The Queen v CS
[2012] NTSC 94
•28 November 2012
The Queen v CS [2012] NTSC 94
PARTIES:THE QUEEN
v
CS
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21143102
DELIVERED: 28 November 2012
HEARING DATES: 17 to 20 September 2012
JUDGMENT OF: BARR J
CATCHWORDS:
CRIMINAL LAW – EVIDENCE – DISCRETION TO EXCLUDE – s 26L Evidence Act (NT) – application to exclude audio-visual evidence of EROI between accused and police – police did not facilitate communication between accused and a nominated friend – whether s 140 Police Administration Act (NT) not complied with – accused’s friend informed by police accused was in custody – accused’s friend a potential witness to offences alleged against accused – evidence not excluded on this ground
CRIMINAL LAW – EVIDENCE – DISCRETION TO EXCLUDE – s 26L Evidence Act (NT) – whether s 137 Police Administration Act (NT) not complied with – accused held in police custody 32 hours before EROI conducted – whether accused held beyond “reasonable period” – held that accused was unlawfully detained at time of EROI – evidence not excluded on this ground alone – relevant to whether evidence ought be excluded on unfairness ground or public policy considerations
CRIMINAL LAW – EVIDENCE – DISCRETION TO EXCLUDE – s 26L Evidence Act (NT) – admissions made by accused in EROI – whether made voluntarily – whether accused’s will overborne by police conduct – adequate caution made and understood – the will of the accused was not overborne – statements and admissions made voluntarily – evidence not excluded on this ground
CRIMINAL LAW – EVIDENCE – DISCRETION TO EXCLUDE – UNFAIRNESS – s 26L Evidence Act (NT) – whether audio-visual evidence of EROI ought be excluded based on unfairness and policy considerations in Bunning v Cross 141 CLR 54 – police proceeded with interrogation notwithstanding accused’s expressly stated wish not to participate – accused not informed police were investigating an additional offence – accused was unlawfully detained at time of EROI – partial admissions made by accused – reception of the evidence would be unfair to accused – public policy considerations require exclusion – entire EROI excluded from evidence
Evidence Act (NT) s 26L
Police Administration Act (NT) s 137, s 138, s 140
Bunning v Cross (1978) 141 CLR 54; Cleland v The Queen (1982) 151 CLR 1; MacPherson v The Queen (1981) 147 CLR 512; McDermott v The King (1948) 76 CLR 501, followed
REPRESENTATION:
Counsel:
Crown:M McColm
Accused:T Berkley
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Louise Bennett Criminal Lawyer
Judgment category classification: B
Judgment ID Number: Bar1221
Number of pages: 29
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v CS [2012] NTSC 94
No. 21143102
BETWEEN:
THE QUEEN
Plaintiff
AND:
CS
Defendant
CORAM: BARR J
REASONS FOR DECISION
(Delivered 28 November 2012)
Ruling on admissibility under s 26L Evidence Act
After the jury had been empanelled, but before evidence had been called in the prosecution case, counsel for the defence moved that I exclude the audio-visual evidence of the formal interview between the accused and police officers conducted at Darwin Police Station on 18 December 2011, which had been electronically recorded on a DVD.[1]
After hearing evidence and argument over several days, I decided that I should exercise my discretion to exclude the evidence of the accused’s Police interview. At that stage I provided my ruling to the parties only, because the trial was still to take place. However, the trial has since taken place, and I now publish my reasons.
There were five grounds for the defence challenge, one of which was that the will of the accused was overborne by the conduct of Police. In relation to that ground, and generally to secure admission of the audio-visual evidence of the accused’s Police interview, the prosecution accepted that it had to establish on the balance of probabilities that the statements of the accused relied on as confessions were voluntarily made.
At the time of the s 26L hearing, the accused was charged with two offences, both alleged to have occurred on 16 December 2011:
1.Having sexual intercourse with NM without her consent and knowing about or being reckless as to the lack of consent.
2.Performing an act of gross indecency on NM without her consent and knowing about or being reckless as to the lack of consent.
