Gonyley v Gaughran

1. On 19 November 2025, I determined that the detention of the appellant in this matter was unlawful pursuant to s 4 of the Intoxicated People (Care and Protection) Act 1994 (ACT) (‘IPCPA’). The parties were directed to file written submissions with respect to the consequence of that determination ‘on the papers’: see Gonyley v Gaughran [2025] ACTSC 513.

2. The issue now for determination is whether the evidence obtained because of the appellant’s unlawful detention ought to be admitted pursuant to s 138 of the Evidence Act 2011 (ACT). This issue considers grounds 4 and 5 of the appeal: (a) The learned Magistrate ought to have concluded that the evidence was unlawfully or inappropriately obtained pursuant to s 138 of the Evidence Act 2011 (ACT). (b) The evidence against the appellant obtained in consequence of the appellant’s arrest and/or detention was unlawfully or inappropriately obtained and ought not to have been admitted against him.

3. In Fletcher (a pseudonym) v Knight (a pseudonym) (No 2) [2025] ACTCA 8, Baker J at [236] (with whom McCallum CJ and ultimately Mossop J agreed on this point) explained that an appeal with respect to a determination under s 138 is to be conducted on the correctness standard: Whilst it is true that this form of rehearing remains a “process for the correction of error” (Alexander v Bakes at [22]), such error will be shown where the appellate court reaches a different conclusion to that which has been reached by the first instance decision maker. So much is clear from the High Court’s decision in Warren v Coombs [1979] HCA 9; 142 CLR 531at 552, in which their Honours held that where the correctness standard applies: The duty of the appellate court is to decide the case - the facts as well as the law -for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.

4. The magistrate did not have any real advantage over this Court, in determining the admissibility of the evidence with respect to the appellant’s conduct in the watch house subsequent to what I determined to be, his unlawful detention.

Discretion to admit evidence pursuant to s 138 of the Evidence Act 2011 (ACT)

5. Section 138 of the Evidence Act provides discretion to admit evidence which was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or contravention. Evidence is not to be admitted unless the desirability of this evidence outweighs the undesirability of admitting the evidence which has been obtained. In this case, the evidence obtained following the appellant’s unlawful detention in Jerilderie Court was the only evidence of offending conduct which was said to have taken place after the appellant was detained in a cell at the watch house.

6. The respondent accepted in light of the conclusion in Gonyley v Gaughran that s 138 is enlivened because the evidence of the offence was obtained in consequence of a contravention of an Australian law: s 138(1)(b) of the Evidence Act. Accordingly, the evidence will not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which it was obtained. The onus is on the respondent to demonstrate that the evidence ought to be admitted.

7. The respondent also accepted that if I determine that the evidence should not be admitted, the appellant’s conviction for the offence ought to be overturned as there is no other evidence which would establish the offending conduct.

8. Relevantly, s 138 of the Evidence Act provides: 138 Exclusion of improperly or illegally obtained evidence (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; must not 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) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning— (a) did, or omitted to do, an act in the course of the questioning even though the person knew or 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; or (b) made a false statement in the course of the questioning even though the person knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it must take into account— (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Note The International Covenant on Civil and Political Rights is accessible at www.legislation.act.gov.au/updates/humanrights/.

9. The respondent submitted the evidence should be admitted and that a consideration of the mandatory factors in s 138 favoured the admission of the evidence for the following reasons: (a) The probative value of the evidence is high it being the only evidence in relation to the offence: s 138(3)(a) and (b). (b) The offence, whilst not an especially serious example of criminal conduct, involved wilful damage of property when the appellant was in police custody and there is public interest in holding the appellant accountable for his conduct in the circumstances: s 138(3)(c). (c) The illegality was not deliberate, reckless or capricious. The illegality arose from a mistaken, though honest belief, that the area where the appellant was detained by police was a public place for the purposes of the source of the power to detain. The nature and gravity of the illegality is not such as to warrant exclusion: s 138(3)(d) and (e). (d) The appellant was not deprived of his liberty deliberately, recklessly, capriciously or arbitrarily which would be inconsistent with rights recognised in the International Covenant on Civil and Political Rights (‘ICCPR’) and s 18 of the Human Rights Act 2004 (ACT). The illegality was based on a flawed understanding of the status of the area he was detained and was not compounded by any other illegality or improper conduct on the part of the police: s 138(3)(3)(f). (e) The evidence of the officer who detained the appellant revealed that his detention was for a proper purpose. Namely that the appellant was intoxicated and aggressive.

