Tasmania v Woodberry
[2012] TASSC 89
•24 September 2012
[2012] TASSC 89
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Woodberry [2012] TASSC 89
PARTIES: TASMANIA, State of
v
WOODBERRY, Kathryn Anne
FILE NO: 186/2012
DELIVERED ON: 24 September 2012
DELIVERED AT: Hobart
HEARING DATE: 13 September 2012
DETERMINATION OF: Blow J
CATCHWORDS:
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Propriety of police questioning and other conduct by police – Other cases – Official questioning not audio-visually recorded – Search at arrested person's home without warrant or permission – Interview of arrested person – Failure to advise of right to communicate with friend, relative or legal practitioner.
Criminal Law (Detention and Interrogation) Act 1995 (Tas), s6(1).
Evidence Act 2001 (Tas), ss85A(1), 90, 138.
Police Service Act 2003 (Tas), s42(3)(a).
Aust Dig Criminal Law [2701]
Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Electronic recording – Official questioning before formal interview.
Evidence Act 2001 (Tas), s85A(1)(b), (d).
Aust Dig Criminal Law [2753]
Criminal Law – Procedure – Warrants, arrest, search, seizure and incidental powers – Arrest and detention – Effecting arrest – Generally – What constitutes arrest – Suspect accompanying police for search at her home.
Alderson v Booth [1969] 2 QB 216, applied.
Sammak v R (1993) 2 Tas R 339, distinguished.
Aust Dig Criminal Law [2973]
REPRESENTATION:
Counsel:
State: A Shand
Accused: G A Richardson
Solicitors:
State: Director of Public Prosecutions
Accused: G A Richardson
Judgment Number: [2012] TASSC 89
Number of paragraphs: 59
Serial No 89/2012
File No 168/2012
STATE OF TASMANIA v KATHRYN ANNE WOODBERRY
REASONS FOR DETERMINATION BLOW J
24 September 2012
I have been asked to make determinations as to the admission or exclusion of some pieces of evidence prior to the empanelment of a jury pursuant to the Criminal Code, s361A. The accused has been charged on a single count of stealing. She has been arraigned, and has pleaded not guilty to that charge. It is alleged that at Devonport on 12 December 2011 she stole $13,439.20 in cash, and cheques to the value of $70,528.30, from her employer, Gowans Motor Group Pty Ltd. At that time she was working as a receptionist for that company. One of her duties was to do the company's banking. The Crown case is that, on the day in question, she took the cash and cheques to the company's bank as usual, pretended to deposit them with a deposit slip in the drawer of a drop box in accordance with her usual routine, secretly kept the cash and the cheques, left the bank, disposed of the cheques, and kept the cash for herself.
Nine days after the day of the alleged theft, on 21 December at about 3.10pm, two detectives visited the accused while she was at work. They were Detective Sergeant Jordan and Detective Senior Constable Rolls. They spoke to her at her reception desk, then had a private conversation with her in a room near her desk, and then took her in a police vehicle to her home in Sheffield. Inside the house, she showed Mr Rolls a box that contained sewing materials and, at the bottom, $5,000 in $50 notes. An officer from the Forensic Services section came to the house and took some photos, including photos of the money. The two detectives then took the accused back to Devonport. They went first to her workplace, where Sgt Jordan collected her car and some of her personal possessions. They then went to the Devonport Police Station where the two detectives formally interviewed her. A video recording of the interview was made in the usual way. The accused confessed to stealing the money and the cheques, and made admissions as to what she had done with the money. She also said that she had torn up some cheques and put them in a rubbish bin in Devonport, and had burned the rest of them at her home. She said she disposed of them because she could not cash cheques made out to someone else.
The Crown wishes to rely on evidence that the accused made admissions to Sgt Jordan during the conversation at her workplace, as well as evidence of the finding of the $5,000 at her home, and evidence of admissions during the video-recorded interview at the Devonport Police Station. Counsel for the accused has objected to the admission of all such evidence.
