R v HELMHOUT [2001] NSWCCA 372 | Case summary

JUDGMENT 1 IPP AJA : This is an appeal against a conviction for murder. The grounds of appeal challenge the decision of Bell J to admit a confession made by the appellant whilst in custody in the Queanbeyan Police Station. I agree with Hulme J that the grounds of appeal set out in the appellant's notice of appeal must be dismissed. In these reasons I wish only to deal with the further argument, raised by the Court itself during the course of the appeal, as to the admissibility of the confession. 2 As Bell J pointed out, the Crimes (Detention after Arrest) Regulation (the "Regulations") constitutes a counter balance to Pt 10A of the Crimes Act 1900 (inserted by the Crimes Amendment (Detention after Arrest ) Act 1997) which confers powers on police to detain persons under arrest for periods of time in order to enable the persons' involvement in the commission of offences to be investigated. 3 The Regulation specifies particular procedures for people identified as "vulnerable". Aboriginal persons fall within the relevant statutory definition of "vulnerable persons". Clause 28 of the Regulation modifies the application of Pt 10A with respect to vulnerable persons and therefore with respect to Aboriginal persons. It provides: "If a detained person is an Aboriginal person or a Torres Strait Islander, then, unless the custody manager 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 an Aboriginal legal aid organisation will be notified that the person is being detained in respect of an offence, and (b) notify such a representative accordingly." 4 The appellant is an Aborigine. Hence the police, in whose custody the appellant was at the time of his arrest, were required to comply with cl 28. However, they did not. The admissions the appellant made therefore constituted evidence obtained in contravention of an Australian law and s 138 of the Evidence Act became applicable. 5 The question that arose for determination by Bell J was whether "the desirability of admitting the evidence" so obtained "outweighed the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained". Her Honour answered this question in the affirmative. 6 During argument in the appeal the Court raised the issue whether, in determining whether evidence obtained in contravention of cl 28 should be admitted pursuant to s 138 of the Evidence Act , the judge should have regard to the particular characteristics of the Aboriginal person from whom the evidence was obtained in order to assess that person's capacity to deal adequately with police questioning in the absence of legal representation. This was not a topic directly addressed by Bell J in deciding that the evidence should be admitted. 7 Counsel for the Crown submitted that the question should be answered in the negative. She pointed out that the legislation made no allowance for distinguishing between Aboriginal persons on the basis of an assessment of degree of vulnerability. She submitted that the Regulation imposes safeguards for all persons falling within the category of vulnerable persons, irrespective of the actual vulnerability of the individual. 8 The words "desirability" and "undesirability" in s 138(1) are of very broad import. Section 138(3) sets out matters that are to be taken into account in making a determination under s 138(1) but specifically stipulates that they do not limit the matters that the Court may take into account. The general tenor of s 138 does not reflect an intention to confine the inquiry. 9 In my view, the argument advanced by the Crown overlooks the fact that some human beings are more vulnerable in facing police interrogation than others. Many factors bear upon an individual's vulnerability. Age, education, personality, and general experience of life are some that are relevant to an individual's capacity to deal with police questioning. Plainly, that capacity varies from individual to individual. This means that a contravention of cl 28 must have different consequences depending upon the particular characteristics of the individual who is interviewed by the police. 10 In my view, the consequences to the particular individual of a contravention of cl 28 are highly relevant to a determination under s 138(1). This was accepted in principle in R v Phung & Huynh [2001] NSWSC 115 where Wood CJ at CL was required to make a determination under s 138(1) in regard to a police interview which had involved contraventions of various statutes, including the Regulation (although, not cl 28). In holding that the interview should not be admitted, his Honour said: "I take into account the fact that [the accused person] had a background of drug addiction, that he was separated from his parents, and that he had a limited education and capacity to read English. I also take into account the fact, it would seem, that he had used drugs within the 24 hours preceding the interview, a period during which he had allegedly been involved in two separate instances of serious criminality, and which was likely as a consequence, to have been a somewhat turbulent period for him". 