Police v Beckett

Section 138(3) - Admissibility 13The onus now shifts onto the prosecution to satisfy me that the evidence should be admitted notwithstanding the illegality or impropriety. The test under s 138 involves a balance between the desirability of admitting the evidence on the one hand and the undesirability of admitting the evidence that has been obtained illegally or improperly on the other. 14As to (a) and (b), the admissions are highly probative and important. The alleged victim of the unlawful violence will not be giving evidence. 15As to (c), the nature of the relevant offence, the offence of affray carries a maximum penalty of ten years imprisonment. The level of violence alleged, the use of weapons, the ongoing nature of the altercation, the place and time, the injuries involved and the presence of children places these allegations in a serious category. 16As to (d), the breaches of law and the impropriety were significant. The safeguards designed to protect Aboriginal people in custody are the result of parliamentary concern following well-publicised issues raised by Royal Commissions and other research. It is important that these provisions are followed religiously. Parliament inserted the word "must" to reinforce this. The contravention cannot be categorised as merely technical or unimportant. 17As to (e), the breach was not deliberate or reckless, in the sense that it was done with foresight however categorised. It was done in error. It is of concern that there is no crosscheck within the custody management system to "tick off" that the requirement has been complied with as soon as the person identifies at any stage as Aboriginal. This is evidence of systemic failure. 18As to (f), the defendant has made no submission that 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. 19As to (g), it is important to reiterate that the onus is on the prosecution on this portion of the test. Evidence is more likely to be admitted where the illegality or impropriety is being punished by other means. In Ridgeway v R (1995) 184 CLR 19 at 38, the High Court found that it was also relevant to consider whether the impropriety is "tolerated or encouraged by those in higher authority in the police force". 20There is no evidence as to whether any or disciplinary proceeding has been or is likely to be taken in relation to the impropriety or contravention. 21As to (h), the evidence may have been more difficult to obtain had the law not been breached. The defendant would likely have been advised not to say anything. He may have followed that advice. To suggest that he would have followed that advice is speculative. 22Section 138(3) is not exclusionary, however, I have not been referred to any other matters by either party.