For the purpose of determining the objections, I received evidence on the voir dire from the two detectives and the accused. The accused gave evidence to the effect that, at her workplace and in the car on the way to Sheffield, Sgt Jordan intimidated her by speaking more and more loudly, with his face closer and closer to hers; telling her that he had watched video footage from the bank and seen that she did not open the drawer by more than three or four inches; repeatedly insisting, despite her contradictions, that she had not fully opened the drawer; telling her that he had been a prosecutor for a long time, and that he knew that she was lying; telling her that, if she did not co-operate and admit to the crime, she would be held in custody over Christmas until the investigation was over, and would go to gaol; telling her that, if she did co-operate, there would be only a slim chance of her going to gaol; and telling her that she would need to come with him and Mr Rolls for a search of her house. She said she could not be certain whether the word "arrest" was used, but that it was fairly obvious to her that she was under arrest. She said the detectives took her handbag and her mobile phone away from her at Gowans. She said she made no admissions there but that, in the car on the way to Sheffield, after the threat of being held in custody over Christmas and going to gaol, she said, "All right, I took it."
Counsel for the accused objected to the admission of the evidence in question on the following bases:
· Relying on the Evidence Act 2001, s85A(1), he submitted that the evidence of admissions said to have been made at the accused's workplace was inadmissible because those admissions were made "during official questioning" and not audio-visually recorded. He submitted that there was no reasonable explanation as to why an audio-visual record of any questioning could not have been made, and that s85A(1)(b), which creates an exception in such a situation, did not apply.
· Relying on the Evidence Act, s85(2), he submitted that the evidence of admissions made by the accused during and before the formal 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.
· He submitted that Sgt Jordan, as the police officer conducting the relevant investigation, had contravened the Criminal Law (Detention and Interrogation) Act 1995, s6(1), in that, although the accused had not been formally told that she was under arrest, she was in fact under arrest from the time she left her workplace, and Sgt Jordan failed to inform her that she was allowed to communicate with a friend, relative or legal practitioner.
· He submitted that all the evidence in question was obtained either improperly, or in contravention of an Australian law, or in consequence of an impropriety or 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, he submitted that, having regard to the circumstances in which the admissions were made, it would be unfair to the defendant to use any evidence as to her admissions.
Sgt Jordan's evidence as to the events of the day in question was to the following effect. He introduced himself and Mr Rolls, and went with the accused to a room behind the reception counter. He outlined the fact that there was an allegation of theft from her employer; said that money was allegedly not placed in the drop box at the bank; said that there were allegations of inconsistencies between takings and deposits on two occasions; and said that he wanted to take the accused back to the police station for the purpose of an interview. The accused became visibly upset; said that she would be co-operative; and then mentioned that there were some cheques burnt at her place and some monies at her address. He cautioned her. He asked whether she would agree to take him and Mr Rolls to her home to retrieve the monies. She agreed to take them there. He did not tell her that she was under arrest. He did not believe he had arrested her. He did not tell her that she had to come with him. She did not demonstrate any reluctance to come with him. He drove her and Mr Rolls to Sheffield in their police car. On arriving at the house, he waited outside, possibly making phone calls or radio calls in relation to other matters, while Mr Rolls went into the house with the accused. After entering the house, Mr Rolls informed him that there was money there. He saw it in a container. Forensics were called. The money was photographed, first in situ and then laid out on a table. The accused said that she had burnt the cheques in the fire box at the house. He was unsure whether she said that at the house or when they were at her workplace earlier. The money was seized and later returned to Gowans. He, Mr Rolls and the accused travelled back to Devonport. He collected her car and some personal possessions from Gowans and drove in her car to the Devonport Police Station. He and Mr Rolls conducted an interview with the accused there. During that interview the accused signed, and adopted as correct, some handwritten notes that he had made earlier at Gowans and at Sheffield. The accused was then presented to the custody sergeant, charged, processed and bailed.
A copy of Sgt Jordan's handwritten notes was tendered on the voir dire. They purport to record admissions by the accused at Gowans in the following terms: "Spoke Kathryn Woodberry. Informed of investigation. Stated would be co-operative. (Caution) (Understood). Stated cheques burnt at home. Some money on bills. Some money at home. Agreed to take police to residence in Sheffield." Sgt Jordan gave evidence that those notes accurately recorded what the accused had told him.
Mr Rolls' evidence as to the day in question was very similar to that of Sgt Jordan. He knew nothing about the investigation or the alleged theft until Sgt Jordan asked him to come with him to see the accused. He said that, during the conversation at Gowans, after Sgt Jordan told the accused what they were investigating, she became teary, and said that she "would co-operate with what was going on". He said Sgt Jordan cautioned her. He then said, "I believe Detective Sgt Jordan then asked where the money was", and that the accused said that it was at her home.
