The State of Western Australia v Thornton
[2015] WADC 65
•10 JUNE 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- THORNTON [2015] WADC 65
CORAM: BOWDEN DCJ
HEARD: 28 MAY 2015
DELIVERED : 10 JUNE 2015
FILE NO/S: IND 1274 of 2014
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
KARL MATHEW THORNTON
KERRY PATRICIA CLEGG
Catchwords:
Covert police drug operations - Criminal Investigation (Covert Powers) Act 2012 - Undercover officer - Controlled purchase of drugs in escalating amounts - Whether undercover officer's conduct inconsistent with the minimum standards expected of police
Search audio-visually recorded - Accused T informed a lawyer would be contacted after the introductory process but then question over items located during the introductory process - Accused C informed of her right to contact a lawyer and told 'You don't need one'
Legislation:
Criminal Investigation (Covert Powers) Act 2012
Misuse of Drugs Act 1981
Result:
Undercover officer's evidence ruled admissible
Accused Thornton - parts of the audio recording of the search ruled inadmissible
Accused Clegg - all of the audio recording of the search ruled inadmissible
Representation:
Counsel:
State of Western Australia : Ms T Austin
First accused : Mr P Catalano
Second accused : Mr J Morris
Solicitors:
State of Western Australia : State Director of Public Prosecutions
First accused : Sklarz Lawyers
Second accused : Morris Law
Case(s) referred to in judgment(s):
Bunning v Cross (1978) 141 CLR 54
Cleland v The Queen (1982) 151 CLR 1
Hardwick v The State of Western Australia (2011) WASCA 164
Houghton v The State of Western Australia [2005] WASCA 216
McDermott v The King (1948) 76 CLR 501
Pollard v The Queen (1992) 176 CLR 177; (1992) 64 A Crim R 393
R v Sloane (1990) 49 A Crim R 270
R v Swaffield (1998) 192 CLR 159; (1998) 96 A Crim R 96
Ridgeway v The Queen (1995) 184 CLR 19; [1995] 78 A Crim R 307
Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 158 A Crim R 546
Rozenes v Beljajev [1995] 1 VR 533
Tofilau v The Queen (2007) 231 CLR 396; (2007) 174 A Crim R 183
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
BOWDEN DCJ: Mr Thornton is charged with one count of selling methylamphetamine and six counts of selling alpha pyrrolidinovalerophenone, a derivative of 3,4‑methylenedioxypyrovalerone, between 5 December 2013 and 6 February 2014.
Ms Clegg is jointly charged with Mr Thornton on four counts of selling alpha pyrrolidinovalerophenone, a derivative of 3,4‑methylenedioxypyrovalerone, between 23 January 2014 and 6 February 2014.
The trial is due to commence on Tuesday 2 July 2015.
I delivered my decision on 29 May 2015, however declined to publish my reasons until after the trial of the accused.
The Application
The accused have applied for orders ruling the following evidence inadmissible:
1.The audio‑visual recording of the search on 6 February 2014.
2.The evidence of Undercover Officer #487 'Jamie' including the video and audio recordings of his drug purchases.
The application is dealt with on the papers and for the purposes of this application I take the evidence of Undercover Officer #487 'Jamie' at its highest from the prosecutions perspective.
Undercover Officer #487 'Jamie'
A Witness Identity Protection Certificate pursuant to s 82 of the Criminal Investigation (Covert Powers) Act 2012 (Covert Powers Act) has been filed and Undercover Officer #487 Jamie is hereafter referred to as 'UCO'.
The UCO's evidence is capable of showing that he was acting as a duly authorised undercover police officer between 2 December 2013 and 6 February 2014 and attended an address in Beaconsfield on approximately 13 occasions. In addition, he communicated with the accused by way of text and phone messages on numerous other occasions.
