DPP v M D [2010] VSCA 233

CRIMINAL LAW - Appeal - Interlocutory appeal - Two interviews with suspect - First interview contravened Crimes Act 1958 s 464C - Whether effect of contravention infected second interview - Whether open to treat as single interview - Whether relevant to consider suspect's personal characteristics and circumstances - No error in exercise of discretion - Leave to appeal refused.

Criminal Procedure Act 2009 (Vic) s 295(3), 297.

1 This application for leave to appeal concerns a pre-trial ruling that evidence be excluded under s 138(1) of the Evidence Act 2008 (Vic) ('EA'). That sub-section 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.

2 The evidence in question was a record of interview conducted with the respondent at the police station ('the ROI'). This followed an interview with the respondent conducted at his home several hours earlier ('the field interview'). The interviews were conducted by the same police officers. As will appear, the judge ruled the field interview inadmissible under s 138(1) EA, by virtue of a contravention of s 464C of the Crimes Act 1958. She subsequently concluded that the ROI was to be regarded as a continuation of the field interview and that the consequences of the earlier contravention infected the whole. On that basis, her Honour ruled that the ROI should also be excluded under s 138(1) EA.

3 The questions for determination on this application are:

(a) whether it was open to the judge to treat the two interviews as parts of one continuing process and, if so, to treat the vitiating conduct in the field interview as infecting the ROI; and

(b) whether, in considering the question posed by s 138(1), her Honour was entitled to have regard to the personal characteristics of the respondent as interviewee.

4 For reasons which follow, we have concluded that both questions should be answered affirmatively, and that the application for leave to appeal should be refused. We deal first with a threshold issue which was argued, concerning the certificate given by the judge under s 295(3)(a) of the Criminal Procedure Act 2009 ('CPA').

Does the exclusion of the ROI 'substantially weaken the prosecution case?'

5 Where an interlocutory decision concerns the admissibility of evidence, leave to appeal may not be sought unless the judge who made the decision certifies that the exclusion of the evidence

would eliminate or substantially weaken the prosecution case.[1]

In this case, the judge gave such a certificate, on the application of the Crown, and gave detailed reasons for concluding that the exclusion of the ROI 'would substantially weaken the prosecution case'.

6 The decision to certify is not subject to review but, as the Court has previously suggested,[2] it will sometimes be appropriate to examine the basis of the decision to certify in considering whether or not there should be a grant of leave to appeal under s 297 CPA. Counsel for the respondent invited us to take that course, submitting that the decision to certify was erroneous. According to the submission:

The interlocutory decision does not eliminate or substantially weaken the prosecution case. The prosecution are able to lead the evidence of the complainant and also recent complaint evidence.

7 In her reasons for certification, the judge noted that this Court in CGL v DPP (No 2)[3] had refrained from expressing a concluded view about how the phrase 'substantially weaken the prosecution case' should be interpreted. In those circumstances, her Honour felt constrained to apply decisions of the New South Wales Court of Criminal Appeal on the meaning of 'substantially weaken'.[4] The phrase 'eliminate or substantially weaken' appears in s 5F(3A) of the Crimes Act 1900 (NSW) but, as counsel for the respondent pointed out, under that provision only the Crown can appeal on evidentiary issues. No such limitation applies under s 295 CPA. There was debate in the course of argument as to whether that significant difference in scope justified, or required, a different approach in Victoria to the interpretation of the phrase.

8 This is an important question but, in view of the conclusion we have reached on the application for leave to appeal, it is unnecessary to express any view about the correctness of the judge's decision to certify or the applicability of New South Wales authority.

9 Although her 'MySpace' page gave her age as 20, the complainant, PC, was in truth 13 years old when she first met the respondent. He is accused of raping her, by both digital and penile penetration, on the occasion of their first meeting. The same events have also given rise to two counts of the sexual penetration of a child under the age of 16 years. He has pleaded not guilty to all counts.

10 At the time of the alleged offences, the respondent was 22. The other persons who are relevant to this narrative are TH, a female friend of PC, and BM, a male friend of the respondent. TH was then 16 years old. She had already formed an intimate relationship with BM.

11 The two girls lived in Geelong. It seems that, on Saturday 6 June 2009, they wished to escape from the confines of home. Negotiations were opened with BM. He agreed to drive to Geelong and bring the girls back to Melbourne, on condition that both he and the respondent receive sexual favours in return. Subsequently, there was both digital and penile penetration of PC by the respondent.