The s85A objection
The Evidence Act, s85A(1), provides as follows:
"(1) Evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning is not admissible unless —
(a)there is available to the court an audio visual record of an interview with the defendant in the course of which the admission was made; or
(b)if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) could not be made, there is available to the court an audio visual record of an interview with the defendant about the making and terms of the admission or the substance of the admission in the course of which the defendant states that he or she made an admission in those terms or confirms the substance of the admission; or
(c)the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) or (b) could not be made; or
(d)the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence."
The alleged theft was a "serious offence" for the purposes of s85A(1). By virtue of a definition of "serious offence" in the Evidence Act, s3(1), when a defendant is aged 18 years or over, those words mean "an indictable offence that cannot be dealt with summarily without the consent of the defendant". A stealing charge cannot be dealt with summarily without the consent of a defendant if the amount involved is over $5,000: Justices Act 1959, s72(1)(b). If the amount involved is $20,000 or more, the charge cannot be dealt with summarily at all. This was an investigation concerning a total of over $83,000 in cash and cheques.
"Official questioning" is defined in s3(1) as meaning "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". Each of the two detectives was an "investigating official". That term is also defined in s3(1). When a suspect makes an admission before any official questioning has begun, s85A(1) does not apply: Director of Public Prosecutions v Cook (2006) 166 A Crim R 234; [2006] TASSC 75. Also, the subsection does not apply to admissions made during a question-free interval between two distinct and separate episodes of official questioning: Kelly v R (2004) 218 CLR 216 at par[53]; R v Julin [2000] TASSC 50 at par[12]; Tasmania v B [2012] TASSC 38 at par[20].
Sgt Jordan's version of the conversation with the accused at Gowans did not include any reference to him asking any questions. According to him, after he told the accused what he wanted to speak about, she became very distressed, said that she would be co-operative, and then mentioned that there were some cheques burnt at her place and that there were some monies at her address. Under cross-examination Sgt Jordan said that he did not ask the accused questions "to elicit those answers". A little later he said that he did not ask any "official questions" in relation to any of those matters. However, during his evidence-in-chief, he said that he was not sure whether he had asked "Are there any monies left?" or anything like that. In the light of that evidence, I am not prepared to place any reliance on the evidence that he gave under cross-examination denying the asking of questions during the conversation in question. Mr Rolls, by contrast, said during his evidence-in-chief that Sgt Jordan, after cautioning the accused, asked her where the money was, and that the accused then said it was at her home. Mr Rolls did not give a clear account of the making of other admissions before the formal interview. He said that he recalled conversation in relation to cheques being burned, and in relation to money being used to pay bills, but said he could not really say when and where those things were spoken of. According to the accused's evidence, she made no admissions at Gowans, but made some in the police car on the way to her home.
Having watched the DVD recording of the formal police interview with the accused, and having observed her giving her evidence and during the voir dire, I think she is reasonably intelligent, and not given to the outpouring of information. I reject as implausible the idea that her admissions, said to have been made at Gowans, were elicited without questioning. In my view she would only have given Sgt Jordan information in response to questions, and would not have volunteered any more information than was necessary to respond to each question. I infer that all the admissions said to have been made at Gowans were obtained by Sgt Jordan questioning her. As the questioning was by a police officer in connection with the investigation of the commission of an offence, it was "official questioning" and s85A(1) applied.
The detectives did not give any evidence that admissions were made in the police car on the way to or from Sheffield.
The Crown wish to rely on evidence of an admission being made by the accused at her home in Sheffield. There is no evidence that that admission was made in the course of official questioning. Mr Rolls gave evidence that the accused led him to a wardrobe, pointed at a sewing box, and said, "It's in there." He said that at some stage there was reference to cheques being burnt in the wood heater in the living room of that residence. Under cross-examination, the accused acknowledged that she had pointed to the sewing box, but said that her words to Mr Rolls were, "There's money in there." She said she could not recall having any conversation with Mr Rolls at the house. According to Sgt Jordan's evidence, he was outside when Mr Rolls located the sewing box and the money in it. That evidence was uncontradicted. Sgt Jordan did not give any evidence of the accused making any admissions at her home.
Thus, the only evidence that the Crown wishes to lead of admissions made during official questioning that was not audio-visually recorded relates to the admissions said to have been made at Gowans. In the recorded interview at the police station, the accused was asked about the making and terms of the alleged admissions, and stated that she had made them. The prosecutor submitted that the evidence of those alleged admissions was therefore admissible under s85A(1)(b). However that provision only applies "if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) could not be made". There was uncontroversial evidence from the detectives that they had not brought a video camera with them to Gowans; that there was one at the Devonport Police Station; that they did not know whether it was available at the time; that the police station was only a few hundred metres from Gowans; and that there were audio-visual recording facilities there.