His evidence shows that he purchased from Mr Thornton the following amounts of prohibited drugs: 0.06 grams on 5 December 2013 for $200; 0.02 grams on 23 December 2013 and 23 January 2014 respectively for $200 and he purchased from Mr Thornton and Ms Clegg the following amounts of prohibited drugs: 0.48 grams on 24 January 2014 for $400; 0.98 gram on 30 January 2014 for $650; 3.32 grams on 5 February 2014 for $1,009; and 5.25 grams on 6 February 2014 for $3,000.
The UCO's evidence includes visual and audio recording of his discussions with the accused leading to and during those purchases.
The grounds for the application
The defence apply to exclude all of the undercover officer's evidence. The State concede that without that evidence they could not obtain a conviction against either accused.
The defence say the sales of the prohibited drugs by the accused were achieved by the escalating encouragement and representations made by the UCO and considering that the accused were drug addicts who were approached in their own home, often in the presence of their child, and offered large sums of money to sell drugs, the UCO's conduct offends public interest and community standards.
They point out that the purchases by the UCO escalated from 0.02 grams for $200 to 5.25 grams for $3,000. It is said the amounts offered to the accused for the drugs was a considerable amount of money in light of their socio‑economic circumstances. The female accused at the time was on a disability pension.
Further, it is said the statutory criteria specified in the Covert Powers Act to determining whether to grant the authority for a controlled operation, include:
12(1)(c)That any unlawful conduct involved in conducting the operation will be limited to the maximum extent consistent with conducting an effective controlled operation, and
(d)That the operation will be conducted in a way that will minimise the risk of more illicit goods being under the control of persons, other than law enforcement officers, at the end of the operation than are reasonably necessary to enable the officers to achieve the purpose of the controlled operation, and …
(f)That the operation does not involve any participant in the operation inducing or encouraging another person to engage in criminal activity of a kind that the other person could not reasonably have been expected to engage in unless so induced or encouraged.
It is said that by analogy these principles should apply as a guide to the minimum standards of acceptable conduct of officers during an authorised controlled operation. So that if the UCO's conduct fell short of those standards that matter should be considered by the courts in determining if his conduct was improper or breached society's minimal standards. I have no difficulty accepting that submission.
Section 3 of the Misuse of Drugs Act 1981 defines 'undercover officer' as meaning 'a participant … as those terms are defined in the Covert Powers Act.
Section 5 of the Covert Powers Act defines a 'participant in an authorised operation' as 'meaning a person who is authorised under this part to engage in controlled conduct for the purpose of the operation'.
'Controlled conduct' is defined by that Act as conduct which a person would, but for s 27 or s 34, be criminally responsible.
The effect of s 27 and s 34 of Covert Powers Act is that if the UCO was purchasing and possessing drugs in an authorised operation he is not criminally responsible for those acts if the conduct is authorised by and engaged in accordance with the authority for the operation and in the course of and for the purpose of the operation and does not involve him inducing or encouraging another person to engage in criminal activity of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged.
The accuseds' challenge is not that the authorisation to conduct a controlled operation was not validly obtained pursuant to s 10, s 11 and s 23 of the Covert Powers Act, but rather that the conduct of the UCO in escalating, inducing and encouraging the accused to sell drugs is such that the evidence ought be excluded.
The accused argue that the UCO befriended them to such an extent that he attended their home and discussed cricket with Mr Thornton, advised them that he 'just worked down the road', told them that he 'might come back before the weekend', described Mr Thornton as 'a legend', offered to buy a motorbike from him and offered to sell him Doberman dogs. It is said that the accused were vulnerable because of their socio‑economic status. Further, it is argued that as a young child was present at the home, as was known by the UCO, there were public policy reasons for the court to protect children from circumstances where their parents were being encouraged to supply drugs from the very home where the child resided.
The accused point out that it was the UCO who first approached them about supplying drugs and suggesting how they could get in contact with him, and later suggesting they use a code. They draw my attention to the evidence showing that it was not the accused who was trying to encourage the UCO to buy more drugs, but rather the UCO who was continually offering to buy more drugs and telling them he would return and praising the quality of the drugs.
