R v Kanaris [1999] NTSC 94

For present purposes the Crown case is that prior to 8 March 1996 the

accused made arrangements for the delivery to him in Darwin of 28 grams of

heroin. Police became aware of this and conducted what has been described

as a "controlled delivery". Police seized the parcel and substituted plaster

of Paris for some of the heroin. The parcel was collected by police at Ansett

Freight in Darwin on 7 March 1996. On Friday 8 March 1996 an officer

wearing Ansett Freight clothing delivered the parcel to the accused at the

premises of Yesterdays Autos. The accused took possession of the parcel

and opened the covering box. The heroin was located in a Post-Pak

envelope inside that box. He secreted the Post-Pak (which was at that time

At around 12 pm on 8 March 1996 Gail McNamara, a person to whom it is

alleged the accused had supplied heroin from August 1995 to that date,

phoned the accused to arrange for a further supply to her of heroin. The

accused got into a vehicle and drove to the Shell Service Station on the

corner of Daly and McMinn Streets to deliver heroin to Ms McNamara.

Police followed but were observed by the potential purchaser who waved the

accused away. The accused became aware of the police presence and a car

During the course of the car chase the accused released the contents of three

foils of heroin into the air as he drove. He was finally pulled over at the

At 12.40pm police attended at Yesterdays Autos and conducted a search of

the premises where they located the Post-Pak of heroin, 11 foils of heroin,

steroids, cash and other drug paraphernalia. A fingerprint on one of the

foils was found to match a fingerprint of the accused.

At 12.57pm the accused was logged into the watchhouse at the Peter

At 4.10pm police attended at the accuseds home at 433 Trower Road

Brinkin and conducted a search of his bedroom where a foil of heroin,

steroids, cannabis and other items were found and seized.

At 5.32pm the accused was removed from the cells for the purpose of

partaking in a record of interview. That record of interview was conducted

between 5.47pm and 6.52pm. At the conclusion of the record of interview

personal details were obtained from the accused and he was returned to the

watchhouse at 7.50pm. He was then formally charged. Prior to that time he

had been held under s 137 of the Police Administration Act.

At 8.15pm the accused spoke to his brother-in-law, who is a solicitor.

The accused faces seven counts contained in the one indictment and those

Between 1 August 1995 and 7 March 1996 at Darwin in the Northern

Territory of Australia unlawfully supplied to Gail McNamara heroin,

a dangerous drug specified in Schedule 1 of the Misuse of Drugs Act.

Section 5(1) & (2)(a)(ii) of the Misuse of Drugs Act

On 8 March 1996 at Darwin in the Northern Territory of Australia

unlawfully supplied to Gail McNamara heroin, a dangerous drug

specified in Schedule 1 of the Misuse of Drugs Act.

Section 5(1) & (2)(a)(ii) of the Misuse of Drugs Act.

On 8 March 1996 at 25 Daly Street, Darwin in the Northern Territory

of Australia unlawfully possessed a Postpak of heroin, a dangerous

drug specified in Schedule 1 of the Misuse of Drugs Act.

AND THAT the unlawful possession involved the following

the amount of the dangerous drug was a traffickable quantity.

Section 9(1) & (2)(b)(ii) of the Misuse of Drugs Act.

On 8 March 1996 at 25 Daly Street, Darwin in the Northern Territory

of Australia unlawfully possessed 11 foils of heroin, a dangerous

drug specified in Schedule 1 of the Misuse of Drugs Act.

AND THAT the unlawful possession involved the following

the amount of the dangerous drug was a tr affickable quantity.

Section 9(1) & (2)(b)(ii) of the Misuse of Drugs Act.

On 8 March 1996 at 25 Daly Street, Darwin in the Northern Territory

of Australia unlawfully possessed anabolic steroids, a dangerous

drug specified in Schedule 2 of the Misuse of Drugs Act.

Section 9(1) & (2)(f)(ii) of the Misuse of Drugs Act.