There was no need for the interview in question to take place at Gowans. In all probability the accused would have been willing to accompany the detectives to the police station to be interviewed there. If not, Sgt Jordan had sufficient evidence to arrest her for the crime. He could have arrested her and then exercised the right to detain her for questioning pursuant to the Criminal Law (Detention and Interrogation) Act, s4(2)(a). The detectives could easily have suggested to the accused that she not tell them anything until they commenced the formal interview. Having regard to those circumstances, I am not satisfied that there was a reasonable explanation as to why an audio-visual record could not have been made of the interview that is said to have taken place at Gowans.
The prosecutor also relied on s85A(1)(d), submitting that there were exceptional circumstances which, in the interests of justice, justified the admission of the evidence of the admissions said to have been made at Gowans. She argued that, when the two detectives went to Gowans to see whether the accused would participate in a video interview, they could not have foreseen that she would tell them there that she had money at the house, had burned the cheques, and had paid some bills with the money. She argued that that evidence should be admitted because it was of substantial relevance and probative value.
Courts should be slow to admit evidence in reliance on s85A(1)(d): R v Arnol (1997) 6 Tas R 374 at 379; Tasmania v B (above) at par[14]. That provision only applies where there are exceptional circumstances, ie circumstances that are "out of the ordinary": R v McKenzie [1999] TASSC 36 at par[12]. It may well have been out of the ordinary for a suspect to have admitted so much so quickly as the accused is said to have done. However, in my view, it is not in the interests of justice to admit the evidence in question when the investigating detectives could so easily have delayed their questioning for a few minutes and conducted an audio-visually recorded interview at the nearby police station. Admitting this evidence would send a message to police officers that they need no longer worry very much about s85A.
It follows that the evidence of the making of admissions by the accused in a conversation at the premises of Gowans Motor Group Pty Ltd is inadmissible.
The s85(2) objection
Section 85 provides as follows:
"(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant —
(a)to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b)as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purpose of subsection (2), it is to take into account —
(a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b)if the admission was made in response to questioning —
(i) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned."
Subsection (2) makes evidence of an admission prima facie inadmissible. The onus is on the Crown to adduce evidence of circumstances making it unlikely that the truth of the admission was adversely affected. As the accused has raised no issue as to the truth or untruth of any of her admissions or alleged admissions, I must disregard the issue of their truth or untruth: s189(3). The accused came close to raising such an issue late in her cross-examination when, in response to a question about why she had not made a complaint about the detectives, she said, amongst other things, that she was being accused of something she did not do. That comment was ambiguous. She was questioned during the video-recorded interview about stealing cash on a second occasion, but maintained that she had not done that. Her comment might have related only to that second occasion.
Section 85(3)(b) makes it necessary for me to make findings of fact as to the conduct of the two detectives. Both of the detectives gave their evidence in a credible manner, as one would expect experienced police officers to do. However the accused also gave her evidence in a credible manner. None of the witnesses were shaken significantly in cross-examination. The accused gave straightforward and responsive answers without undue hesitation. She was a very good witness. There is nothing about the manner in which any of the witnesses gave their evidence to suggest dishonesty or unreliability.
There are a number of aspects of the detectives' evidence that do not reflect well on their credibility:
· Sgt Jordan's evidence that he did not question the accused at Gowans was inconsistent with Mr Rolls' evidence that Sgt Jordan asked her where the money was, and inconsistent with his own evidence that he was not sure whether he had asked if there were any moneys left or anything like that. As I have already said, I do not think the accused would have made her alleged admissions without questions being asked.
· Sgt Jordan gave evidence that he did not believe he was investigating an indictable offence. He also gave evidence that he had been a prosecutor for 2½ years. He is an experienced police officer. He has reached the rank of sergeant. He was investigating a theft of over $83,000 in cash and cheques. Any former prosecutor would have had no doubt at all that such a theft amounted to an indictable offence. I simply do not believe his assertion that he did not believe he was investigating one. Under cross-examination, Mr Rolls had no hesitation in saying that it was an indictable offence that he and Sgt Jordan were investigating.