The State say that the Covert Powers Act recognises the role that controlled buys and authorised operations have in the detection of drug trafficking and suggest that persons involved in covert operations must befriend potential sellers of drugs and it is only by acting in this way that a UCO can gain the trust of the targets and achieve the aims of purchasing drugs and thereby detect those who are involved in trafficking. The State says that whilst they accept there is a line that the police are not able to cross, this case falls well short of that line.
The Applicable Law
The defence do not rely on any breach of the Criminal Investigation Act 2006 (the CIA) or any other Act to establish that the police were acting illegally but rely on the court's common law discretion to exclude evidence where considerations of public policy make it unacceptable to admit the evidence (public policy discretion): Tofilau v The Queen (2007) 231 CLR 396; (2007) 174 A Crim R 183; R v Swaffield (1998) 192 CLR 159; (1998) 96 A Crim R 96. If a contravention of the CIA was alleged the provisions of s 154 and s 155 of that Act, which for all intents and purposes mirror the common law discretion would apply to questions of admissibility of the evidence.
As there is some overlap between the unfairness and public policy discretion I shall consider each.
As to the unfairness discretion its purpose is to protect the rights and privileges of the accused and the focus of the test is on the unfairness to the accused as distinct from whether there was any illegal or unfair or improper conduct on behalf of the police officers. There is some overlap with the public policy discretion. The reliability of the evidence is a factor to consider: Hardwick v The State of Western Australia (2011) WASCA 164; Rozenes v Beljajev [1995] 1 VR 533. The issue is not whether the accused was treated unfairly, it is whether the reception of the evidence would be unfair to him in the sense that it would result in an unfair trial for the accused: Cleland v The Queen (1982) 151 CLR 1; McDermott v The King (1948) 76 CLR 501.
As to the public policy discretion, whilst there is some overlap with the unfairness discretion, it is a distinct and independent discretion: Pollard v The Queen (1992) 176 CLR 177; (1992) 64 A Crim R 393.
It involves considering a multitude of factors including, but not limited to, the conduct said to constitute the impropriety, whether the impropriety had any effect on the cogence of the evidence, the seriousness of the crime, the need to allow police to investigate crimes in a manner they consider to be the most effective, the interest of the State in securing evidence of the commission of offences, the necessity to protect individuals from unfair treatment and the undesirable effect of approval or even encouragement being given to improper conduct of police officers therefore ensuring that the courts are not demeaned by the uncontrolled use of the fruits of impropriety and the ease with which the police might have obtained the evidence without improper conduct: Bunning v Cross (1978) 141 CLR 54; Pollard v The Queen [203].
The burden of proof lies on the accused to establish the grounds upon which to exercise the discretion, effectively in this case improper conduct on behalf of the police.
Australian law does not recognise entrapment as a defence to criminal proceedings: Ridgeway v The Queen (1995) 184 CLR 19, 36 ‑ 39; [1995] 78 A Crim R 307, although it may be relevant to sentencing.
In Ridgeway the High Court recognised that a discretion existed to exclude, on public policy grounds, all evidence of a person's guilt or an element of an offence where the actual commission of the offence was procured by improper, but lawful, conduct on the part of law enforcement authorities.
In Ridgeway it was recognised that the effective investigation by the police of some type of criminal activity necessarily involves subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. If the chosen investigatory tactics do not involve illegal conduct, their use would ordinarily be legitimate, notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity.
However, the court recognised that there were 'inherent limits' on the power of the State to manipulate people and events for the specific object of obtaining convictions and there may be some circumstances where law enforcement officers intentionally bring about the opportunity for the commission of a criminal offence by conduct which is not criminal but which is quite inconsistent with the minimum standards which a society should expect and requires of those entrusted with powers of law enforcement.
The court said the type of impropriety required would involve a degree of harassment or manipulation which was clearly inconsistent with minimum standards of acceptable police conduct in all of the circumstances including the nature and extent of any known or suspected existing or threatening criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community.