12 There are only two issues for the jury to resolve. The first is whether PC's involvement in the sexual acts was consensual and - if not - whether the respondent was aware that she was not, or might not be, consenting.[5] The second is whether, if PC did consent, the respondent believed on reasonable grounds that she was aged 16 or older.[6]

13 During the field interview, the respondent denied any penetration of PC. In the ROI, however, he admitted digital penetration, but maintained his denial of penile intercourse. He now admits both. The Crown contends that the denials demonstrate a consciousness of guilt, and hence amount to an implied admission. It accordingly sought to put the records of interview into evidence.

14 As noted earlier, the judge ruled that the field interview should not be admitted into evidence. She concluded that 'the spirit, if not the letter' of s 464C had been contravened because of the admitted failure of the police to tell the respondent, when the field interview began, that he could at that point exercise his right to communicate, or attempt to communicate, with a friend, a relative, or a legal practitioner. The evidence had therefore been obtained 'improperly or in contravention of an Australian law' and her Honour ruled under s 138(1) EA that it not be admitted. That decision is not challenged.

15 What is in issue on this application is her Honour's subsequent ruling to exclude the ROI, also under s 138(1). That ruling was based on the judge's view that the field interview and the ROI should be characterised as one interview, and that the impropriety in the conduct of the field interview continued so as to infect the whole. On this application, the prosecutor contends that the field interview 'constituted a separate or discrete episode of questioning' from the ROI, and that the latter was not touched by any defect to which the former might have been subject.

16 By s 464C, an investigating official must, before the commencement of the questioning of a person in custody, not only inform that person of certain rights to communicate, or attempt to communicate, with a friend, a relative or a legal practitioner, but also (subject to presently irrelevant exceptions) 'defer the questioning and investigation for a time that is reasonable ... to enable the person to make, or attempt to make, the communication.'

17 In this case, the respondent was given the requisite information, and was asked whether he understood it. He said that he did. But he was not asked whether he wished to exercise the rights to which his attention had been drawn.

18 In these circumstances, it was open to her Honour to find that the police had acted improperly or in contravention of the law. As her Honour noted, the Court of Criminal Appeal of this Court in Pollard v The Queen[7] said:

In conveying the information required under s 464C(1), the investigating official is bound to make it plain that the entitlement described is a present entitlement. It would make nonsense of the legislation if the person in custody were not made aware that he could if he wished attempt the communication immediately.

19 The police did not make the respondent aware that he could, if he wished, attempt to communicate immediately with a person who fell into the relevant class. In the circumstances of this case, this failure was of particular significance. Her Honour found that the respondent lacked fluency in the English language, and had limited knowledge of his rights as an Australian citizen, a status he acquired in 2006 after three years in this country. Moreover, the field interview was conducted after some ten police members had entered his flat with a warrant for his arrest, and had interrupted his overnight sleep when he had been in bed for only about three hours.

20 Her Honour also placed significance on the respondent's experiences as a refugee from the Sudan. When escaping the civil war in his homeland, he had suffered at the hands of the Kenyan police because he had no means of paying the bribe that was demanded as the price of his continued passage. There was, in addition, the fact that the respondent's telephone rang shortly after the police arrived at the Deer Park flat, and before his rights were read to him. His move to answer the call was met immediately with an instruction from one officer to 'just leave that', while at the same time the other officer said 'Could you just leave your phone?'

21 Taking these matters into account, it was open to the judge to find, as she did, that the police ought to have taken, but failed to take, especial care to ensure that the respondent understood that he could exercise then and there his right to communicate. As an allied proposition, it was similarly open to her Honour to find that the respondent's ability to take the initiative and, of his own accord, seek to exercise his right of communication - an ability which might be thought to exist at least in theory - was in fact illusory. That right, therefore, was - as a matter of practicality - denied to him. It followed, according to the judge, that the police had failed to do that which s 464C says must be done. In our respectful opinion, her Honour was correct in coming to these conclusions.

22 The respondent conceded that the impropriety in the conduct of the field interview was not repeated in the conduct of the ROI. He was in clear terms asked whether he wished to exercise any of the relevant rights before the interview continued. He declined the offer. He nevertheless maintained that the failure to give him that option, effective immediately, in the field interview so infected the ROI that it should also be rejected. In other words, there was but one interview, and his fear that an admission would result in a beating at the hands of the police continued to exert its influence during the ROI. His evidence on the voir dire was that, during the period between his arrival at the police station and the commencement of the ROI, his fear increased, as did the strength of his notion that he should be consistent in the effect of his answers - which, in his words, was that 'I didn't do it'.

