Tasmania v Challender
[2007] TASSC 58
•8 August 2007
[2007] TASSC 58
CITATION: Tasmania v Challender [2007] TASSC 58
PARTIES: TASMANIA, STATE OF
v
CHALLENDER, Ann Elizabeth
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 419/2006
DELIVERED ON: 8 August 2007
DELIVERED AT: Launceston
HEARING DATE: 2 August 2007
JUDGMENT OF: Blow J
CATCHWORDS:
Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Discretion to exclude – Interview conducted following prior conversation between accused and police officer – Circumvention of statutory obligations – Failure to interrupt interview when accused asked to communicate with legal practitioner.
Criminal Law (Detention and Interrogation) Act 1995 (Tas), s6(2).
Evidence Act 2001 (Tas), ss90, 138(1)(a).
Aust Dig Criminal Law [491]
REPRESENTATION:
Counsel:
State: J P Ransom
Accused: M J Brett and A J Hall
Solicitors:
State: Director of Public Prosecutions
Accused: C N Dockray
Judgment Number: [2007] TASSC 58
Number of paragraphs: 23
Serial No 58/2007
File No 419/2006
STATE OF TASMANIA v ANN ELIZABETH CHALLENDER
REASONS FOR DETERMINATION BLOW J
8 August 2007
The accused has pleaded not guilty to two counts of trafficking in controlled substances contrary to the Misuse of Drugs Act 2001, s12(1). Count 1 relates to cannabis resin. Count 2 relates to MDMA, otherwise known as ecstasy. Police officers searched her home, found drugs, and arrested her on 16 December 2005. She was interviewed at Launceston Police Headquarters later that day. The interview was recorded on a DVD. Defence counsel have objected to two passages in the interview. Pursuant to the Criminal Code, s361A, I have decided to determine prior to the empanelment of the jury whether or not those passages should be admitted. The first passage relates to an admission made by the accused during an earlier conversation that was not electronically recorded. The second relates to questions asked and answers given in the course of the interview after the accused had indicated that she wanted to speak to a lawyer.
The evidence as to an unrecorded admission
On the day in question, the accused was arrested at about 9:15am by Senior Constable Jordan, who was then a member of the Northern Drug Investigation Service stationed in Launceston. He was the holder of a search warrant issued under the Misuse of Drugs Act. Apparently he arrested and detained the accused under s33 of that Act. She was placed in the cells at Launceston Police Headquarters at 9:47am. At about 1:45pm, Mr Jordan went to the cells to collect her and bring her upstairs for the interview that was recorded on the DVD. That interview commenced at 2pm.
Before going upstairs, while waiting for a custody sergeant to become available, Mr Jordan took the accused into a garage area where smoking was permitted, and had a conversation with her. He gave evidence about that conversation on the voir dire, as follows:
"We were outside waiting in the entrance to the remand centre to the charge room. I had a cigarette while I was out there and I believe the accused had a cigarette with me. We had a short conversation about the process that was going to take place in relation to the interview and I informed her that there were a number of exhibits that were located and that was what I intended to ask her about. During that conversation she did say to me that she'd only sold a few eccies to a few of her mates. I told her, 'We don't want to talk about that here. We'll put it on the video interview and sort the matter out up there'."
During the recorded interview, when asking questions about ecstasy, Mr Jordan asked the accused whether, at the time of that conversation, she had said, "Look, yep I sell a few to me friends. I get about 50 a week and that's all I'm doing." She confirmed that she did say that, and that that was the truth.
The Crown wishes that part of the recorded interview to go to the jury, but does not propose to adduce direct evidence of the unrecorded conversation. Counsel for the accused submitted that that part of the recorded interview should be held inadmissible or excluded. First, he argued that it was inadmissible because of the provisions of the Evidence Act 2001, s85A(1). Under that provision, subject to certain exceptions, evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning is not admissible unless it is audio-visually recorded. What the accused told Mr Jordan during the unrecorded conversation certainly amounted to an admission, as does her confirmation of that admission in the recorded interview. This is certainly a proceeding for serious offences. But I doubt that the unrecorded conversation amounted to official questioning for the purposes of s85A(1). I have no evidence that Mr Jordan asked the accused any questions during that conversation. He said that he did not. He spoke to her about arrangements for official questioning that was about to commence upstairs.
The meaning of the phrase "in the course of official questioning" in the predecessor of s85A, the Criminal Law (Detention and Interrogation) Act 1995, s8, was considered by the High Court in Kelly v R (2004) 218 CLR 216. The appellant in that case urged the adoption of a broad interpretation of that phrase. At 235, Gleeson CJ, Hayne and Heydon JJ, said:
"... a major difficulty with the appellant's broader construction is that by seeking to include 'any words' spoken between the suspect and the police officer, it gives no weight to the requirement that there be questioning. The appellant's broader construction means that s8 of the Act applies where a police officer says to a suspect – 'Let us go to the police station so that I can ask you some questions. I do not propose to question you until we get there' – and the suspect then volunteers a confession. An event cannot be said to have taken place 'in the course of official questioning' if the official nominates a future time when that course of questioning will commence, and the event happens before that time."
