Tasmania v Goss
[2018] TASSC 20
•13 September 2016
[2018] TASSC 20
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Goss [2018] TASSC 20
PARTIES: STATE OF TASMANIA
v
GOSS, Christopher Michael
FILE NO: 197/2015
DELIVERED ON: 13 September 2016
DELIVERED AT: Hobart
HEARING DATE: 2 September 2016
JUDGMENT OF: Blow CJ
CATCHWORDS:
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Propriety of police questioning and other conduct by police – Administering caution – Particular cases – Incomplete caution – Arrested person not told of right not to say anything.
Evidence Act 2001 (Tas), s 138.
Aust Dig Criminal Law [2693]
REPRESENTATION:
Counsel:
State: A Shand
Accused: G Stevens
Solicitors:
State: Director of Public Prosecutions
Judgment Number: [2018] TASSC 20
Number of paragraphs: 25
Serial No 20/2018
File No 197/2015
STATE OF TASMANIA v CHRISTOPHER MICHAEL GOSS
REASONS FOR JUDGMENT BLOW CJ
13 September 2016
The accused, Christopher Goss, has pleaded not guilty to a charge of receiving stolen property. During March 2015 police officers visited his home and conducted a search. Inside a shed, which had been locked, they found a Kobelco excavator with two spare buckets and a pair of trailer ramps. The Crown contends that all these items had been stolen, that the accused had possession of them, and that he knew them to be stolen. On the day of the search, the accused was questioned by Sgt Adrian Leary, the officer in charge of the New Norfolk Police Station, first at his home and then at the Bridgewater Police Station. The interview at Bridgewater was audio-visually recorded. The Crown wish to tender an edited DVD recording of that interview on the trial, but counsel for the accused has objected. The accused was not given the usual caution. He made admissions during the interview at Bridgewater, but contends that the evidence of those admissions was improperly obtained, and that no evidence of the interview should be admitted. I agreed to make a determination as to the objection pursuant to s 361A of the Criminal Code before the empanelment of the jury.
At the beginning of the interview, Sgt Leary gave the accused a caution in the following terms:
"Um, before I ask you any questions in relation to these matters um, I will let you know that you are, you are being recorded, this interview's being recorded and anything that you say or do may be given as evidence for you [sic] in court."
He did not tell the accused that he did not have to say or do anything during the interview.
The accused was under arrest at the time of the interview. Sgt Leary, who conducted the questioning, was empowered to arrest him. In those circumstances, s 139(1)(c) provides that evidence of a statement made by a person during questioning is taken to have been obtained improperly if "before starting the questioning the investigating official [Sgt Leary] did not caution the person [the accused] 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".
Sgt Leary's caution was incomplete, in that he omitted to tell the accused that he did not have to say or do anything. The evidence of the admissions made by the accused during the interview must therefore be taken to have been obtained improperly. The Crown concedes that.
Section 138(1)(a) of the Evidence Act 2001 requires that evidence that has been obtained improperly "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".
The Crown contends that the desirability of admitting the evidence of the interview outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Counsel for the accused made a submission to the opposite effect.
Section 138(3) of the Evidence Act sets out a non-exhaustive list of matters that a court must take into account in deciding whether to admit improperly obtained evidence pursuant to s 138(1). It says this:
"(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."
The probative value of the evidence
During the interview the accused made admissions to the following effect:
· Police officers searched his premises that day (Tuesday, 17 March) pursuant to a warrant. He opened up the shed for them. They found an excavator in it.
· He paid $3,000 for the excavator on the Monday of the previous week.
· He believed the excavator was worth $10,000.
· He knew the people who stole the excavator.
· They were the ones who sold him the excavator.
· He found out that it was stolen mid-week, on the Wednesday.
· He found that out from a Facebook post.
· He panicked when he found that out.
· On 13 March he purchased roughly 13 cans of spray paint from Bunnings. That was about the time that he found out from Facebook that the excavator was stolen.
· The shed is usually locked.