The impropriety of the police conduct would normally be required to be so calculated or so entrenched that it was clear that considerations of public policy require exclusion of the evidence. If such conduct was engaged in and had procured the commission of the offence the court could exercise its discretion to exclude the evidence: Ridgeway v The Queen (36 ‑ 39).
In Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 158 A Crim R 546 the New South Wales Court of Criminal Appeal said the identification of impropriety requires attention to what is considered to be the 'minimum standards which is society such as ours should expect and require' of the police and the conduct in question must not merely blur or contravene those standards in some minor respect but must be 'quite or clearly inconsistent with' those standards and the concept of 'harassment' and 'manipulation' suggested that some level of encouragement, persuasion or importunity in relation to the commission of the offence was required.
Public standards test
The accused argue that public standards are such that the police should have arrested them after the first supply to the UCO and the UCO should not have escalated his requests to purchase drugs over a three month period. I do not accept that is the public standard.
Judicial notice can be taken of the fact that many people legitimately argue that controlled operations should involve operations which last considerably longer than two or three months and involve purchases of larger amounts such as multiple kilograms of prohibited drugs.
It is accepted that the trafficking of drugs is one of the most significant problems facing a modern community. The distribution of drugs within the community demeans society as a whole. People become addicted to the drugs and often resort to the commission of criminal offences to fund their habits, drug users, their families and loved ones are affected and families destroyed by a person's addiction and use of illicit drugs.
Those that sell and distribute drugs in the community often develop methods to avoid detection such as the use of codes, multiple phones, police scanning devices, security cameras and arm themselves with prohibited or controlled weapons. They often enforce debts owed to them by violent means.
The investigation of a trade of this nature in a modern society requires police use those techniques that are available to them such as authorised listening devices, controlled operations, informers, public hotlines and the like. The use of authorised operation, controlled buys and undercover officers is authorised by the Covert Powers Act subject to compliance with the terms of the Act. Whilst the manner in which a controlled operation is run is a matter for the police, the court does retain the right to rule any evidence obtained in such operation inadmissible if the manner in which the operation was conducted was quite or clearly inconsistent with the minimum standards that a society expects.
Police officers are entitled to provide opportunities for the commission of offences when they have a reasonable suspicion that individuals are already engaged in the commission of offences of that general nature. Such conduct is not considered to be entrapment.
In R v Sloane (1990) 49 A Crim R 270 Gleeson CJ stated:
A common method of establishing that a person is carrying on an activity of selling goods of a particular kind is to buy some of the goods in question from that person. The specific sale would never have taken place but for the activity of the relevant police officer or informer but that is not sufficient to constitute a case of entrapment.
In Ridgeway Gaudron J noted the distinction between mere provision of an opportunity to commit a crime, and inducement to commit a crime saying that an accused person is fairly regarded as wholly responsible for his own actions where it is clear that the contraband that he supplied is generally available to all who wish to purchase it [77].
There is a difference between providing the opportunity for the commission of the offence and creating the commission of the offence.
In this case there is no doubt the police afforded the opportunity for the commission of the offence, however they did not create the commission of the offence. The accused has not satisfied me the undercover officer's conduct induced them to commit a crime which otherwise they would not or would have been unlikely to commit. There is a clear distinction between an 'unwary innocent' and the 'unwary criminal'. The undercover officer's conduct provided an opportunity for the accused to commit the offences. The police were willing purchasers of the drugs. The accused were willing suppliers. The accused did not have to supply the drugs. The suggestion that but for the undercover officer's actions the accused would not have committed or would not been likely to commit these offences is not supported by the evidence.
The accused have failed to persuade me that the UCO breached any minimum standards expected and require of an officer carrying out a controlled operation. Notwithstanding the frequency of the purchases and their escalating nature, there is nothing inconsistent in the behaviour of the undercover officer with those standards. There was no harassment or manipulation. The UCO gave the accused an opportunity to break the law, which they did, and on the evidence before me, the accused would have behaved in such a way if the opportunity had been offered by anybody else.