11 Put in another way, the consequences in question may make it unfair for the evidence to be admitted. In my view, considerations of fairness are to be taken into account in making a determination under s 138(1). I appreciate that s 90 of the Act deals specifically with evidence that should not be admitted because its use may be unfair, but that is no reason to exclude considerations of fairness from s 138. The use of particular evidence may not be so unfair as to warrant refusal under s 90, but when taken with other matters may be refused under s 138. The two sections address different categories of circumstances and the considerations relevant to each are not mutually exclusive. See in this regard R v Phung & Huynh where Wood CJ at CL applied considerations of fairness in deciding under s 138 to refuse to admit evidence of a police interview different to that referred to above. As his Honour put it: " I would exclude the evidence, since I am of the view that the apparent failure of those concerned to secure compliance with the regime gives rise to an unfairness, and outweighs the probative value of the admissions obtained, powerful as they might have been". 12 In any event, in my view, the issue raised is resolved by s 138(3)(d) which requires the Court to take into account the "gravity" of the contravention concerned. I do not see how the gravity can be considered without reference to the consequences of the contravention on the individual concerned. A contravention of cl 28 involving an Aboriginal youth, who does not have a good command of English, who has had no dealings with police, who has lived his entire life in, say, desert surroundings and has never lived in a town or city, could well be severe. On the other hand, the consequences if the Aboriginal person is of mature years, has had many dealings with police and is not intimidated by the idea of being questioned by them, and who, generally, may be regarded as a well educated, sophisticated and worldly wise person, are likely to be minimal. 13 Next, counsel for the Crown submitted that it was not the duty of Bell J, of her own accord, to consider the capacity of the appellant. It was said that it was not incumbent on a trial judge to conceive of all possible arguments that could affect the exercise of discretion. The appellant, himself, had not raised the issue at the voir dire and, it was submitted, the evidence did not disclose any reason to embark on such an inquiry. 14 I do not accept the submission based on lack of evidence. The very fact that it was common cause that the appellant was an Aborigine and, hence, a vulnerable person within the meaning of the Regulation, required such an inquiry to be undertaken. 15 It is a general principle that, whatever the line of defence adopted by counsel at the trial, the judge may be required to instruct the jury as to a defence that arises on the evidence even if that defence has not been raised on the accused person's behalf: Van Den Hoek v R (1986) 161 CLR 158 at 161; Holland v R (1993) 117 ALR 193 at 204; R v Hopper [1915] 2 KB 431 at 435 ; Pemble v R (1971) 124 CLR 107. 16 By analogy, when a court is called upon to exercise a discretion under s 138(1) of the Evidence Act , it seems to me, generally speaking, that the court should take into account all significant matters that have a bearing on the admissibility of the evidence, despite the fact that some such matters may not be relied upon by the parties. In my opinion, the fact that the appellant was an Aborigine was sufficient to trigger the need for Bell J to take into account the particular characteristics of the appellant and the consequences of the contravention of cl 28 upon him when exercising her discretion under s 138(1), even though his counsel at the hearing made no reference to this aspect. 17 It was next submitted on behalf of the Crown that the mere absence of any reference to the appellant's personal characteristics and capacity to deal with police questioning does not mean that her Honour gave no consideration to the question. Counsel submitted that the appellant's capacity to understand and deal with police questioning was implicitly resolved by her Honour when dealing with s 84(1)(a), s 85 and s 90 of the Evidence Act . 18 It is only necessary for me to deal with the submission based on s 85. 19 Section 85(2) provides that evidence of an admission is not admissible unless the circumstances in which it was made were such as to make it unlikely that the truth of the admission was adversely affected. Section 85(3) provides: "Without limiting the matters that the court may take into account for the purposes of sub-section (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject". 20 The appellant submitted to Bell J that, at the time of the interview, he had been affected by a combination of alcohol, drugs and underlying depression such that the Crown could not discharge the onus cast upon it pursuant to s 85(2). Bell J held, however, that there was nothing to suggest that the effects of alcohol or drug ingestion incapacitated the appellant significantly in the course of the interview. 