R v G

Court of Criminal Appeal (NSW)|2005-02-09|Before: Grove J, Hidden J, Bell J

JUDGMENT OF: Grove J at 1; Hidden J at 1; Bell J at 1

DECISION: Appeal allowed, ruling of trial judge set aside, matter remitted to District Court.

CATCHWORDS: CRIMINAL LAW: - Appeal by Crown under s5F(3A) of Criminal Appeal Act - rejection of evidence of photograph of accused taken by police - accused a child - whether posing for the photograph amounted to an admission - whether Part 10A of Crimes Act complied with - exercise of discretion under s138, Evidence Act

R v Chami & Ors [2004] NSWCCA 36 R v Carr [1972] 1 NSWLR 608 The Queen v Ireland (1971-72) 126 CLR 321 Fullerton v Commissioner of Police [1984] 1 NSWLR 159 R v Horton (1998) 45 NSWLR 426 CASES CITED: Edwards v The Queen (1993) 178 CLR 193 A (a Child) (2000) 115 ACrim R1 R v Cook [2004] NSWCCA 52 R v Knight [2001] NSWCCA 114 R v Rondo [2001] 126 A Crim R 562 R v Sophear Em [2003] NSWCCA 374

Regina (appellant) PARTIES: G (respondent)

P Hamill SC with C Waterstreet (respondent) COUNSEL: GE Smith SC with MM Cuneen (Crown)

SE O'Connor - Legal Aid Commission SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2004/2700

GROVE J HIDDEN J BELL J

Thursday 25 August 2005 REGINA v G Judgment 1 THE COURT: This is an appeal by the Director of Public Prosecutions, pursuant to s5F(3A) of the Criminal Appeal Act, against an evidentiary ruling in favour of the respondent, who faces trial in the District Court upon a count of detaining for advantage and three counts of aggravated sexual assault. The respondent had previously been found guilty in a trial jointly with three other men, but this Court set aside his conviction and ordered a re-trial: R v Chami & Ors [2004] NSWCCA 36. He is to be re-tried alone. The matter the subject of this appeal was not agitated in those earlier proceedings. 2 After a pre-trial voir dire hearing, the learned trial judge rejected a photograph of the respondent taken by police on the occasion of a search of the home where he was living. That photograph was included in a photographic array from which the complainant identified him as one of the men who sexually assaulted her. It is against that ruling that this appeal is brought. The complainant's identification of the respondent is crucial to the Crown case and it is common ground that the rejection of the photograph would eliminate or substantially weaken that case, so that the jurisdiction conferred by s5F(3A) is properly invoked. 3 The respondent was seventeen years old at the relevant time. On 21 October 2000 police attended the home where he lived with his family, armed with a search warrant. He was a suspect in relation to the current charges, as well as another unrelated allegation of sexual assault. The search was videotaped. When police went to the respondent's bedroom he was cautioned, in the conventional terms, that he need not say or do anything. Because of his age, police arranged for the attendance in the room of his twenty-three year old brother. 4 The search continued in other areas of the premises, and it seems that it was about an hour later that the subject photograph was taken. The police officer who took the photograph had him stand against an exterior wall for that purpose. Although the respondent complied with that request without protest, his Honour found on the evidence that his doing so was "not consent, let alone informed consent." No further caution was administered at that stage and he was not told the use to which the photograph would be put. While his older brother was still on the premises, he was not in the immediate vicinity. The process of his being photographed was not videotaped, nor was there any electronic recording of the conversation which led to his submitting to that course. 5 His Honour rejected the photograph on a number of bases. Consideration of some of these will require a closer examination later of aspects of the evidence on the voir dire. However, it is convenient to deal first with his Honour's reasoning about the applicability of s13 of the Children (Criminal Proceedings) Act, s90 of the Evidence Act and s281 of the Criminal Procedure Act, as his approach to those provisions raises much the same issue.