The offending conduct was alleged to have taken place in the evening of 16 December 2011. The prosecution alleged that NM, in company with another female named HM, the accused and a work mate of the accused were drinking together at Shenannigans and left there at about 8.00 pm. The group of four people then went to the accused’s flat in Mitchell Street. NM had drunk a considerable amount of alcohol that day and passed out on the couch in the sitting room of the flat. Someone then carried her to the accused’s bedroom. NM asked for a bucket, which was provided to her, and she vomited into it. She then passed out. When she awoke, the accused was having penile/vaginal sex with her. At least, that was her vague memory. NM was unable to do anything at that stage because of her intoxication, and passed out again. When she awoke later, she realised that she and the accused were in bed together, naked, and that the accused was cuddling her. She felt wetness in the area of her vagina and noted that the tampon she had been wearing earlier in the day was missing. After a search, she found her mobile phone on the couch where she said she had passed out previously.[2]
Police found a digital camera in the bedroom of the accused on which there were three photographs in particular: the first showing a naked female lying prone on a bed, legs apart; the second showing a close-up of a vagina, and a third photo showing the face of the accused with what appeared to be a vagina in close proximity.[3] Although NM had made a complaint to Police about the accused having had sexual intercourse with her without consent, she had not complained to Police about any photographs being taken. The prosecution case was that NM was unaware that photographs had been taken until she was informed about the photographs by Police, and that the photographs had been taken without her consent. The image in photograph no 83, that of a naked female lying prone on a bed, suggested that the subject female was unconscious when the photo was taken.
It would appear that NM made a complaint to Police either late at night on 16 December or at some time before 12.40 am on Saturday 17 December.
Relevant to the s 26L preliminary hearing, I determined that the chronology in brief was as follows:
17 December 2011 at 0640 – Accused taken into custody.
17 December 2011 at 0704 – Accused received into Darwin Watch House.
17 December 2011 at 0711 – Police administer first warning under s 140 Police Administration Act – Accused asked that his “room mate” (Craig Porter) be contacted to notify him that the accused was in custody.
[Police acknowledged at 0711 that the accused wanted to have a solicitor contacted and agreed to contact Legal Aid later in the day, at a “more respectable time of the day”.[4]]
18 December 2011 at 0847 (or 0852; the time difference is not relevant) - Police administer second caution under s 140 Police Administration Act.
18 December 2011 at approximately 0900 Detective Sergeant Kennon contacted Mr Berkley of counsel to facilitate a conversation between the accused in custody and Mr Berkley.
18 December 2011 at 1514 – Accused’s interview with Detective Sergeant Kennon commenced, continuing to 1608 hours.
18 December 2011 at 1834 – Accused taken by Detective Sergeant Kennon and Senior Constable Coles to Royal Darwin Hospital for penile swab – procedure completed at 1949.
I will refer to the accused’s interview with Detective Sergeant Kennon and Detective Senior Constable Coles on 18 December 2011 commencing at 1514 as “the accused’s Police interview”.
In the course of the accused’s Police interview, he made a number of admissions, or statements against interest in respect of which adverse inferences might be drawn. In particular, he conceded that he had taken the first photo referred to in par [6]. He said “I took the photo when I walked back in the room when she was passed out.” He later qualified that by saying “NM asked me to take a photo when I walked in the door when she was there naked. She asked me to take a photo and I did take a photo.” His claim, that NM was awake, thus appeared to contradict his earlier statement that NM was “passed out on the bed”. He then became (in my assessment) somewhat panicked, and possibly confused, and said, with reference to the third photo referred to in par [6], that he could not remember if he took the photo or whether NM had taken the photo. The implication was that either the accused or NM had taken the photo, and it would have been open to the jury to consider that the possibility that NM had taken the particular photo was not a reasonable possibility.
The effect of the above admissions was qualified somewhat by the fact that there was no evidence – by admission or otherwise – as to whether the photos were taken before or after the alleged act of non-consensual penile/vaginal intercourse. Mr Berkley of counsel for the accused submitted that, even if the first photo referred to in par [6] depicted NM sleeping, it was still a reasonable possibility that this was “post-coital slumber” as distinct from pre-coital unconsciousness.
Ground 1
The first ground of challenge to the admission of the evidence contained in the accused’s Police interview was that s 140 of the Police Administration Act (“the PAA”) was not complied with on 17 December 2011 in that the Police did not facilitate communication between the accused and Craig Porter,[5] as the accused had requested.
Under s 140 PAA, before any questioning commences, the investigating member must not only inform the person in custody that the person, inter alia, may communicate or attempt to communicate with a friend or relative to inform the friend or relative of the person’s whereabouts, but also (subject to stated exceptions not presently relevant) must defer any questioning “for a time that is reasonable in the circumstances and afford the person reasonable facilities to enable the person to make or attempt to make the communication”.
There is clear evidence that Police informed the accused of his right to communicate with or attempt to communicate with Craig Porter, as appears from Exh P2, the record of the s 140 PAA conversation between Detective Senior Constable Coles and the accused on 17 December 2011 at 0711 hours:
I must also inform you, you may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts; do you understand that right? --- Yes.