21 Bell J had found that the appellant had a good recall and was coherent during the interview. In dealing specifically with s 85(2), her Honour said: "I am satisfied that the Crown has discharged its onus of establishing that the circumstances in which the admission was made was such as to make it unlikely that the truth of the admission was adversely affected". 22 The appellant has not suggested that, in making that decision, Bell J did not have proper regard to the considerations referred to in s 85(3), namely, any relevant condition or characteristic of the appellant, including age, personality and education and any mental, intellectual or physical disability to which he was or might appear to be subject. In my view, her Honour must be taken to have considered all these matters in concluding that the circumstances relied on did not make it unlikely that the truth of the admission was adversely affected. 23 The matters set out in s 85(3) to which Bell J so had regard all bear on the appellant's individual capacity to deal with police questioning. In my view, her Honour must be taken to have considered these matters in exercising her discretion under s138(1). After all, immediately before dealing with s 138 she had discussed the argument raised in connection with s 85(2). 24 In the circumstances, I accept that her Honour properly exercised her discretion under s 138(1) and had proper regard to the appellant's personal characteristics in concluding that the evidence obtained in contravention of cl 28 should be admitted. 25 HULME J: On 21 March 2000 the Appellant was convicted of a charge that on 20 June 1998 he murdered Paul Joseph Harris. On 22 June 2000 Justice Bell sentenced him to imprisonment for 18 years including a non-parole period of 13½ years. 26 He has appealed against his conviction. The only ground of appeal is that her Honour erred in law in admitting into evidence an electronically recorded interview between the Appellant and investigating detectives. What the Appellant said in that interview formed a significant part of the Crown case against him. 27 At the trial unsuccessful objection was made to the admissibility of the ERISP on three bases - that the Appellant's participation in it followed on threats by investigating police, that the Appellant's answers were unreliable because at the time he was affected by, inter alia, alcohol and other drugs, and that the evidence in the ERISP was obtained in contravention of Clause 28 of the Crimes (Detention after Arrest) Regulation 1998. In his appeal, it is only the last of these 3 matters that is relied upon, together with the terms of s138 of the Evidence Act which provides:- (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, is not to 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. (3) Without limiting the matters that the court may take into account under subsection (1), it is to 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. 28 Clause 28 is in terms:- "If a detained person is an Aboriginal person or a Torres Straight Islander, then, unless the custody manager 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 an Aboriginal legal aid organisation will be notified that the person is being detained in respect of an offence, and (b) notify such a representative accordingly." 29 Despite some evidence from the Appellant that the detectives gave him information to the effect of that referred to in paragraph (a), it was common ground in the appeal that the custody manager at the time, a Sergeant Dagwell, did not comply with either sub-paragraph between the time of the Appellant's arrival at the police station at about 9.20 am on 20 June 1998 and the time of the interview at 11.28 am later that day. 30 The errors raised in the Appellant's submissions and said to have been committed by Bell J in deciding that notwithstanding the contravention of Regulation 28, the ERISP should be admitted were as follows:-

(ii) Her Honour failed to give adequate weight to the fact that the Appellant was denied the right, or opportunity, of receiving advice from a legal practitioner experienced in dealing with aboriginal persons under arrest. 31 So far as the first of these matters is concerned, her Honour found that Sergeant Dagwell was a witness of truth and observed that the contrary was not suggested. He had said that he understood it was his obligation to notify the Aboriginal Legal Service and had done so on other occasions. He could not recall doing so in the case of the Appellant. Her Honour accepted that due to the totality of demands on his time on the day of the Appellant's arrest, Sergeant Dagwell was busy and the physical conditions of the police station made the situation at the time somewhat chaotic. 