Admission/Information 6 Section 13 of the Children (Criminal Proceedings) Act is a detailed provision but, for present purposes, it is not necessary to set it out. Broadly speaking, it provides that any "statement, confession, admission or information made or given" to a police officer by a child is not admissible in criminal proceedings to which that child is a party unless it was made or given in the presence of an adult, or the court is satisfied that there was "proper and sufficient reason" for the absence of an adult and considers that, in the circumstances, the evidence should be admitted. Section 90 of the Evidence Act provides that a court may reject evidence of an admission tendered by the prosecution if, "having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." Section 281 of the Criminal Procedure Act is also a detailed provision which need not be set out. Broadly speaking, it provides that evidence of an admission made by an accused person to a police officer in relation to an indictable offence is not admissible unless the making of the admission was tape recorded or there was "a reasonable excuse" why such a tape recording could not be made. 7 His Honour held that the respondent's posing for the photograph amounted to the making of an "admission" or the giving of "information" for the purpose of s13(1) of the Children (Criminal Procedure) Act, and an "admission" for the purposes of the other two sections. It is to this issue that argument before us about his Honour's approach to those provisions was primarily directed. 8 His Honour noted that the taking of the photograph was not an exercise of the power conferred by s353A(3) of the Crimes Act. (The Crimes (Forensic Procedures) Act 2000 was not then in force.) Section 353A(3) enables the officer in charge at a police station where a person is in custody for an offence to have that person photographed for the purpose of his or her identification. "Identification" is used there in the sense of recording who that person is, so that he or she can be identified to the court: R v Carr [1972] 1 NSWLR 608 at 610. His Honour also referred to the statement of Barwick CJ in The Queen v Ireland (1971-72) 126 CLR 321 at 333 - 4 to the effect that there is no power at common law for a police officer to compel a person to submit to being photographed other than for the purpose of identification in that sense. Before us, the Crown prosecutor challenged his Honour's finding that the respondent did not give informed consent to being photographed, but we find it unnecessary to decide that matter to determine this issue. 9 The central question is whether, in the circumstances, the respondent's submission to being photographed is capable of being seen as an "admission" or as "information", as those expressions are used in the relevant legislation. His Honour considered authorities on what can constitute an admission, at common law and under the Evidence Act, starting with Carr (supra). Fingerprinting, like photographing, is sanctioned by s353A(3) of the Crimes Act, but in that case the Court of Criminal Appeal had occasion to consider a distinction at common law between the provision of fingerprints, on the one hand, and answering police questions, on the other. The court held that the former was not subject to the privilege against self incrimination attaching to the latter. Their Honours said (at 611): A fingerprint is as much a part of a person's physical characteristics as the nose on his face, a missing finger, a mole on his chin or a scar on his thumb. A witness may tell of these identifying characteristics. …wherever a man goes he leaves fingerprints behind him, on his plate, on spoons, forks and cups, in fact whenever he touches a medium which is capable of absorbing them. There is nothing private about fingerprints.

Having expressed no opinion about the admissibility of evidence of fingerprints obtained by subterfuge, their Honours continued (at 611-12): Much would depend on the circumstances, but we do not think there is any rule that a person cannot by giving his fingerprints be made to incriminate himself. The rule "nemo tenetur seipsum accusare" applies only to answers given by the accused to questions asked of him… 10 His Honour referred to the observations of Lee J in Fullerton v Commissioner of Police [1984] 1 NSWLR 159 at 163 that police officers do not need the authorisation provided by s353A(3) to note characteristics of a suspect which are "merely a matter of observation such as colour of hair, colour of eyes, youthful appearance, etc…" Lee J continued: Such particulars are the property of anyone, police officer or otherwise, who cares to use his eyes, and it is no affront to the dignity of an individual that a police officer may note them. 11 Guided by that authority, his Honour accepted that there could be no objection to a police officer taking a candid photograph of a suspect, for example, in the course of surveillance, and that such a photograph might properly be used later "for purposes such as photographic identification." However, he distinguished a photograph of that kind from the photograph of the respondent, noting that it is "by its very nature, one which is not posed for the person operating the camera." 12 As to the photographing of the respondent, his Honour observed: He was asked (in the sense that he was required) to do an act, that is to pose and so represent himself, by standing and looking in a manner which would make a photograph suitable for a portrait photograph, which could be used against him in the process of seeking to obtain evidence by way of photo board identification under s115 of the Evidence Act . 13 Later his Honour said: It involved more than simply his photograph being taken. It involved him being required to do something, that is, told that his photograph would be taken, and directed to stand in front of a wall, in circumstances where it was clearly implied …that his photograph was to be taken in a particular form such as that which he posed for. It is clear that he understood that it was not simply intended to be a candid snap of him, but was a photograph which was intended to provide a clear face-on portrait of his appearance. … He was asked to do something which he would not be required to do by compulsion and without his consent. He was directed to pose for the photograph. 14 It was for these reasons that his Honour found that the taking of the photograph amounted to an admission by the respondent or the provision of "information" by him. It would seem that that conclusion was based primarily upon the finding that, at the request of police, the respondent posed for a photograph intended to provide a clear likeness of him for the purpose of investigation of the matters at hand. In so far as his Honour's observations incorporate his finding that the respondent did not give informed consent to being photographed, it is not apparent how that matter could bear upon the characterisation of the process as admission or information. To this we shall return. 15 In arriving at his conclusion, his Honour referred to two further authorities on what can constitute an admission, both of them dealing with s424A of the Crimes Act, the predecessor of s281 of the Criminal Procedure Act. In R v Horton (1998) 45 NSWLR 426, it was held that the term "admission" in that section was governed by the definition of the term in the Dictionary to the Evidence Act. "Admission " is there defined as: …a previous representation that is: a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and b) adverse to the person's interest in the outcome of the proceeding.

