R v Sarlija (No 1)
[2015] ACTSC 290
•22 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sarlija (No 1) |
Citation: | [2015] ACTSC 290 |
Hearing Date(s): | 21 September 2015 |
DecisionDate: | 22 September 2015 |
Before: | Murrell CJ |
Decision: | The evidence is inadmissible. |
Category: | Procedural and other rulings |
Catchwords: | EVIDENCE – Pre-trial application – voir dire – admissibility of roadside conversation – Evidence Act2011 (ACT) ss 138, 139 – whether evidence was obtained improperly or illegally – whether the desirability of admitting the evidence outweighs the undesirability of admitting the improperly obtained evidence – evidence inadmissible EVIDENCE – Pre-trial application – voir dire – admissibility of roadside conversation – Crimes Act1914 (Cth) s 23V – conversation not tape recorded – whether special circumstances – evidence inadmissible |
Legislation Cited: | Criminal Code2002 (ACT) ss 603(7), 604 Evidence Act2011 (ACT) ss 138, 139 Crimes Act1914 (Cth) s 23V |
Cases Cited: | Bunning v Cross (1978) 141 CLR 54 Employment Advocate v Williamson (2001) 111 FCR 20 R v Poulakis (No 1) [2015] ACTSC 189 |
Parties: | The Queen (Crown) Benjamin Mark Sarlija (Accused) |
Representation: | Counsel Mr G Mansfield (Crown) Mr J Robertson (Accused) |
| Solicitors The Director of Public Prosecutions (Crown) Sharman Lynch Solicitors (Accused) | |
File Number(s): | SCC 257 of 2014 |
MURRELL CJ:
The Application
A preliminary application was made in a criminal trial that is to proceed before me sitting as a judge alone.
The accused has pleaded not guilty to the offences that on 20 June 2014 at Canberra he:
(a)Trafficked in the controlled drug heroin (s 603(7) Criminal Code2002 (ACT) (Criminal Code), maximum penalty 10 years imprisonment and/or a substantial fine); and
(b)Possessed a prohibited weapon, namely a knuckleduster, when he was not authorised to do so (s 5 Prohibited Weapons Act1996 (ACT), maximum penalty five years’ imprisonment and/or a substantial fine).
In the trial, the prosecution relies upon s 604 of the Criminal Code, which creates a presumption that, unless the contrary is proved, a person who possesses the trafficable quantity of a controlled drug has an intention to sell the drug.
The trafficable quantity for heroin is 5 g and the commercial quantity is 2.5 kg.
On the application, the accused seeks to exclude from evidence a roadside conversation with police. The application is made on two bases:
(a)The conversation evidence should be excluded pursuant to ss 138 and 139 of Evidence Act2011 (ACT) (Evidence Act) because no caution was administered.
(b)The conversation should be excluded pursuant to s 23V of the Crimes Act1914 (Cth) (Crimes Act) because the conversation was not recorded at the time that it occurred.
Facts
At 10:45 pm on 20 June 2014, police drove past the Lyneham address that was occupied by the accused and his de facto partner, Ms Carpenter. They observed that a vehicle that was owned by Ms Carpenter was parked in the driveway. Ms Carpenter was unlicensed.
At 11:00 pm, police drove past the address for a second time. The vehicle was no longer in the driveway.
At 11:15 pm, police saw the vehicle being driven by the accused on Ginninderra Drive, Lyneham, about 1–1.5 km from the Lyneham address. There was no other occupant in the vehicle.
The vehicle was stopped. Constable Stapleton asked to see the accused’s licence, which was provided. The accused was asked to step from the vehicle. Police considered that he was behaving in a nervous fashion. His hands were shaking and he looked down. Later, police observed that he stuttered when he spoke.
10. Constable Stapleton asked the accused whether he would consent to a search of his person and vehicle. He explained the powers that were available to him to enable a search to occur. The accused was advised that he could refuse consent and could withdraw consent at any time. At 11:20 pm, the accused signed an acknowledgement of consent in Constable Stapleton’s notebook.