Is there any friend or relative you’d like contacted to advise them that you’re here at the Watch House? --- No I’ve – no, just me room mate but he’s – yeah, he’s not home.
I can tell you that your room mate left as we arrived at your premises and he has gone to work for the day and he said he’s be home tonight. --- Excellent.
All right. --- Excellent.
Ah – is there anyone else you want to contact or are you satisfied with that? No – no, I don’t want to worry anyone mate, I’m ….
The reference to the accused's “room mate” was to Mr Porter.
Subsequent to the conversation at 0711, and probably at about 0800 on Saturday 17 December, Detective Senior Constable Coles took the accused to the counter area of the Watch House where a police auxiliary unsuccessfully tried to ring Mr Porter for the accused.[6] The Police thus made facilities available to enable the accused to make or attempt to make communication with Craig Porter, although such attempt was unsuccessful.
It emerged in cross-examination that the accused did not have his mobile phone with Mr Porter’s number in it at the time of the attempt to make contact with Mr Porter described in the previous paragraph. However, although there was no evidence as to whether (or not) the accused knew what his friend’s number was, there was no evidence of complaint by the accused that he did not have a telephone number to contact Mr Porter.
Detective Sergeant Kennon said in evidence that she had a conversation with Craig Porter in the morning on 17 December 2011 about the arrest of the accused. She said that, as a result, there was “no further need to go back to Craig and say the accused wants you to know he’s been arrested”.[7]
Detective Senior Constable Coles said that he also passed the information on to Mr Porter that the accused was in custody.[8]
At 11.20 am on Saturday 17 December Detective Senior Constable Coles and another officer, Senior Constable Fairgrieve, attended at the accused’s flat in Mitchell Street where they spoke to Mr Porter and another person about the events of the previous evening. The conversation(s) lasted about 30 minutes. Both Mr Porter and the other person were then taken to the Darwin Police Station and a statement was obtained from Mr Porter (by Senior Constable Fairgrieve).[9]
I am satisfied that Mr Porter was aware, from about 0711 Saturday 17 December, that the accused was in Police custody.
The accused did not complain about not having had access to Mr Porter on Sunday 18 December 2011 at the time of his ‘second caution interview’ with Police at 0850. There is no evidence that the accused complained to his counsel, Mr Berkley, when he spoke to him at about 0930 on Sunday 18 December, that he had been denied access to Mr Porter. There was no evidence that the accused said that he still wanted or needed to speak to Mr Porter or that he requested Mr Berkley to facilitate that happening.
The accused did complain in his formal recorded interview with Police in the afternoon of 18 December: “Craig just didn’t get notified about it until this morning”,[10] but it is unclear whether the accused’s concern was for himself or whether he was worried that his friend would have been worried for the accused.
Detective Senior Constable Coles said in evidence that, in any event, he would not have permitted the accused to have direct contact with Mr Porter because Mr Porter was a relevant witness and he would not have wanted them to communicate with one another.[11] Detective Sergeant Kennon said in evidence that she “deemed” Mr Porter to have been “possibly involved in the offence”.[12]
The purpose of s 140(b) is to ensure that an arrested person does not simply ‘disappear’ into Police custody, with no friend or family member knowing of the person’s whereabouts. The statutory provision gives a right to communicate for a specified and limited purpose, namely: “to inform the friend or relative of the person’s whereabouts”.
In this statutory context, even though the accused may not have made the contact personally, the communications to Mr Porter by Police were significant. Given that Mr Porter was aware, from about 0711 Saturday 17 December, that the accused was in Police custody, I do not regard as significant the fact that the accused personally was not able to communicate with Mr Porter.
Under s 143 PAA, the Court may still admit evidence if the requirements of Division 6A PAA (which includes s 140) have not been complied with if, “having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the Court is satisfied that, in the circumstances of the case, admission of the evidence would not be contrary to the interests of justice.”
I was not satisfied that the requirements of s 140 PAA had not been complied with, but if they had not, the failure was not of significance, both because Mr Porter knew of the accused’s whereabouts and because direct contact would probably not have been allowed in any event.
I did not exclude the evidence of the accused’s Police interview on the first ground. Moreover, I did not consider that the matters of evidence I have traversed had any relevance to the other grounds raised by defence counsel.
Ground 2
The second ground of challenge was that s 137 of the PAA was not complied with because the accused was not “brought before a Justice or a Court of competent jurisdiction as soon as was practicable after being taken into custody”.
