On the morning of Wednesday 3 January, 2018 Police arrested the accused Khan Alameddine at his residence at Barangaroo. They also searched the residence and, in short, found drugs and cash which led to him being charged with a number of serious offences after he had participated in a recorded interview which was conducted at Day Street Police Station on that day by Senior Constable Duckett and Senior Constable Minnis.
The accused made a number of admissions in the course of that interview, which it is agreed, are important and relevant matters in the Crown case which is listed for trial later this year. The accused seeks orders in a Notice of Motion excluding evidence contained in or derived from the recorded interview pursuant to ss 90, 135, 136 and 137 and 138 of the Evidence Act 1995.
Some of the circumstances leading to the controversy were the subject of evidence before a Magistrate on 15 November 2018, when Senior Constable Minnis gave evidence and was cross-examined in relation to this aspect. The Crown bundle of material on this application contains a statement from Senior Constable Minnis, in which he says that prior to the commencement of the interview he received information from Senior Constable Harkness-Rees that if the accused requested to contact a lawyer by the name Hector, not to allow this, as he believed that he was not a lawyer and their communication may hinder the investigation. He says he went back to the custody room and had a conversation with the accused in relation to him speaking with a lawyer, the accused requested to speak with Hector.
"Having received information from Senior Constable Harkness-Rees I advised the accused we believed Hector was not a lawyer but an associate and I couldn't allow them to speak. The accused requested I try and contact another lawyer, Greg Gould. I Googled the name and found the phone number but it went to voicemail as the firm was closed for the holidays".
He explained this to the accused and the interview then continued. As I have indicated the accused made admissions.
Mr Brezniak of counsel appeared for the accused before the Magistrate. In cross-examining Senior Constable Minnis he elicited the answer that: "We decided he couldn't speak to Hector but I allowed him an opportunity to contact another lawyer to get advice", and he agreed that he had informed the accused that the lawyer was in a conflict situation because he had also been charged with drug supply. He said that he had been provided with information by Senior Constable Harkness-Rees over the telephone. Yet in the statement prepared by Senior Constable Harkness-Rees dated 5 June 2018 which is in the Crown bundle, there is no mention of him having made any inquiries as to the status of a lawyer named Hector or having passed on any information as to that person to Senior Constable Minnis.
The questioning in the record of interview conducted by Senior Constable Duckett on p 2 of the transcript he records that he, "Offered the accused the option to contact a solicitor. The accused said, "well everyone's on holidays". Then he said, "And one of them you wouldn't let me contact" and Duckett said to him, "I believe one of them was a conflict of interest because they've also been charged with drug supply", and that was the information that I have been informed.
In evidence before the Magistrate Senior Constable Minnis said: "I never said that Harkness-Rees said that Hector had been charged." This raises the question as to why Constable Duckett or Constable Minnis would have said this, or permitted that statement to have been conveyed to the accused, it being clear that the person referred to on page 2 of the transcript was the solicitor Hector Ekes.
Each of the three police officers referred to, namely Senior Constable Minnis, Senior Constable Harkness-Rees and Senior Constable Duckett gave evidence before me on the application on Monday 15 April 2019. When asked what was the information that he had obtained from Senior Constable Nicholas Grogin the answer given by Senior Constable Harkness-Rees was to claim public interest immunity. Ultimately the question of public interest immunity was seen to be irrelevant given that the question was not what information may have been provided to Senior Constable Harkness-Rees or through him to Senior Constable Duckett or Minnis, but what they had said to the accused in the early part of the recorded interview. Senior Constable Duckett agreed that he had said the words in question to the accused because that was what he had been told by Harkness-Rees.
The unchallenged evidence in support of the motion is the affidavit of the solicitor Hector Ekes in which he says, referring to page 2 of the record of interview, "At no point have I ever been investigated for drug supply or charged with drug supply or drug related matter".
The starting point for consideration, as Mr Robison of counsel submits, is the requirement in s 123 of Law Enforcement (Powers and Responsibilities) Act 2002 to inform a person of their right to communicate with a legal practitioner of their choice and the Crown does not challenge the assertion that there was a breach of that requirement. Mr Robison then turns to what was distilled as the only issue in the case, namely whether the evidence should be excluded or not admitted pursuant to s 138 of the Evidence Act 1995. He refers tangentially to the provisions of ss 90, 135 and 137 of the Evidence Act 1995.
There are significant factual differences between this case and each of the cases to which Mr Robison refers, but the general principles that he sets out are of assistance. As Wood CJ at CL said in R v Phung and Huynh [2001] NSWSC 115, at [53]:
"Had legal assistance been provided, it is almost certain that the accused would have had drawn to his attention the undesirability of participating in any further interview, that might implicate himself not only for the new offences, but might, also by reason of their interconnection with the remaining offences, significantly enhance the prosecution case in relation to those charges."