32 Her Honour said that Sergeant Dagwell impressed her as an officer who would faithfully carry out each function he was required to perform and that there was nothing in the documents to which the Sergeant had had regard in fulfilling his duties to remind him of the notification requirement imposed by clause 28. 33 It is not necessary for the purposes of this appeal to attempt to define exhaustively the meaning or operation of the term "reckless" in paragraph (e) of s138(3). In the context of "improperly or in contravention of an Australian law" the concept "reckless" must involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a "don't care" attitude generally, in this case, by Sergeant Dagwell. The mere failure to comply with clause 28 on one occasion cannot, without more, demonstrate these matters. There is no other evidence to suggest the failure was reckless and her Honour's findings referred to in the preceding paragraph - findings which were well open to her on the evidence - are inconsistent with any suggestion along these lines. 34 And once the conclusion was reached that Sergeant Dagwell had the qualities to which her Honour referred, that he was aware and had complied with clause 28 on other occasions, that conditions at the police station on the occasion the Appellant was there were somewhat chaotic and that Sergeant Dagwell's failure to comply with clause 28 was not deliberate - all of which conclusions were both open to, and found by, her Honour, the statement that he "overlooked" the requirement of the clause was reasonably open. 35 It should also be mentioned that it was never suggested to Sergeant Dagwell during the course of the voir dire inquiry that his omission had been deliberate or reckless but, even apart from that, there is no substance in the first challenge to Bell J's decision. 36 Turning to the second challenge, her Honour said that she considered the failure to comply with the requirements of clause 28 to be a "serious matter", associated as those requirements are with the other provisions of Part 10A of the Crimes Act and designed to provide "important" and "special" protection for the interests of "vulnerable persons", an expression which included aboriginals. 37 In support of the appeal, it was submitted that her Honour had omitted to recognise that clause 28 created a "right" in aboriginal persons to notice and notification as the clause contemplates. Pollard v R (1992) 176 CLR 177 was cited in support of that proposition - see at 195, 220 and 230. See also R v Swaffield (1997) 192 CLR 159. However, having regard to the view which her Honour took as to the importance of clause 28 and compliance with it, it does not seem to me that her failure to characterise the protection and benefits which the provision is intended to afford as "rights", is of any significance. 38 Subject to the following remarks, the terms her Honour used also seem to me to answer the criticism that she failed to give adequate weight to the fact that the Appellant was denied the right, or opportunity, of receiving advice from a legal practitioner experienced in dealing with aboriginal persons under arrest. Furthermore, it cannot be said that her Honour's conclusion to admit the ERISP of itself so indicates. There is nothing in clause 28 to indicate that a failure to comply with its terms, even in the circumstances under consideration in this appeal, must be determinative of the manner of exercise of the discretion under s138 of the Evidence Act. 39 During the hearing of the appeal, the Court raised with the parties one further aspect of possible non-compliance with the terms of clause 28 which did not figure in her Honour's reasons for exercising her discretion to admit the ERISP. It was the effect of the departure from the requirements of the clause on the Appellant himself - a topic which invites attention to his particular personal characteristics and to the possibility or likelihood that, had clause 28 been complied with, no ERISP, or at least no ERISP which contained significant admissions, would have eventuated. 40 There can be no doubt that in at least many cases any consideration of the gravity of the impropriety of contravention to which s138 requires attention will involve a consideration of the particular accused's personal characteristics. Demonstrably a breach of clause 28 in the case of an uneducated and ignorant Aboriginal would be a graver contravention than in the case of one who was in fact a practicing criminal lawyer. Thus I disagree with the submissions advanced on behalf of the Crown to the effect that, as all Aboriginal persons are regarded by the Crimes (Detention after Arrest) Regulation as "vulnerable", there is no occasion to consider their situation individually. A fortiori, is this so as the expression "vulnerable person" is defined to include not only aboriginals but also children (necessarily of a wide variety of ages) and persons with impaired intellectual functioning (whose degrees of impairment are also likely to extend over a wide range). 41 Thus as a general proposition a judge should, when considering s138 and in particular the requirements of s138(3)(d), direct attention to the Appellant's personal characteristics. 