11. The interior of the vehicle was unkempt. A search of the vehicle revealed a knuckle duster in the side compartment of the driver’s door. There was rubbish in the front passenger footwell area and children’s toys were scattered in the rear passenger area. On the front passenger seat, adjacent to the centre console, was a brown McDonald’s bag. Constable Stapleton emptied out the contents of the bag and found several empty burger wrappers, one wrapped burger and among the wrappings were two golf ball sized balls of grey coloured electrical tape. Constable Stapleton cut through two layers of electrical tape and a layer of plastic, revealing white powder. Constable Stapleton strongly suspected that the powder was heroin and it was later found to be approximately 14 g of heroin.
12. The prosecution asserts (but the accused denies) that the following exchange then occurred:
Stapleton: What’s this Ben?
Accused: It’s not mine. It’s not my McDonald’s.
Stapleton: Ben, I know that you know what it is. What is it?
Accused: Its heroin.
Stapleton: How much?
Accused: More than a couple of balls.
13. Constable Stapleton took the reference to “balls” to be a reference to “eight balls”. An eight ball is a term used by drug users and it refers to a quantity of about 3.5 g.
14. Before commencing the conversation, Constable Stapleton did not caution the accused. This was due to an oversight; Constable Stapleton agreed that there was no particular reason or excuse for failing to caution the accused. Although Constable Stapleton was in a position to record the conversation (he had a digital hand recorder in his uniform pocket), through an oversight he failed to do so.
15. I accept Constable Stapleton’s evidence. There is no suggestion that he deliberately circumvented legal requirements, or decided to proceed regardless of the possibility that his conduct may be in breach of legal requirements.
16. Exhibit 4 photograph 2 is a photograph of the front passenger seat area of the vehicle that was taken after the two balls had been seized by police.
17. Following the conversation concerning the balls, the accused was immediately cautioned and arrested. As police were driving back to the City Police Station, Constable Stapleton recorded the conversation in his notebook. He did not ask the accused to sign the notebook as containing a correct record of the conversation.
18. After police arrived at the City Police Station, at about 1:18 am on 21 June 2014, they commenced a digital record of interview with the accused. In the interview, the accused answered some police questions but did not admit to knowledge of the heroin. Police then conducted a forensic procedure, and a DNA sample was obtained from the accused. However, no DNA was obtained from the tape wrapping around the heroin and no DNA match was made.
Evidence Act
19. Section 138 of the Evidence Act provides:
(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 an Australian law;
must not be admitted unless 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.
...
(3)Without limiting the matters that the court may take into account under subsection (1), it must 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; and
(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; and
(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; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
20. Section 139 of the Evidence Act provides:
(1)For section 138 (1) (a), evidence of a statement made or act done by a person during questioning is taken to have been obtained improperly if—
(a)the person was under arrest for an offence at the time; and
(b)the questioning was conducted by an investigating official who was at the time empowered, because of the office that the official held, to arrest the person; and
(c)before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
...
(5)A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if—
(a)the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or
(b)the official would not allow the person to leave if the person wished to do so; or
(c)the official has given the person reasonable grounds for believing that the person would not be allowed to leave if the person wished to do so.
21. It may also be relevant to note the provisions of ss 18, 21(1) and 30 of the Human Rights Act 2004 (ACT). Section 18 provides:
(1)Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
(2)No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
(3)Anyone who is arrested must be told, at the time of arrest, of the reasons for the arrest and must be promptly told about any charges against him or her.
...
22. Section 21(1) concerns the right to a fair trial. It provides:
(1)Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
23. Section 30 provides:
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
Submissions about ss 138 and 139
24. The accused submits that the conversation admission was obtained in contravention of s 139 and should be excluded pursuant to s 138(1)(a) of the Evidence Act; because the desirability of admitting the evidence does not outweigh the undesirability of admitting improperly obtained evidence.
25. The Evidence Act does not define the expressions “improperly” or “impropriety”.
26. The genesis of s 138 is Bunning v Cross (1978) 141 CLR 54 (Bunning v Cross). In Bunning v Cross at 74, Stephen and Aickin JJ said that the exercise of discretion by the court was a matter of considering two competing requirements of public policy:
the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.
27. It has been said that the discretion protects against evidence being obtained “at too high a price”: R v Ireland (1970) 126 CLR 321.
28. While s 138 has modified the common law position and must be considered on its own terms, the principles laid down in the cases that followed Bunning v Cross remain relevant to a consideration of the issues under s 138.
29. The accused submits that he was “under arrest” within the meaning of s 139(5). Once Constable Stapleton had cut through the tape and identified what he suspected to be heroin, he must have believed that there was sufficient evidence that the accused had committed an offence. Consequently, he should have cautioned the accused immediately.