· Sgt Jordan did not have a reasonable explanation for not taking the accused directly from Gowans to the Devonport Police Station for the purpose of a video-recorded interview. The course that he adopted, in conducting an unrecorded conversation and then taking the accused to her home, created an opportunity for Sgt Jordan to make improper threats and offer improper inducements. Whether he took improper advantage of those opportunities is another matter.
· When cross-examined as to whether the accused's handbag and mobile phone had been taken from her, the detectives did not deny that. Sgt Jordan said the accused could very well have collected those items from her reception desk on leaving Gowans, and that he was unsure whether Mr Rolls took them from her. Mr Rolls said that the accused may well have collected her handbag and mobile phone from the reception desk; that he recalled having possession of her handbag at some point, but could not say when; and that he did not recall having possession of her mobile phone. If, as the detectives have asserted, the accused was not under arrest when she was driven to Sheffield, then there was no legitimate reason for Mr Rolls to have the handbag or the mobile phone.
· The detectives' evidence suggests that there was a general understanding, during the trip to Sheffield and the return to Devonport, that the accused would not be allowed to make a phone call without the consent of Sgt Jordan. He gave evidence that there was conversation about how long the trip to Sheffield would take, and the arrangements for the accused's children, which led to him asking whether there was anybody that she wanted to contact. He said that he asked her, "Is there anybody that you want to contact, your husband, family, lawyer, or anything like that?" Mr Rolls gave evidence to the effect that there were at least two occasions when Sgt Jordan offered the accused an opportunity to make a phone call, including one either at Gowans or on the way to Sheffield, and another on the way back. If, as the detectives have asserted, the accused was not under arrest and was freely assisting them with their enquiries, then Sgt Jordan had no right to control her use of her phone.
· Both detectives gave evidence that, on their return to Devonport from Sheffield, Sgt Jordan left the police vehicle, collected the accused's vehicle from Gowans, and drove it to the police station before the video-recorded interview. If, as both detectives have asserted, the accused was not under arrest and was freely assisting them with their enquiries, then there was no reason for her not to have driven her own vehicle from Gowans to the police station.
It is unlikely, though theoretically not impossible, that the accused has invented her evidence that Sgt Jordan said he had previously been a prosecutor. Under cross-examination, Sgt Jordan said he did not believe he had said anything to her about ever having been a prosecutor. Mr Rolls said he did not recall Sgt Jordan saying that he had been a prosecutor for a long time, had seen lots of liars, and knew that the accused was a liar. One possibility is that the accused somehow learned, between 21 December and the day of the voir dire, that Sgt Jordan had once been a prosecutor. He gave evidence that he knew her husband's family. The information is even in the public domain: Tasmania v Challender (2007) 16 Tas R 339 at par[13]. However, in my view, it is much more likely that Sgt Jordan said something to the accused about having been a prosecutor for the purpose of persuading her to co-operate or even confess.
There are a number of points that can be made as to the credibility of the accused as a witness:
· There were a number of details that she said she was unable to recall, including whether she said she would co-operate, whether she was cautioned, and whether she was offered an opportunity to phone anyone.
· Although she had routinely used the drop box at the bank, she said she was unable to say how hard it was to pull its drawer out fully.
· Although she claimed to have been bullied and intimidated, she addressed Sgt Jordan as "Steve" twice during the latter part of her video-recorded interview, which lasted only 14 minutes.
· To me, she appeared noticeably nervous and anxious at the beginning of that interview, but that might not have been the result of any impropriety. She might have been upset by the situation that she was in.
· She made no complaints about the conduct of either of the detectives on the day in question. She was asked at the conclusion of the interview whether she wished to do so, but said that both detectives had been very fair. She was taken before a custody sergeant, but made no complaints to that officer. However I regard her lack of complaint as a quite insignificant point. She might have refrained from complaining as a result of either intimidation or a simple desire to leave the police station as soon as possible.
The evidence of the two detectives and that of the accused is so different that it is clear that at least one witness has told lies during the voir dire. It may be that all three have done so. I certainly have grave reservations as to the conduct of Sgt Jordan. However I am not able to make a finding, one way or the other, as to whether Sgt Jordan threatened that the accused would be held in custody over Christmas until the investigation was over, threatened that she would go to gaol if she did not co-operate, or said, by way of inducement, that there would only be a slim chance of her going to gaol if she did co-operate. For the purposes of s85(3)(b)(ii), I am not satisfied on the balance of probabilities that there was any threat, promise or other inducement made to the accused.
