Tasmania v Hall

[2013] TASSC 75

[2013] TASSC 75

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Tasmania v Hall [2013] TASSC 75

PARTIES:  TASMANIA, State of
  v
  HALL, David Michael

FILE NO:  148/2013
DELIVERED ON:  11 December 2013
DELIVERED AT:  Burnie
HEARING DATE:  28, 29 November 2013
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Other cases – Dishonest misrepresentations as to consequences of confession – Discouragement from seeking legal advice – Pressure to confess.

Evidence Act 2001 (Tas), ss85, 90, 138.
Aust Dig Criminal Law [2701]

REPRESENTATION:

Counsel:
             State:  H Mannering, J Dennison
             Accused:  T K Jago SC
Solicitors:
             State:  Director of Public Prosecutions
             Respondent:  G A Richardson

Judgment Number:  [2013] TASSC 75
Number of paragraphs:  34

Serial No 75/2013
File No 148/2013

STATE OF TASMANIA v DAVID MICHAEL HALL

REASONS FOR DETERMINATION  BLOW CJ

11 December 2013

1. On 28 November 2013 the accused was arraigned and pleaded not guilty to four charges of unlawfully setting fire to vegetation contrary to s268A of the Criminal Code.  The charges related to four small fires in the Ulverstone area on consecutive days in February 2013.  Immediately after the empanelment of the jury, I was asked to determine an objection to the admissibility of evidence of a police interview.  Police officers conducted two interviews with the accused.  Both were audio-visually recorded.  The objection related to the whole of the second interview.  After taking evidence on the voir dire from the two interviewing officers and the accused, I decided, on 29 November, not to admit the evidence of the second interview.  Thereupon the Crown offered no evidence.  The accused was acquitted.  These are my reasons for deciding not to admit the evidence of the second interview.

1. In that interview, the accused said that he had lit each of the four fires to which the charges related.  His counsel objected to the admission of the evidence in question on the following bases:

·     Relying on the Evidence Act 2001, s85(2), she submitted that the evidence of admissions made by the accused during the second interview was not admissible because the circumstances in which the admissions were made were such as to make it likely that the truth of the admissions was adversely affected.

·     She submitted that, at the time of the second interview, although the accused had not been formally told that he was under arrest, he was in fact under arrest, and that Detective Senior Constable Poke (as he then was) had contravened the Criminal Law (Detention and Interrogation) Act 1995, s6(1). That subsection requires the officer conducting an investigation to inform an arrested person that he or she is allowed to communicate with a friend, relative or legal practitioner.

·     She submitted that the evidence in question was therefore obtained in contravention of an Australian law, or in consequence of such a contravention; that the Evidence Act, s138, therefore applied; and that none of the evidence should be admitted because the desirability of admitting it did not outweigh the undesirability of admitting evidence that had been obtained in the ways in which this evidence was obtained.

·     Relying on the Evidence Act, s90, she submitted that, having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use any evidence as to his admissions.

1. The first of the two recorded interviews took place on 7 February 2013, the day of the fourth fire.  On that occasion the interviewing officers were Mr Poke and Detective Senior Sergeant Wilkinson.  Both detectives were from the Devonport CIB.  Mr Poke asked most of the questions.  The interview lasted 95 minutes.  There was unusually robust questioning from Mr Poke, who repeatedly asserted that he believed the accused had lit the four fires in question and several others, and that the accused was lying about his innocence.  The accused consistently denied lighting any of the fires.

1. The second interview was on 13 February 2013.  The interviewing officers on that occasion were Mr Poke and Senior Constable Rachel Martin, a uniformed officer stationed at Ulverstone.  She had done some good detective work, getting some security camera footage from the shop at Gawler, and finding footage of a car resembling the accused's car going towards the scene of the second fire, and coming back again, at times consistent with the driver being responsible for that fire.  She had printed out still images showing the vehicle in question. Ms Martin provided those images to Mr Poke.  He decided to re-interview the accused, together with Ms Martin. 

1. Mr Poke did not have any cogent evidence linking the accused with any of the fires.  A number of people had informed the police that they had reason to suspect him of lighting them; a car that could have been his was depicted in the footage from the Gawler shop; and there was information suggesting that he had a financial motive for lighting them since he was an impecunious volunteer fire-fighter who would get paid every time he helped to put a fire out.  The evidence was no stronger than that.  The police did not have a case. 

1. Mr Poke and Ms Martin went to the home of the accused.  Mr Poke knocked on the door.  The accused answered it.  Mr Poke said that they would like him to accompany them to the police station.  He went with them in their unmarked police car.  His counsel argued that he was given no choice, and that he was in fact under arrest from the time he left the house.