"Previous representation" is defined as "a representation made otherwise than in the course of giving evidence in a proceeding in which evidence of the representation is sought to be adduced". "Representation" is defined inclusively, but not exhaustively, and includes: a) an express or implied representation (whether oral or in writing), or b) a representation to be inferred from conduct… 16 In Horton the Court of Criminal Appeal held that a statement which is on its face exculpatory might yet amount to an admission. In the light of other evidence and the issues in the case, it might advance the Crown case in one way or another and, accordingly, be adverse to the accused's interest in the outcome of the trial. That is the position under the Evidence Act and, it would seem, at common law: see the judgment of Wood CJ at CL with whom Sully and Ireland JJ agreed, at 431-9. The Chief Judge (at 437) noted that members of the High Court in Edwards v The Queen (1993) 178 CLR 193 recognised that telling a lie was capable, in appropriate circumstances, of constituting an implied admission of guilt or admission against interest. He then made (at 437-8) an observation upon which his Honour in the present case relied: The dictionary definition is certainly wide enough to include, within that expression, any form of representation, whether by conduct or by oral or written statement, so long as it is "adverse to the (maker's) interest in the outcome of the proceedings". That expression is itself sufficiently wide to encompass both inculpatory statements and exculpatory statements… that may turn out to be harmful for the defence. 17 In A (a Child) (2000) 115 A Crim R 1, Bryson J, sitting on an appeal under Part 5 of the Justices Act from a finding of guilt in the Children's Court, held that the plaintiff child's refusal to participate in an identification parade did not amount to an admission. This was so even though the refusal was adverse to the child's interest in the outcome of the proceeding, because it enabled picture identification evidence under s115 of the Evidence Act to be admitted. 18 Asked by a police officer whether he wished to participate in a line-up, the child had said, "No". Bryson J said (at [28]: The statement "No" in its context does not fall within any meaning of the word "admission" in ordinary usage, or in any usage known to me in evidence law or other law. … in my opinion the statement was not an admission; it was a direct statement on the subject of the plaintiff's wishes about taking part in an identification parade, and was not in any sense an admission or (to search for illustrative analogies) a narration, a relation or a representation about whether some state of facts existed.

Having earlier (at [27]) considered the inclusive definition of "representation" in the Dictionary to the Evidence Act , his Honour continued (at [29]): The word "representation" in ordinary usage is in my understanding capable of several shades of meaning ; it can refer to a narration of some fact, case or argument, to an assertion that some state of fact is correct, and it can also refer to the depiction, it may be in words, of something which stands in the place of but is known not to be the original state of fact. I see no reason to think that the legislature intended by defining admission in the Dictionary by reference to "representation" to depart wholly from what, in the previous law of evidence, was understood to be an admission and was received in evidence as such. 19 After referring to the examination of the scope of the term "admission" in s 424A of the Crimes Act by Wood CJ at CL in Horton, Bryson J observed (at [41]): The word used is "admission" and a clear expression of legislative intention would be required if it were to be established that the word was used to refer to or to include something quite different to its ordinary meaning. Statutory definitions can be quite artificial, but there is usually good reason for choosing the defined word. "It is often the case that the most important aspect of a statutory definition is the word being defined" -- per Spigelman CJ in Repatriation Commission v Vietnam Veterans' Association (2000) 48 NSWLR 548 at 575 [104].

