Tasmania v Thompson

[2022] TASSC 27

[2022] TASSC 27

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Tasmania v Thompson [2022] TASSC 27
PARTIES:	STATE OF TASMANIA
v
THOMPSON, Jeffrey Ian
FILE NO:	374/2017
DELIVERED ON:	28 April 2022
DELIVERED AT:	Hobart
HEARING DATE/S:	28, 29, 30, 31 March 2022
JUDGMENT OF:	Brett J
CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Discretion to exclude confessional statements – Propriety of police questioning and other conduct by police – Administering caution – Admissions made during conversation in course of execution of search warrant – Caution administered but accused not informed he was a suspect – Whether evidence should be excluded as improperly obtained – Whether in any event evidence should be excluded in exercise of discretion because its use would be unfair to the accused – Evidence admitted.

Evidence Act 2001 (Tas), ss 90, 138.
Em v The Queen [2007] HCA 46, 232 CLR 67, Wilkie v Barnaba [2021] TASSC 21, applied.
R v Murphy [1996] 66 SASR 406, considered and distinguished.

Aust Dig Criminal Law [2693]

REPRESENTATION:

Counsel:

Appellant:	L Mason SC, E Bill
Respondent:	D Edwardson QC, F Merenda,

Solicitors:

Appellant:	Director of Public Prosecutions
Respondent:	Munro and Associates

Judgment Number:	[2022] TASSC 27
Number of paragraphs:	20

Serial No 27/2022 File No 374/2017

STATE OF TASMANIA v JEFFREY IAN THOMPSON

REASONS FOR JUDGMENT	BRETT J
DELIVERED ORALLY	28 April 2022

1 This ruling concerns the accused's objection to evidence of a conversation between police officers and him during and immediately after a search of his premises conducted pursuant to a search warrant on 8 August 2017. The prosecution asserts that the conversation is admissible because the accused makes certain admissions, as well as statements and other conduct which the prosecution says is consistent with a consciousness of guilt. The defence submits that the evidence was obtained in consequence of an impropriety on the part of the police and accordingly must be excluded under s 138 of the Evidence Act 2001, and further or in the alternative, that the evidence should be excluded under s 90 of the Act because it would be unfair to use that evidence against the accused in his trial.

2             The objective facts surrounding the relevant conversation are not in dispute. Further, the validity of the search warrant is not in issue. The warrant authorised the search of the accused's home in respect of "all material (documentary and electronic) pertaining to Meghan Vass, Stephen Gleeson and Karen Keefe relevant to the murder of Robert Chappell, including but not limited to emails references statements photographs affidavits notes diary entries and contracts". The warrant specified that this evidential material related to the offence of perverting justice, contrary to s 105 of the Criminal Code.

3             The entire search, and the conversations which occurred during its course, were video recorded by the police. I have watched the recording on the voir dire. Upon arrival, and before any conversation of substance, the officer in charge of the search, Inspector George, informs the accused that police are in possession of a warrant, intend to search the property and that they will be video

recording the search. The accused responds that he is an "acting solicitor … under Paul Galbally".

Inspector George then cautions the accused that he is not obliged to say or do anything, and if he does, that will be electronically recorded and "may later be given in evidence". He asks if the accused understands this, to which the accused replies "That's fine". He is given and appears to read the warrant. He informs the police that he has material previously held on Ms Neill-Fraser's behalf by her former lawyer. At this point, Inspector George clarifies that what the police are looking for is material relating to the "new appeal", including affidavits which the accused had said in a previous conversation with police he had taken, including his own affidavit. The officer clarifies that police are not seeking "the other material that sits around the pervious circumstances of Ms Neill-Fraser". This is discussed at least once more by the officer. There is discussion around the question of legal professional privilege and the accused makes telephone contact with other lawyers associated with the case. The police then commence the search.