On 8 March 1996 at 433 Trower Road, Darwin in the Northern

Territory of Australia unlawfully possessed a foil of heroin, a

dangerous drug specified in Schedule 1 of the Misuse of Drugs Act.

Section 9(1) & (2)(c)(ii) of the Misuse of Drugs Act.

On 8 March 1996 at Darwin in the Northern Territory of Australia

unlawfully possessed cannabis, a dangerous drug specified in

Schedule 2 of the Misuse of Drugs Act.

Section 9(1) & (2)(f)(ii) of the Misuse of Drugs Act.

The accused seeks a direction that counts 1 and 2 be separately tried. Those

counts relate to the supply of heroin to Ms McNamara. The first count,

which is based upon the testimony of Ms McNamara, alleges that the

defendant supplied her with heroin on unspecified dates between 1 August

The second count is based upon the evidence summarised above relating to

the accused having received a telephone call from Ms McNamara on

8 March 1996, his travelling to the Shell Service Station to provide her with

Mr Tippett, who appeared with Mr Dalrymple on behalf of the accused and

presented this part of the argument, did not make any submission that the

various counts could not be joined in the same indictment pursuant to s 309

of the Criminal Code. The thrust of his submission was that I should

exercise my discretion under s 341(1) of the Code to direct that there be a

separate trial in respect of counts 1 and 2. Section 341(1) is in the

"(1) Where before a trial or at any time during a trial the court is of

opinion that the accused person may be prejudiced or embarrassed in

his defence by reason of his being charged with more than one

offence in the same indictment or that for any other reason it is

desirable to direct that the person should be tried separately for any

offence or offences charged in an indictment the court may order a

separate trial of any count or counts in the indictment."

The accused says that he is both prejudiced and embarrassed in his defence

as a result of him being charged in the manner set out in the indictment.

In relation to count 1 it was his submission that the evidence is entirely

contained in the evidence of Ms McNamara. In relation to count 2 it was

submitted that there was no evidence that Ms McNamara received heroin on

8 March 1996. It was said that the closest the Crown case came to that

occurring was the evidence of Ms McNamara that she made a telephone ca ll

after which she went to an area near the Shell Service Station on Daly Street

where she expected to meet the applicant to receive some heroin. No

transaction took place on that day. It was therefore submitted that the

counts were "a transparent attempt to link allegations of supply with later

allegations of possession." It was submitted that this was a device which

was artificial and designed to facilitate the improper use of evidence on one

set of offences to support or corroborate the evidence of Ms McNamara that

In his submissions Mr Tippett acknowledged that it was not necessary that

Ms McNamara actually receive heroin for the accused to be found guilty of

supply. Section 3(6) of the Misuse of Drugs Act makes it clear that a person

may be guilty of supply of a dangerous drug if the person takes, or

participates in, a step in the process of that supply. It was on that basis that

the Crown presented its case in relation to count 2.

Further it was submitted on behalf of the accused that Ms McNamara is an

indemnified witness and as such warnings of the kind discussed in R v Chai

(1992) 60 A Crim R 305 would be required. It was submitted that if all of

the counts were heard together such a warning "would be completely

undermined by the presence of evidence of possession that is inadmissible

upon the two counts of supply". It was also submitted that there would need

to be a corroboration direction in relation to the evidence of Ms McNamara

and "that direction would be given in the face of a direction that the jury be

required to disregard the substantial body of evidence related to the counts

of possession in the context of such a direction". It was then said that the

warnings could not effectively overcome the adverse effect on the jury of

hearing the substantial body of inadmissible and consequently prejudicial

evidence relating to the charges of possession upon the charges of supply.