Obviously this evidence, if admitted, will be highly probative. It amounts to a confession of guilt. It does not amount to a complete admission of the Crown's allegations since the Crown contends that the accused knew from the outset that the excavator was stolen, whereas he admitted having such knowledge only from the time of reading the Facebook post, some two days after he acquired the excavator.
The importance of the evidence in the proceeding
Without the impugned evidence, the Crown is in a position to adduce evidence of the following alleged facts:
· The property in question was stolen in Moonah between 5pm on Friday, 6 March and 12.15pm on Monday, 9 March.
· The police found the stolen property in the accused's locked shed on 17 March.
· When the police found the excavator it had recently been painted orange.
· In the shed the police found documents, apparently generated by cash registers, relating to the purchase of paint at Bunnings on 12 and 13 March 2015 by someone who used a debit card.
Without the evidence of the accused's admissions, the Crown would have to depend on circumstantial evidence. As Deane, Dawson, Toohey, Gaudron and McHugh JJ said in Doney v The Queen (1990) 171 CLR 207 at 211, "circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded". A jury could readily infer that the person who painted the excavator orange must have known that it was stolen. But a jury would have to consider the hypothesis that the accused innocently let a friend use his shed as a place to garage and repaint the excavator. If the evidence of the interview is excluded, and the Crown does not marshal additional evidence, a jury might not be prepared to exclude that hypothesis. However there is a chance that the Crown might be able to obtain evidence as to whose debit card was used to purchase the paint. Such evidence might or might not be available. If available, it is likely to incriminate the accused. In the circumstances, I think the Crown case would be greatly weakened if the evidence of the interview were not admitted.
The nature of the relevant offence and the nature of the subject-matter of the proceeding
The accused is on trial on a charge of receiving stolen property said to be worth about $45,000. However the fact that the stolen property has all been recovered is a factor that weighs in favour of the accused.
The gravity of the impropriety
The right to silence is fundamental. That is why the underlying policy of the relevant statutory provisions is that, whenever a person is questioned by a police officer or some other investigating official, that person should be warned that he or she is not obliged to say or do anything, and that anything said or done may be used as evidence.
The interview in question occurred after the accused had been arrested. He had not been brought before a justice of the peace. Under s 4(2)(a) of the Criminal Law (Detention and Interrogation) Act 1995, Sgt Leary had the right to detain him for a reasonable time after he was taken into custody for the purposes of questioning him. At common law a police officer had no such power. Tolerating any impropriety relating to the rights of a person so arrested and detained would tend to undermine the rights of all citizens, including innocent people wrongly suspected of committing offences.
All other things being equal, a one-off failure to give a proper caution is less serious than a failure to give a proper caution that forms part of a pattern: Director of Public Prosecutions v Marijancevic [2011] VSCA 355, 219 A Crim R 344 at [65]. Sgt Leary gave evidence on the voir dire. Under cross-examination he said that there had been a case in which one of his subordinates had conducted an interview in August 2014 without giving any caution, and the evidence of that interview had been objected to. As I said earlier, Sgt Leary questioned the accused at his home before the video-recorded interview at the Bridgewater Police Station. He made an audio recording of that initial questioning. At the beginning of that questioning, Sgt Leary told the accused that the conversation was being audio-recorded, and that anything he said "may be given as evidence", but he did not tell him that he was not obliged to say or do anything. The failure to give a proper caution during the video-recorded interview was not a one-off mistake. It was part of a pattern. And it makes matters worse that the officer responsible was a long-serving sergeant in charge of a country police station, who should be setting a good example for officers junior to him. He has been a police officer for 28 years.
However there is a body of evidence that tends to suggest that the accused may have been well aware of his right not to answer questions. During the interview in question, he responded to dozens of questions simply by saying, "No comment." He declined to tell Sgt Leary the name of the person who first contacted him about purchasing the excavator. On the day in question, before the interview I am concerned with, he was interviewed twice in relation to drugs by another police officer, and given a full caution each time. He was certainly willing to please himself as to whether he answered Sgt Leary's questions. However, he may not have been aware that he had the right not to answer questions about the receiving of stolen property, especially if he noticed that Sgt Leary did not tell him anything about not having to say anything. I have no evidence as to whether he noticed that or not. He may very well have been unclear about his right to remain silent.