1. On arrival at the Ulverstone Police Station, the two officers took the accused to the interview room. They conversed with him there before turning on the recording equipment. There was conflicting evidence as to how long that conversation lasted, and as to what was said.  However there was no dispute as to the following.  The accused was shown the still images from the Gawler shop's security camera.  He became upset and started to cry.  Mr Poke left the room, got a glass of water for him, and gave it to him.  Ms Martin passed him some tissues.  He composed himself before the recording equipment was turned on.

1. The accused's version of that conversation was essentially as follows.  Mr Poke showed him the still images from the Gawler shop, said that they had been obtained from there, said that he believed they depicted the accused's car, and told him that it would be in his best interests to be honest about what had happened and just to deal with it.  He said that he knew it had been the accused that "had done it", and had no doubt about it.  He said that sort of thing numerous times, or at least two or three times.  He kept saying that it was not a serious offence.  He said it would be best to deal with it because it was such a light matter, and that nothing would really come of it – "A slap on the wrist and that would be that, type thing."  That did not seem right to the accused.  He asked whether he should have a lawyer present.  Mr Poke said that there was not much need for a lawyer; that they cannot sit in on an interview; and that lawyers would not be able to help him much at all.  The accused said to Mr Poke, "If I confess to this, I'm going to go to gaol."  The officers kept trying to reassure him that he would not be doing gaol time.  At one point Mr Poke made a joke, saying that he did not think he had the power to arrest him, and that he had more power to arrest someone who had stolen a Mars Bar from a shop.  The conversation lasted at least half an hour before the formal interview commenced.

1. Mr Poke's version of the conversation was essentially as follows.  He showed the accused the still images from the footage from the Gawler shop and said, "I believe that's your car."  The accused became emotional.  He was physically upset and crying.  He then started to make admissions to lighting the fires, and was given a box of tissues.  Mr Poke said to the accused, "Look, you know, we need to do this on video so just compose yourself, you know, have a glass of water, whatever you need, and then we'll do the interview."  The accused was happy to participate and very co-operative.  He said that he wanted to get it off his chest. 

1. Ms Martin gave evidence that Mr Poke showed the accused the still images and then said, "something along the lines of we're here to discuss this, we've got pictures of you or footage of you going to the fire, meaning the Jetty Road fire [the second fire] and coming back from it, that's what we need to talk to you about …".  She said that the accused then became upset, that Mr Poke went and got a glass of water, that she passed the accused a box of tissues, and that the interview started after that. 

1. There were some inconsistencies between Mr Poke's version of the conversation and that of Ms Martin, as follows:

·     Ms Martin's account of the conversation did not include any reference to the accused making admissions, whereas Mr Poke said that he began to make admissions.

·     Ms Martin gave evidence that, when Mr Poke first showed the accused the still images from the Gawler shop, and spoke to him about them, he went on to say, "It's obvious you've done it."  Mr Poke denied saying anything to the effect of "It's obvious you've done it."

·     Under cross-examination, Mr Poke said he recalled the accused asking whether he should have a lawyer.  He agreed that that was said before the interview started.  He said that he told the accused that he "couldn't give him advice in relation to whether or not he should have a lawyer and that that's a decision for him".  He said that, after that, he said to the accused, "If you want a lawyer we can organise a lawyer for you."  He agreed that Ms Martin must have been in the room during that conversation.  However, during her cross-examination, Ms Martin denied that the accused had asked Mr Poke whether he should have a lawyer present.  She denied that anything was said to the effect that he did not need a lawyer, or that they cannot sit in on an interview. 

1. There was nothing about the evidence of Ms Martin, or the way that she gave her evidence, to suggest that anything that she said might be unreliable.  The same cannot be said of Mr Poke.  The following matters reflected adversely on his credibility:

·     He was cross-examined about his evidence that the accused began to make admissions during the unrecorded preliminary conversation.  He said that he did not remember what the admissions were.  He said he did not make a note of those admissions because they were not admissible.  The evidence that the police had against the accused at that stage fell far short of what was needed to establish his guilt beyond reasonable doubt.  Any admission by the accused as to lighting one or more of the fires would therefore have been very significant and memorable.  I simply did not believe that, if any admissions were made, Mr Poke would remember nothing as to what the accused actually admitted.

