State of Tasmania v Comerford

[2009] TASSC 14

[2009] TASSC 14

CITATION:              State of Tasmania v Comerford [2009] TASSC 14

PARTIES:  TASMANIA (STATE OF)
  v
  COMERFORD, Guy

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Criminal
FILE NO/S:  402/2008
DELIVERED ON:  18 February 2009
DELIVERED AT:  Hobart
HEARING DATE:  17, 18 February 2009
JUDGMENT OF:  Slicer J

(Edited edition of oral ruling)

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Generally – Assessment of whether the desirability of admitting evidence outweighs the undesirability of its admission is a balancing exercise.

Evidence Act 2001 (Tas), s138.
Criminal Law (Detention and Interrogation) Act 1995 (Tas), ss6, 15.
Cleland v R (1982) 151 CLR 1; Foster v R (1993) 67 ALJR 550; Pollard v R (1992) 176 CLR 177, applied.
Sims v Thomas [2007] TASSC 106, followed.
R v Em [2003] NSWCCA 374, referred to.
Aust Dig Criminal Law [425]

REPRESENTATION:

Counsel:
             Prosecution:  L A Mason
             Accused:  D New and L Fox
Solicitors:
             Prosecution:  Director of Public Prosecutions
             Accused:  Wallace Wilkinson & Webster

Judgment Number:  [2009] TASSC 14
Number of paragraphs:  21

Serial No 14/2009
File No 402/2008

STATE OF TASMANIA v GUY COMERFORD

RULING GIVEN DURING TRIAL  SLICER J

18 February 2009

1. The defence seeks the exclusion of evidence of the making of and contents of an interview conducted between investigating officers and the accused on 19 May 2007.  At about 3.30am uniformed police were called to an incident near a nightclub in the Salamanca area of Hobart.  There had been an altercation within one nightclub which had resulted in the eviction of the accused.  In his record of interview he told police that he had stumbled or tripped whilst on a raised podium on the first floor of a nightclub.  He claimed to have been assaulted and dealt with in an improper manner by "crowd controllers" employed by the Chubbs.  He told police that he had been injured in the course of the eviction and injuries were observed by arresting and detaining police following his eventual arrest.

1. The accused is said to have struck a particular crowd controller, identified by him, immediately after the incident.  Fearing retribution he had run some distance to a second nightclub seeking aid.  Police were called to the scene and detained the accused.  He was initially handcuffed but they were removed soon after.  Attending police were of the opinion that he was intoxicated.  He was taken to the Hobart Police Station, under arrest, and presented to the custody officer.  He had been informed of the purpose of detention but not advised at the scene or on the journey to the police station of any right to notify friend or family, or seek the advice of a legal practitioner.  At the time he was presented to the custody officer, the arresting officer did not believe that it was appropriate to interview him at that stage.  She did so, understandably, because of her belief of his state of sobriety. 

1. The custody officer recorded and processed the requisite documentation concerning his detention.  In doing so, she recorded in a computer-based system, the fact of the detention, its reason and recorded that she had advised the accused of his right to contact a friend or relation of his status.  The custody officer has no precise recollection of the particular procedure but relies upon the recorded information.  The computer generated detention document records that she advised him of his right to notify a friend or member of his family.  She did not, consistent with her practice and procedure, advise him of his right to seek legal counsel.  Given that she was processing a detention and not involved in an interview process, she did not turn her mind to the provisions of the Criminal Law (Detention and Interrogation) Act 1995 ("the Act"), s6, of the mandatory requirement to advise him of his right to counsel. Mr Comerford was detained in custody and transferred to the watch house cells.

1. The attending police officers returned to the scene of the event and made further inquiries.  They became aware that the injury suffered by the complainant was significant and required medical attention and admission to a hospital for observation. 

1. The detainee complained of injury and an ambulance was called to assess the extent of those injuries and the possible requirement to have him further treated.  The advice provided was that he could remain detained at the police station. 

1. The arresting officer formed the view that the nature of the injury suffered by the complainant warranted referral to the CIB or criminal response unit.  A briefing note and associated documentation were collated and placed in the CIB inbox.

