Tasmania v Hudson and Whiting
[2012] TASSC 31
•18 April 2012
[2012] TASSC 31
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Hudson and Whiting [2012] TASSC 31
PARTIES: TASMANIA, State of
v
HUDSON, Sean Timothy
WHITING, Neville Lindsay
FILE NO/S: 213/2011
DELIVERED ON: 18 April 2012
DELIVERED AT: Launceston
HEARING DATE: 17 April 2012
JUDGMENT OF: Evans J
CATCHWORDS:
Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Police interrogation - Discretion to exclude confessional statements - Particular cases - Interviewed in breach of Criminal Law (Detention and Interrogation) Act 1995, s6.
Criminal Law (Detention and Interrogation) Act1995 (Tas), s6.
Evidence Act 2001 (Tas), s90.
R v Em [2003] NSWCCA 374, applied.
Aust Dig Criminal Law [2688]
REPRESENTATION:
Counsel:
Plaintiff: J Ransom
First named defendant: A J Hall
Second named defendant: C J Gibson
Solicitors:
Plaintiff: Director of Public Prosecutions
First named defendant: Grant Tucker
Second named defendant: Zeeman Kable & Page
Judgment Number: [2012] TASSC 31
Number of paragraphs: 10
Serial No 31/2012
File No 213/2011
STATE OF TASMANIA v SEAN TIMOTHY HUDSON AND
NEVILLE LINDSAY WHITING
REASONS FOR JUDGMENT EVANS J
18 April 2012
Sean Hudson and Neville Whiting are on trial for the murder of Scott Rock.
As part of its case against Neville Whiting the prosecution proposes putting into evidence an audio-visual recording of a police interview with him. He challenges the admissibility of this evidence.
The premise upon which his challenge is based is that the process by which he was interviewed breached the provisions of the Criminal Law (Detention and Interrogation) Act 1995 ("the Act"), s6, which relevantly provides:
"6 Right to communicate with friend, relative and legal practitioner
(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.
(3) Where a person in custody is of or over the age of 18 years, the police officer conducting the investigation may deny the person in custody communication with all or any of the persons referred to in subsection (2)(a), (b) or (c) for a period not exceeding 4 hours if the police officer believes on reasonable grounds that–
(a) any communication referred to in subsection (2) is likely to result in the escape of an accomplice or the fabrication or destruction of evidence; or
(b) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed.
(4) The police officer conducting the investigation or another police officer acting on his or her behalf may, before the expiration of the 4 hour period referred to in subsection (3), apply to a magistrate for an order authorising the police officer to deny the person in custody communication with all or any of the persons referred to in subsection (2)(a), (b) or (c) for a further period.
(5) …
(6) ...
(7) Subject to subsections (3) and (6), if a person in custody wishes to communicate with a friend, relative or legal practitioner, the police officer in whose custody the person is –
(a) must afford the person reasonable facilities as soon as practicable to enable the person to do so; and
(b) must allow the person's legal practitioner to communicate with the person in custody in circumstances in which as far as practicable the communication will not be overheard."
My findings are:
· That at about 10.50am on 5 April 2011, Sergeant Ricky Newman arrested Neville Whiting for his involvement in an assault on Scott Rock on or about 29 March 2011. At the time of the arrest Scott Rock was missing. The arrest occurred on the day after a dead body was found at Hollybank, near Lilydale. At the time of the arrest it was suspected, but not established, that the body was that of Scott Rock.
· At the time of the arrest it was also suspected that Sean Hudson had been involved in the assault on Scott Rock, and police were searching for him.
· At 11.10am on that day, Sergeant Newman presented Neville Whiting, who I will refer to as the accused, to Constable Paul Bennett, a custody officer at the Launceston Police Station.
· At 11.20am, Sergeant Newman decided that the accused should be held incommunicado until 3.20pm. The Sergeant's belief was that the Act, s6(3), entitled him to hold the accused incommunicado for four hours. He believed that if the accused was given an opportunity to make a communication in accordance with the Act, s6(1), this could make it more difficult to locate Sean Hudson, and could result in the fabrication or destruction of evidence. On this basis, the Sergeant believed he did not have to inform the accused of his right to communicate with a friend or relative and/or a legal practitioner.
· A further belief held by the Sergeant was that the combined effect of the Act, s6(2) and (3), was that during the period that the accused was held incommunicado, he could be questioned, notwithstanding that he had not been afforded the right to communicate.
· At 2.47pm, Sergeant Newman and Senior Constable Russell Forsyth began the interview with the accused that is in contention. The interview concluded at 3.18pm, two minutes before the expiration of the four hour period. At no time prior to the interview or during it was the accused informed of his entitlement to communicate. He was cautioned.