As appears from the chronology in par [8], the accused was taken into custody at 0640 and then received into the Darwin Watch house at 0704 on Saturday 17 December. He was not interviewed by Police until 1514 on the following day, Sunday 18 December. He thus spent 32 hours in custody prior to being interviewed.
The accused was held in a cell with the dimensions 5 m x 3 m. There was a toilet in his cell, but water to the toilet (and the cell) was turned off for the entire period of his detention, with the exception of 46 minutes in the evening of 17 December. Except for that brief period, the accused had no access to running drinking water or washing water, and was unable to flush his effluent. If he wished to flush his toilet, he had to call one of the police auxiliaries on duty to come to his cell. If he wanted a drink of water, likewise he had to call one of the police auxiliaries. The accused was not permitted to shower for the whole of the time he was detained. The purpose was to preserve physical evidence on the person of the accused. To that end, he was taken to the Royal Darwin Hospital for a penile swab at 1834 on Sunday 18 December, after he had participated in his formal interview with police. By that time he had been in custody for more than 35 hours.
Although s 137(1) PAA requires that a person taken into custody be brought before a justice or a court of competent jurisdiction as soon as is practicable after being taken into custody (unless granted bail or released from custody), s 137(2) PAA permits a member of the police force, for a reasonable period, to continue to hold a person whom he has taken into lawful custody to enable the person to be questioned or investigations to be carried out to obtain evidence in relation to an offence that the member believes on reasonable grounds involves the person in custody.
For determining what is a "reasonable period" for the purposes of s 137(2) PAA, I considered that s 138 provides guidance as to matters to be taken into account, although s 138 refers to matters to be taken into account by the justice or court after the person in custody is brought before that justice or the court under s 137(1) PAA. The relevant considerations include: the number and complexity of matters to be investigated; the time taken to interview available witnesses; the need of investigators to assess relevant material in preparation for interviewing the person; the number of people who need to be questioned during the period of detention in respect of any offence reasonably believed to have been committed by the person; the time taken to communicate with a legal adviser, friend or relative of the detained person; and the time taken in awaiting the completion of forensic investigations or procedures. Another consideration (obviously more applicable to the role of the justice or court) is the time the person in custody has been in the company of police prior to and after the commencement of custody.[13]
Detective Sergeant Kennon worked on the investigation from 0040 on Saturday, 17 December 2011 throughout the day, and spent a considerable period of time with the complainant.[14] She and Detective Senior Constable Coles drove the complainant to the Sexual Assault Referral Centre at about 0900. She then returned to collect the complainant at about 1230 and took her back to the Peter McAulay Centre at about 1300. She then obtained a handwritten statement, in the course of which photographs were taken of the complainant. The statement was completed by 1640, after which Detective Sergeant Kennon returned the complainant to her home address. Of possible relevance to the fact that Police did not seek to interview the accused on Saturday, 17 December 2011, Detective Sergeant Kennon said that she received a statement from a witness on Saturday afternoon “which identified that the accused may still be suffering the effects of taking speed”.[15]
Detective Sergeant Kennon explained in her evidence that, before she interviewed the accused, she wanted to have enlarged printed copies of the photographs taken from the digital camera (referred to in par [6] above) found in the accused’s bedroom.[16] Defence counsel cross-examined Detective Sergeant Kennon as to the considerable delay on her part in interviewing the accused and put propositions to her in response to her stated justification for that delay.[17] In relation to the problem that the Police did not have the photographs, Mr Berkley suggested that, rather than waiting for 24 hours or more to have photographs prepared and printed, Detective Sergeant Kennon could simply have shown the accused the relevant photos on the camera. If the Detective Sergeant had been concerned as to her technical ability to use the camera without accidentally deleting vital evidence, Mr Berkley suggested that she could have arranged for a technical person to manipulate the camera to show the accused the particular photos.
After Detective Sergeant Kennon suggested that, based on information provided by a witness, a reason for not interviewing the accused on the Saturday was that the accused may have been affected by ‘speed’, Mr Berkley asked her:
Why was it relevant? If he was ‘speeding’ the night before, Friday night, why couldn’t he be released on Saturday night? - - - I don’t know.[18]
The cross examination of Detective Sergeant Kennon continued as follows:[19]
You had all you needed, didn’t you, on the Saturday night?- - - Quite possibly.
The only thing you didn’t have was really, someone hadn’t taken a photo of what was on the camera and then blown them up. That’s the only thing you didn’t have, wasn’t it? - - - Yeah, quite possibly. If you would do it that way, then yeah, we didn’t have … her statement of first complaint.
