search warrant is executed this process is recorded on videotape, which also records any conversation occurring during the execution process. Each suspect who is questioned is given a written statutory statement of his or her rights in the language which he or she understands, before the interview is conducted, in addition to any verbal advice or caution given by police. As in the Commonwealth, special provision is made for Aboriginal people who are questioned.
17 In this case it is clear that the police knew that Ms Quince was Aboriginal.
18 New South Wales police appear to be trained not to question suspected people in the course of executing a search warrant, except in relation directly to matters discovered during that process. The questioning is done separately in a process known as an “Electronically Recorded Interview with a Suspected Person”. In my view, the procedures followed by the New South Wales Police are infinitely preferable to those followed by the Federal Police in this case, and the failure of the Federal Police, even to approach the standards of the New South Wales Police, is directly relevant.
19 Both Mr Cary and Ms Quince have objected to the admissibility of the records of interview, and I have read the transcript of the interview for this purpose. Little in it, standing alone, could be said, subject to some exceptions that I will mention, to be an admission, because nothing in it is in any real or everyday sense a statement against the interests of either of the accused. On the contrary, much of what each of them say is exculpatory. As I said in the course of argument, if Mr Watson had not pleaded guilty, much of what was said, particularly by Mr Cary, in the record of interview, would be highly relevant, but it is not relevant to either of these accused.
20 Given the very broad construction which the Court of Criminal Appeal in this state has given to the term “admission”, it is certainly possible and probably likely that the Crown will ask the jury to draw certain inferences from what the accused said to the police on this occasion. In this sense what they said may constitute one or more statements against their interests. It is for this purpose that the objection has been taken, and indeed the Crown conceded that there were things said by Mr Cary that he says are admissions.
21 That raises an additional question which is the application of s 90 of the Evidence Act upon which the accused also rely.
22 The requirements of s 23G provide an extremely important protection of the rights of the citizen. I do not accept the Crown’s submissions, in any way, that s 23 applies only to people in custody. I also reject the submission that the breaches of s 23G were “technical”. Although I accept that the police did not intend to trespass unnecessarily on the rights of the accused, what they did was, in my view, probably inadvertent. But the words of s 23G and indeed s 23H are so important and so clear that police must observe them meticulously, and any failure to do so ought, in my view, lead to the application of s 138 and a consideration, therefore, of the balance of the weight of the evidence obtained and the interests of justice.
23 In this case it is clear that Ms Quince, at least, and probably Mr Cary, wished to contact their legal adviser and expressed that wish very early in the process. Both of them should have been advised of their right to request a delay in the questioning until such time as their lawyer was available. The police knew, and indeed had stated, the reason why Mr Duff was not available.
24 It is not absolutely necessary that the lawyer originally selected should be available, but if the questioned person expresses the wish to contact a lawyer, given the situation of a police interview, the police should be meticulous in doing all they can to ensure that a lawyer is contacted, and should not, in any circumstances, continue to question the accused, unless a lawyer has been in contact with the suspected person. This is so, notwithstanding that these particular events took place on a remote rural property in the far west of New South Wales. The fact that a person lives in a remote area does not lessen the protection which the law should afford to him or her. That is not to say that the police do not have a difficult task, but they cannot carry out that task if they do not meticulously observe the law when they are doing so.
25 Further, the reassurances given by the police that they did not wish to remove Mrs Quince’s children from her did not in any way diminish her right to request a lawyer, and to request a delay in the questioning until a lawyer would be present.
26 The impropriety or irregularity was compounded when, later in the interview, Ms Quince asked Mr Lee, an officer of ATSIC who was present, about her rights of access to legal aid from the Aboriginal Legal Aid Office, and she was then assured that she would be entitled to legal aid. At that stage her concern for proper legal protection became apparent and it was incumbent on the police, at that stage at least, if it had not been earlier, to refrain from asking her further questions, until such time as she was legally represented and her legal representative was present. This is so, notwithstanding that earlier she had been asked if she wished to have a lawyer from the Aboriginal Legal Aid office present during the search, and had declined the offer. A person being interviewed always has the right to change his or her position and request the presence of a lawyer, and in that case the questioning should cease until the lawyer is present. That is the effect of s 23G.
27 I conclude that there was an impropriety, if not an illegality, in the continuation of the questioning of the accused, given the awareness by the police of Ms Quince’s concern about obtaining proper legal advice and indeed a concern that Mr Cary also expressed early in the interview. It should have been obvious to the officers that they wished to have legal representation, and that this was a view that both of them had expressed.
28 I also conclude that, although it is not technically illegal, the questioning of suspected persons during the conduct of the execution of a search warrant is certainly inadvisable, and may, in some circumstances, amount to improper conduct by the police.
29 I draw a similar conclusion about the practice of interviewing suspects, even in part, in the presence of each other.
30 It is therefore necessary for me to decide whether or not, notwithstanding these improprieties, the evidence should be admitted. The probative value of the record of interview is, in my view, small, as with a few possible exceptions, there are no direct admissions by either accused. It may be that what Mr Cary told the police about his use of the name “Tatt” might be regarded as a statement against his interest, and there were some other statements to which the Crown Prosecutor drew my attention that might be used as admissions, or at least things from which the jury might be invited to draw inferences. Anything else in the record of interview, which tends to support a finding that they committed an offence, is supported, if at all, by other evidence given already or to be given in the trial. The challenged evidence is not therefore necessary to support the Crown case, and there is other evidence that may implicate either or both of these accused, quite independent of anything said by them to the police.
31 I conclude that the evidence is of slight importance to the Crown case.
32 Impropriety in relation to the failure to advise the accused of the right to have a legal representative present during the execution of this search warrant, and, more importantly, to have the questioning delayed pending the arrival of a lawyer, is a very serious impropriety in any case, notwithstanding that the offence being investigated involved the alleged fraudulent misappropriation of a large sum of money. It is an impropriety of the type where the effect of the wrong conduct by the police will be outweighed by the value of the evidence obtained, only where that evidence is of extremely high probative value and the case is extremely serious.
33 It is important that police and other law enforcement officers understand that the rights of persons under investigation, particularly those who fall within the definition of protected suspects, are extremely important and must not be disregarded.
34 I would be prepared in some cases to overlook the fact that the accused were questioned during the execution of the search warrant or questioned in each other’s presence, given the rather inconclusive nature of the questions they were asked and the answers they gave. However, given the serious nature of the failure of the police faithfully to follow the requirements of ss 23G and 23H, the potential that the Crown may use the evidence obtained, as a result of this impropriety, on the basis of asking the jury to find that there were admissions or to draw inferences adverse to the accused, I propose to exclude the evidence of the records of interview.
35 If I had not reached this conclusion on the basis of s 138, I would have been compelled, so far as the record of questioning is said to include any admission, to exclude it under s 90 of the Evidence Act, because the questioning was not conducted in a manner that was fair to the accused, for the reasons that I have stated. Anything gained by the police in the course of that questioning is tainted by the unfairness.
36 It is not necessary for me to consider s 135 or s 137.
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