1. There were some alterations made to the arrest and detention documentation which evidenced that the future responsibility for investigation and determination was for another section of Tasmania Police.  The advice of a senior officer, an Inspector, was sought in relation to the upgrading of the charge from that of simple assault to one of criminal assault, contrary to the Criminal Code, s184. Responsibility for the further investigation and decision of disposition became that of a Detective Constable of the CIB or the criminal response team.

1. Shortly before 12 midday, Mr Comerford was removed from the holding cells and taken to an interrogation room for questioning. He was not advised of his right to counsel as provided by the Act, s6. Section 6 provides:

"(1)   Before any questioning or investigation under section 4 may commence, the police officer conducting the investigation must inform the person in custody that he or she —

(a)may communicate with, or attempt to communicate with, a friend or relative to inform the friend or relative of the whereabouts of the person in custody; and

(b)may communicate with, or attempt to communicate with, a legal practitioner.

(2)    Where a person in custody requests —

(a)to communicate with a friend or relative to inform that person of his or her whereabouts; or

(b)to communicate with a legal practitioner; or

(c)to communicate with a friend or relative to inform that person of his or her whereabouts and with a legal practitioner —

the police officer conducting the investigation must, subject to subsection (3), defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication."

1. The interview was conducted between 12.01pm and 12.24pm and recorded by video.  The interviewing officer properly warned the accused that he was not required to make answers to the questions.  That warning was in proper form.  However, neither of the interviewing or investigating officers advised the detainee of his right to counsel.  During the interview Mr Comerford gave an account stated above and admitted that he had struck the crowd controller once by hitting him with his fist. 

1. At the conclusion of the interview, Mr Comerford was taken before another custody officer for processing.  In the meantime he had his fingerprints taken and a sample of DNA collected for future forensic examination.  The custody officer completed the appropriate documentation at approximately 1pm and recorded that he had afforded Mr Comerford the opportunity to notify friend or family and facilitated phone connection to enable such to be done.  That custody officer did not make inquiries as to the right to contact counsel.  It was not necessary at this stage for him to have done so.

1. No officer involved in the course of the varying processes sought to comply with the requirement of the Act, s6(1), each believing that such notice or advice would be provided by another involved in the chain of processes.

1. The defence claims that the flawed procedures were a result of carelessness or indifference to a statutory right.  I would prefer to regard the lapse as being a product of systemic failure resulting from a decision to change responsibility for the further investigation from one police unit to another, compounded by the physical state of the detainee which deferred the interviewing process.  Each thought that the responsibility was that of another or at least followed only the steps they believed to be appropriate at the particular stage of the processing.  Irrespective of that view, it remains clear that no advice, mandated by Parliament, was provided to the detainee before interview.

1. The State concedes procedural failure but contends that the evidence of the interview and, in particular, the admission, ought, as a matter of discretion, be admitted.  I do not accept that position. 

1. Mr Comerford had come to Hobart in the course of his employment.  He had been here for some two to three days.  These events occurred in the early hours of the morning.  It is fair to say that he was unlikely to know of resources available for the provision of legal advice or his rights to defer interview until counsel could be obtained.  He was unlikely to have had access to his own lawyer, assuming that he had one for other purposes.  He was unlikely to know of the provision of a duty solicitor.  It would have been possible to provide legal counsel during the hours preceding the interview. 

1. The Evidence Act 2001, ss90 and 138, provide for factors governing the exercise of discretion. The onus is on the prosecution to show affirmatively that the discretion ought be exercised in favour of admission. The Evidence Act relevantly provides:

"90 —  Discretion to exclude admission

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if –

(a)  the evidence is adduced by the prosecution; and

(b)  having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

…

138 — Discretion to exclude evidence improperly or illegally obtained

(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 —  

is not to 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.

(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 that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)    Without limiting the 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; 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."

1. I do not regard the conduct of the various officers as that of wilful deception or misconduct. There is some confusion in the Act of the varying phases of investigation. The Act refers to the investigative officer, rather than the interviewing officer. Here there were two "investigators", namely the original attending officers and, at a later stage, investigators from the crime response unit. The primary interviewing officer was also the investigating officer at the later stage of the investigation. It could be said that there were two phases of investigation, namely the original arrest and possible outcome of "charging up" the complaint from that of simple assault under the Police Offences Act 1935 to criminal assault under the Code. Certainly there was a process where both the custody officer and a senior Inspector were involved in the "upgrading" of the charge.