Viewed in this way, his Honour concluded (at [44]) that evidence of the child's response to the invitation to participate the line-up was "direct proof" of a relevant matter, that is, his refusal to do so, and "was no proof of an admission." 20 The trial judge in the present case noted Bryson J's observations (at [18] & [47]) that the question whether a statement is adverse to its maker's interest is to be determined at the time it is tendered in evidence, not at the time it was made. A statement which appeared innocuous or exculpatory when it was made might later acquire a different significance in the light of the evidence and the issues at a trial. Generally, after his examination of the reasoning in Horton and A, his Honour concluded: In the light of that discussion, it seems to me that the ambit of whether an act or utterance constitutes an admission under s 13 can be quite wide, and sufficiently wide to embrace matters which are not obviously, or necessarily, or immediately, inculpatory of an accused. In the present case, there is, in my view, no doubt that the provision of the photograph was adverse to the interests of the accused because, in effect, he was compelled to put his neck in the noose for photographic identification. … To the extent that an admission has to be against the interests of the person, at least by the time its admission into evidence is considered, the circumstances here sufficiently satisfied that aspect of what is understood by an admission. 21 By saying that the respondent was "in effect… compelled to put his neck in the noose for photographic identification", we do not understand his Honour to mean that he was in fact compelled to pose for the photograph, as opposed to doing so without informed consent. The words need to be understood in their context. His Honour was conveying, perhaps in somewhat rhetorical language, that the respondent submitted to being photographed in ignorance of the fact that the photograph might be used to identify him as an offender. 22 His Honour then went on to consider whether the respondent's submission to photography constituted an "act or utterance" capable of being construed as an admission, and arrived at the conclusion expressed in the passages from his judgment previously quoted. In so doing, he had regard to the fact, recognised at common law and now enshrined in the definition in the Evidence Act, that an admission can be made by conduct, for example, by flight: R v Cook [2004] NSWCCA 52, per Simpson J at [21] - [25]. In summary, his Honour held that the respondent's posing for the photograph amounted to an admission because it enabled the police to obtain a likeness of him which, in the event, proved to be adverse to his interest in the outcome of his trial. 23 Another case to which his Honour referred, although he did not find it of "significant assistance" in resolving the issue, was R v Knight [2001] NSWCCA 114. That appellant had been found guilty of a number of offences in the nature of forgery and the evidence of a handwriting expert was an important part of the case against him. Among the documents submitted to that expert containing samples of the appellant's handwriting were "fingerprint information forms" completed by him when he was arrested on three occasions, one of those being his arrest for the subject offences. These were standard forms dealt with by the New South Wales Police Instructions and, on their face, they required the appellant to write down certain personal particulars. It was not suggested to him that he had any choice about that matter and he was not cautioned about the use which might be made of the forms. 24 Two of the forms were completed before the Evidence Act came into force, and one of them after it. The argument on appeal was that they should have been rejected on the basis that they were "admissions or analogous to them": the first two on common law principles arising from considerations of public policy and fairness to the appellant, and the third in the exercise of the discretion conferred by s138 of the Evidence Act, including the absence of a caution of the kind required by s139. Greg James J, with whom Heydon JA and Studdert J agreed, held (at [59] ff) that a suspect's handwriting is embraced by the expression "all such particulars as may be deemed necessary for the identification" of that person in s353A(3) of the Crimes Act and, accordingly, is one of the particulars which police are entitled to obtain by virtue of that subsection, whether or not the suspect consents: subs (3D). 25 This, together with other aspects of the case which need not concern us, formed the basis of Greg James J's conclusion that neither the public policy discretion at common law nor s138 of the Evidence Act required the rejection of the forms. It is the manner in which his Honour dealt with the submission that the provision of the handwriting samples was tantamount to an admission that is significant for present purposes. His Honour said (at [78] - [80]): 78 As to the submission that the provision of the handwriting sample was or was analogous to providing an admission, I see no basis on which it could be concluded that the doctrines as to self-incrimination referred to in Sorby v The Commonwealth (1983) 152 CLR 281; Environment Protection Authority v Caltex Refining Co Pty Limited (1992-93) 178 CLR 477 have here, any applicability, particularly since the section, in my view, authorises the obtaining of the samples and considering how the matter was regarded at common law. In Carr (supra) in the Court of Criminal Appeal at 610, the analogy to self-incrimination is expressly rejected. 79 In Sorby (supra) at 292, Gibbs, CJ referred to the requirement of an accused to provide a fingerprint or show his face or some other part of his body so that he may be identified, or to speak or to write so that the jury or another witness may hear his voice or compare his handwriting, specifically as outside the ambit of the privilege against self-incrimination. Brennan, CJ cited that passage in Bulejcik v The Queen (1995-96) 185 CLR 375 at 381. 80 Under the Evidence Act the provisions as to admissions contained in Part 3.4 and s139 apply only to matters caught by the statutory definition of that term and its essential element "representation" as contained in the dictionary. I would not consider the handwriting to be a representation nor could I see any of the provisions of that part as applicable to lawfully obtained evidence where the particular enabling statute negates any requirement for consent. (Our emphasis) 26 It will be seen that Greg James J decided the point largely by reference to the privilege against self-incrimination, one of the cases he cited being Carr (supra). His Honour found that the privilege was not available because the police had a statutory right to obtain the handwriting samples. No doubt, it was because of this decision and the authorities referred to by Greg James J that the trial judge in the present case was concerned with the question whether the police had a right to compel the respondent to pose for the photograph and, if they did not, whether he had given his informed consent to that course. However, whether an act or utterance is subject to the privilege against self-incrimination cannot be determinative of whether it is an admission and the authorities do not suggest that it is. 27 So much is apparent from the last paragraph of Greg James J's judgment quoted above. His Honour was saying that, in any event, the provision of the handwriting could not amount to a "representation" for the purpose of the definition of "admission" in the Evidence Act. He went on to observe that none of the provisions of Pt3.4 of that Act were applicable to evidence which could be obtained lawfully in the absence of consent. That Part deals with admissions and, no doubt, his Honour was there referring to the exclusionary provisions within it. The observation appears to be independent of his Honour's finding that the handwriting, by its very nature, could not amount to an admission. 28 In their different ways, the decisions in Knight and A (supra) provide guidance for the resolution of this issue in the present case. In A, Bryson J held that the plaintiff's refusal to participate in a line up could not amount to an admission as that word is understood in ordinary usage and in the law of evidence, an understanding preserved by the definition in the Evidence Act. It was not a representation in the relevant sense. To treat it as an admission would be to distort the meaning of both those words. The same was true of the provision of the handwriting samples in Knight, as it is of the present respondent's posing for the photograph. That he may not have given his informed consent to doing so and that it proved to be adverse to his interest in the outcome of the proceedings does not alter the fact that it cannot be characterised as an admission. 29 Nor can it be characterised as the giving of information, for the purpose of s13 of the Children (Criminal Proceedings) Act. No light is cast upon the meaning of that expression in the second reading speeches relating to s13 and its predecessor, s81C of the Child Welfare Act. Senior counsel for the Crown in this Court argued that the word "information" in the subsection should be read ejusdem generis with the other words in it, that is, "statement", "confession" and "admission." That is not a matter which we need determine. It is sufficient to say that the notion of giving information necessarily involves an assertion of fact and, again, it would distort the meaning of that expression to apply it to the respondent's posing for the photograph. Senior counsel for the respondent before us submitted that information can be conveyed by conduct, citing the example of a suspect indicating relevant locations to investigating police. No doubt, that is so, but conduct of that kind is still assertive and would almost invariably be accompanied by, or supplementary to, oral communications. 30 Accordingly, we are satisfied that his Honour fell into error in this respect. The admissibility of the photograph was unaffected by s13 of the Children (Criminal Proceedings) Act, s90 of the Evidence Act and s281 of the Criminal Procedure Act. It is necessary, then, to turn to the other bases upon which the evidence was rejected and, for that purpose, to examine more closely some of the evidence on the voir dire. Part 10A of the Crimes Act/s138 of the Evidence Act 31 His Honour found that, at the time the photograph was taken, the respondent was "a person under arrest" for the purposes of Pt10A of the Crimes Act and that the police had failed to comply with the requirements of the Crimes (Detention After Arrest) Regulation 1998 in respects that were significant. This finding, in conjunction with the other findings to which we have referred, led his Honour to conclude that the photograph had been obtained in consequence of an impropriety for the purposes of s138(1)(b) of the Evidence Act. It followed that the photograph was not to be admitted into evidence unless the desirability of admitting it outweighed the undesirability of admitting evidence that had been obtained in that way. 32 The Crown prosecutor submitted that his Honour was wrong to find that the provisions of Pt10A were of application. In the alternative, he submitted that the exercise of his Honour's discretion under s138 had miscarried. 33 The objects of Pt10A are stated in s354 as follows: 354 The objects of this Part are: (a) to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person's involvement in the commission of an offence, and (b) to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a Magistrate, authorised person or other person or court without delay or within a specified period, and (c) to provide for the rights of a person so detained. 34 As we have said, the police were present at the respondent's home for the purpose of executing a search warrant. The photographs were taken at a time towards the latter part of the search and before it was completed. It was common ground that the respondent had not been arrested in the conventional sense. 35 For the purposes of Pt10A a person under arrest is defined by s355(2) as follows: (2) A reference in this Part to a person who is under arrest or a person who is arrested includes a reference to a person who is in the company of a police officer for the purpose of participating in an investigative procedure, if: (a) the police officer believes that there is sufficient evidence to establish that the person has committed an offence that is or is to be the subject of the investigation, or (b) the police officer would arrest the person if the person attempted to leave, or (c) the police officer has given the person reasonable grounds for believing that the person would not be allowed to leave if the person wished to do so. 36 His Honour found that the respondent had been in the company of the police for the purpose of participating in an investigative procedure at the time the photograph was taken and that each of paras(a) and (c) was satisfied. It followed that those provisions of Pt10A and the Regulation that are not confined to persons under arrest at a police station or at another place of detention applied to the respondent. 37 The expression "investigative procedure" is not defined for the purposes of Pt10A. His Honour noted the concession by Detective Ryan, the officer in charge of the search, that he had wished the photograph to be taken for potential use in a photo board to be shown to identifying witnesses. His Honour considered that the taking of a photograph would in the circumstances of this case, in ordinary parlance, be an investigative procedure.