But so what? So what? He’s never going to be around at the time of the first complaint anyway so what does that mean to him? I mean, what can you possibly put to him about the statement of a first complaint? So what? Tell me? - - - Statement of first complaint is quite important. The other thing is that was a sexual intercourse without consent. Consent is always going to be an issue.
But you tell me why he had to be incarcerated while you got a statement of first complaint that he could not comment upon anyway? - - - Okay.
Well, is there a reason? - - - In hindsight, no. ….
Did you ever think that he might have been under considerable stress?--- I knew that he was under considerable stress, I think that most people are under considerable stress when they are in that situation. ….
Can you concede that a person who’s been in police custody for 34 hours. He’s had his water turned off and his mood has visibly changed. Now he’s very upset by this process. Do you concede – I’m not saying that you deliberately wanted it this way, but can you concede that this is a person who may not be thinking straight? - - - yes, yes, I concede that.
…. Now I’m not suggesting that you were ‘softening him up’ with the long incarceration, but can you accept at least that he may have been, ‘softened up’, just by virtue of undergoing this process? - - - I concede that that would have – that could have occurred. But yeah.
In my view, the Police were in a position to interview the accused by about 1705 hrs on Saturday 17 December,[20] or by 1945 hrs at the latest.[21] I allow in addition the time necessary for the accused’s intimate examination (the penile swab), say two hours, although that probably could have been carried out earlier in the day. In my opinion, the accused’s custody had ceased to be lawful custody by 2200 hrs on Saturday 17 December 2011. By then a “reasonable period” had expired. He should by then have been brought before a justice or a court of competent jurisdiction under s 137(1) PAA, or the alternative procedure under s 16 Bail Act should have been put in place.
It follows that the accused was unlawfully detained at the time of his Police interview.
I do not exclude the evidence of the accused’s Police interview on the second ground alone, but I do take it into account in considering whether the evidence was given voluntarily, and also whether improper means were used such to justify my discretion to exclude it on the basis that to admit it would be unfair to the accused, or on the basis of policy considerations.[22]
Ground 3
The third challenge to the admission of the accused’s Police interview was that the will of the accused was overborne by police conduct.
The common law rule, that incriminating admissions must be made voluntarily before they are admissible in evidence, applies in the Northern Territory.
The prosecution had the onus of establishing on the balance of probabilities that the relevant admissions made by the accused were made voluntarily.
Counsel for the defence referred to the decision of the High Court in McDermott v The King (1948) 76 CLR 501, at pages 506-7 and 511-12. In McDermott it was argued, unsuccessfully, that the court should have exercised its discretion to exclude a verbal confession made to police officers while the accused was in custody because it was unfair, the evidence having been obtained by “cross examination”. Dixon J (as he then was) said this, at 511.6:
“At common law a confessional statement made out of Court by an accused person may not be admitted in evidence against him upon his trial … unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is as a result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, it cannot be voluntary.”
To “importune” somebody is to harass with persistent requests, or demand of that person insistently.
In the present case, after the accused obtained legal advice on Sunday 18 December, at about 0900, he told Detective Sergeant Kennon that he did not wish to speak to Police in a formal record of interview. Detective Sergeant Kennon did not record this particular conversation or exchange. However, she said in evidence,[23] “at the conclusion of that conversation [with his counsel], the accused identified that he did not want to speak to Police in a formal record of interview or that he wouldn't be making any comment in a formal record of interview, sorry.”
There is little doubt that, after receiving legal advice, the accused indicated his unwillingness to speak to investigating Police officers and answer their questions.
The accused indicated the same unwillingness in the accused’s Police interview. For example, after the first part of the caution was administered,[24] the accused was asked what the caution meant:
What does that mean to you? --- Someone’s alleged that I’ve turned around and sexually assaulted them.
All right.--- Bar that, no comment, yeah.
All right. The other thing is that I’ve said um you are not obliged to say anything or do anything unless you wish to do so. What do you think that means?--- No comment. Exactly, no comment. …. It’s what I’ve been advised by my solicitor to do, so yeah. … I understand everything that you’ve just turned around and said to me, I’m not illiterate or stupid.
The accused then clearly indicated his understanding that the recording of the interview could be “taken to court”.
I am satisfied that the accused was given an adequate caution,[25] and that he understood that caution.
The accused then said[26] that he had been advised not to say anything to Police until he was charged. He went on to say:
Until I get charged, well there’s nothing for me to state really. … I know that I’m innocent so, this is – this is ridiculous. That’s what I’m saying, I know I’m innocent and that’s more or less all I can say.