·     Under cross-examination, Mr Poke was asked whether he had been involved in a number of matters where the technique of speaking to people before recording their interview was brought into question.  That was the case, but Mr Poke did not answer the question.  He tried to evade it.  He responded, "Which matters are you referring to?"  His attempt to outwit the cross-examiner was unsuccessful.  He conceded that he had been involved in matters of Lehman and Riley in which his interviewing practices had been brought into question. His attempt to evade the issue, which of course involved a failure to tell the truth, reflected very badly on him.

·     Under cross-examination, Mr Poke gave evidence that he was unaware that he had the power to arrest a person if he believed on reasonable grounds that that person had unlawfully started a fire.  There is such a power of arrest, pursuant to the Criminal Code, s27 and Appendix A. Mr Poke was an experienced detective. Experienced detectives would ordinarily know that, but most members of the public would not. Mr Poke denied telling the accused that he did not have the power to arrest him, and that he would have had more of a power to arrest him if he stole a Mars Bar from a shop. I preferred the evidence of the accused as to that point. Clearly Mr Poke had an incorrect understanding as to his powers of arrest. The accused has said that Mr Poke made a comment that was consistent with his erroneous understanding. It is most unlikely that the accused made that evidence up, or gave it by mistake.

1. The accused tended to be somewhat imprecise in his evidence.  For example, he said in his evidence-in-chief that, when the two officers arrived at his home, "they said we need you to come to the station", but under cross-examination he accepted that the words used were, "We would like you to come back to the police station."  However he was unshaken as to the details of the off-camera conversation with the two officers.  Because of the matters I have referred to, I preferred his evidence to theirs. 

1. I was satisfied on the balance of probabilities that, in the hope of getting the accused to confess, Mr Poke (a) made dishonest misrepresentations to the effect that lighting the fires was not a serious matter, and that the accused would not go to prison if he admitted lighting them; (b) made a dishonest misrepresentation to the effect that a lawyer would not be permitted to be present when the accused was interviewed; (c) successfully discouraged the accused from seeking legal advice before answering questions; and (d) put pressure on the accused to confess, to such an extent that he broke down and cried, and then confessed to lighting four fires. 

The arrest issue

1. The Crown contended that the accused was not arrested until after the conclusion of the second recorded interview.  His counsel submitted, as I have said, that he was under arrest from the time he was taken from his home that day.  There was undisputed evidence that he was not told until after the interview that he was under arrest.

1. The question whether a person has been arrested or not is a question of fact: R v Inwood [1973] 1 WLR 647 at 652. An arrest takes place "when any form of words is used which in the circumstance of the case were calculated to bring to the defendant's notice, and did bring to the defendant's notice, that he was under compulsion and thereafter he submitted to the compulsion": Alderson v Booth [1969] 2 QB 216 at 221; Sammak v R (1993) 2 Tas R 339 at 359; Tasmania v Woodberry [2012] TASSC 89 at pars[35], [36].

1. In R v Lavery (1978) 19 SASR 515, which concerned an allegation that a man confessed to an armed robbery whilst illegally detained by police officers, King J (as he then was) said, at 516 – 517:

"A suspect may, voluntarily and without constraint, accede to a police officer's request to accompany him and, if he does so, there is of course no interference with his liberty. This is so even if he goes reluctantly out of respect for authority or fear that a refusal will be construed as an indication of guilt or some other similar motive. The suspect's liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey, notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint and he cannot be regarded as accompanying the police officer voluntarily. If such a situation comes into existence, and the police officer does not wish to make an arrest, it is incumbent upon him to make it clear by words or actions that the suspect is free to refuse the invitation and is free to depart.

1. That passage was cited with approval by Deane J in Van Der Meer v R (1988) 62 ALJR 656 at 670.

1. Mr Poke gave evidence to the effect that, when he and Ms Martin arrived at the accused's home, he said that they would like him to come down to the police station.  Ms Martin also gave evidence to that effect.  As I have said, the accused accepted during his cross-examination that words to that effect were used.  The police officers neither told the accused that he was under arrest nor told him that he had the option of not accompanying them.  Under cross-examination the accused said that he had been raised to have respect for the law, so that if a police officer knocked on the door he would not sit there, look at them, turn around, and walk away.  When he travelled to the police station, the two officers sat in the front of the police car, and he sat by himself in the back.  A person under compulsion would not have been left alone in the back seat. 

1. In my view, whilst the accused might well have been very reluctant to go with the police, and might not have understood his rights, he went with them out of a respect for their authority, and not as a result of compulsion.  I was not satisfied that what happened amounted to an arrest.

The s138 objection

1. The Evidence Act, s138(1), provides as follows:

"(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."