38 As observed earlier, the Crimes (Forensic Procedures) Act 2000 was not in force at the time the photograph was taken. Under that Act, the taking of a photograph of the head and shoulders of a child who is suspected of the commission of an offence is a non-intimate forensic procedure. It may only be carried by order of a magistrate or an authorised justice in accordance with the provisions of Pt5. The Act does not use the expression "investigative procedures". It speaks of intimate and non-intimate forensic procedures. As such, it may be that the conduct of an intimate or non-intimate forensic procedure would amount to an investigative procedure for the purposes of s355 of the Crimes Act. 39 The history of Pt10A is discussed in R v Rondo [2001] 126 A Crim R 562, per Spigelman CJ at [15]. As at the date of these events there was no common law or statutory prohibition on a police officer taking a photograph of a young person who was not in custody, and who was suspected of having committed an offence, for the purpose of showing the photograph to potential witnesses. It is not clear that taking a photograph of a child suspect as at October 2000 would have constituted an investigative procedure for the purposes of s355(2). Accepting for present purposes that is was, it remains to consider whether it was open to his Honour to find that the respondent was in the company of the police officers for the purpose of participating in it. 40 His Honour rejected a submission that the execution of the search warrant was a ruse. The search took about one hour. The respondent's bedroom was the first room to be searched. He was present with the police while this was done. His Honour found the respondent had been free to move about the house during the remainder of the search. Some cannabis was found in the bedroom of another of his brothers. In reviewing the evidence about the timing of the photographs, his Honour said: …while it is difficult, in the circumstances to be precise about this, Sgt Ryan can only suggest somewhere towards the latter part of the execution of the search warrant. To the extent that that latter part is extended by the discovery of the cannabis, that, itself, could have involved considerable time, during which the accused was not engaged in any activity in the house, nor in the company of police officers , as part of the search. (emphasis added)