10. The appellant accepted that the probative value of the evidence is high, being the only evidence of the offence, though ultimately submitted that the factors which required consideration weighed against the admission of the evidence for the following reasons: (a) The relatively low level of criminality involved in the offending noting the offence carries a maximum penalty of 2 years of imprisonment, 50 penalty units or both. The value of the property subject to the charge, namely a piece of transparent Perspex and the cost of replacement was unknown, though at the time of the offence the charge required the value of the damage to the property to be less than $5000. No compensation was sought. (b) The appellant’s detention at around 2:15pm which arose from the illegality was not momentary. The appellant was handcuffed and placed in a police caged vehicle on a ‘hot day’. The appellant complained about the heated conditions in the police vehicle. The appellant was removed from the scene and taken to the ACT watch house where once locked in a cell, he committed the offence. The appellant remained in police custody until at least 9pm. He was not provided with food. He was not provided with access to legal advice. The consequences of the illegality were not minor. It involved the exercise of power where one of the factors which underpinned its lawful exercise was not present. The appellant submitted “if it is accepted that First Constable Gaughran’s decision to detain the appellant was ‘well intentioned’ the indignity and distress that the appellant suffered was not lessened or mitigated by reason of that fact”. (c) The illegality ought to be properly characterised as reckless in light of the absence of any evidence from First Constable Gaughran as to the matters he took into account when he determined that the area the appellant was in was a ‘public place’ for the purposes of the power being exercised to detain him. (d) The illegality breached the appellant’s right to liberty, privacy and freedom of movement (Articles 9, 12 and 17 of the ICCPR) and the Human Rights Act. (e) There is no evidence that any other proceedings have been or will be taken in relation to the contravention. (f) The offence would not and could not have been committed without the appellant having been unlawfully detained by police and removed from his residence. Consideration

11. The High Court in Kadir v The Queen [2020] HCA 1; 267 CLR 109 at [13] observed: The desirability of admitting evidence recognises the public interest in all relevant evidence being before the fact-finding tribunal. The undesirability of admitting evidence recognises the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally. In a criminal proceeding in which the prosecution seeks to adduce evidence that has been improperly or illegally obtained by the police (or another law enforcement agency), the more focussed public interests identified in Bunning v Cross remain apt.

12. The probative value of the evidence is high. If the evidence is not admitted the prosecution case against the appellant necessarily fails. The offence was not one which carried a high level of criminality. Whilst the conduct was deliberate, it was not protracted and did not cause substantial damage, though I accept resulted in a need to replace the individual piece of Perspex.

13. I have concluded that the illegality involved was reckless. There was no evidence from any officer involved including First Constable Gaughran which demonstrated a substantive or thoughtful consideration, by reference to the features of the scene, of the necessary pre-condition that the area was a public place. This pre-condition entirely underpinned the capacity for police to lawfully detain the appellant and remove him from his residential complex once the decision was made that he would not be charged with a criminal offence. The appellant advised arresting police that he had family which was not pursued or explored at all either prior to detaining him or whilst he was in police custody. There were several indicators of the private nature of the property which I detailed in Gonyley v Gaughran which were not adverted to at all by First Constable Gaughran.

14. In my view, the evidence demonstrated that upon forming the view that a common assault charge would not proceed against the appellant, the decision to continue to detain him was not substantively revisited. Accordingly, and consistent with the absence of evidence as to the basis for his conclusion that the area was a public place, First Constable Gaughran proceeded on an assumption, which was not reasonable, that the area was a public place and therefore his power under the IPCPA was enlivened. From the moment a decision was made not to charge the appellant with assault, he was entitled to be released from police custody. The illegality was reckless and I note that there has been no proceeding (whether or not in a court) in respect of it.

15. Notwithstanding that the purpose of the removal of the appellant from the area was consistent with objects of the IPCPA, the nature and effect of the illegality was significant. It was not technical or minor. It saw the appellant denied his liberty for a substantial period. He was handcuffed, placed in a caged vehicle and held at the watch house for at least several hours. There was no evidence which explained why no contact was attempted with any member of the appellant’s family or friends who might have come to collect him, at least prior to the commission of the offence. Without his unlawful detention, there would be no evidence because appellant could not have committed the offence.

16. The power to deprive a person of their liberty must be wielded with careful attention to the conditions which permit its exercise. Police power to detain a person who has not committed a criminal offence is necessarily constrained and must be exercised scrupulously. An unlawful deprivation of liberty, even one brought about by well-intentioned police, must be taken seriously. In this instance it was accepted that the illegality was inconsistent with rights recognised by the ICCPR and s 18 of the Human Rights Act. The nature and effect of the illegality in this case carries significant weight. So too, that degree of connection between the evidence obtained and the illegality; without the unlawful detention the evidence would not have been obtained.

17. Having considered all the factors, I am not satisfied that the desirability of admitting the evidence is outweighed by the undesirability of admitting the evidence obtained in the way in which the evidence was obtained. It follows that ground 4 and 5 of the appeal have been established, the consequence of which is the conviction ought to be overturned. Accordingly, there is no need to go on to consider the appeal against sentence.

Orders

18. For those reasons, I make the following orders: (1) The appeal is upheld. (2) The conviction imposed on CAN2023/11720 is overturned.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: P Beohm Date: 11 March 2026