However I am able to make some findings as to the conduct of the detectives that are relevant to the circumstances in which some admissions were made. The accused gave evidence that her handbag and mobile phone were seized by the police. She said Sgt Jordan told her at Gowans, "You will need to come with us to search your house." She said she could not be certain whether the word "arrest" was used, but that it was fairly obvious to her that she was under arrest because Mr Rolls took her handbag and mobile phone away from her. She said that occurred after the conversation at Gowans, after she went and took the handbag and mobile phone from her desk. Having regard also to the evidence of the two detectives concerning the handbag and the mobile phone, I am satisfied that they were seized by Mr Rolls at Gowans. Having regard to the detectives' evidence of the offers to permit a phone call, I am satisfied that it was made clear to the accused that she would not be allowed to make a phone call without Sgt Jordan's permission. I also have regard to the evidence that, on arriving back in Devonport, the accused was not permitted to collect her car and possessions from Gowans, but remained with Mr Rolls while Sgt Jordan brought her car and her possessions to the police station. Having regard to all that evidence, I am satisfied that the accused was compelled to leave Gowans with the two detectives, to travel to her home with them, and to let them into her house so that they could seize cash from the premises.
I do not believe Sgt Jordan's evidence that, when he spoke to the accused on the way to Sheffield about making a phone call, he made a reference to a lawyer. Any such reference would have been completely inconsistent with the way he was treating the accused. I find that he did not ask whether she wanted to contact a lawyer.
As to s85(3)(b)(i), all of the questions put to the accused during the video-recorded interview, and the manner in which they were put, were perfectly proper. There is no need for me to make a finding as to any earlier questions or the manner in which they were put because I have determined that the evidence of the making of admissions at Gowans is inadmissible.
My assessment of the accused is that she is a reasonably intelligent and clear thinking individual. Allowance must be made for the likelihood that her encounter with the two detectives caused surprise and distress. However, even if she was bullied and threatened to the extent described by her on the voir dire, I do not think she would have lost sight of the fact that confessing to the theft of over $13,000 in cash and over $70,000 in cheques was likely to lead to her losing her employment, losing the $5,000 that she had in her house, going to prison, and being compelled to refund the rest of the missing cash if she had the means to refund it. I have no reason to think that her ability to make rational decisions was impaired on the day in question. She certainly had no hesitation in denying the second alleged theft during the video-recorded interview.
I am therefore satisfied that the circumstances in which the admissions were made by the accused make it unlikely that the truth of those admissions was adversely affected. It follows that s85(2) does not make the evidence of admissions at Sheffield or during the video-recorded interview inadmissible.
The arrest issue
The Crown contends that the accused was not arrested until after the conclusion of the formal interview at the Devonport Police Station. Her counsel submitted that she was under arrest from the time the two detectives took her from Gowans to set out on the trip to Sheffield. The two detectives gave evidence that she was not told that she was under arrest at that stage. That evidence was not contradicted.
The question whether a person has been arrested or not is a question of fact: R v Inwood [1973] 1 WLR 647 at 652.
The law as to what constitutes an arrest was authoritatively stated by Lord Parker CJ, with whom Blain and Donaldson JJ agreed, in Alderson v Booth [1969] 2 QB 216, in the following passage at 220 – 221:
"There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying 'I arrest you' without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted when any form of words is used which in the circumstances 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 that compulsion."
That paragraph has been held by the Court of Criminal Appeal to be a correct statement of the law: Sammak v R (1993) 2 Tas R 339 per Zeeman J, with whom Crawford J (as he then was) agreed, at 359. In that case the applicant had agreed to accompany a police officer to a police station where he remained for a long time and was interviewed. Zeeman J commented at 358 that "It might be reasonable to infer that had the applicant attempted to leave the police premises, or had he indicated his intention to do that, that he then would have been arrested." There was no evidence that the applicant had formed any belief that he would not have been permitted to leave if he had attempted to do so. It was argued that the applicant had been under arrest at the time of his interview, and that the arresting officer had contravened the Criminal Code, s303(1), which required that officer to take the arrested person, or cause him to be taken, before a justice without delay, to be dealt with according to law. The Court held, by majority, that the applicant was not under arrest at the time of his interview.