Limiting unlawful conduct to the maximum extent
Accepting as I do that as a matter of public standards, the UCO is required to ensure that the unlawful conduct involved in conducting the operation will be limited to the maximum extent consistent with conducting an effective controlled operation, there is nothing before me to satisfy me that this was not the case. As the defence challenge is to the UCO's conduct and not the conduct of the operation as a whole or the authorisation to conduct the operation, I must examine the UCO's conduct.
The narrow view of the 'unlawful conduct' is that it only encompasses conduct other than the UCO acting in accordance with the authorised operation. The argument being that the UCO was not involved in any unlawful conduct as it was a controlled operation and he is not criminally responsible for acts which would otherwise have been criminal such as the possession, negotiations to purchase and subsequent purchase of the drugs and supplying those drugs to other officers involved in the operation. Such acts are controlled conduct within the Covert Powers Act for which the UCO is not criminal responsible and are acts which are authorised, justified or excused by law or at the least prohibited by law but excused and therefore not unlawful: Houghton v The State of Western Australia [2005] WASCA 216.
The wider view is that the words 'unlawful conduct' encompass both the acts of the UCO which but for the Covert Powers Act would be criminal conduct and the acts of the accused and their associates and anyone associated with them in their possession or supply of drugs. The argument being that the undercover officer's conduct is unlawful even if he is not criminally responsible pursuant to the Covert Powers Act.
I am not required to determine whether the wide or narrow view ought be preferred because I am not satisfied that the UCO's behaviour was such that the unlawful conduct inherent in his activities was not limited to the maximum extent consistent with conducting an effective controlled operation.
As a matter of common sense, an effective controlled operation does not require the police to arrest the seller after the first controlled buy, nor are they restricted to buying the same of lesser amounts than purchased previously.
A UCO is entitled to see how much a person whom they know or suspect is a dealer is able to supply, at what frequency and to ascertain if others are involved in the supply, either as participants in a joint criminal enterprise, or as aiders. That is a legitimate investigatory tool required to combat the destructive effect of drug trafficking within the community.
Minimising the risk of more drugs being under the control of others
Similarly, there is no evidence from which I could conclude that the conduct of the UCO was such that it did not minimise the risk of more prohibited drugs being under the control of persons other than law enforcement officers at the end of the operation than would reasonably be necessary to enable the officer to achieve the purpose of the controlled operation.
On the contrary, the way the operation was run and the conduct of the UCO was such that at the end of the operation more prohibited drugs were under the control of law enforcement officers and less drugs under the control of the accused because as is evidenced by the subsequent search, no illicit drugs were recovered in the accused's possession at the time of the search and the papers clearly establish that the drugs that were purchased were in the possession of the police officers.
Inducing or encouraging criminal activity that could not reasonably be expected to be engaged in unless so induced or encouraged
This ground looks at the conduct of the UCO ('the participant') and has been dealt with when considering the public standards submission. The accused have failed to satisfy me that this ground is made out as I am not satisfied that the UCO induced or encouraged the accused to engage in activities that they could not reasonably be expected to engage in unless so induced or encouraged.
Conclusion
There is nothing in the conduct of the UCO, considered individually or in combination, that was improper or inconsistent with minimum standards that society expects of police officers, let alone 'clearly inconsistent' or which blurs or contravenes those standards. There is no basis to activate a consideration of the public policy and or unfairness discretion to exclude his evidence.
The search of 6 February 2014
The accused argue that any statements made by them during the search which was audio and visual recorded are inadmissible.
Grounds of Mr Thornton's application
Mr Thornton says that at the commencement of the search he was advised he was under arrest in respect of suspicion and provided with the caution and his CIA rights. He says he made it clear he wished to speak to a lawyer and should not have been questioned until after he had been permitted to do so.
The transcript of the audio‑visual recoding reveals the following exchange.
Senior Constable Davies. Okay. So part of that is that you may have some rights and that is that you have the right to contact a lawyer.