1. The complaint brought before the Court of Petty Sessions at 5pm on 19 May was that of an assault contrary to the Code, s184. The Act itself fundamentally changed the historic law and procedures relating to detention, detention for investigation, holding and deferring inquiry, the taking of physical samples, and, importantly, the power to defer access to counsel under certain circumstances. Where a person requests access to counsel and is refused, there are further required processes to record that refusal and the reasons for its making (s15(3)(b)). That process is mandatory. The person detained may not know of the right to counsel and, accordingly, is unable to understand that a request for the provision of counsel can only be refused under certain circumstances. The Act seeks to provide a balance between powers afforded to police officers and the right of a citizen to silence, refusal to take part in an interview, access to counsel, and the right to request.

1. Here the varying processes, complicated by difficulties in recording due to the nature of the computer program in the method of recording, compounded the difficulties associated with the statutory protective devices and procedures.  The State contends that the seriousness of the charge itself warrants a favourable exercise of inclusion.  Whilst the injury suffered by the complainant appears to have been significant, it could not be said that the delivery of one blow, in the circumstances here, constituted criminal conduct of great import.  The intoxication of the offender was, in the opinion of the arresting officer, sufficiently advanced so as to warrant deferment of interview.  The initial advice given by the custody officer was incomplete and, given the state of the detainee, may not have been remembered some hours later.  Even so, the advice did not include the right to counsel.  It would have been more appropriate to have provided that advice either whilst the detainee was in the holding cells or, more conveniently, between the time he was removed from those cells and taken to the interview room.

1. The Court accepts that different criteria apply to the application of the Evidence Act, ss90, 138. It accepts the approach taken by Evans J in Sims v Thomas [2007] TASSC 106, which, in turn, followed the interpretation given to those provisions by the Court of Criminal Appeal in R v Em [2003] NSWCCA 374 and R v Camilleri (2007) 169 A Crim R 197. Time does not permit, in the circumstances giving rise to this ruling, detailed analysis of the approach taken. The Evidence Act, s138, provides for exclusion on the basis of public policy and interest. It follows a line of authority in Driscoll v R (1977) 137 CLR 517; Cleland v R (1982) 151 CLR 1; Williams v R (1986) 161 CLR 278. Section 90 restates the historic and general principle on the competing factors of reliability, fairness and cogency as stated in Foster v R (1993) 67 ALJR 550; Pollard v R (1992) 176 CLR 177 and R v Swaffield (1998) 192 CLR 159. In many cases the two foundational questions become entwined as here. In this determination the evidentiary requirements or factors have greater import but the position of the accused, the circumstances of his detention and his inability to obtain advice at a place different from his normal residence, remain relevant to the exercise of discretion afforded by s90.

1. I accept the probative value of the evidence but note that the prosecution has other direct evidence in support of its case.  I do not regard the conduct of the relevant officers as reprehensible but the failure could be said to be careless, or the omissions a product of inadequate recourse to safeguards.  It would have been easy to provide the advice and if necessary facilitate the request before 12 midday.  I do not wish to elevate my use of the word "systemic" beyond its import here.  Relevant to the factor identified by the Evidence Act, s138(3)(g), is the possible confusion created by the wording of the Act, s6. Primary responsibility might be with the officers conducting the "official questioning" (Kelly v R (2004) 218 CLR 216) but notice given at an earlier stage might suffice. These events occurred in May 2007 and the potential difficulty might have been recognised during the preliminary examination of witnesses conducted in July and October 2008. In October, the office of the Director of Public Prosecutions provided advice to the Commissioner of Police which included the necessity for the interviewing officer to provide the notice to a suspect and of its recording. That advice has been circulated throughout police districts by the Assistant Commissioner of Police. That distribution ought provide a remedy to the systemic problem identified here. In relation to the Evidence Act, s138(3)(h), there would have been little, if any, difficulty in conducting the interview or the obtaining of evidence without providing the advice to the accused.

1. For these reasons, the evidence of the conduct and contents of the interview will be excluded on the trial.