In reply Mr Karczewski who appeared on behalf of the Crown submitted that

the evidence relating to the possession of heroin on 8 March 1999 would

also be called in relation to counts 1 and 2. The evidence of the obtaining of

the Post-pak of heroin and the subsequently discovered 11 foils found in the

premises (one of which contained the finger print of the accused) is

independent evidence, not coming from Ms McNamara, that corroborates her

evidence. It is independent testimony that affects the accused by connecting

or tending to connect him with the crime. It implicates him in that it

demonstrates a fund of heroin from which the supply to Ms McNamara could

have been made as she claimed. The evidence indicates that the heroin

which was released in the course of the car chase was not heroin in the

possession of the accused for his personal use and it therefore serves to

corroborate Ms McNamaras evidence that the accused was dealing in heroin

On that basis it was submitted that the evidence was admissible in relation

to counts 1 and 2 and, as presently informed, I agree that that is so.

Even if some of the evidence is not to be admitted because of the

circumstances prevailing when the matter proceeds to trial, this does not

mean that there should be an order for separate trials of counts 1 and 2.

Provided that an appropriate direction can be given to the jury as to the use

it should make of evidence admissible towards proof of one offence but not

admissible towards proof of another a direction to the jury may be sufficient

to guard against the risk of impermissible prejudice. If such a direction is

not sufficient to guard against the risk of impermissible prejudice then

separate trials should generally be granted: Sutton v R [1984] HCA 5; (1984) 152 CLR 528

at 541-2. It is a matter for the Court to consider whether impermissible

prejudice would arise in the circumstances of this case and whether such

prejudice could not be cured by direction given at the trial. As presently

informed I do not see that any significant evidence, inadmissible towards the

proof of the guilt of the accused of counts 1 and 2, will be received by virtue

of these counts being heard at the same time as the remaining counts or vice

versa. In the event that this may turn out not to be the case then I am of the

view that an appropriate warning can be given to avoid the risk of

Further, the accused has not identified any specific defence in relation to

any of the counts which would give rise to prejudice should the matters be

heard together. The submissions of Mr Tippett were couched in terms of

It is to be expected that there will be numerous directions required to assist

the jury in its deliberations in this matter. Directions as to corroboration of

the evidence of Ms McNamara and directions arising out of her status as an

indemnified witness are likely to be required. I do not see these directions

as being unacceptably "undermined" by the seven counts being heard

together. In cases such as this there will always be the risk that

circumstances will arise where appropriate directions to the jury will not

provide a sufficient safeguard against prejudice to the accused so as to

ensure that he receives a fair trial. However, in the circumstances of this

matter, I do not consider that the risk is such as to require that there be a

I therefore reject the application to direct that there be a separate trial of

The Crown wishes to lead evidence from Brigid Young who was, at the

time, a Police Auxiliary working at the Berrimah Police Watchhouse.

Ms Young was aware that the accused was in custody in relation to drug

offences, including possessing heroin, and was held pursuant to s 137 of the

Police Administration Act during further investigation. Her evidence is as

"Whilst the Deft. was being processed, he was observed to complain

about pain, suffer uncontrollable shaking and was beginning to

He continued to be processed, however I noticed he appeared pale

and the previous symptoms continued. He began to double over and

held on to the fingerprint bench to steady himself. Again I asked if

"Yeah, Im alright. How long is this going to take?"

"A few hours at least, as there is paperwork to complete and

then they will charge you when the file is done and all that

He accepted this and appeared to be looking better. We talked about

being born in Darwin and discussed the high school we attended,

being Nightcliff High School. We further discussed many Greek

families in Darwin and I informed him my sister -in-law belonged to

one of them and although he didnt know her, he stated he knew of

He then again appeared pale and was stooped in his posture and said

I was concerned he was in discomfort and was watching him to try

and identify if he was faking illness or if he was genuinely sick.

I asked if he was taking any medication or if he had any pre-existing

condition that he had not informed the receiving members about. He

He was returned to cell M6 after processing and he continued to be

"Because I feel like shit, I want something to fix this up"

"When did you have your last hit? You are obviously going

"Depends, I couldnt have any before ,,cos your mob chased

I returned to the main charge room area and notified the Watch

Commander S/Sgt Swift of the Defts condition. He advised me to

monitor him and to call up a unit if Deft required transportation to

At 2015 hrs, the Defts brother-in-law called the watchhouse and

prior to Deft receiving call, permission was sought from Det. Martin.