Apart from the accused’s statement to Police referred to in par [47] above, there had been no outright statement by the accused to this point in the accused’s Police interview that he did not wish to participate in the interview, although he had indicated that he had received legal advice that he should not answer questions until he was charged and he had answered “no comment” to some questions.
The subsequent questioning of the accused[27] was very significant. In that part, the accused made a number of statements, including:
“You can ask me whatever you want to.” …
“I’ve watched a lot of TV shows and whatnot and I’ve seen people say the wrong things and it ends up turning on them later so I’d rather just wait.”
“I’m also entitled not to say anything as well as you just said before.”
“Nah you’re right mate” (in answer to “we’re not going to make you answer”).
Then,[28] the following significant question was asked and answer given by the accused:
Ok. I just want to clarify um did you wish to answer any further questions regarding the complaint or the allegation that I’ve made? ----- There’d be a couple I’d answer to but I won’t be answering absolutely everything. There’s only certain things I will answer to.
I assessed the demeanour of the accused at this point as confidently self-assured, cocky and quite determined. He refused to identify in advance those areas where he would answer, because (he said) he did not know what Detective Sergeant Kennon would tell him. The questioning continued:
Would you like me to present to you the current evidence that we have?--- Yes, yes.
And the allegation – --- Yes.
Um and then you can either choose to make comment or not make a comment? --- Yep
Ok and I must remember- I’ll just reiterate to you the caution that anything you do say or do --- That’s right.
-is your choice. --- Yep
It will be recorded and may be later given in evidence in court.--- Nah, that’s fair enough.
The allegation was then put by Detective Sergeant Kennon as follows: “… NM has alleged that you had sexual intercourse with her on Friday night and that she wasn’t consenting to the act.” No mention was made as to taking nude photographs of NM without consent or any non-consensual act of gross indecency (other than intercourse).
The interview then proceeded with the accused either answering questions (and I include responding to statements made by police) or answering “no comment”.
The accused shortly later made the following statement:
“I don’t want to turn around and have someone lying either. So I’m just letting you know what’s going … And as soon as I don’t want to answer questions I will not be answering that question.[29]
On a complete hearing and viewing of the audiovisual record of the accused’s Police interview, it became apparent that the accused's answers to questions asked of him, and his other responses, were a mix of “no comment” and fully informative responses. Ultimately there were more informative responses than “no comment” responses.
I agreed with the prosecution submission that the accused responded selectively. His selective responses, including his many “no comment” responses, evidence the fact that he knew he could remain silent. When he chose to respond, he did so voluntarily, often to put his ‘side of the story’. The accused engaged with interviewing Police officers in a normal way. When he decided that he wanted to answer questions or say something, he did so. I rejected the defence submission that the accused voluntarily responded only when he replied “no comment”. I also rejected the corollary, that is, that the accused was overborne in answering those questions to which, in response, he provided information.
I concluded that the will of the accused was not overborne. I was satisfied that the prosecution had established that the statements of the accused in his Police interview, including those relied on as confessions, were made voluntarily.
Ground 4
The fourth ground of the defence challenge was on the basis of unfairness. As the argument proceeded, however, it became apparent that Mr Berkley relied on both the unfairness discretion and the discretion based on the policy considerations referred to in Bunning v Cross.[30]
In MacPherson v The Queen (1981) 147 CLR 512 at 519.5, Gibbs CJ and Wilson J referred to the statement of Dixon J in McDermott extracted in par [45] above and said as follows:
The rule of the common law … is that a confessional statement made out of court by an accused person is not admissible in evidence unless it was made voluntarily, that is, in the exercise of a free choice to speak or be silent. A confession will not have been voluntary if it has been obtained from the accused by fear of prejudice or hope of advantage exercised or held out by a person in authority, or as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure - anything that has overborne the will of the accused. But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused. ….
In Cleland v The Queen (1982) 151 CLR 1 at 18.6, Deane J said as follows:
If the making of such an alleged [confessional] statement has been procured or influenced by unlawful or improper conduct on the part of law enforcement officers, then that circumstance will be of relevance on the question whether the confession was voluntary. It will also, if it be established that the confession was voluntary, give rise to a subsequent question whether, in the discretion of the trial judge, evidence of the alleged confessional statement should be excluded for the reason that the reception of such evidence would be unfair to the accused: in this regard, the question is not whether the accused was treated unfairly; it is whether the reception of evidence of the confession would be unfair to him … [references omitted]
Defence counsel relied on a number of matters (and they include some matters already referred to by me), including: the length of time the accused was held in police custody and the conditions under which he was held; the unlawfulness of his detention at the time of the accused’s Police interview; the fact that legal representation was not provided to him on the first day of his detention notwithstanding the Police undertaking to do so; the failure by the police to acknowledge and abide by the accused’s expressed wish not to participate in a formal interview with police; and the use of clever devices to work around the accused’s express wish.