Third person. Yeah.
Senior Constable Davies Would you like to contact a lawyer?
Thornton(Indistinct)
Senior Constable Davies Now, ah, now or later it is up to you
ThorntonWell, now, why not.
Senior Constable Davies Have you got a lawyer?
Third person I got a new one
ThorntonOh, ring one, ring one
Senior Constable Davies You ring one, alright.
Third person Go ring mine if you want.
Senior Constable Davies Yeah, okay we'll do, we'll do
Thornton(Indistinct)
Senior Constable Davies The tape first, we will do the intro and then we will allow you …
Thornton(Indistinct)
Senior Constable Davies The opportunity to speak to a lawyer …
…
Senior Constable Davies Kerry (Clegg) Would you like to speak to a lawyer?
CleggWhen?
Senior Constable Davies Now.
CleggYou got one?
Senior Constable Davies Well I haven't no, but you can …
Third person I do
Senior Constable Davies Try and contact one of your own if you choose
Third person (Indistinct)
CleggWhat do I need one for?
Senior Constable Davies Well it's up to you
Third person (Indistinct)
Senior Constable Davies It's an option, it's a choice we have to give you
ThorntonYou don't need one.
Senior Constable Davies You don't need one it's up to you.
ThorntonAnything in this house, it's ah my hands (indistinct)
Senior Constable Davies So we have got to offer you the opportunity if you want to speak to a lawyer.
CleggNah
Senior Constable Davies You can.
ThorntonI'm the man of the house here (indistinct)
The Applicable Law
Significantly in Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 (McLure P, Buss JA) it was determined that under s 138(2)(c) of the CIA an arrested suspect is entitled to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner and under s 138(3)(a), the officer in charge of the investigation must as soon as practicable after the arrest of a suspect inform the suspect of his or her rights under, inter alia, s 138(2)(c).
It is accepted by all parties that these provisions were complied with.
It was also held in Wright v The State of Western Australia that the only obligation of the officer in charge in relation to s 138(2)(c) is to inform the suspect to his entitlement to a reasonable opportunity to communicate with a legal practitioner. The officer in charge is not obliged to supply or furnish an arrested suspect with any facilities which are reasonably necessary for the suspect to take advantage of his or her entitlement under s 138(2)(c), however the police must not by any act or omission prevent the suspect's exercise of that entitlement.
It is entirely a matter for the suspect as to whether or not he wishes to exercise that right. If the arrested suspect wishes to take advantage of his or her entitlement to a reasonable opportunity to communicate or attempt to communicate with a legal practitioner, what would constitute a 'reasonable opportunity' will, of course, depend on the particular facts and circumstances of each case.
Further, the majority was of the view that the caution sufficiently protected the interest of the suspect, as a suspect who wishes to communicate with a lawyer will be aware that he is not obliged to answer any question. Further, the court said that the practical effect of the obligation in s 138(3)(a) to inform the suspect of his right to communicate with a lawyer as soon as practicable after arrest will ordinarily require the information be provided prior to interviewing the suspect.
The only relevant obligation of a police officer is to inform a suspect of his right to communicate with a lawyer and then the onus is effectively cast on the suspect to exercise the right if he or she so desires. There is no duty on the police to cease questioning the suspect.
Analysis
Mr Thornton indicated that he would like to speak to a lawyer and would like to ring one and was told by the police officer that after they did the 'intro' on the tape they would allow him the opportunity to speak to a lawyer.
That is not however what occurred. The officers did more than the 'intro' they questioned him about items located at the premises. Those questions continued until transcript page 41 at which time the officer indicated that they would call the lawyer, Mr Thornton then replied 'Don't really need one, I don't need a lawyer right'.
I exclude the audio portion of the interview with Mr Thornton up to page 41 not on the basis of the police contravening their CIA obligations to inform Mr Thornton of his right to communicate with a lawyer as soon as practicable, but because Mr Thornton has persuaded me to exercise the common law discretion to exclude evidence under the unfairness and or public policy discretion.