There is a reference to the judgment of Barwick CJ in R v Ireland (1970) 126 CLR 321; [1970] HCA 21 and that is more directed to the position where a suspect has clearly indicated that he does not wish to answer questions.
Finally, Mr Robison refers to R v Watkins (1989) 42 A Crim R 255 where O'Loughlin J described the conduct of the Police in requiring a solicitor to leave an interview room is precipitous and unwarranted. He submits that what occurred here was even more serious.
His submissions remind the Court that the right to silence is a fundamental one, as juries and tribunals affect are habitually told. A suspect must not be exposed to interrogation without legal advice unless the person waives that right and consents, having had the consequences clearly explained to him. The inference that he asks the Court to draw is justified, namely that Senior Constables Minnis, Duckett and Harkness-Rees decided that the accused was not going to be allowed to speak to Mr Ekes.
The Crown Prosecutor's submissions helpfully set out the provisions of the Evidence Act 1995 to which I have referred and then turns to the central question of the factors set out in s 138(3) that the Court may take into account when determining whether the evidence is to be admitted or not. The starting point is the quite proper and frank concession by the Crown that the contravention by the police of the rights of the accused was deliberate as distinct from reckless, but that such contravention was below the mid-range insofar as contraventions by police officers should be placed in some scale of objective seriousness.
There is no dispute that the probative value of the evidence contained in the admissions is of high value, given the admissions by the accused as to the possession of money and cocaine. There is no dispute that the evidence would be important in the proceedings. There is no dispute from Mr Robison that the offence is accurately described by the Crown as being a below mid-range drug matter and a mid-range money laundering count, the amount of cocaine alleged being 15 grams or about three times the indictable amount of 5 grams, but less than half of the commercial quantity. The money involved in the money laundering charge is some $86,599. There is clearly a public interest in deterring those who deal in prohibited drugs and reap profits therefrom.
The real substance of the Crown's opposition to the motion is under s 138(3)(d), namely addressing the gravity of the impropriety or contravention. Having said that it was below mid-range, the Crown suggested it may have been that Mr Ekes was not the first choice of the applicant but it is clear from the evidence to which I have referred, that Mr Ekes was the man that he asked for and the man who the police officers told could not be spoken to because he had some involvement in drug offences. It is strictly speaking correct to say that the accused was allowed to try and contact other lawyers, as indicated at page 2 of the transcript, but one attempt to contact a lawyer during the vacation, when it is common knowledge that many lawyers are unavailable, hardly suffices to address the important right established by s 123 of the Law Enforcement (Powers and Responsibilities) Act 2002.
It is not to the point to say that the contents of the recorded interview show that the accused did not regard the refusal to have any major effect on him, notwithstanding that he may have understood his rights and at times declined to answer specific questions. As Wood J said in the case to which I have referred, had Mr Ekes or another lawyer been consulted it is almost certain that his answers would have been more guarded. The fact that the accused made no complaint about the conduct of the interview in answer to standard questions by the senior independent officer at the end of the interview is also not to the point.
I do not accept the Crown submission that while the contravention of s 123 Law Enforcement (Powers and Responsibilities) Act 2002 had been shown, the breach was not such as designed to deprive the accused to all legal advice but only one particular source of advice. If that were the desire of the police officers they would have made more diligent attempts to ensure that the accused had access to legal advice apart from one phone call, or given that the man was in custody, they could have delayed the commencement of the interview until further efforts had been made to ensure that the accused had legal advice before deciding whether to participate in the interview.
The Crown concedes that the offences are serious and expose the accused to the risk of a custodial sentence, which is a proper concession given the facts outlined in the Crown case and the maximum penalties provided for each of these offences. Submissions were put as to s 90 of the Evidence Act 1995 which provide a discretion to exclude admissions, if having regard to the circumstances in which the admission was made, it would be unfair to the defendant to use the evidence. As the Crown says relying on subsection (b) that is generally regarded as a safety net provision applying after the other more specific sections have been considered.
In my view, it is clear that the evidence should not be admitted under s 138 of the Evidence Act 1995 because the desirability of admitting the evidence does not outweigh the undesirability of admitting evidence that has been obtained by virtue of a deliberate contravention of the law by the Police officers. It is therefore unnecessary to consider s 90, other than to indicate that if necessary I would exclude the evidence of admissions in the interview on the basis that it would be unfair to use the evidence, given that there had been a deliberate contravention of the right of the accused to have legal advice before making such admissions.
For those reasons the orders are:
1. The ERISP of the accused dated 3 January 2018 and any evidence derivative of the ERISP is excluded.
2. The readiness hearing (17 May 2019) and trial date (1 July 2019) are confirmed.
3. I order a copy of the extempore judgement for the court file.
Note - These extempore remarks are revised without access to the court file
[2]
Amendments
12 April 2021 - Confirm trial matters concluded; publication restriction lifted.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 12 April 2021