In my view the facts of this case make Sammak distinguishable. In this case, the accused was compelled to leave Gowans with the two officers; she submitted to that compulsion; and it was made clear to her by Sgt Jordan that she was being compelled to go with them because he considered that she had committed the crime of stealing the cash and cheques that should have been banked on 12 December. I therefore find that she was arrested by Sgt Jordan at Gowans. I accept that Sgt Jordan believed on reasonable grounds that the accused had committed the crime of stealing. It was therefore lawful for him to arrest her: Criminal Code, s27(2). I find that he lawfully arrested her pursuant to that provision.
Having arrested the accused pursuant to s27(2), Sgt Jordan had the right to detain her for a reasonable time for the purposes of questioning her and/or carrying out investigations in which she participated: Criminal Law (Detention and Interrogation) Act, s4(2)(a). However Sgt Jordan was obliged to comply with s6(1) of that Act, which provides as follows:
"(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."
Non-compliance with s6(1) does not automatically make any evidence inadmissible. However it is a factor that is relevant to the exercise of statutory discretions that I will need to consider, namely the discretion to admit evidence improperly or illegally obtained pursuant to s138, and the discretion to refuse to admit evidence of admissions on the ground of unfairness pursuant to s90.
Impropriety and illegality: s138
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."
Counsel for the accused submitted that the evidence of the alleged admissions at Gowans was obtained "in contravention of an Australian law", namely the Police Service Act 2003, s42(3)(a). That provision reads as follows:
"(3) A police officer must comply with —
(a)all orders in the Police Manual …".
During his cross-examination Sgt Jordan gave evidence that the Tasmania Police Manual requires, when an officer suspects that a person may have committed an indictable offence, and where recording facilities are available, that any official questioning of the suspect must be recorded. In the course of the cross-examination of Mr Rolls, he also said that there was such a requirement in the Tasmania Police Manual, and that it required interviews with suspects on indictable matters to be audio and visually recorded. On the basis of those two pieces of evidence, I find that the Police Manual contained an order requiring any official questioning of a suspect in relation to an indictable offence to be audio-visually recorded. I have already made a finding that the evidence of admissions at Gowans was evidence of the making of admissions during official questioning. If those admissions were made as alleged, that evidence was obtained in contravention of an Australian law, namely s42(3)(a).
That evidence was also obtained improperly, since an audio-visual recording should have been made of the relevant conversation, as contemplated by the Evidence Act, s85A(1)(a). And in my view the evidence obtained at Sheffield, and the evidence obtained during the interview at the Devonport Police Station, all amounts to evidence obtained in consequence of the improper and illegal official questioning at Gowans, since the accused at those places in substance merely confirmed what she had earlier admitted, and facilitated the finding of the money that she had spoken of.
Most, if not all, Australian jurisdictions have enacted legislation making the recording of police questioning, as a general rule, a prerequisite to admissibility. The reasons for such legislation were discussed by Gleeson CJ, Hayne and Heydon JJ in Kelly v R (above) at pars[22] – [29]. The purpose of such legislation is to avoid or minimise disputes about the fabrication of evidence, police perjury, police brutality, coercion, oppression, misunderstandings, inaccurate recollections, and the like. At par[29], their Honours said:
"… it came to be viewed as a commonplace, not only in circles favourable to defence interests but also in police circles, that, despite its financial cost, the electronic recording of police interviews, particularly video-recording, would generate real advantages. It would be useful in providing a means of establishing exactly what was said; in proving that requirements for cautioning and other formalities had been complied with; in narrowing the time within which it could be alleged that threats had been made; in helping to estimate the fairness and propriety of the questioning; and in helping to evaluate, by assessment of the demeanour and manner of the interviewee in responding, the reliability of what was said."
By interviewing this accused off-camera at Gowans, Sgt Jordan created exactly the sort of situation that s85A is designed to avoid. He created a situation in which allegations have been made of improper threats; in which a dispute has arisen as to whether a person was under arrest; and in which a person says she was compelled to submit to a search of her home. Had things been done differently, the accused might have obtained legal advice before answering questions, and she might have exercised her right to silence
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.
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 ways in which the impugned evidence was obtained, s138(3) requires 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."
