Police v Beckett

Reasons for Decision 1This judgement follows a voir dire as to the admissibility of an ERISP in a criminal matter. The key section is section 138 of the Evidence Act 1995. 2The defendant was arrested following an altercation. He was charged with three offences, however the charge being pursued is one of affray. The facts have not been tendered on the voir dire, however the ERISP has, and it contains significant admissions and a version of events. 3Michael Dillon is the new partner of the defendant's ex. There has been tension between the defendant and Michael Dillon over the defendant's children. Gary Beckett is the defendant's brother. Michael Dillon is currently in the District Court awaiting trial for his role in the same events. 4The defendant went to the house of his former partner with a view to sorting out some issues with his former partner's new partner, Michael Dillon. He had his brother Gary Beckett for back up. It was not perceived by either party to be a pleasant cup of tea. On arrival, the defendant was met at the front door by Michael Dillon, who had a hammer. The defendant had scissors. The hammer won in the first altercation, with the defendant being hit in the head, and the defendant and his brother retreated toward their car. The defendant got out an iron bar and threatened Michael Dillon and another man. Gary Beckett took the iron bar from his brother and fought for some time with Michael Dillon. The hammer won again with Gary receiving serous head injuries, and the brothers retreated to their car, which was then attacked. They drove off to the hospital. Most of the altercation took place in a residential street and the front yard of Michael Dillon's premises. There were children and other adults who witnessed the altercation cringing, crying and ducking for cover. On this version of events, the affray was serious involving weapons and serious injuries, and was over a significant period of time, in a suburban area, in daylight hours and in the presence of many members of the public. 5The defendant was arrested, brought to the station and introduced to the custody officer. He was asked questions and I am satisfied on balance that the answers to those questions were faithfully recorded by Acting Sergeant Kelly Haines. When asked if he was Aboriginal or Torres Strait Islander at first he answered "no". When asked some few minutes later if he was Aboriginal or Torres Strait Islander he answered "yes", and then identified himself as "Aboriginal". These answers were typed on the custody record. 6It is common ground that the defendant is not noticeably of dark skin colour, and is Aboriginal. 7Under the Law Enforcement (Powers and Responsibilities) Regulation 2005, it is incumbent upon the custody manager or her delegate to contact the Aboriginal Legal Service (ALS) and to notify the defendant that the ALS has been notified: 33 Legal assistance for Aboriginal persons or Torres Strait Islanders (1) If a detained person is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must: (a) immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified: (i) that the person is being detained in respect of an offence, and (ii) of the place at which the person is being detained, and (b) notify such a representative accordingly. 8This was not done, and it is common ground that it should have been. 9All the other LEPRA safeguards were applied, including a reading of the Caution and Summary form. This includes the following: "While in police custody you do not have to say or do anything but anything you do say or do may be used in evidence.... If you are... an Aboriginal or Torres Strait Islander, you can have a support person with you while you are in custody. The police will help you to get a support person, if you ask for one" 10Inspector Kehoe, the informant, then interviewed the defendant. He did not enquire as to the ATSI status of the defendant from the custody sergeant, and was not aware that the defendant was Aboriginal. He cautioned the defendant before interviewing him, and even asked the defendant if he wanted to seek legal advice. Following the interview Sergeant Haines was the independent officer who asked the defendant the "fairness questions". 11My assessment of the evidence on the voir dire is that Sergent Haines' omission was an error and done without malice. She was surprised that the LEPRA requirements were not followed, and is unable to offer any explanation. She speculates that her attention may have been diverted by other events. Inspector Kehoe saw no need to check whether the defendant was Aboriginal, although he agrees that this was open to him. Further, he did not check the custody records, although agrees this was open to him. He contends that there was no reason for him to do so. I accept that he relied on the custody officer to undertake the appropriate steps, and saw no reason to crosscheck them. That reliance was not unreasonable in the circumstances of this case. In the end, the inconsistent answers were not a cause of the failure to comply. 12The prosecution have rightly conceded that the LEPRA requirements were not met, and that the court would be satisfied on balance that an illegality or impropriety has occurred within the meaning of s 138.