In relation to legal advice, the police did not contact Legal Aid on Saturday 17 December, as they had agreed to do,[31] even though they were aware that the accused wanted to have a solicitor contacted on his behalf. Police did make some reasonable efforts on Sunday 18 December, because they then wished to interview the accused, and they were aware that they should not interview him until he had obtained legal advice. After attempts were made to contact the Legal Aid Commission on its after-hours number, Detective Sergeant Kennon made arrangements for the accused to speak with Mr Berkley, a prominent Darwin criminal barrister.
As mentioned earlier, Detective Sergeant Kennon said in evidence:[32] “At the conclusion of that conversation, the accused identified that he did not want to speak to police in a formal record of interview or that he wouldn't be making any comment in a formal record of interview, sorry.”
Notwithstanding that the accused had reasonably clearly expressed his wish not to participate in a formal Police interview, Detective Sergeant Kennon still spent an hour or thereabouts preparing a plan for her interrogation of the accused.[33] She was intending to interview the accused “one way or the other”,[34] notwithstanding his expressed wish not to participate in an interview.
Detective Sergeant Kennon’s reasons for proceeding were explained by her in evidence[35] as follows:
That having been indicated to you at that stage, what was the purpose of continuing questioning him? --- I don’t believe that I questioned him. The thing is, that with our interviews in fairness to him, he’ll get the information anyway, but in fairness to him I offer the information that I we have at the time of the – of the interview. I also - even if in the watch house they say "I don't want to participate" I like to have that recorded. I like to have him visually and audially recorded so that he - people can see his responses. And so - one of the trainings that we have, in Investigation Interviewing Level 2 now, if they say that they don't want to make any comment, then we give the other options of, "Is it that you don't want to make any comment in relation to anything? Or is it that you are happy to see the evidence that we have?" and in fairness, they still don't have to make any comment. And if they do try to make comment during the time then I do remind them that they have said, ‘No comment’ before.
In my opinion, there is no proper reason to have an audiovisual record of a suspect declining to be interviewed. “People” do not need to see and hear “the responses” of a suspect as he declines to be interviewed. To commence the unwanted interview, to proceed with the loading of the DVDs, to go through the formal introductions, to administer the caution and to require the suspect to demonstrate that he has understood the caution - as happened in the present case - all flies in the face of the accused’s express wish not to be interviewed. All these acts amounted to a refusal to acknowledge and accept the exercise by the accused of his right to remain silent. They had no purpose other than to circumvent the accused’s unwillingness to be interviewed.
Further, the offer of information “in fairness to the accused” was not fair at all after the accused had indicated that he did not wish to participate in an interview with the Police. The offer of information was quite specious. The offer of information was not made with a view to being fair, in the sense of ensuring procedural fairness; rather it was done to engage an unwilling suspect in conversation and to maintain the conversation once it had started. The purpose of the offer of information was to circumvent the suspect’s unwillingness to be interviewed.
Likewise, the stated preparedness on the part of the Police interrogator to offer the accused (who had said that he did not want to be interviewed) “other options”, such as the opportunity to be made aware of all the Police evidence and to comment if he wished to do so, was a carefully devised strategy to work around the suspect’s stated unwillingness to be interviewed. It was a device to prick the curiosity of the accused and to maintain his engagement and ongoing participation in a conversation in which he did not want to participate. It was a cunning strategy, in that (as Mr Berkley submitted) the offer purported to empower the accused, to give him choices, when in fact he was being corralled into a position in which it was more likely than not he would end up participating in the unwanted conversation with Police.
The fact that the accused was not informed that Police were investigating the commission of an additional offence (in addition to the offence of non-consensual sexual intercourse with NM) of taking indecent photographs of NM without her consent adds a significant concern to the obvious concern as to the fairness of the process adopted by Detective Sergeant Kennon, particularly given the admissions made by the accused referred to in par [10] above. I bear in mind that the question is not whether the accused was treated unfairly; it is whether the reception of evidence of the admissions he made would be unfair to him.
Finally, I do not understand how Detective Sergeant Kennon could have been of the belief that she had not questioned the accused. Leaving aside formal matters, she asked in excess of 60 questions, and in addition made at least another 60 – 80 statements which were either designed to or which did in fact elicit a response from the accused.