· Shortly after the conclusion of the interview, both Sergeant Newman and a custody officer, Sergeant Anthony Rowan, independently informed the accused of his entitlement to communicate. He was so informed by Sergeant Rowan in the charge room. The accused then expressed the wish to communicate with his lawyer. He was allowed to do so and a little later that afternoon she attended on him at the police station.
Sergeant Newman's beliefs in relation to the operation of the Act, s6, were wrong. Section 6(1) imposed a mandatory requirement that before the accused was questioned he be informed of his right to communicate. Had he been so informed, and had he requested to communicate with a friend or relative and/or a legal practitioner, pursuant to s6(2), Sergeant Newman would have been obliged to defer the questioning for a time that was reasonable in the circumstances to enable the accused to make the necessary communications. Dependent upon who it was that the accused had asked to communicate with, it would have been open to Sergeant Newman to form a reasonable belief that a communication with a particular person was likely to result in the escape of an accomplice, or the fabrication or destruction of evidence and, on that basis, decline to allow that communication for the period provided for in s6(3).
The prosecutor acknowledges that had these events occurred, and had the accused made a request to communicate with his legal practitioner, there is no evidence on which the Sergeant could have formed a belief on reasonable grounds that such a communication was likely to result in the escape of Sean Hudson, or the fabrication or destruction of evidence. More significantly, even if there had been an evidentiary basis upon which the Sergeant could have formed such a belief, it would not have entitled him to question the accused before informing him of his right to communicate, and had the accused made a request to communicate, the Sergeant would have been obliged to defer the questioning until the accused had exercised that right. In the circumstances of this case, this would have required the Sergeant to do no more than defer questioning the accused for 33 minutes. The only situation in which the Sergeant would have been entitled not to defer the questioning would have been if, consistent with s6(3)(b), he had held a belief on reasonable grounds that the questioning was so urgent, having regard to the safety of other people, that it should not be delayed. The Sergeant did not purport to hold any such belief.
On behalf of the accused it is submitted that I should refuse to admit the record of interview into evidence pursuant to the Evidence Act 2001, s90, which 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."
Before addressing this provision I should explain that the prosecution does not seek to rely on that which was said by the accused in the interview on the basis that he acknowledged his involvement in the crime. Throughout the interview the accused denied any involvement in the crime or any knowledge of it. The prosecution says that the accused's denials were, in the main, lies told out of a consciousness of guilt and, in some instances, lies that reflect badly on his credit. It is in this way that the representations made by the accused in the interview are adverse to his interest in the outcome of the prosecution and, as such, they come within the definition of "admission" contained in the Evidence Act, s3(1).
For the purposes of s90 I must assess whether, having regard to the circumstances in which the accused participated in the record of interview, it would be unfair to him to use the record of interview in evidence against him. The following paragraphs from the decision of Howie J, agreed with by Ipp JA and Hulme J, in R v Em [2003] NSWCCA 374, pars[104] to [105] address what is unfair for the purposes of s90:
"104 Section 90 in effect confers on the trial judge a discretion to reject evidence of admissions where to admit them would result in an unfair trial for the accused. It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated; Swaffield at [78]. There may be an overlap between issues of voluntariness, reliability, fairness to the accused and the public policy discretion; ibid at [74].
105 In the joint judgment of Toohey, Gaudron and Gummow JJ in Swaffield, and relying upon Van der Meer v The Queen 1988) 62 ALJR 656 at 662, and Duke v The Queen (1989) 180 CLR 508 at 513, their Honours stated at [54] (footnotes not reproduced):
'Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.'"
That which transpired almost immediately after the interview is of significance to what I infer would have happened had Sergeant Newman given the accused the opportunity to communicate with a friend or relative and/or a legal practitioner before the interview. When afforded the right to communicate immediately after the interview, the accused telephoned his lawyer and she shortly thereafter attended upon him at the police station. I infer that this would have occurred before the interview had the accused been afforded this right at that time. Moreover I infer that the accused's lawyer would have explained to him the downside of participating in an interview without being very careful about the truth, and would have advised him that, at such an early stage in the investigation, he should rely on his right to remain silent. I also infer that it is more probable than not that the accused would have acted upon advice to this effect. I am accordingly satisfied that it is likely that had Sergeant Newman complied with the Act, s6, the accused would not have participated in the interview or, if he had, he would not have persistently lied in the reckless way in which he did. That being so, it can be said that to allow the prosecution to put the record of the accused's interview into evidence would give the prosecution a forensic advantage that has been obtained unfairly. The unfairness being that the accused was interviewed in contravention of the Act, s6. For these reasons I am satisfied that the discretion conferred by the Evidence Act, s90, should be exercised in favour of the accused. In so concluding I am conscious that a purpose of the discretion is the need to protect the rights and privileges of an accused. I will not allow the recording of the interview to be admitted into evidence.
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