In the light of that comment, I am inclined to think the unrecorded conversation should be regarded as something that occurred before the start of official questioning, even though it was a conversation about forthcoming official questioning.
Defence counsel also submitted that the evidence should be excluded on the ground of unfairness, relying on the Evidence Act, s90. That section reads as follows:
"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."
When Mr Jordan had the unrecorded conversation with the accused, he had not cautioned her. That is to say, he had not told her that she was not obliged to say anything, nor that anything she said could be used in evidence. Furthermore, at the time of the unrecorded conversation, the accused had not had an opportunity to contact a friend, relative or lawyer. In order to determine whether it would be unfair to the accused for the Crown to use the evidence as to the admission made in the unrecorded conversation, it is necessary to consider the legislative provisions relating to the cautioning of arrested persons, and the right to contact a friend, relative or lawyer.
Under the Evidence Act, s138(1), evidence that was obtained improperly, or in consequence of an impropriety, is not admissible unless the Court decides that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which that evidence was obtained. By virtue of s139(1), evidence of a statement made by an arrested person to a police officer during questioning is taken to have been obtained improperly if "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". There is nothing in the relevant provisions as to the timing of a caution in the situation where there is a substantial delay between an arrest and the subsequent start of police questioning.
Under the Criminal Law (Detention and Interrogation) Act, s4(2)(a), every person who has been taken into custody may be detained by a police officer "for a reasonable time after being taken into custody for the purposes of questioning the person, or carrying out investigations in which the person participates, in order to determine his or her involvement, if any, in relation to an offence". That provision applied to the accused once she had been arrested. When a person is detained under that provision, he or she has the right to communicate with a friend or relative, and with a legal practitioner, pursuant to s6 of that Act. That section reads as follows:
"6 (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."
Nothing in s6(3) is relevant to this case.
Mr Jordan offered the accused an opportunity to contact a friend or relative, and a legal practitioner, before commencing the recorded interview. He was unable to say whether or not he made that offer before she made the unrecorded admission. She elected to contact her father, and spoke to him by telephone, but that was after she had made the unrecorded admission. She did not elect to contact a legal practitioner before the start of the recorded interview.
Mr Jordan gave evidence to the effect that he had an unrecorded preliminary conversation every time he interviewed someone, outlining the interview process and what was going to happen. He said that he would tell them what they were going to be asked about. He said that he had been in the job 10 years now. He said that individuals may have responded to things said by him outside the interview room on the odd occasion, but very rarely. He also said that that may have happened on a couple of occasions. He is now a prosecutor. But it seems that it was his practice for many years to initiate unrecorded preliminary conversations with arrested or suspected persons, during which the subject matter of their forthcoming interviews was outlined.
The legislative provisions as to the audio-visual recording of police interviews were introduced in order to make it impossible for police officers to invent, or be accused of inventing, evidence as to verbal admissions by accused persons in unrecorded conversations. The legislation as to cautions, and opportunities to contact friends, relatives and lawyers, was introduced to protect the rights of persons in police custody, particularly their right to silence. In Tasmania, the statutory right to communicate with a friend, relative or legal practitioner was conferred at a time when police powers of detention and interrogation were extended. In my view the effect of Mr Jordan's practice of holding unrecorded preliminary conversations with persons in custody is to undermine or circumvent the provisions that Parliament has made for the protection of persons in custody in the pieces of legislation that I have referred to. Individuals taking part in such conversations are likely to incriminate themselves in the course of a friendly chat, perhaps over a cigarette. They might not realise that the conversation is not "off the record". Not having had the opportunity to speak to a friend, relative or legal practitioner, they might not fully appreciate the wisdom of remaining silent. They are likely to be anxious, and not well placed to decide for themselves how much or how little they should say. Whether entrapment is intended or not, the initiation of an informal, friendly, one-to-one conversation about the subject matter of an investigation in such circumstances is likely to encourage anxious individuals to make admissions that they would not make in the more formal setting of a recorded interview. In those circumstances, I think that Mr Jordan's practice of conducting such conversations, and his conducting of such a conversation with the accused in particular, was unfair.
There are a number of factors that may be relevant to the exercise of the discretion to exclude the impugned evidence under s90. Without evidence of the admission by the accused, the Crown has evidence of a trafficable quantity of MDMA being found in her possession. She will no doubt bear the burden of proving on the balance of probabilities that she did not have possession of any of the MDMA for the purpose of trafficking: Misuse of Drugs Act, s12(2). The impugned evidence, if admitted, would make it harder, or perhaps impossible, to discharge that burden of proof. The evidence therefore has significant probative value, but is not critical to the Crown case. The crime charged is serious, but the quantity of drugs seized was not enormous. Mr Jordan's unfair practice was one that was likely to frustrate the will of Parliament as to the fair treatment of persons in custody, but not in every case. I am not in a position to make a finding that he fully appreciated this. Taken at face value, his answers in cross-examination would suggest that he had no inkling that his practice involved the slightest unfairness, but I do not think that is the true position. In my view there was an element of cunning behind the adoption of his practice, but I doubt that he fully appreciated how evil his practice was, and am not in a position to make any stronger criticism of his motives.