In my consideration of matters relevant to the exercise of the unfairness discretion, the determinant element in the overall factual matrix was the unlawfulness of the accused’s continued detention at the time of his Police interview. The accused did not give evidence on the preliminary hearing, but by reference to Exhibit P3, I concluded the accused was already at breaking point when interviewed by Police at about 0900 on Sunday 18 December. He was in a state of distress and considerable confusion and uncertainty as a result of his detention and a lack of information as to what was to happen to him. This distress was not apparent at the time of the accused’s Police interview, and, as mentioned, had been replaced by a cockiness and self-confidence. Nonetheless, the facts of this case bring to mind what was said by Dawson J. in Cleland v The Queen:-
The fact that any confessional statement was made, if at all, whilst the accused was in custody, even unlawful custody, did not of itself require the conclusion that the trial judge should have exercised his discretion to exclude evidence of it: [references omitted]. It is not, however, difficult to see that little is ordinarily required to persuade a trial judge that a confession obtained whilst an accused person is in custody, particularly unlawful custody, is not shown to be voluntary or is such that it would be unfair to the accused to admit it in evidence against him.[36]
I decided that, in the exercise of my discretion, I should exclude the audio-visual evidence of the accused’s Police interview. I excluded that evidence both for the reason that it would have been unfair to the accused to admit it at his trial (and thereby risk an unfair trial), and for the reason that relevant considerations of public policy required that it should be excluded. The detention of the accused for as long as he was detained was in my opinion a serious and unacceptable situation.
Ground 5
The fifth ground was that the probative value of the evidence of the accused’s Police interview was outweighed by its prejudice to the accused.
Because of my decision to exclude the accused’s Police interview, it was not necessary for me to decide this ground. Nonetheless, I comment that the fact that the evidence is not favourable to the accused does not come within the concept of “prejudice” used in the relevant authorities. In my view, the evidence in the record of interview was of substantial probative value. That would normally mean that the evidence would not be excluded on this ground. Application of the discretion is not a loose balancing exercise of prejudice as against probative value.[37] In the circumstances, however, I did not (and do not) propose to say anything further about this ground of challenge.
This published decision has been edited to minimise the possibility of a member of the public identifying the complainant, the accused, or any witness.
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[1] Exh P4.
[2] This is a summary of the facts for the purpose of the s 26L hearing. These facts are not identical with the evidence adduced in the prosecution case at the subsequent trial.
[3] Exh P5 comprised three photographs: nos 83, 84 and 85.
[4] Exh P2; T 4.
[5] not his correct surname.
[6] See par 21 of Exh P1, the statutory declaration of Acting Sergeant Coles. The attempt took place sometime between 0715 and 0840, based on par 19 and par 23 of Exh P1.
[7] T 72.8.
[8] T 45.2.
[9] Exh P1, par 26.
[10] Exh P4, p 7.8.
[11] T 45.2.
[12] T 88.3.
[13] PAA s 138 (b), (c), (d), (f), (h), (k), and (p).
[14] Exh P6; T 70-72.
[15] T 71.9.
[16] T 72.9.
[17] T 84.2; 89.3-91.2.
[18] T 89.9.
[19] T 90.2.
[20] Exh P6, par 28.
[21] Exh P6, par 31.
[22] of the kind referred to in Bunning v Cross (1978) 141 CLR 54.
[23] T 74.5.
[24] p 8.6 of the transcript of the accused’s Police interview, Exh P4.
[25] see pp 8, 9 and 10 of Exh P4.
[26] p 10.9 of the transcript of Exh P4.
[27] pp 11.4 to 12.8 of Exh P4.
[28] at p 12.4 of Exh P4.
[29] p 16.6 of Exh P4.
[30] For a useful explanation of the difference between the two discretions, see Cleland v The Queen (1982) 151 CLR 1 at 34, per Dawson J.
[31] see par [8] above.
[32] T 74.5.
[33] T 73.9; T 85.7.
[34] T 85.8.
[35] T 75.4.
[36] Cleland v The Queen (1982) 151 CLR 1 at 35.9. The extracted passage was discussed and applied by Mildren J in R v Cotchilli [2007] NTSC 52 at [80]-[82]. However, in R v Collett [2011] NTSC 87 at [28], Kelly J said, in reference to the effect of unlawful detention: “… where the accused was not improperly treated other than by being unlawfully detained, there is no suggestion that the unlawful detention of the accused in any way affected him in making any admissions or placed pressure on him to confess, it may well be appropriate not to exclude evidence of admissions made while an accused is unlawfully detained, especially if the unlawfulness of the detention was of a minor nature.”
[37] R v Hasler, ex parte Attorney-General (1987) 1 Qd R 239 at 249 per Thomas J.
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