R v Watson; R v Palmer; R v Nicholas
[2017] ACTSC 363
•5 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Watson; R v Palmer; R v Nicholas |
Citation: | [2017] ACTSC 363 |
Hearing Date: | 4 December 2017 – 5 December 2017 |
DecisionDate: | 5 December 2017 |
Before: | Elkaim J |
Decision: | The Crown’s application to lead the refusal of Mr Watson to give his name as evidence of consciousness of guilt is refused. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Judicial Discretion to admit or exclude Evidence – whether the accused’s refusal to provide his name to police is indicative of a consciousness of guilt. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 211 and 212 Evidence Act 2011 (ACT) ss 138 and 139 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 11 |
Cases Cited: | Director of Public Prosecutions (NSW) v Horwood [2009] NSWSC 1447; 78 NSWLR 32 R v Barakat; R v Younes (No 2) [2016] NSWSC 1255 R v Pitts (No 1) [2012] NSWSC 1652; 229 A Crim R 387 |
Parties: | The Queen (Crown) Joshua Darcy Watson (Accused – Watson) Paul Arthur Palmer (Accused – Palmer) Daniel James Nicholas (Accused – Nicholas) |
Representation: | Counsel Ms R Christensen (Crown) Ms B Morrisroe (Accused – Watson) Mr J Sabharwal (Accused – Palmer) Mr A Doig (Accused – Nicholas) |
| Solicitors Office of the ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Accused – Watson) Aboriginal Legal Service NSW/ACT (Accused – Palmer) Darryl Perkins Solicitors (Accused – Nicholas) | |
File Numbers: | SCC 82 of 2017; SCC 83 of 2017; SCC 106 of 2017; SCC 107 of 2017 |
ELKAIM J:
On 4 December 2017, I was asked to deal with a preliminary point that was anticipated to arise in the course of the trial. On 5 December 2017, I refused leave to the Crown to lead certain evidence in its case against one of the accused, Mr Watson. These are the reasons for my decision.
The Crown wished to lead as evidence against Mr Watson his refusal to provide his name when asked to do so by a police officer. The question was asked when the police arrived at the scene of the alleged offence and spoke to the three accused, who they suspected had been involved in trying to break into a residence and harm or threaten the occupant.
The Crown submits that the evidence is relevant because it demonstrates a consciousness of guilt on the part of Mr Watson.
It is accepted that, at the time the question was asked, Mr Watson had already been cautioned and placed under arrest.
Ms Morrisroe submitted, on behalf of Mr Watson, that no inference could be drawn from his refusal to provide his name to the police. Mr Watson was doing no more than exercising his right to silence.
The Crown responded by relying on s 211 of the Crimes Act 1900 (ACT), which makes it an offence to refuse to provide a name and address when requested to do so by a police officer. Accordingly, this section overcomes any right to silence that a person might otherwise have possessed. The Crown submitted that it did not matter that the accused was already under arrest in respect of the crime being investigated.
Having formed a preliminary view contrary to the Crown, but acknowledging that the point was potentially significant, I allowed the Crown the benefit of the overnight adjournment to see whether any authorities existed on the point.
When the matter resumed on 5 December, the Crown referred me to the New South Wales Supreme Court decision of Fullerton J in Director of Public Prosecutions (NSW) v Horwood [2009] NSWSC 1447; 78 NSWLR 32 (Horwood), in which her Honour found that s 11 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) specifically abrogated the right to silence.
I do not, however, read Horwood as stating that the abrogation applies after the alleged offender has already been charged with another offence. Such a conclusion would be entirely inconsistent with the administering of a caution.
Ms Morrisroe referred me to two authorities to counter Horwood. In R v Barakat; R v Younes (No 2) [2016] NSWSC 1255 (Barakat), N Adams J said this, at [42]:
The decision of Director of Public Prosecutions (NSW) v Horwood is authority for the proposition that s 11 abrogates the right to silence to the extent that it requires a person to comply with a request for his or her identity. The decision is also authority for the proposition that, unless and until a person is arrested and charged with committing an offence, the person is obliged under s 11 to provide his or her identification even if he or she might be regarded as a suspect or potential suspect...
My reading of the above passage from Barakat is that her Honour is stating, consistent with my view, that s 11 does not apply if a person has already been arrested. I do not think that there is any tension between Horwood and Barakat because I do not see the former as suggesting that the abrogation of the right to silence is applicable after an arrest has been made.
The second case Ms Morrisroe referred me to is R v Pitts (No 1) [2012] NSWSC 1652; 229 A Crim R 387. I do not regard this decision as relevant to the issue before me.
In my view, the purpose of s 211 is to assist a police officer in arresting a person who he or she suspects of having committed an offence. It is a preliminary step to an arrest for the offence that is being investigated. This interpretation is, I think, consistent with the fact that the offence immediately precedes s 212, which dictates the powers of arrest of a police officer without a warrant. In other words, the offence created by s 211 should be seen as assisting a police officer in reaching a position where he or she is able to exercise his power of arrest under s 212.
Once the arrest has been effected, the right to silence has been generated and, in my view, cannot be undone by reliance on s 211.
This view is also consistent with the terms of the caution that was administered when the arrest was made. The caution involves a warning to the person that he or she does not have to say or do anything but that anything the person does say or do may be used in evidence. The caution would be of little value if its terms could be immediately contradicted by the commission of an offence under s 211.
The Crown also drew my attention to ss 138 and 139 of the Evidence Act 2011 (ACT). The Crown submitted that the objection to the evidence can only have been based on s 138. This section deals with evidence which has been improperly obtained.
Section 139 deals with cautions. Section 139(4) provides that the preceding subparagraphs in the section do not apply “so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official”. Thus, submitted the Crown, the restrictions on the use of evidence following a caution were not applicable because an Australian law, namely s 211 of the Crimes Act 1900 (ACT), required that the accused provide his name to police.
Ms Morrisroe did not concede that s 138 was the basis for her objection. Nevertheless, I think, procedurally, the Crown is probably correct, although the source of the objection must give way to the basic question of the admissibility of the evidence.
My conclusion is that s 211 is not applicable after a caution is given. The fact that the question was asked after the accused was arrested means that the Crown’s argument, derived from s 139, necessarily fails.
I note that the Crown, on its own initiative, did not specifically make an application for leave to adduce the evidence under s 138 because it did not concede that there had been any impropriety. Had an application been made, it would have been rejected. In my view, the right to silence is so fundamental that the evidence concerned would need to have been be so significant that the impropriety could be overlooked. That is certainly not the case here.
Finally, I also doubt that the accused’s refusal to provide his name to police could be viewed as a consciousness of guilt. The inference sought to be drawn from the refusal to provide a name rests on a very tenuous connection. The possible reasons for withholding a name are too numerous to allow for the inference that is sought to be drawn. Primarily, a person knowing that he, or she, has a right to silence could well adopt that right, taking the attitude that nothing should be said to a police officer.
Accordingly, the Crown’s application to lead the refusal of Mr Watson to give his name as evidence of consciousness of guilt is refused.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 6 December 2017 |
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