30. The accused relies on R v Naa (2009) 76 NSWLR 271 at [98]–[99], where Howie J said:
[98]... the section was aimed at formal or informal interrogation of a suspect by a police officer for the purpose of the officer obtaining information, whether or not at the time of the interrogation the suspect was formally under arrest.
[99]Of course the section is aimed at the protection of a suspect and should not be unduly confined by technicalities or restricted so that it does not achieve the purpose for which it was enacted.
31. In R v FE [2013] NSWSC 1692, Adamson J found that a police officer had formed the requisite belief pursuant to s 139(5) but went on to say, at [100], that an alternative finding that “he ought to have formed the relevant belief” would also have led to the conclusion that the evidence of an admission during police questioning (without the giving of a caution) was improperly obtained.
32. The accused notes that, once an accused has established that evidence has been improperly obtained, it is for the prosecution to persuade the court that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the way in which it was obtained: Parker v Comptroller-General of Customs (2009) 252 ALR 619 at [28] per French CJ
33. The prosecution draws the Court’s attention to the decision of Branson J in Employment Advocate v Williamson (2001) 111 FCR 20 at [78], particularly in relation to the second stage, discretionary task under s 138; rather than being a balancing exercise, the task involves an exercise of judgement.
Was the evidence obtained improperly or illegally?
34. The prosecution concedes that the evidence was improperly obtained; that the accused was “under arrest” for the purpose of being questioned pursuant to s 139(5) and that the requirements to prove impropriety under s 139(1)(a), (b) and (c) are met. However, the prosecution argues that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained by such means.
Does the desirability of admitting the evidence outweigh the undesirability of excluding evidence obtained in the way in which the evidence was obtained?
The probative value of the evidence
35. Probative value should be assessed on the assumption that the evidence is accepted. The contentious issue in the trial is whether the accused was intentionally in possession of the heroin. The evidence has significant probative value because it shows that the accused had some idea of the quantity of heroin that was contained in the balls before the balls were unwrapped.
The importance of the evidence
36. There is other evidence of possession. For example, there is evidence that the accused was the only occupant of the car, the substance was on the driver’s seat adjacent to him and he behaved nervously when the vehicle was stopped. However, apart from the conversation evidence, the evidence is circumstantial.
The nature of the offence
37. The offence of trafficking is serious. There is a public importance in apprehending and prosecuting individuals who traffic in drugs: R v Camilleri (2007) 68 NSWLR 720; R v Poulakis (No 1) [2015] ACTSC 189 at [33]. However, the allegation relates to the alleged trafficking of 14 g of heroin, and the quantity and other circumstances relied upon suggest an offence at the lower end of the spectrum in terms of objective seriousness. The offence of trafficking in the trafficable quantity of a controlled drug carries a maximum available penalty of 10 years’ imprisonment, which can be contrasted with the much heavier maximum penalties that apply to trafficking in larger quantities of controlled drugs, and the maximum penalties that apply to many other offences.
The gravity of the impropriety
38. The cautioning of suspects is a regular and fundamental part of police practice. If investigating officers question suspects without cautioning them and no consequences flow from that impropriety, then continuance of the impropriety may be encouraged.
Whether the conduct was deliberate or reckless
39. It has been said that, in order to be reckless, conduct must at least involve advertence to the possibility of impropriety and a conscious decision to proceed: R v Helmhout (2001) 125 A Crim R 257 at [33] per Hulme J. In this case, the prosecution characterised the police officer’s conduct as “spontaneous questioning” that was an “eager although momentarily careless response to the finding of a substance suspected to be drugs”. I accept that characterisation, and I also accept that the conduct was not a “deliberate or reckless attempt to undermine the rights of the applicant”. On the other hand, the conduct was not an isolated oversight; as well as neglecting to administer a caution, the police failed to comply with s 23V of the Crimes Act by contemporaneously recording the conversation: see below.
The difficulty of obtaining the evidence without contravention
40. The prosecution conceded that it would have been easy to administer a caution.
41. The remaining parts of s 138(3) do not arise for consideration.
42. Had a caution been administered, it is unlikely that the accused would have made a statement to the effect that he was aware of the quantity of drugs contained in the balls. When he participated in a digital record of interview at the City Police Station, he made no clear admissions about central matters related to the offences.