41 At a point towards the latter part of the execution of the search warrant Detective Constable Stanfield said to the respondent, who was then standing outside the house, that he intended to take his photograph and he asked him to stand in front of a wall. The respondent did so. It is open to question whether in these circumstances the respondent could be said to have been in the company of the police for the purpose of participating in having his photograph taken. His Honour's finding was made with the benefit of seeing the police officers give evidence. He found that Detective Constable Stanfield had conveyed his intention in peremptory terms. We are not satisfied that it was not open to his Honour to find as he did. 42 Detective Ryan said that he had significant suspicions as to the involvement of the respondent in two sets of offences, being offences committed on 10 August 2000 (at Chatswood) and the offences which were the subject of the present proceedings, relating to the sexual assault of the complainant by a number of men on 30 August 2000. During the execution of the search warrant, prior to taking the photograph, the police had located a mobile telephone in the respondent's bedroom. This discovery enhanced Detective Ryan's suspicion of his involvement in both sets of offences. The detective conceded that at the time of the execution of the search warrant he believed that the respondent had committed an offence, being one of the Chatswood offences. This belief was based on the contents of an interview with a co-offender, Chami. He did not have such a strong view in relation to the offences of 30 August but he believed the respondent to have been present on that occasion. His Honour noted: When asked if he believed that there was sufficient evidence that the accused had committed both sets of offences, he said he believed that he was involved. However, he conceded that he had not distinguished, in relation to Chami's interview about 10 August, as to whether that interview was admissible in court against this accused. 43 When his Honour came to consider the application of s355(2)(a), he found that Detective Ryan believed there was sufficient evidence to establish that the respondent had committed an offence that was or was to be the subject of the investigation, being the offence committed on 10 August 2000. 44 Section 355(2)(a) is directed to the belief as to the existence of sufficient evidence to establish that the person has committed an offence. There is a distinction between a belief that a person has committed an offence and a belief that there is sufficient evidence to establish that fact. Detective Ryan did not say that he had a belief that there was sufficient evidence to establish that the respondent had committed an offence. Indeed, his evidence was that he did not believe that he had sufficient evidence to establish the respondent had committed an offence in the sense of having enough material to arrest and charge him on 21 October. This was a reference to the offences the subject of the present proceedings, since he went on to say that he only considered that he had sufficient evidence on 15 November, when the complainant identified the respondent's photograph. 45 His Honour appears to have approached the matter on the basis that the detective's evidence of his belief in the respondent's guilt of one or more of the Chatswood offences which was based on material that went beyond mere surmise (the contents of Chami's interview) satisfied the requirements of subs(2)(a). It is not clear that subs(2)(a) requires that the police officer's belief be based on an assessment of the sufficiency of evidence admissible in a court. However, it seems to us that the evidence fell short of admitting of a finding, contrary to the detective's evidence, that he was of the belief that there was sufficient evidence to establish the respondent had committed an offence (as distinct from his belief in the respondent's guilt of the Chatswood offence/s). This is not determinative since his Honour also found para(2)(c) to have been established. 46 His Honour accepted Detective Ryan's evidence that he would not have arrested the respondent had the respondent sought to leave the premises and, accordingly, that subs(2)(b) was not satisfied. 47 His Honour found that the police officers had given the respondent reasonable grounds for believing that he would not be allowed to leave if he wished to do so. It is to be observed that it was the respondent who bore the onus upon the balance of probabilities of establishing that he was a person under arrest for the purposes of the section. He gave no evidence on the voir dire. His Honour's finding depended upon inferential reasoning. The primary facts on which the conclusion depended were: (i) the family had been gathered in the lounge room of the premises, where they were informed of the existence of and purpose of the warrant; (ii) the respondent had been requested to accompany the police to the bedroom during the search of that room; (iii) there were police in various parts of the premises carrying out searches, including of the respondent's sister's car that was parked in the driveway; (iv) there were a number of police officers present, including a uniformed inspector; (v) there was no evidence that any other occupants of the house sought to leave the premises - glimpses of them may be seen on parts of the video of the execution of the search warrant and there was no positive evidence that any of them had left during the period of at least an hour which elapsed between the arrival of the police and the time at which the photographs were taken.