Authorities 23In the case of R v Helmhout [2000] NSWSC 208 the charge was murder and the court allowed the admission in, despite a failure of similar requirements prior to LEPRA. Clearly the seriousness of the offence was a key factor. I note that Bell J in that case also commented at [19] on the lack of prompts to ensure that the requirement was not missed: I do not consider that Sergeant Dagwell's neglect was either deliberate or reckless. He struck me as an officer who would faithfully comply with each of the requirements of the protocol given to him. It is unfortunate that none of the prompts drew attention to the requirements of cl 28. Sergeant Dagwell readily acknowledged his awareness of the terms of cl 28. I accept that, in the circumstances in which he found himself on this occasion, he simply forgot to do so. 24Further, in that case, the defendant was informed that he had a right to make contact with a lawyer and he chose not to do so. 25In Campbell v Director of Public Prosecutions (NSW) [2008] NSWSC 1284 Justice Hidden was dealing with an appeal from the Bega Local Court where ERISP's had been admitted despite a "deliberate" breach of the same LEPRA requirements. The defendants had been convicted of affray and one count of assault, and placed on s 9 bonds. The appeal does not disclose the seriousness and details of the charges. Hidden J found error in the way the Magistrate had dealt with the application of the test, particularly in terms of the gravity of the contravention by the police. He would have referred it back to the Magistrate to be dealt with according to law, but for the fact that the s 9 bonds had almost expired. 26It is clear that this case is not authority for the proposition that the evidence should not have been admitted - the finding is that the Magistrate erred in the application of s 138(3) by placing insufficient weight on the gravity of the breach by the police. 27There are two noteworthy decisions of the District Court, which I have also considered. In the case of R v Dorothy Riley (unreported, 12 February 2002, Shadbolt DCJ) an Aboriginal woman was charged with robbery in company. She made admissions in an interview, after the police failed to contact the Aboriginal Legal Service. They did so because the defendant had consented to being interviewed and "because they knew that the ALS would have advised her to remain silent". His Honour specifically found that the breach was deliberate and conscious. He excluded the interview. It was in that context that Shadbolt DCJ made the following comments: Any instance of the breach of those regulations will weaken those regulations beyond repair. Police officers, and particularly those in such stations as Redfern where at least half of the persons who enter are Aboriginal, must become aware that the regulations must be applied strictly and in every respect. It is not a matter of lip service. Application to the letter is required. Any failure in that regard will have disastrous consequences on their investigations and the preparation of cases for court. 28In R v APC & CP (unreported, 7 April 2006, Nicholson SC DCJ), an ERISP was rejected by the court following evidence of a number of breaches involving two Aboriginal young people charged with a serious robbery offence. The notification to the ALS was inadequate and non-compliant, however there were a raft of other breaches in that case. The court at [22] stressed that the application of the balancing test needs to take into account the particular vulnerability of the individual: Some human beings are more vulnerable in facing police interrogation than others.... That means a contravention of any of the obligations, including the obligation to notify a representative of the ALS may have different consequences, depending upon the particular characteristics of the individual being interviewed by the police. The consequences in question may make it unfair for the evidence to be admitted. 29Further, the court acknowledged at [23] that: I accept that the provisions such as those required by Part 10A and the various regulations are frequently regarded by police as a roadblock impeding effective police investigation 30In that case, the evidence was excluded, the court finding at [26] that: It appears to me the breaches have an aura of endemic about them. 31There is a fine balance which is difficult to apply. On the one hand, in judgments such as Parker v Comptroller-General of Customs [2007] NSWCA 348, Basten J found (at [65]): What can be said without equivocation is that obtaining evidence in deliberate, wilful or even reckless disregard on an individual's civil rights is likely to be a strong factor against the exercise of the discretion to admit the evidence. 32On the other hand it has been found that where police were neither reckless nor dishonest, but inexperienced and inadequately trained was a significant matter tending toward the admission - R v Dalley [2002] NSWCCA 284 at [93] per Simpson J. 33In R v Phan [2003] NSWCCA 205 the court quoted with approval the following comments of Stephen and Aickin JJ in the seminal case of Bunning v Cross (1978) 141 CLR 54 at 78: the courts should not be seen to be acquiescent in the face of the unlawful contact of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law. 34In this case, whilst the failure was not deliberate, it cannot be seen as being isolated. 35In R v Camilleri [2007] NSWCCA 36 the court found at [35]: Where the breach of the law is innocent, and the alleged offence serious there must be powerful countervailing considerations before the evidence should be rejected. 36I have carefully considered these authorities the statutory considerations above and confess to wavering on the ultimate decision. On the one hand I am concerned that the breach in this case was significant and there ought be evidentiary consequences of that breach. The police ought to have systems in place to ensure that vulnerable persons are treated in accordance with law, and those systems ought include crosschecks. Bell J commented as much back in the year 2000. Nicholson DCJ commented similarly in 2006. It is likely that the breach led to the confession, in the sense that the likely advice would have been to say nothing. Of course this may or may not have been followed. It would be of concern if the police thought that "error" could be an advantageous position to assist with confessions. 37On the other hand, this is a serious affray - far more serious than the charges in DPP v Carr [2002] NSWSC 194, or in R v Ali Alkan [2010] NSWLC 1 for example. Further, there were a series of other safeguards that were applied to the defendant, in the case of Inspector Kehoe, beyond the requirements of LEPRA. Further the beach was procedural and accidental - it was not an unlawful arrest or deliberate malfeasance. 38I am satisfied, particularly given the above matters and in particular the seriousness of the matter and the accidental nature of the breach, that the evidence ought be admitted. I have not reached this decision lightly, or without doubts. However, I have balanced two undesirable outcomes, noted that the onus is on the prosecution, and determined that it would be more undesirable to exclude the evidence.

Orders 39The ERISP will be admitted in evidence. Magistrate D Heilpern Ballina Local Court 29 June 2012

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