23 In ruling that the ROI should be excluded, her Honour found this 'to be crucial evidence'. She concluded that the points of connection between the field interview and the ROI were so strong that they constituted two segments of the one interview. She continued:

In the circumstances I find that, notwithstanding that it was made clear to him in the subsequent record of interview that he could see a lawyer, he nevertheless felt compelled to maintain his false denial. To my mind, this spells out a significant forensic disadvantage ... In short, in the record of interview, ... because of what had transpired in the field interview, the accused did not feel that he could be honest with the police because it would be obvious that he had earlier told a lie. He has effectively resorted to repeating false denials because of the stress ... flowing on from the field interview. This has meant that his capacity to give a full and frank account of what occurred has been compromised because of the fear for his own safety, hence he has been put at a forensic disadvantage.

In short, I find that the impropriety or breach of s 464C, which has caused me to rule that the field interview was inadmissible, has so infected what transpired in the record of interview that I must rule it inadmissible for the same reasons.

I do not accept that the defect can be remedied because the accused could call evidence to explain to a jury why, because of his experience in Kenya, he was afraid of police and make false denials. It is not appropriate that, because of some deficiency on the part of the police in ensuring that the accused has understood his rights and has understood his entitlement to exercise those rights, that the accused should be put in a position of having to call evidence.

In other words, I find that in conducting the balancing exercise required by s 138, notwithstanding that the prosecution relies upon the false denials as significant evidence of probative value, they have been obtained at an unacceptable cost in the light of prevailing community standards as to how a suspect should be treated, particularly one from a different cultural background, whose capacity to make himself understood in English is poor.

25 Having regard to the considerations adumbrated in Heatherington v The Queen,[8] we consider that it was open to the judge, for the reasons which her Honour gave,[9] to find that the field interview and the ROI 'should be characterised as the same questioning'. We do not suggest that two discrete periods of questioning must be characterised as one in all cases where the latter questioning cannot be understood without reference to the former. Each case depends upon its own facts and circumstances. For example, the period of time separating a first period of questioning and a second may be enough in itself to conclude that the two are not in substance one, notwithstanding that questions asked in the latter are dependent for their comprehensibility on questions asked in the former.

26 But, in this case, the relatively close connection in point of time between the two periods of questioning, the fact that the respondent was held in custody and incommunicado during that time, and the fact that the interviewer and corroborator were the same during both periods of questioning, were enough to support the judge's conclusion.

27 For the purposes of this application, the Crown accepted that the exclusion of an admission pursuant to s 138 of the Evidence Act 2008 involves an exercise of discretion which, on appeal, attracts the operation of the principles in House v The King.[10] We have proceeded on that basis.

28 Although no occasion arises to decide the point, the Crown's concession accords both with what was said in Em v The Queen[11] and with the analysis by Mason and Deane JJ in Norbis v Norbis[12] of the characteristics of a discretionary decision. Their Honours were dealing with the application of the 'just and equitable' test in s 79 of the Family Law Act 1974, but what was said is of general application:

Here the order is discretionary because it depends on the application of a very general standard - what is 'just and equitable' - which calls for an overall assessment in the light of the factors mentioned in s 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.

The principles enunciated in House v The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.[13]

29 Under s 138(1), the judge is likewise called on to apply a very general standard, that is, to decide whether '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.' Moreover, the section calls for 'an overall assessment' in the light of the factors mentioned in s 138(3), each of which calls for 'an assessment of circumstances'. It could reasonably be said, adopting the language of Mason and Deane JJ, that these assessments:

call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right.

30 Further consideration of this question must await a case in which it falls for decision. In order for the Crown to succeed in this appeal, it was necessary for the Crown to show that the judge failed to take into account relevant considerations, or took into account irrelevant considerations, or otherwise came to a conclusion which was not reasonably open on the facts before her. Senior counsel for the Crown contended that the judge erred in her approach to the s 138(1) question, first, by failing to refer expressly to the matters set out in ss 138(2) and (3) and, secondly by taking into account an irrelevant consideration, namely, the subjective circumstances

of the respondent and thus the subjective effect of the contravention of s 464C upon him.

31 In our view, no error has been demonstrated. As to the first alleged error, it is clear from the judge's reasons that she correctly addressed herself to the issues made relevant by ss 138(2) and (3). In those circumstances, to insist that a judge list seriatim the matters to which those subsections draw attention would be to elevate form over substance.

The personal circumstances of the interviewee are relevant under s 138

33 The question for her Honour was whether the evidence comprised of the false denials was obtained at an unacceptable cost according to prevailing community standards. Logic and common sense imply that the question could not be answered without taking into account the subjective circumstances of the respondent and thus the effect of the contravention on him.