4             It is apparent that the accused is co-operative with the police and appears to offer assistance by identifying the location of various documents. He continually asks for police to define what they are looking for so that he can help them find it. Questions by the police invariably focus on the existence and location of specific documents. It is my assessment that the police do not descend at any stage into direct questioning concerning the alleged circumstances of the matters under investigation. On the contrary, on more than one occasion, the police refuse to respond to conversation initiated by the accused which moves beyond the identification and location of documents. For example, at an early point in the search, Inspector George refers to a prior conversation in which the accused had allegedly said that "an informant at Risdon Prison" had provided a statement. He asks if the accused is willing to disclose the statement. The accused provides a copy, and then commences to discuss information concerning his actions in respect of the document. Inspector George interrupts him by

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saying "We are here today to search for the evidential material that is listed on the warrant. It is not my intention today to conduct any further query in respect to that. We have active and ongoing investigations in respect of a perversion of the course of justice and so at some point into the future, it may well be that we need some clarification from you in respect of that ok? So today it is simply to seek the documentation". My assessment is that the police consistently maintained that attitude throughout the investigation.

5             The prosecution submits that a number of statements made by the accused during this conversation have probative value. In summary, it is asserted that these statements establish his knowledge and state of mind in respect of relevant documents. This includes information which would enable the jury to draw inferences concerning his intention in respect of the use of those documents in the application by Ms Neill-Fraser for leave to undertake a second appeal. It is also asserted that his provision of login details is relevant because of subsequent conduct in changing those details. The prosecution asserts that this is consistent with a consciousness of guilt.

6             The accused argues that the police did not, either during prior conversations concerning the appeal proceedings, or on the day of the search, inform him, or give any indication at all, that he was a suspect in respect of the crime of perverting justice. It is conceded by the prosecution that at the time of the search, the accused, together with other people including those named in the warrant, were suspected of involvement in that crime, and it was that crime which was under investigation. Mr Edwardson QC submits that it was improper for the police to converse with the accused during the course of the search without informing him that he was the subject of the investigation. It is also submitted that it would be unfair to the accused, to use evidence of what he said to police against him, when he was not put on notice as to the seriousness of his situation, despite the concession that he was in fact a suspect at the relevant time.

7            Having regard to the observations of the High Court in Em v The Queen [2007] HCA 46, 232 CLR 67, it is appropriate to first consider the issues raised under s 138. That provision mandates exclusion of evidence obtained improperly or in contravention of an Australian law unless the desirability of admitting the evidence outweighs the undesirability of its admission having regard to the way in which it was obtained. The onus of establishing the relevant impropriety or contravention falls on the party objecting to the evidence, in this case the defence.

8             Mr Edwardson does not submit that the police were guilty of a contravention of the law. There is no challenge to the validity of the search warrant, nor the manner in which the search was conducted. It is not asserted that police were not lawfully entitled to engage the accused in conversation in respect of the search during its conduct. However, it is submitted that it was improper, within the meaning of the section, to question the accused without informing him that he was a suspect in respect of the investigation. In Wilkie v Barnaba [2021] TASSC 21, Wood J observed that what amounts to improper conduct under the section is assessed in accordance with the common law principles explained by the High Court in Ridgeway v The Queen [1995] 184 CLR 19. Her Honour noted that this was so held by the New South Wales Court of Criminal Appeal in Robinson v Woolworths Ltd [2005] NSWCCA 426, 158 A Crim R 546, and endorsed by the High Court in Kadir v The Queen [2020] HCA 1, 267 CLR 109. Her Honour encapsulated those principles as follows:

"Improper conduct is 'not criminal but which is quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement': Ridgeway per Mason CJ, Deane and Dawson JJ at 36; Robinson at [102]. The stage of impropriety will be reached in the case of conduct which is 'clearly inconsistent' with minimum standards of acceptable police conduct in all the circumstances: Robinson at [23].

Under s 138, impropriety is not about identifying good policing, but identifying the minimum standards we should expect of police officers. Impropriety cannot be shown by demonstrating that the police search fell short of best practice."