48 The video recording of the execution of the search was tendered on the hearing of the appeal. His Honour did not find, and the video recording does not show, that any police officer gave any direction concerning the movements of any of the occupants of the premises during the search. The significance that his Honour attached to his finding that the police had "in effect, taken over the premises" is unclear. The police had a warrant that permitted them to search for the documents and things specified in the schedule. To this extent they had lawful authority to enter the premises and carry out the search. Detective Ryan was entitled to use other officers to assist him in the search. The fact that there were a number of police in the premises during the execution of the search, that the police asked the occupants to come into the lounge room in order to inform them of the purpose of the search, that thereafter they searched various parts of the house, and that no member of the household was shown to have left during this exercise would not, without more, afford reasonable grounds to any occupant of the household for believing that he or she would not have been free to leave the premises. 49 The respondent's position may be distinguished from that of the other occupants of the premises, in that the police had made it clear that he was a suspect in relation to the offences of 10 and 30 August and he had been asked to accompany them while they searched his room. As we have noted, his Honour found that the respondent was free to move around the house and that he was not in the company of police officers throughout the search. This finding on its face this does not sit readily with the further finding that the police had given him reasonable grounds for believing that he was not free to leave if he wished to do so. However, the latter finding related to the time at which the photographs were taken and depended, among other things, on his Honour's assessment of the evidence of Detective Constable Stanfield. We would not hold that it was not open to his Honour to have found that the police had given the respondent reasonable grounds for believing that he was not free to leave if he wished to do so. 50 Part 10A applies to persons under the age of eighteen years: s356(1). Section 356A provides that regulations may make provision for or with respect to the modification of the Part to persons who come within certain categories, including persons under the age of eighteen years. 51 A "child" is defined in cl3 of the Crimes (Detention After Arrest) Regulation as a person under the age of eighteen years. Pursuant to cl5, a child is a "vulnerable person". Clause 21(1) provides that a vulnerable person is entitled to have a support person present during any investigative procedure in which the person is to participate. Other provisions of cl21 could not be said to apply to the respondent in so far as they impose obligations on the custody manager. Clause 23 provides that a vulnerable person who is a child cannot waive his or her right to have a support person present. His Honour found that the absence of a support person at the time the photograph was taken was a breach of cls21 and 23. 52 His Honour also considered that there had been a failure to comply with cl29. It provides as follows: 29(1) If a detained person who is a vulnerable person is cautioned, the custody manager or other person applying the caution must take appropriate steps to ensure that the person understands the caution. (2) If a detained person who is a vulnerable person is cautioned in the absence of a support person, the caution must be repeated in the presence of a support person, if one attends. 53 His Honour found that the respondent had been cautioned at 7:49 am. The caution was administered in his room prior to the commencement of the search. Marvin was not present when it was given. The search was completed at 8:45 am. As noted, the photographs were taken towards the latter part of the search. His Honour considered that the caution had been given about an hour before the photograph was taken, and given in the context of the search of the premises. He said: It was not given in the presence of the support person and, when Marvin was introduced into the proceedings, it was essentially at the selection of the police and without any advice being given to Marvin, or the accused, as to the role and rights of the accused or of the support person. 54 It is not clear whether his Honour considered that there had been a failure to comply with cl29(1). The respondent was cautioned that he need not say or do anything. Detective Ryan asked him if he understood the caution and the respondent said that he did. It remains that cl29(2) required that the caution be repeated in the presence of the support person if he or she attended, and this was not done. 55 Upon an acceptance, for present purposes, that it was open to his Honour to find that the respondent was a person who was under arrest for the purposes of Pt10A, it remains to consider the Crown's challenge to the exercise of the discretion under s138 of the Evidence Act. We shall return to this after referring to a further finding that his Honour made.

56 His Honour also found that the police officers were to have been taken to have acted improperly by reason of s139(1) of the Evidence Act. The provision is in these terms: 139 Cautioning of persons (1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest for an offence at the time, and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. … (5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purposes of being questioned if: (a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or (b) the official would not allow the person to leave if the person wished to do so, or (c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so. 57 His Honour considered that the respondent was under arrest for the purposes of s139(5). This carries with it a finding that he was in the company of Detective Ryan for the purpose of being questioned. The evidence upon which his Honour relied for that conclusion appears to be that Detective Ryan told the respondent that, after the search was completed, he would like to ask him a number of questions and put certain matters to him. He said that it would probably be better if they went to the police station. The respondent said he did not want to go to the police station. Detective Ryan said that that was fine and he asked if the respondent would be willing to answer questions there at his home, perhaps in the back room away from the family. The respondent said that this would be alright. There followed discussion about whether the respondent would participate in an identification parade or submit a sample of his blood for analysis. He was told he did not have to do these things if he did not wish to. 58 Marvin said that he would endeavour to contact a solicitor to obtain advice. However, prior to the completion of the search he told Detective Ryan that he had not been able to do so. Detective Ryan asked if they would like to defer the question of an identification parade until they had obtained advice and Marvin said, "Yes". Detective Ryan then said, "Well, how about I ask Mohammed some questions here? He doesn't have to say anything if he doesn't want to, but I just want to give him the opportunity to respond to matters I would like to put to him and I would need an adult like yourself present, and we can leave the identification parade and the issue of giving blood until you have sought some legal advice." Marvin said, "Yeah, that sounds good." The search was completed and thereafter the respondent, Marvin, and Detectives Ryan, Walsh and Miller went to the back room, a detached sleep-out, and the respondent was asked a number of questions. This interview was recorded on videotape.