34 The terms of s 138 confirm that view of the matter. Section 138(2)(a) expressly provides that evidence of an admission made during or in consequence of questioning, and evidence obtained as a consequence of such an admission, is to be taken as having been obtained improperly if the person conducting the questioning 'did or omitted to do an act in the course of the questioning even though he or she ... ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning'.

35 Plainly, an investigation into this issue must necessarily include an examination of the subjective circumstances of the respondent, and thus the effect of the impropriety or contravention upon him. Her Honour did not, in her ruling on the admissibility of the field interview, refer to s 138(2). She did, however, on a voir dire, hear evidence from the respondent, which led her to conclude that his denial of sexual intercourse was induced by his fear that an admission would result in a beating at the hands of the police.

36 This approach is consistent with appellate authority in New South Wales on s 138 EA. In his work on the Uniform Evidence Act in Victoria,[14] Stephen Odgers cites R v Helmhout[15] for the proposition that:

[a]ssessment of the gravity of the impropriety or contravention will usually include consideration of the consequences of the impropriety or contravention on the individual concerned, which in turn will usually require consideration of that individual's personal characteristics.

Helmhout[16] was an appeal against a conviction for murder. The sole ground of appeal was whether the trial judge erred in admitting an electronically-recorded interview between the appellant and the police, during which the appellant made admissions.

37 Under the Crimes (Detention after Arrest) Regulation 1988 (NSW) particular procedures are laid out for detained persons who are identified as 'vulnerable'. Aboriginal persons, of whom the appellant was one, are included in that category. Accordingly, on becoming aware that the appellant was of Aboriginal descent, the custody manager was obliged to (a) immediately inform him that a representative of an Aboriginal legal aid organisation would be notified that the appellant was being detained for an offence, and (b) then notify such a representative accordingly. He failed to follow this procedure. The trial judge (Bell J) nonetheless exercised her discretion under s 138 to admit the evidence. Her Honour accepted that the custody manager's omission was not deliberate, and arose because of 'the totality of demands on his time on the day'. Moreover, he was busy, and the situation at the station was 'somewhat chaotic'.

38 The New South Wales Court of Criminal Appeal dismissed an appeal from that ruling. The Court agreed with the judge that, in order to assess the appellant's capacity to deal adequately with police questioning in the absence of legal representation, it was necessary to consider his particular characteristics as an indigenous person. Ipp AJA said:

In my view, the argument advanced by the Crown overlooks the fact that some human beings are more vulnerable in facing police interrogation than others. Many factors bear upon an individual's vulnerability. Age, education, personality, and general experience of life are some that are relevant to an individual's capacity to deal with police questioning. Plainly, that capacity varies from individual to individual. This means that a contravention of clause 28 [the relevant statutory provision] must have different consequences depending upon the particular characteristics of the individual who is interviewed by the police.

In my view, the consequences to the particular individual of a contravention of cl 28 are highly relevant to a determination under s 138(1). [17]

...

In any event, in my view, the issue raised is resolved by s 138(3)(d) which requires the court to take into account the 'gravity' of the contravention concerned. I do not see how the gravity can be considered without reference to the consequences of the contravention on the individual concerned. A contravention of cl 28 involving an Aboriginal youth, who does not have a good command of English, who has had no dealings with police, who has lived his entire life in, say, desert surroundings and has never lived in a town or city, could well be severe. On the other hand, the consequences if the Aboriginal person is of mature years, has had many dealings with police and is not intimidated by the idea of being questioned by them, and who, generally, may be regarded as a well educated, sophisticated and worldly wise person, are likely to be minimal.[18]

There can be no doubt that in at least many cases any consideration of the gravity of the impropriety of contravention to which s 138 requires attention will involve a consideration of the particular accused's personal characteristics. Demonstrably a breach of cl 28 in the case of an uneducated and ignorant Aboriginal would be a graver contravention than in the case of one who was in fact a practising criminal lawyer. Thus I disagree with the submissions advanced on behalf of the Crown to the effect that, as all Aboriginal persons are regarded by the Crimes (Detention after Arrest) Regulation as 'vulnerable', there is no occasion to consider their situation individually. A fortiori, is this so as the expression 'vulnerable person' is defined to include not only Aboriginals but also children (necessarily of a wide variety of ages) and persons with impaired intellectual functioning (whose degrees of impairment are also likely to extend over a wide range).