42 To some extent her Honour did so, albeit not in terms when considering s138(3)(d). Her Honour directed attention to the Appellant's appearance, conduct and mental functioning as depicted on the video tape recording of the Appellant's ERISP. She concluded that these matters gave rise to no concern that he was noticeably incapacitated. She also referred to the fact that during his evidence on the voir dire the Appellant said that he was aware of his right to silence and that when he arrived at the police station, he was intending to take part in a record of interview. Her Honour referred to evidence, confirmed in the ERISP itself, that the Appellant had been asked if he wished to speak to a solicitor and had said that he did not. She noted that the Appellant's evidence suggested he had a good recall of the course of the interview. She adverted specifically to s85(2) and cannot have been unconscious of the terms of s85(3) which follow and refer to the "age, personality and education and any mental, intellectual or physical disability" of a person being questioned. 43 Counsel for the Appellant drew the Court's attention to some further matters that argue for the gravity of the contravention being greater than it might otherwise have been. He pointed to evidence that the Appellant was still undergoing distress as the result of the death of his brother and to other evidence in a report from Dr Nielssen, a psychiatrist, that there was a probability that the Appellant suffered from mild alcohol related brain damage, had a history of the use of illegal drugs and in the period shortly before his arrest had used cannabis, amphetamines, heroin, and prescribed medication and had returned to the use of alcohol which he had given up some years before. At the police station he had taken Valium. 44 On the other hand, there was evidence that the Appellant had not had a deprived family background, having been born to an Aboriginal mother and Dutch father and having spent his early years in Canberra and later Port Moresby. He achieved his school certificate and then trade qualifications as a mechanic and had worked through most of his adult years. He had recently been living in a stable de facto relationship for some 7 years and had a close relationship with his children. He had no psychiatric history. 45 He told Dr Nielssen that he had noticed his memory and concentration were not as good as previously, matters he attributed to the effects of heavy drinking. However, tests of his concentration showed no impairment and he was attentive throughout his interview with the doctor and made good eye contact. A consideration of the ERISP suggests that the Appellant could not be regarded as a person to whom the term "vulnerable" would normally apply. 46 I am content to proceed on the assumption that her Honour's failure to advert to these matters and to the Appellant's characteristics generally when addressing s138(3)(d) means that the exercise of her discretion miscarried. However, having regard to their nature and weight I am persuaded that the matters now relied on could have made no difference favourable to the Appellant. Indeed the Court was told that the matters were not relied on before her Honour - a circumstance relied on by the Crown as supporting the proposition that there was no need of her Honour to consider them. I do not find it necessary to embark on a consideration of this last mentioned submission but it obviously would not have helped the Appellant's claims that the contravention was grave and that the record of the ERISP should not be admitted for her Honour to have concluded that, despite the Appellant's aboriginality, he was not in fact "vulnerable" and needing the protection of clause 28. 47 I am reinforced in my view that the matters now relied on could have made no difference favourable to the Appellant by her Honour's conclusion that it would not be unfair, under s90 of the Evidence Act, to permit use of the confession, notwithstanding her recognition that had clause 28 been complied with, no confession might have been forthcoming. 48 That conclusion by her Honour also answers the suggestion that, in the circumstances here, the gravity of the impropriety or contravention should have been assessed upon the basis that no confession would have been forthcoming had clause 28 been complied with, and that, if the gravity had been so assessed, her Honour's decision under s138 to admit the record of the ERISP might have been different. 49 That no confession would have been forthcoming had clause 28 been complied with is, in my view, a conclusion which should be drawn. There was evidence from a Mr Jeffrey of the local Aboriginal Legal Service that he and the other member of it, who were the persons likely to have been contacted if Sergeant Dagwell had directed his attention to Clause 28, almost always had their mobile phones on and that they were but about 15 minutes away. There was no evidence about what advice would have been given to the Appellant had such contact been made and one or other of the persons attended but general experience indicates that the advice would probably have been not to participate in the recorded interview at all. Although the Appellant himself gave no evidence on the topic, I would infer that had such advice been given, it would have been followed. 