1. Because of my conclusion in relation to the arrest issue, I rejected the submission that the impugned evidence was obtained in contravention of an Australian law.  However I was satisfied that it was obtained in consequence of improprieties on the part of Mr Poke in putting undue pressure on the accused to confess, in making misleading and deceptive statements to him as to the seriousness of the asserted crimes, the unlikelihood of imprisonment, and a lawyer not being allowed to be present during an interview, and in discouraging him from getting legal advice.

1. For the purpose of deciding whether the desirability of admitting the impugned evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the impugned evidence was obtained, s138(3) required me to take eight matters into account. That subsection reads as follows:

"(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. As to par(a), the impugned evidence was highly probative.  It consisted of admissions by the accused that he committed the four crimes with which he was charged.  As to par(b), the evidence was of critical importance.  Without it, the Crown had no hope of proving guilt beyond reasonable doubt in relation to any of the four charges.  As to par(c), it was clear from the material before me that the fires in question were fairly easy to extinguish and posed little risk to any buildings or valuable property.  They were lit in places where there was little danger, on days that were not windy, far away from buildings.  Imprisonment may well have been an appropriate penalty but, as deliberate acts of setting fire to vegetation go, these fires were at the less serious end of the spectrum.

1. As to par(d), Mr Poke did not resort to violence, threats or inducements, but his improprieties involved dishonesty and bullying.  As to par(e), I was satisfied that his improprieties were deliberate.  That is to say, he knew all that was improper about his conduct.  As to par(f), I did not think Mr Poke's conduct was inconsistent with any of the rights recognised by the International Covenant on Civil and Political Rights.  I did not think his conduct was so bad as to constitute "cruel, inhuman or degrading treatment" within the meaning of Part III, Article 7 thereof.  As to par(g), I was satisfied that there was absolutely no likelihood of any sort of proceeding being taken in relation to Mr Poke's improprieties.  He had left the CIB, and become a uniformed officer, but he gave evidence that the adverse findings made about his conduct in earlier cases did not result in that transfer, nor in demotion. 

1. As to par(h), I accepted that it would have been very difficult, and perhaps impossible, for the police to have found evidence incriminating the accused in the lighting of any of the fires.  He had not previously made admissions.  There were no eye-witnesses.  There was no reason to think that any other security camera footage was available.  The fires were probably not serious enough to warrant a surveillance operation.

1. In Tasmania v Woodberry, to which I have referred, I made findings that a detective sergeant from the Devonport CIB had acted improperly in various ways in relation to the questioning of a suspect before conducting an audio-visually recorded interview.  My reasons in that case were delivered on 24 September 2012, about 4½ months before the second interview with the accused.  In par[46] of my judgment in that case, I said the following:

"Police officers need to be made aware of the importance of conducting their investigations properly and in accordance with the law.  One sure way of emphasising that need is to exclude evidence obtained by improper and unlawful means, and evidence obtained in consequence of improper and unlawful conduct."

1. Although Mr Poke was also a member of the Devonport CIB, it appears that that message did not get through to him.  The fact that this was not an isolated instance of impropriety before a formal interview is a factor that weighed heavily in favour of excluding the impugned evidence.

1. Taking all the relevant circumstances into account, I was not satisfied that the desirability of admitting any of that evidence outweighed the undesirability of admitting evidence that had been obtained in consequence of the improprieties that I have referred to.  It followed that the evidence should not be admitted.

The fairness discretion: s90

1. The Evidence Act, s90, provides 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."

1. The matters that I have discussed in relation to the s138 objection concerning the off-camera conversation before the second interview are relevant here. One further relevant factor is that the accused had been suffering from depression. I accepted his evidence as to that.

1. I considered that, if there was any error in my reasoning relating to the s138 objection, then because of the conduct of Mr Poke and the accused's depression, which was probably unknown to Mr Poke, it would be unfair for the evidence of the second interview to be used at the trial of the accused. I was conscious of the comments of Gummow and Hayne JJ concerning ss90 and 138 in Em v R (2007) 232 CLR 67 at pars[107] – [123]. In my view my conclusion as to s90 was not inconsistent with their Honours' observations.

Conclusion

1. I did not reach a conclusion in relation to the s85 objection. That objection raised a question as to whether the relevant circumstances were such as to make it likely that the truth of the accused's admissions was adversely affected. I found that a difficult question, whereas the determination of the issues raised by the s138 and s90 objections was not difficult at all.

1. For the above reasons, I determined that the impugned evidence was not to be admitted on the trial.