Taking those matters into account, my conclusion is that, having regard to the circumstances in which the accused's admission was made, it would be unfair to her to use the evidence of that admission, and the evidence relating to that admission, and that I should refuse to admit that evidence pursuant to s90.
Questioning after the accused wanted to see a lawyer
The recorded interview with the accused lasted 70 minutes. She freely answered most of the questions of Mr Jordan and another officer, Sgt Keane. She seemed relaxed and confident during most of the interview. There were some questions that she elected not to answer. On a couple of occasions she made statements to the effect that she would like to see a lawyer at some stage after the interview. When Mr Jordan asked her questions about her admission during the unrecorded conversation, he went on to ask where she had got her ecstasy from. In response she said the following:
"No comment. No comment. We're not going any further please. I'd really like to see a lawyer or my Dad or something at the moment. I'm feeling really under pressure. I'd just really like, I'm actually just asking you please."
She also said that she was uncomfortable. However, Mr Jordan proceeded to ask her further questions. Eventually Sgt Keane said to Mr Jordan, "Do you want to let her speak to a lawyer?" Mr Jordan replied, "Yep." Sgt Keane then offered to stop the interview so that she could contact a lawyer, but she elected to proceed with the interview, making no comment in response to many of the subsequent questions.
Her counsel has objected to the admission of part of the interview, from the stage where she said that she would really like to see a lawyer, up to the point where she elected to proceed with the interview. He submitted that the accused had requested to communicate with a legal practitioner; that the police officers were therefore obliged to defer the questioning to enable her to make that communication by reason of the Criminal Law (Detention and Interrogation) Act, s6(2); that s6(2) was contravened; that the evidence in question was therefore obtained improperly and in contravention of an Australian law; and that the evidence should therefore be excluded pursuant to the Evidence Act, s138(1)(a). On behalf of the Crown, Mr Ransom submitted that the passage I have quoted should not be interpreted as a request to communicate with a lawyer. He submitted that the accused's subsequent decision not to interrupt the interview to communicate with a lawyer indicated that the words I have quoted were not intended as a request to communicate with one.
I disagree. I think the accused changed her mind. I think she was asking to be allowed to contact a lawyer when the interview had become difficult as a result of Mr Jordan mentioning the admission that she made during the earlier unrecorded conversation, but that she changed her mind and decided to proceed with the interview after Sgt Keane started treating her more fairly by offering to interrupt the interview and let her speak to a lawyer. It follows that the asking of questions during the relevant part of the interview was something prohibited by s6(2). The evidence in question was obtained improperly and in contravention of an Australian law. Under the Evidence Act, s138(1)(a), it is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence that has been obtained in such a way.
The impugned evidence, if admitted, would not be particularly significant. The accused declined to answer some of the questions she was asked. She repeated something she had said earlier, namely that some money found by police officers in her underwear had been won by her at a casino. She went into detail as to the availability of documents to prove that she had won it. She said that a message received by her mobile phone from someone called Matteo would have come from Matt Newton, who lived in her house. She agreed that the message, which read, "Want to sell a fitty" was referring to a "fifty". She said she had seen the message. She said that she did not recognise a telephone number that appeared in another message from "W B Sam". She said she did not know a Sam, but conceded that Sam probably knew her. She said she did not know who had sent that message, which asked, "How you're going with that stuff?" She said that some drawings in a little black book were her art work. She identified some writing in the book as hers. After that, there were a number of further questions, but she declined to answer any of them.
I take the following matters into account under s138(3). The evidence that I have summarised tends to suggest involvement in trafficking, though not in any particular drug or drugs. It seems to me to have little probative value or importance. I take into account the fact that this is a trafficking case, and that the defence of the accused to each charge seems to be that she was a drug user not engaged in trafficking. As to the gravity of the impropriety or contravention in question, I think that Mr Jordan's persistence in questioning the accused was a blatant and unforgivable contravention of s6(2), but I note that it did not continue for long. It is easy to imagine worse transgressions. But he was well aware that interviewees are entitled to communicate with lawyers, even during interviews. I therefore infer that his contravention was deliberate rather than reckless. There is no provision relevant to this objection in the International Covenant on Civil and Political Rights. There is no likelihood of any other proceeding being taken in relation to the impropriety or contravention. Obtaining the evidence in question in a proper manner would probably not have been difficult. I take all of these matters into account.
Especially since the evidence in question is of little weight, I am not persuaded that the desirability of admitting it outweighs the undesirability of admitting evidence obtained in the way in which it was obtained. Therefore, in accordance with s138(1), it will not be admitted.
Conclusion
For the above reasons, I have decided not to admit any of the evidence that defence counsel has objected to.