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9             Mr Edwardson submits that the minimum standards of police behaviour in the circumstances of this case, required the police to inform the accused that he was a suspect before engaging in conversation with him. The effect of the submission is that this requirement was in addition to, and not satisfied by, the administration of the caution. Mr Edwardson says that this obligation is well established by case law and has referred me to R v Murphy [1996] 66 SASR 406 as an example of such authority.

10           However, in my view, that case does not support the proposition contended for by the submission. Further, I have not been referred to nor been able to locate any other authority which would suggest the existence of such a standard. In Murphy, the South Australian Court of Criminal Appeal considered a challenge to the trial judge's decision to admit three interviews which police conducted with the accused after a fire which has caused the death of his mother and her partner. Police had not administered a caution to the accused in any of the impugned interviews. The prosecution relied on the interviews, not because they contained express admissions, but to establish inconsistencies and lies, which were claimed to be consistent with a consciousness of guilt. The primary issue was whether the police should have cautioned the accused prior to any or all of the interviews. Doyle CJ, with whom the other members of the Court agreed, applied comments from Van Der Meer v The Queen [1988] 62 ALJR 656 and from King CJ in R v Dolan (unreported), which were taken as endorsing a rule of fairness that once the accusatory stage of an investigation had been reached, then a caution must be given which informs the interviewee that he is not required to answer questions. His Honour then said:

"I am prepared to accept, as counsel argued, that these principles also should not be regarded as exhausting the requirement of fairness. Accordingly, it was argued that in this case the police should at least have told Mr Murphy that his possible involvement was being investigated, even if a caution was not called for. I accept that there may be cases in which a person being questioned should be told that he or she is a suspect or possible suspect. The question is whether this is one of those cases."

11           Taken in context, it is clear that His Honour was not seeking to lay down a minimum standard of fairness which requires an interviewee to be told that he or she is a suspect or possible suspect before an interview. The Court was dealing with circumstances in which there had been no caution at all, and his Honour's comments were in the context that although a caution may not have been necessary given the stage that the investigation had then reached, informing the accused that he was suspect would have at least alerted him to the seriousness of this position and put him on guard. In my view, it is apparent that his Honour's comments presupposed that, irrespective of what else had been said, the administration of a caution would have certainly satisfied the requirements of fairness in the circumstances of that particular case. His Honour also made the point that "the requirements of fairness are not to be turned into fixed categories".

12 Some further observations about that case are pertinent. Firstly, there was no suggestion that police had acted improperly. The case was determined under the common law, but the determinative issue was whether it was fair to use the interviews against the accused in the circumstances. The Court was not considering minimum standards of police behaviour, in order to determine the existence of impropriety so as to activate a discretion similar to that contained in s 138. Secondly, despite the failure of police to either inform the accused that he was a suspect or to administer a caution, the Court concluded, in the particular circumstances of the case, that the interviews had been correctly admitted by the trial judge. It was accepted that the circumstances surrounding the interviews led inevitably to the conclusion that the accused must have been aware that the questioning related to his possible involvement in the fire and hence the deaths of the deceased, and that accordingly, it was not unfair to use the interviews in evidence.

13           It follows that I am not satisfied that there was a minimum standard of conduct which required police to inform the accused that he was a suspect before conversing with him in the manner

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that they did during the course of the search. Further, I can detect no impropriety of any nature on the part of the police. It is not suggested that they were not acting lawfully in executing a valid search warrant. The accused was informed at the outset that the search, and any conversation during it, would be electronically recorded. A formal caution was administered, which made it clear that the accused was not required to answer any questions, and whatever he said or did could be used in evidence. This was despite the fact that, notwithstanding that the police may have been in possession of sufficient evidence to consider the accused as a suspect, the search involved the acquisition of further evidence in relation to the investigation and it was clearly not the intention of the police to conduct a formal interview with the accused. As I have already pointed out, police avoided questioning the accused about the circumstances of the alleged offending, and deflected attempts by the accused to engage them in conversation which went beyond the whereabouts and identification of relevant documents. Finally, I note that it is not submitted that any conduct of the police fell within the ambit of s 138(2) of the Act.