43. As the administration of a caution is so fundamental and central to police practice and a caution could easily have been administered in the present case, and having regard to the matters in s 138(3)(a), (b) and (c), I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence of the alleged oral admission obtained in the absence of a caution. For this reason, I would exclude the evidence under s 138 of the Evidence Act.
Part 1C of the Crimes Act
44. Under Part 1C of the Crimes Act, there is an additional and independent reason to exclude the evidence under s 23V of that Part.
45. Part 1C provides:
23Outline of this Part
(1) This Part:
(a) provides for the detention of people arrested for Commonwealth offences (see Division 2); and
(b) imposes obligations on investigating officials in relation to:
(i)people arrested for Commonwealth offences; and
(ii)certain other people who are being investigated for Commonwealth offences;
(see Division 3).
(2) To avoid doubt, this Part does not confer any power to arrest a person.
(3)To avoid doubt, only a person arrested for a Commonwealth offence may be detained under this Part.
23A Application of Part
(1) ...
(2)This Part does not exclude or limit the operation of a law of a State or Territory so far as it can operate concurrently with this Part.
...
(5)The provisions of this Part, so far as they protect the individual, are in addition to, and not in derogation of, any rights and freedoms of the individual under a law of the Commonwealth or of a State or Territory.
(6)If an offence against a law of the Australian Capital Territory is punishable by imprisonment for a period exceeding 12 months and the investigating official concerned is a member or special member of the Australian Federal Police, this Part applies to that offence as if:
(a) references to Commonwealth offences included references to that offence; and
(b) references to a law of the Commonwealth included references to a law of that Territory.
46. Section 23V provides:
(1)If a person who is being questioned as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:
(a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission—the questioning of the person and anything said by the person during that questioning was tape recorded; or
(b) in any other case:
...
(5)A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non‑compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice. (emphasis added)
...
Non-compliance with s 23V
47. The test under s 23V of the Crimes Act differs from that under s 138 of the Evidence Act.
48. Under s 138, improperly obtained evidence must not be admitted unless 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”. Matters that inform that assessment are not limited, although the Court must take into account the eight matters specified in s 138(3).
49. Under s 23V, evidence is inadmissible unless the Court is satisfied that “in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.” It would appear that, unlike a s 138 assessment, a s 23V assessment is to be informed by only one matter, i.e. “the nature of and the reasons for the non-compliance”. Further, before the evidence may be admitted the court must be satisfied that “in the special circumstances of the case” admission of the evidence would not be contrary to the interests of justice. Section 138 contains no “special circumstances” requirement.
50. Section 23V has been considered in several cases. There is passing reference to the provision in Nabole v The Queen (2014) 291 FLR 63 at [40] and [50].
51. In R v Jackson [2005] ACTSC 127, the questioning of a suspect was not tape recorded although police had ready access to a portable tape recorder and no reason was advanced for failing to use it. Crispin J excluded the conversation, concluding that there was no evidence of special circumstances from which he could conclude that the admission of the conversation would not be contrary to the interests of justice.
52. Similarly, R v JF [2009] ACTSC 104 was a case in which there had been an inadvertent failure to tape record a conversation. Referring with approval to the decision of Higgins CJ in R v Barklimore (2007) 167 A Crim R 377 at 391–392, at [66] Refshauge J observed that it was not enough under section 23 V(5) for the admission of a confession not to be contrary to the interests of justice; there must be special circumstances making it so. The evidence was excluded. At [71] and [72], his Honour referred to matters including the presence of other police officers, the fact that the confession was supported by forensic evidence, the fact that the breach was inadvertent and not deliberate, the fact that a police officer made a contemporaneous note and the fact that the admission was said to be of “vital importance” to the case. His Honour found that none of those matters amounted to “special circumstances”. I am not convinced that such matters could ever amount to “special circumstances”; it may be that a “special circumstance” must be a matter that relates to “the nature of and the reasons for the non-compliance”. However, that issue does not need to be decided in this case.
53. In this case, the conversation could easily have been recorded. Due to inadvertence, it was not recorded. No “special circumstances” justifying admission were identified. Consequently, s 23V makes the evidence inadmissible.
| I certify that the preceding fifty-two [53] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 22 September 2015 |
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