The Deft was then removed from cell M6 and spoke to his brother -

in-law, Kelvin Strange, for only a few minutes and was returned to

The Deft began to dry wretch and I attended cell M6 to check on

him. He was again displaying the symptoms stated earlier and was

trying to vomit. He again asked how long it would be before he

"When I am informed then Ill let you know. How are you

I returned to the charge room and called Accident and Emergency at

Royal Darwin Hospital and spoke with a male doctor on duty.

I informed the doctor of the situation and he was not very

sympathetic and told me to give the Deft. some Panamax and see if

that alleviated any of the pain. In the event that did not seem to

assist, I could always arrange for him to be conveyed to RDH, but

told me to leave it for a while and give the Panamax time to work.

I re-attended cell M6 and gave the Deft. two Panamax at 2145hrs.

The Defts condition appeared to settle down after he was given the

At 2240hrs S/Sgt Mark Jeffs attended the watchhouse and prisoner

was taken to the charge room where he was formally charged and

bail refused. His rights were explained to him and he stated he

wanted to make application to a Magistrate for bail. S/Sgt Jeffs had

been informed of his condition and stated he wanted the Deft to be

conveyed to RDH and when that was done he would call the duty

The Deft was returned to cell M6 and attempts were made to get a

unit to convey Deft to RDH, however all units were busy on other

jobs at the time and as Defts condition did not deteriorate he had to

I ceased duty at 2300 hrs. The on coming shift were made aware of

the Defts condition and what steps had taken place during the course

of my shift and the arrangements to have Deft. conveyed to RDH for

The evidence of Ms Young was contained in two statutory declarations the

first (Exhibit P3) was made on 11 May 1997 and the second (Exhibit P4)

was made on 17 August 1999. Ms Young also gave evidence before me and

It is clear that Ms Young was not part of the investigative team. She was a

police auxiliary attached to the Watchhouse. Ms Young said, and for the

purposes of this application I accept, that in making the enquiries set out

above she was fulfilling what she called her "duty of care" to the accused to

"ensure that nothing untoward happens to (prisoners) whilst in the cells and

if they require medical treatment to seek it". When the information was

provided to her by the accused in relation to his use of heroin she made no

record of that other than to make the following entry upon the offender

journal (Exhibit P2) at 1950 hours on 8 March 1996:

"Young reports prisoner back from interview. No longer held on

s 137 PAA. Prisoner can be charged and have bail considered.

Members McDonagh/Martin objecting to bail, bail refusal to be done.

Prisoner is now being processed and is beginning to suffer with

withdrawals from heroin. He has not had any since this morning.

Pain/shakes and sweating beginning. S/Sgt Swift to be notified.

Prisoner may have to be conveyed to RDH later on shift."

Division 6A of the Police Administration Act deals with the recording of

confessions and admissions. Section 142(1) of that Act provides as follows:

"Subject to section 143, evidence of a confession or admission made

to a member of the Police Force by a person suspected of having

committed a relevant offence is not admissible as part of the

prosecution case in proceedings for a relevant offence unless �

where the confession or admission was made before the

commencement of questioning, the substance of the confession

questioning, the questioning and anything said by the person

and the electronic recording is available to be tendered in evidence."

Section 143 of the Act then provides:

"A court may admit evidence to which this Division applies even if

the requirements of this Division have not been complied with, or

there is insufficient evidence of compliance with those requirements,

if, having regard to the nature of and the reasons for the non-

compliance or insufficiency of evidence and any other relevant

matters, the court is satisfied that, in the circumstances of the case,

admission of the evidence would not be contrary to the interests of

The effect of s 142(1) is clear. Evidence of a confession or admission made

to a member of the police force is not admissible as part of the prosecution

case except in the circumstances provided for in par (a) and par (b). The

confession or admission will be admiss ible as part of the prosecution case if,

in the circumstances provided for in (a), the substance of the confession or

admission is confirmed by the person concerned, and in (a) and (b) the

confirmation or the confession or admission was electronically reco rded,

and where that recording is available to be tendered in evidence. In all other

cases falling within the ambit of s 142 the evidence will not be admissible

unless the Court permits its admission under s 143 on the basis that the

"admission of the evidence would not be contrary to the interests of justice".