Thus as a general proposition a judge should, when considering s 138 and in particular the requirements of s 138(3)(d), direct attention to the appellant's personal characteristics.[19]

40 Hulme JA also referred to evidence that the appellant had not had a deprived background, had achieved his school certificate and then trade qualifications, had worked through most of his adult life, had been in a stable de facto relationship, had no psychiatric history, and showed no impairment to his concentration during testing, or any signs in the videotaped interview of being noticeably incapacitated. What is more, he had given evidence on the voir dire of being aware of his right to silence and of making a considered decision not to speak to a solicitor. The trial judge in Helmhout[20] did not specifically refer to these matters when addressing s 138(3)(d), but Hulme JA held that, even if her Honour had done so, it would have made no difference favourable to the appellant.

41 R v Phung and Huynh[21] was cited by Ipp AJA in Helmhout[22] as an example of the application of the principle that the consequences to the particular individual of the impropriety or contravention are highly relevant to a determination under s 138(1). In Phung,[23] the two accused were facing charges of armed robbery and murder. Phung himself was 17 years of age. According to evidence given by him on the voir dire, he was also unable to read English. Under the legislative scheme which applied in Helmhout,[24] there was an obligation on the police to ensure that, as a child or vulnerable person, he was given the benefit of a 'support person' during the interview, and when forensic samples were taken.

42 A delay in the relevant appointment meant that this latter obligation was not met. Not only that, but the person eventually appointed was of relative immaturity and inexperience, who received no explanation from the custody manager about his role - and who clearly did not understand it. Nor was he permitted to speak privately to the accused. There were also signs that the accused was tired; and his own evidence was that he had not only used drugs in the hours preceding the interview but was during the interview, as he described it, 'stoned'. Wood CJ at CL found that, two hours into the interview, 'it was crystal clear that the accused was showing real signs of exhaustion'.

43 His Honour also concluded that the irregularities would not, taken individually, have formed the basis for exclusion of the record of interview. Nor were they contumelious or deliberate; rather, they were the result of an inadequate understanding of the requirements of the regime, and their importance. In combination, however, they gave rise to a serious concern that the accused's rights had not been properly protected.

44 In exercising his discretion under s 138(1) to exclude the record of interview, his Honour said:

In that regard I take into account the fact that [the accused] had a background of drug addiction, that he was separated from his parents, and that he had a limited education and capacity to read English. I also take into account the fact, it would seem, that he had used drugs within the 24 hours preceding the interview, a period during which he had allegedly been involved in two separate instances of serious criminality, and which was likely as a consequence, to have been a somewhat turbulent period for him.[25]

45 It follows that the judge did not err in the exercise of her discretion under s 138(1) EA. This conclusion makes it unnecessary to consider whether her Honour was correct to hold that the evidence of false denials should also have been excluded on the ground of unfairness under s 90 of the Evidence Act 2008, or whether she was correct to hold that the informant failed to comply with s 464A of the Crimes Act 1958, or whether, if the record of interview had not been excluded, the false denials contained in it were capable of amounting to evidence of consciousness of guilt.

46 The application for leave to appeal should be dismissed.

[1] Criminal Procedure Act 2009 s 295(3)(a).

[2] CGL v DPP (No 2) [2010] VSCA 24, [13].

[3] [2010] VSCA 24.

[4] R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408; R v SJRC [2007] NSWCCA 142; R v Smith [2008] NSWCCA 247; (2008) 190 A Crim R 8.

[5] Crimes Act 1958 s 38(2)(a)(i).

[6] Crimes Act 1958 s 45(4)(a).

[7] (1991) 56 A Crim R 171,178 (Young CJ, and Fullagar and J D Phillips JJ).

[8] [1994] HCA 19; (1994) 179 CLR 370, 376-7.

[10] [1936] HCA 40; (1936) 55 CLR 499; and see R v DG; DG v The Queen [2010] VSCA 173, [32]-[34].

[11] [2007] HCA 46; (2007) 232 CLR 67, 101 [95] (Gummow and Hayne JJ) ('Em').

[12] [1986] HCA 17; (1986) 161 CLR 513, 518.

[14] Stephen Odgers, Uniform Evidence Act in Victoria (2010), 729-730 [1.3.15200].

[15] [2001] NSWCCA 372; (2001) 125 A Crim R 257.

[20] [2001] NSWCCA 372; (2001) 125 A Crim R 257.

[21] [2001] NSWSC 115 ('Phung').

[22] [2001] NSWCCA 372; (2001) 125 A Crim R 257.

[23] [2001] NSWSC 115.

[24] [2001] NSWCCA 372; (2001) 125 A Crim R 257.