50 I am also prepared to assume that it is appropriate in judging the gravity of an impropriety or contravention to have regard to its consequences. In some circumstances of life outside the purview of s138 one would clearly do so. 51 However I do not see how a decision that even though the ERISP record was a product of the contravention, it was not unfair to admit it, could be reconciled with a conclusion that those same circumstances made the gravity of the contravention such as to provide any significant weight for the document's rejection under s138. Particularly is this so when her Honour had found that the contravention was neither deliberate nor reckless. 52 I would go further. Even without her Honour's decision that it was not unfair under s90 to admit the document, once one accepts her findings - unchallenged by the Appellant in the appeal - as to the probative value of the evidence - "very high", as to the importance of the evidence - "critical", as to the nature of the offence - murder, that it had not been suggested that the contravention was contrary to or inconsistent with a right recognised by the International Covenant on Civil and Political Rights, together with the conclusion that the contravention was not deliberate or reckless, and her view of the Appellant's circumstances at the time of the interview, her Honour's decision under s138 was clearly correct. 53 The appeal should be dismissed. 54 SPERLING J : I have had the advantage of reading in draft the judgments of Ipp AJA and Hulme J. 55 I agree with the orders proposed by Hulme J. 56 As to the grounds on which the appeal was brought, specified as grounds (i) and (ii) by Hulme J, I agree that those grounds are not made out for the reasons given by his Honour. 57 There is then the further matter raised by the court on the hearing of the appeal, namely, whether her Honour erred in failing to give consideration to any actual vulnerability to police questioning, on the part of the appellant, arising from his aboriginality. 58 Ipp AJA is of the opinion that the trial judge was obliged to consider the possibility that the appellant had such a vulnerability but that her Honour resolved any such question adversely to the appellant in the findings which she made. 59 Hulme J dismisses the approach for reasons which include (similarly) that, if her Honour had adverted to the question of such actual vulnerability, the decision to admit the evidence would have been no different. 60 I agree that the approach should be dismissed for the reasons given by their Honours as mentioned above. As to other observations by their Honours concerning the relevance of actual vulnerability in a case such as this, I would state my position as follows. 61 A balancing exercise is required by s138(1). It involves consideration of the public interest in the courts not countenancing illegality or impropriety in the way evidence has been obtained. The weight to be given to that consideration will be affected by the nature and degree of the illegality or impropriety and its consequences. 62 Clause 28 of the regulation operates whenever the person concerned is known to be an Aborigine. If the clause is not complied with, there is an illegality. When one comes, then, to s138(1), considerations relevant to the weight to be given to the illegality will include the actual vulnerability of the person concerned to police questioning by reason of his or her aboriginality (if there is any such actual vulnerability) and, necessarily, the nature and extent of any such vulnerability and its consequences (if any). 63 To that extent, I agree with what Ipp AJA and Hulme J have written concerning the relevance of actual vulnerability. Otherwise, I would prefer to reserve for a future occasion what are, to my mind, a number of difficult and problematic questions. In particular, I doubt whether a trial judge is bound to consider the question of actual vulnerability arising from aboriginality in a case such as this, where that was not raised as a consideration in argument at the trial. I also doubt whether an appellant can rely on the trial judge not having adverted to actual vulnerability arising from aboriginality in the absence of evidence of such actual vulnerability, appearing from the trial record or otherwise shown by affidavit to have been evident. Such questions can be resolved, if necessary, in a future case where determination of those questions is required and where the questions involved would be more fully argued. ************

R v HELMHOUT

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Judgment (10 paragraphs)

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Cited By (13)