In R v Charlie [1995] NTSC 153; (1995) 121 FLR 306, Mildren J considered what was meant

by the expression "questioning" in s 142 of the Act. He said (312):

"The word "questioning" is not defined by the Act. The questions

which were asked related only to whether the accused knew why he

was arrested and if he knew what his rights were. Section 142 is

designed to ensure that admissions made during questioning about

the offence is recorded. I consider that "questioning" means

questions about the circumstances of the offence: see R v

Maratabanga [1993] NTSC 45; (1993) 3 NTLR 77 at 91-92."

See also The Queen v Lees & Cameron (1997) 3 NTJ 1339 at 1362.

In this case the admission was not made "before the commencement of

questioning". All "questioning" of the accused had been completed at that

point in time. The record of interview was conducted between 5.47pm and

6.52pm. The conversation took place after that time.

Likewise the admission was not made "during questioning" but rather took

The position is that any admission made by the accused was made to a

member of the police force (Ms Young), by a person suspected of having

committed a relevant offence (the accused), and is therefore n ot admissible

by virtue of s 142 unless it falls within the exceptions provided for in that

section. It does not do so. The conversation occurred after the completion

of "questioning" and it was not electronically recorded.

Accepting that s 142(1) of the Police Administration Act applies to make the

evidence of any admission by the accused to Ms Young "not admissible as

part of the prosecution case", the question that then arises is whether there

is a discretion to admit the evidence pursuant to s 143 of the Act.

Section 143 permits "evidence to which this Division applies" to be

admitted. That section permits the exercise of a discretion to admit the

evidence because the evidence that is excluded under s 142(1) is "evidence

to which this Division applies". I am therefore required to consider whether

the admission of the "evidence would not be contrary to the interests of

It has been said that the purpose of s 142(1) is to safeguard a suspect against

unfair methods of obtaining incriminating evidence against him. The

primary object is not to protect the guilty from acknowledging their guilt but

to ensure that alleged confessions or admissions are genuinely and

voluntarily made and not unfairly obtained: R v Grimley (1994) 121 FLR

In the circumstances of this matter the conversation between the accused and

Ms Young was quite divorced from the interrogation procedure. It occurred

after questioning by investigating officers had been completed and it arose

out of the concern of Ms Young for the well being of the accused. She

sought information in order to determine whether some action ought to be

taken to protect his welfare such as having him taken to Royal Darwin

Hospital or, as in fact occurred, given some medication designed to relieve

his apparent extreme discomfort. To my mind it is clear that Ms Young was

at all times acting with the desire to fulfil the "duty of care" in relation to

the accused which had been imposed on her. Her questioning had nothing to

do with the investigative process and that is confirmed by the fact that her

conversation with the accused only came to light some 12 months after the

occurrence and then only in the course of her making a statement as to his

presence in custody. The detail of the conversation was not revealed to

others until the making of the statutory declaration in 1999 (Exhibit P4).

The information provided to Ms Young was voluntarily given by the

accused. There was, in the cross-examination of Ms Young, a suggestion

made that the conversation did not occur in the manner she described.

However, she denied that and no further challenge to the accuracy of her

evidence was forthcoming. There is no suggestion that the condition of the

accused at that time was other than as she described it or that the

information conveyed was other than the truth. The evidence is probative of

the accused being associated with heroin on that day, indeed having been in

possession of heroin on that day, and that there had been a car chase as

In the circumstances I rule that the evidence can be admitted.