14 I am therefore not satisfied that police engaged in any impropriety in respect of their conversations with the accused. The evidence will not be excluded under s 138.

15 The focus of the enquiry under s 90 is whether it would be unfair to the accused to use the evidence arising from these conversations, having regard to the way in which that evidence was obtained, notwithstanding that the police have not engaged in impropriety. A consideration arises in respect of the application of this section, which goes beyond the question of impropriety. In particular, did the accused say things during the conversations with police which he would not otherwise have said, had he realised that he was a suspect. It is argued that I should conclude that that may well be the case, and it would therefore be unfair to use the conversations at the trial.

16           There is no doubt that incorrect assumptions made by an accused person can give rise to unfairness notwithstanding the absence of any impropriety on the part of the police Em v R (above) at

[51]–[52]. However, for the argument in this case to have any chance of success, I would need to be

positively satisfied that the accused did in fact misunderstand the situation, and in particular did not realise that he was a suspect. Such a finding is critical because there is nothing that the police did which would, of itself, give rise to unfairness in respect of the use of the accused's statements during the search. As already noted, the police were acting lawfully and the accused was conversing with them voluntarily. Any argument concerning unfairness could only arise if, in actual fact, the accused did not understand or believe that he might be the subject of this investigation, and, accordingly, spoke when he would otherwise have remained silent.

17           This is similar to the situation which was before the High Court in Em. As was pointed out by the Court in that case, the onus of demonstrating that it would be unfair to an accused person to use the evidence, for the purposes of the application of s 90, falls on the accused. Gleeson CJ and Heyden J noted that, in the circumstances of that case, the question of unfairness depended "to a considerable extent" on a finding that the appellant believed that what he had said in a particular conversation with police could not be used against him, and that police had conveyed that "message" to him. Their Honours reasoned that the failure of the accused to give evidence on the voir dire meant that any conclusion concerning his mental state must rely solely on circumstantial inference. Their Honours went on to say:

"Here circumstantial inference falls well short of the best evidence, direct evidence from the appellant. The appellant's failure to give evidence on the voir dire thus increased his difficulties in discharging the onus of proof."

18           So it is in this case. In my view, having regard to the circumstantial evidence, it is extremely unlikely that the accused would not have understood that he was the subject of this investigation. Comments by the police and the contents of the search warrant itself make clear that the investigation related to the crime of perverting justice. The warrant expressly referred to documents relating to

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Meghan Vass, Stephen Gleeson and Karen Keefe. During the conversation, the police enquired on a number of occasions about the whereabouts of documents concerning the conversation between the accused and Stephen Gleeson at Risdon Prison. There was specific enquiry concerning the whereabouts of photographs relevant to that conversation, and there was conversation and commentary offered by the accused in relation to the draft affidavit that is the subject of count 2. The only reasonable inference was that the conversation that he had been a party to, and was the subject of his draft affidavit, was directly related to the act of perverting justice with which the warrant and the investigation was concerned. In any event, the accused was a legal practitioner and the police had, at the outset of the search and any related conversation, administered a caution. The only realistic implication of such a caution was that anything he said might be used in evidence in respect of a case against him. As a lawyer, he would have understood that the most common and possibly the only basis of admission of such a conversation in any subsequent proceedings would be if it contained admissions against his interest and that this could only relate to proceedings against him. At the very least, he would have been aware that any statements made by him could have evidential value, and hence significance, in some way.

19 Accordingly, in the absence of direct evidence from the accused on this question, there is no basis for a finding that he was under any misapprehension or misunderstanding concerning the possible significance or use of anything that he said during the course of these conversations. In my view, the accused has failed to establish that it would be unfair to use the evidence against him. It follows that the pre-condition for the exercise of the discretion to exclude the evidence under s 90 has not been established. In any event, I would not exercise that discretion in favour of exclusion.

20   The objection is overruled. The impugned evidence will be admitted.