Late in the interview, in a passage that the Crown proposes not to rely upon at the trial, Sgt Leary questioned the accused about a Toyota Landcruiser. Before questioning him on that subject he said, "I'll remind you of the earlier caution that you don't have to say anything but then anything you do or say will be electronically recorded." That caution differed from his earlier one since he had not previously told the accused that he did not have to say anything. It was still incomplete, in that he did not tell the accused that he did not have to do anything, as distinct from not having to say anything. By that stage, the accused had made all of the significant admissions about the stolen property, except for the admission that he kept the shed locked. That admission came later.
Whether the impropriety was deliberate or reckless
Sgt Leary gave evidence that he did not deliberately omit to tell the accused that he did not have to say or do anything. He was an unimpressive witness. He tried to make light of his impropriety. When asked about it during his evidence-in-chief, he said, "It was brought to my attention that there was a small omission in part of the caution." He went on to say that he subsequently made efforts to be more cautious. Under cross-examination he said, "There was a slight omission in the caution on my behalf that has since been addressed." The cross-examiner gave him the opportunity to say that his words "small" and "slight" referred only to the number of words omitted, and not to the significance of the omission. He took up that opportunity, and said that that was what he had meant. I do not believe him. I think he was trying to create an impression that his omission was not particularly serious. He has not succeeded.
However the words uttered by Sgt Leary when he began to question the accused about the Landcruiser indicate that he really had no idea that he had not previously told the accused anything about his right to silence. The words of his reminder lead me to accept that the critical omission was due to carelessness. His reminder was deficient in other ways. As well as omitting to tell the accused that he did not have to do anything, he also omitted to tell him that anything he said or did could be used as evidence. It is clear that he was very careless about cautions that day, paying remarkably little attention to what he said, and to what he was supposed to say. In the circumstances I accept that his impropriety was not deliberate, but he had a lamentable attitude of reckless indifference in relation to cautions.
International Covenant on Civil and Political Rights
The impropriety was not contrary to or inconsistent with a right recognised by the International Covenant on Civil and Political Rights. That instrument contains provisions as to fair and prompt trials, but not as to pre-trial interrogation. There is a provision that, in the determination of any criminal charge, everyone shall be entitled to a guarantee "Not to be compelled to testify against himself or to confess guilt": Part III, Article 14, par 3(g). However there is nothing in the instrument about a pre-trial right to silence.
Other proceedings
To the best of my knowledge no other proceeding has been or is likely to be taken in relation to Sgt Leary's impropriety. He gave evidence that there is a requirement in the Police Manual for any caution to include a warning that the interviewee is not obliged to say or do anything. However I have no reason to think that disciplinary proceedings against him are likely.
The difficulty of obtaining the evidence without impropriety
Sgt Leary could have given the accused a proper caution without any difficulty at all. In my view there is only a small chance that the accused would have said nothing, or said less, if properly cautioned.
Conclusion
There are certainly matters that weigh in favour of admitting the evidence of the interview. However because of the importance of the right to silence, the fact that the accused had been arrested and detained for questioning in the exercise of a statutory power, and the pattern of carelessness and indifference displayed by Sgt Leary, I am not persuaded that the desirability of admitting this evidence outweighs the undesirability of admitting evidence that has been obtained in the way this evidence was obtained. I therefore determine that the evidence of the interview is not admissible.
For reasons relating to the listing of cases, it is evident that the trial of the accused is likely to have to proceed before another judge. A trial is deemed to begin when the accused is called upon to plead: Criminal Code, s 351(6). I will therefore abort the trial that began when the accused pleaded not guilty before me. My determination in relation to the interview will have the same status for the purposes of a new trial before another judge as it would have had if the trial of the accused had proceeded before me: Criminal Code, s 361A(2).
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