As to par(a), the impugned evidence is highly probative. It consists of admissions by the accused that she committed the crime charged, and evidence of the finding of $5,000 hidden at her home. As to par(b), the evidence is important, but probably not indispensable. Without it, the Crown has circumstantial evidence that could be sufficient to obtain a conviction. It should be possible to lead evidence that it was the role of the accused to do the banking; that computer records created by her showed that $13,439.20 in cash and $70,528.30 in cheques were to be banked on 12 December; that no one else took that cash or those cheques away from Gowans; that no one at the bank received that cash or those cheques; that no such deposit was recorded at the bank; that the accused had debts as at 12 December; and that some substantial cash deposits were made into her accounts thereafter. There must be some possibility that she would be acquitted, perhaps on the basis that the circumstantial evidence leaves open the possibility that the theft was committed by a bank employee. As to pars(c) and (d), I take into account the fact that, in round terms, this is an $83,000 stealing case; the fact that the stolen cheques were probably all replaceable, with some inconvenience; and the fact that over $13,000 in cash was stolen.
As to par(e), I infer that, because Sgt Jordan is an experienced police officer who has risen to the rank of sergeant, and because of his 2½ years' experience as a prosecutor, he must have been aware that his questions at Gowans amounted to official questioning; that the Police Manual required such questioning to be video-recorded; and that he had no right to compel the accused to go to Sheffield and submit to a search of her house. I am not satisfied that he realised that what he did at Gowans amounted to the arresting of the accused, nor that he was therefore obliged to offer her an opportunity to contact a lawyer, friend or relative before proceeding with any questioning or the search of the house. I am satisfied that he gave the accused no choice about submitting to a search of her house, and that he deliberately disregarded her right to refuse entry.
As to par(f), Article 9, par1, of the International Covenant on Civil and Political Rights includes the following:
"No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."
The requirement imposed by the Criminal Law (Detention and Interrogation) Act, s6(1), is such a procedure. That is the provision that requires an investigating officer to inform an arrested person that he or she may communicate with a friend, relative or legal practitioner before any questioning is commenced, or before any investigation involving that person's participation is commenced. The search at Sheffield involved the accused's participation. I accept the evidence that Sgt Jordan offered the accused an opportunity to ring someone, for the purpose of making arrangements in relation to her children, before they arrived at Sheffield, and again on the way back to Devonport. I am sure he would not have made any reference to a lawyer. I accept that he came close to complying with s6(1)(a), in that he offered the accused an opportunity to tell somebody where she was.
Article 17, par1, of the Covenant includes the following:
"No one shall be subjected to … unlawful interference with his … home …".
The entry of the two officers into the accused's home occurred as a result of Sgt Jordan requiring her to admit them, not as a result of a choice being made by her. It was a contravention of Article 17.
As to par(g), there has been no suggestion that any proceeding has been or is likely to be taken in relation to the conduct of Sgt Jordan. My experience strongly suggests that there is almost no likelihood of any such action being taken.
As to par(h), I need to deal separately with the accused's admissions and with the evidence of the finding of the $5,000. I am unable to make a finding as to whether the accused would have made the same admissions if the investigation had been conducted properly. There would certainly have been a video-recorded interview at the Devonport Police Station. I am unable to make a finding as to whether she would have exercised her right to silence, but there is a substantial chance that she would not have done so, and that she would have made admissions. There can be no doubt that, one way or another, the detectives would have been able to search the accused's house and find the $5,000. If she had been asked, not required, to permit a search of her house, she might have agreed. If not, a search warrant could have been obtained and the search carried out promptly.
The evidence of the trip to the accused's home and the finding of the $5,000 there was obtained as a result of the illegal and improper questioning at Gowans, and as a result of the accused being compelled to let the police into the house and give them that money. The answers that she gave when interviewed at the Devonport Police Station amounted in substance to a formal confirmation of what she had already revealed. Taking all the relevant circumstances into account, I am not satisfied that the desirability of admitting any of that evidence outweighs the undesirability of admitting evidence that has been obtained in the ways in which that evidence was obtained. The evidence must therefore not be admitted.
The fairness discretion: s90
The Evidence Act, s90, provides as follows:
"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."
Having regard to the matters that I have discussed in relation to the s85A objection and the s138 objection, and having regard particularly to the circumstances in which the admissions were made or allegedly made, I think it would be unfair to the accused to use any of the impugned evidence. On this additional basis, the evidence of admissions must not be admitted.
Conclusion
For these reasons, I determine that none of the impugned evidence is to be admitted on the trial.
I have made this determination at the request of counsel for both sides, even though it is proposed that another judge will complete this case during a Burnie circuit. The trial of the accused was deemed to begin when she was called upon to plead to the charge before me: Criminal Code, s351(6). I will therefore abort this trial to enable a new trial to begin before another judge. By virtue of s361A(2)(b), this determination will have the same status at that new trial as it would have had upon a continuation of the trial commenced before me.
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