The unfairness established was the conduct of the police in advising Mr Thornton that they would allow him to contact a lawyer but were just going to continue to record the introductory process and then asking him questions about items they located during that process.
Clearly, Mr Thornton had been cautioned and understood the caution, however he in effect indicated that he wished to speak to a lawyer on two separate occasions. The offences facing Mr Thornton are serious each carrying a maximum penalty of 25 years imprisonment. I consider that the officer's behaviour was not intentional or reckless or as a result of any mistake but arose simply because of the police officers understandable instinct to ask questions about any object they found, irrespective of what they had previously said to the accused and they were anxious to expedite the interview.
The probative value of the evidence is mixed. Part of the evidence the defence seek to exclude is the accused saying that he is a user, not dealer of speed. Other parts are of some probative value to the State in that they implicate him in the possession of MSM and clipseal bags. However, the State's case will, in my opinion, stand or fall on the UCO's evidence not the search results or admissions contained on the audio‑visual recording of the search.
However at the end of the day, I consider the admission of the evidence would be unfair to the accused in that it would result in an unfair trial. It is unfair to use evidence of what Mr Thornton said in circumstances where he had asked for a lawyer and been told by the officers that they were just going to carry on with the introductory process and then they asked him questions about items located in the introductory process. There is a need to protect the rights of the accused and respect his wishes when he says he wishes to speak to a lawyer and a need to ensure that police officers comply with the undertakings they give accused persons.
Be it under the unfairness discretion or the public policy discretion, the audio portion of the evidence of the questioning by the police of Mr Thornton up to page 41 should be excluded.
Those portions of the interview, which are otherwise admissible, subsequent to the police telling Mr Thornton that they would ring a lawyer and Mr Thornton advising that he did not want to speak to a lawyer do not face the same objections and are admissible.
Ms Clegg
Ms Clegg argued that although she has been informed of her right to contact a lawyer, both Mr Thornton and Senior Constable Davies advised her 'You don't need one'.
It is said that it is improper or unfair conduct on behalf of a police officer to tell an accused person that they do not need a lawyer in circumstances where they are then going to be questioned about an offence for which they have been arrested.
The State say there can be no argument that Ms Clegg did not know her rights because there were numerous questions to which she made no comment and other questions which she answers.
Whilst there is force in the State's submission as a matter of fairness/public policy evidence of what Ms Clegg said to the police ought to be excluded.
Public policy considerations require the court make it clear to police officers that they when informing the accused of his/her rights to contact a lawyer they should not advise the accused that they 'don't need one'.
Whilst it is possible that the police officer was merely repeating what Mr Thornton had said, the fact is that it was said by the officer cloaks the remarks at least in the eyes of an accused with more authority.
Ms Clegg had been cautioned and understood the caution. The offences facing her are serious each carrying a maximum penalty of 25 years imprisonment. The officer's behaviour may be no more than carelessly repeating Mr Thornton's earlier remark, however she told the accused who she arrested and was about to question that 'she did not need a lawyer'. That has the effect of influencing or potentially influencing the accused's decision as to whether to contact a lawyer and that is a decision solely for the accused. It was improper for that remark to be made.
The probative value of the evidence is mixed. Part of the evidence the defence seek to exclude is the accused saying that she is a user, not a dealer of speed. Other parts are of some probative value to the State.
Courts need to be vigilant in protecting an accused's rights. The officer conduct in telling the accused that she does not need a lawyer is such that any evidence obtained after that is evidence obtained at too high a price. Public policy considerations require the evidence to be excluded so that officers learn that such remarks will render the subsequently obtained answers inadmissible and by this process, hopefully, such remarks are not repeated.
I therefore rule the whole of the audio of Ms Clegg's interview with the police inadmissible.
Insofar as those portions of the interviews ruled inadmissible it is only the audio which is to be edited. The visual portions are admissible as are the fruits of the search. The officer can give oral evidence as to what was found and where it was found as the visual images are displayed.
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