R v Powell, Steven

[2010] NSWDC 84

CITATION:	R v Powell, Steven [2010] NSWDC 84
HEARING DATE(S):	05/02/2010 and 12/02/10
JUDGMENT DATE:	8 March 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Application to exclude E.R.I.S.P granted.
CATCHWORDS:	Criminal Law - interlocutory judgment - application to exclude evidence - record of interview - nineteen year old Aboriginal male arrested - declined to be interviewed - charged with aggravated break and enter, larceny of motor vehicle - brought before Local Court - bail refused remanded in custody - re-arrested whilst in gaol custody for questioning about charged offences - taken to Wellington Police Control Centre within gaol - vulnerable person - unlawfulness of arrest discussed - inadequacy of caution given - Part 9 "Lepra" caution criticised - police conduct and questioning technique during interview criticised - compromised capacity to comply with LEPRA requirements when police interviews conducted inside a prison.
LEGISLATION CITED:	S.25 Crimes (Administration of Sentence) Act 1999 Part 9 Law Enforcement (Powers and Responsibilities) Act (2005) S.89, 90, 138 Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Regulations 2005 Crimes Act 1900
CASES CITED:	Swaffield v The Queen (1998) 192 CLR 159 R v Mark Helmut [2001] NSWCCA 372.
TEXTS CITED:	NSW Police Code of Conduct and Ethics. Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence).
PARTIES:	Regina Steven Powell
FILE NUMBER(S):	2009/10695
SOLICITORS:	Crown: Mr. C Bailey - Office of the DPP Defence: Mr S Lawrence - Aboriginal Legal Service

JUDGMENT

HIS HONOUR: This is an application to exclude a record of interview.

1. On 12 April at about 11.30pm Steven Powell a nineteen-year-old Aborigine was arrested on suspicion of being involved in the theft of a motor vehicle and an aggravated break and enter and steal offence.

2. At 3.30am Detective Senior Constable Renee Smith contacted the ALS through an after- hours contact phone and spoke to a male representative, informed him that she intended to interview Powell, obtain a DNA sample (buccal swab), offered Powell an opportunity to participate in an identification line-up and then pass the phone to Powell to speak to a legal representative of the ALS.

3. I have inferred that the legal representative took the opportunity to advise Powell of his rights, particularly his right to silence, and police rights in respect of the buccal swab, identification parade and his (Powell’s) rights in respect of participation in a record of interview. I have inferred the legal representative was likely to have recommended to Powell an absence by him of participation in the record of interview.

4. Shortly after that call Senior Constable Renee Smith became aware that Powell did not wish to be interviewed. She asked Powell if he wished to be interviewed. He refused. She also asked if he wished to take part in an identification parade. He also refused. These refusals were recorded at 5.20am by Detective Senior Constable Mark Davis. The interchange between Senior Constable Davis and Powell was recorded on a handheld recorder:

“Q. What do you wish to…