59 His Honour was not able to determine when the photograph was taken, save to find that it was towards the end of the search. The interview occurred after the conclusion of the search. On the facts found by his Honour, it may be that at the time the photograph was taken Detective Ryan had expressed his wish to interview the respondent. This does not mean that at that time the respondent was in the company of the detective for the purpose of being questioned. His acquiescence in standing in front of the wall and posing for the photograph was not an act done during questioning by an investigating official for the purposes of s139 of the Evidence Act. 60 In considering whether the desirability of admitting the evidence of the photograph outweighed the undesirability of admitting evidence obtained in the way it was, his Honour referred to the considerations set out in s138(3). His Honour accepted the probative value of the evidence to be high. He noted the offences were very serious. He went on to say: So far as the gravity of the impropriety or contravention is concerned, given the absence or neglect of the provisions of a number of important safeguards for a person under investigation, particularly a juvenile, the gravity of impropriety would have to be assessed as being of a considerable order. 61 His Honour concluded that the impropriety or contravention was more reckless than deliberate. He went on to say: However, the observations of courts over a number of years, commencing in relation to s81C of the Child Welfare Act in the early 1980's, and the sequence of cases decided up to and including the case of H , make it very clear that any investigating official who wishes to obtain evidence of a potentially incriminating nature from a suspect, who is a juvenile, needs to be scrupulous in observance of the relevant provisions. The importance of such observance has been emphasised, albeit later than the events here, in the case of T , to which reference has been made; in the case of Phung (2001) NSWSC 357, and in the case of Cortez Supreme Court 3 October 2002. Those observations simply reinforce what has been said in the past about the importance of provisions such as s13, and the serious consequences of the failure to comply with the section. In many circumstances, it gives virtually no real discretion to a trial judge to admit material where there has otherwise been a breach of the section. It operates to prohibit the admission of evidence, rather than merely creating a situation of discretionary exclusion. In those circumstances, knowing that the accused was a juvenile, the approach adopted by the police to the conduct of the search warrant, more particularly to the conduct of the photography session, amounted to a reckless approach to the application of the proper recognition of the purpose and words of the protection, particularly in s13, but the protection found in other legislative provisions and common law rights as well.

(Of the cases to which his Honour there referred, H is reported at (1996) 85 A Crim R 481 and T at (2001) 122 A Crim R 206. R v Cortez & Ors is an unreported decision of Dowd J of 3 October 2002.) 62 It appears that his Honour assessed the gravity of the impropriety for the purposes of s138(3)(d), and whether it was deliberate or reckless for the purpose of subs(3)(e), in a global manner, taking into account his finding that the evidence had been obtained in breach of s13 of the Children (Criminal Procedure) Act, and of the Crime (Detention After Arrest) Regulation and s139(1) of the Evidence Act, together with his view that the taking of the photograph in the circumstances had infringed the respondent's "common law rights". For the reasons earlier given, the respondent's act in posing for the photograph at the direction of Senior Constable Stanfield did not attract the operation of s13 of the Children (Criminal Procedure) Act. It was not an act done by the respondent during questioning for the purpose of s139(1) of the Evidence Act. 63 Nor is it clear what common law right was infringed by Senior Constable Stanfield stating his intention of taking a photograph of the respondent and asking him to stand in front of the wall. We have referred earlier to the common law position. As at October 2000 a person, including a child, did not have a right not to be photographed. It would have been improper for the police to compel the respondent to pose for a photograph, but his Honour's findings did not go that far. His finding was that the respondent was not informed that he could refuse to co-operate in the taking of the photograph. 64 His Honour's consideration of the s138 factors was tainted by his view that the photograph had been obtained in circumstances involving matters which we have found did not involve impropriety. In the result, his Honour did not give separate consideration to the gravity of the breaches of the Regulation that he had identified, nor to whether they were deliberate or reckless. His Honour accepted Detective Ryan's evidence that, as far as he was concerned, the respondent was free to leave the premises if he wished to do so. It was not put to Detective Ryan that the respondent was under arrest for the purposes of Pt10A of the Crimes Act. The question whether he was a person under arrest for the purposes of Pt10A is one of some nicety. On an acceptance for present purposes that it was open to his Honour to find that he was, it does not follow that the breaches of the Regulation that he identified would have been characterised by him as reckless, had he considered the matter in isolation.

65 It is by no means clear that the weighing of the factors to which s138(3)(a) - (h) directs attention, in the context of the failure of Detective Ryan to appreciate that the Regulation applied in the circumstances of this case, would lead to the conclusion that the desirability of admitting the evidence is outweighed by the undesirability of admitting evidence obtained in this way. 66 As the lengthy passage from his Honour's reasons set out above shows, the exercise of his discretion in deciding whether the evidence of the photograph was to be rejected under s138 miscarried, in that he took into account extraneous considerations relating to s13 and the suggested infringement of the respondent's common law rights. The appeal must be allowed and his Honour's ruling set aside. Although s5F(5) of the Criminal Appeal Act 1912 confers power on this Court to make an order instead of that appealed from, we do not consider it appropriate to make an evidentiary ruling in favour of the Crown on an appeal under this section: R v Sophear Em [2003] NSWCCA 374 at [139].

67 There is a further ruling that is the subject of this appeal. It is the Crown case that the respondent was wearing his hair in a ponytail at the time of the commission of the present offences. His hair was tied in a ponytail when police arrived at his home to execute the search warrant. When he posed for the photograph he removed the tie and let his hair hang loosely about his head. It is the Crown case that he did so because he realised that the complainant would remember his having a ponytail and he did not want to be depicted in that way in the photograph. 68 Accordingly, the Crown relies upon the evidence as demonstrating a consciousness of guilt. His Honour rejected its use for that purpose, under s137 of the Evidence Act. It is unnecessary to examine his reasons for doing so. It is sufficient to say that that ruling is not of such significance to the Crown case as to enliven this Court's jurisdiction under s5F(3A) of the Criminal Appeal Act.

The appeal is allowed. The ruling of the learned trial judge rejecting the admission of the photograph of the respondent taken during the execution of the search warrant is set aside, and the matter is remitted to the District Court.

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