R v Kemp, Darren

District Court of NSW|2008-07-29|Before: Dawson JJ

The application of the safeguards contained in part 15 of the bill represents the classification of the common law requirement that persons must be told of the real reason for their arrest and a clarification of the additional requirements that officers must provide their name, place of duty and a warning. Hansard 17th September 2002 p. 4846.

Below are the relevant provisions of Part 9 of the LEPRA.

Part 9 - Investigation and Questioning a) 109 Objects of Part b) 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 or other authorized officer or court without delay or within a specified period, and (c) to provide for the rights of a person so detained. c) 111 Persons to whom Part applies (1) This Part applies to a person, including a person under the age of 18 years, who is under arrest by a police officer for an offence. It is immaterial whether the offence concerned was committed before or after the commencement of this Part or within or outside the State.

(2) This Part does not apply to a person who is detained under Part 16.

d) 113 Effect of Part on other powers and duties (1) Existing powers relating to arrest and other matters This Part does not: (a) confer any power to arrest a person, or to detain a person who has not been lawfully arrested, or (b) prevent a police officer from asking or causing a person to do a particular thing that the police officer is authorised by law to ask or cause the person to do (for example, the power to require a person to submit to a breath analysis under Division 3 of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999, or

(2) Certain evidentiary matters and rights not affected. Nothing in this Part affects: (a) the operation of: (i) the following provisions of the Evidence Act 1995: section 84 (Exclusion of admissions influenced by violence and certain other conduct) section 85 (Criminal proceedings: reliability of admissions by defendants) section 90 (Discretion to exclude admissions) section 138 (Exclusion of improperly or illegally obtained evidence) section 139 (Cautioning of persons), or (ii) any other provision of that Act, or

(b) any law that permits or requires a person to be present at the questioning of another person who is under arrest (for example, the presence of a parent at the questioning by a police officer of the parent's child), or (c) the right of a person to refuse to participate in any questioning of the person or any other investigative procedure unless the person is required by law to do so, or (d) the right of a person to leave police custody if the person is not under arrest, or (e) the rights of a person under the Bail Act 1978.

e) 114 Detention after arrest for purposes of investigation (1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 115.

(2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested.

(3) If, while a person is so detained, the police officer forms a reasonable suspicion as to the person's involvement in the commission of any other offence, the police officer may also investigate the person's involvement in that other offence during the investigation period for the arrest. It is immaterial whether that other offence was committed before or after the commencement of this Part or within or outside the State.

(4) The person must be: (a) released (whether unconditionally or on bail) within the investigation period, or (b) brought before an authorized officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.

(5) A requirement in another Part of this Act, the Bail Act 1978 or any other relevant law that a person who is under arrest be taken before a Magistrate or other authorized officer or court, without delay, or within a specified period, is affected by this Part only to the extent that the extension of the period within which the person is to be brought before such a Magistrate or officer or court is authorised by this Part.

(6) If a person is arrested more than once within any period of 48 hours, the investigation period for each arrest, other than the first, is reduced by so much of any earlier investigation period or periods as occurred within that 48 hour period.

(7) The investigation period for an arrest (the "earlier arrest") is not to reduce the investigation period for a later arrest if the later arrest relates to an offence that the person is suspected of having committed after the person was released, or taken before a Magistrate or other authorised officer or court, in respect of the earlier arrest. 115 Investigation period (1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period.

(2) The maximum investigation period is 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant.

f) Division 3 - Safeguards relating to persons in custody for questioning g) 122 Custody manager to caution, and give summary of Part to, detained person (1) As soon as practicable after a person who is detained under this Part (a "detained person") comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing: (a) 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, and (b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorized officer and that the person, or the person's legal representative, may make representations to the authorized officer about the application.

(2) The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer.

(3) After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given.

The intent of parliament was to codify the common law insofar as the power of arrest is concerned (Second Reading Speech ante). There has been no sanction by Parliament of any diminution of a person's right to personal liberty cherished by Fullagar J. There is nothing in the provisions of the LEPRA or the Second Reading speech of the then Attorney General which justifies the use of arrest for any purpose other than to bring the person before a justice or otherwise authorized person to be dealt with according to the law (Williams v The Queen ante per Wilson and Dawson JJ). The capacity to detain for any purpose after arrest is enlivened only once the arrest has been accomplished (s.114 (1)).

Arrest is still a remedy of last resort (Williams v The Queen ante per Mason and Brennan JJ) (S. 99 LEPRA). Section 114 (1) does not provide any basis for arrest (Bales v Parmeter (ante). Proper arrest is a condition precedent without which s 114 (1) cannot be activated. Absent a lawful arrest access to the investigation period is unavailable. Nor can an arrest be formulated for any purpose other than what the law permits. Clearly the common law would not sanction the use of an arrest for purposes conceived and pursued by Dt Sgt Smith. Nor is there authority in the common law once a person is arrested to restrain his liberty for the purpose of placing him in a cell with undercover police. As Chief Justice Jordan said: "No person is entitled to impose any physical restrain upon another except as authorized by law." So far as I am aware the placing of an accused in a designated cell with two undercover operatives charged with engaging him, and tasked with seeing if admissions can be finessed from him is not authorized by law as a basis for arrest.

Nor, it seems to me, is it authorized by s 114 (2) LEPRA or any other section. "[T]he purpose of investigating" found in s114 (2) relates to enquiries being done after arrest by the arresting officer or those acting at his direction. An investigation amounts to a search, inquiry or examination of particulars. It is an examination to obtain the true facts to make an inquiry. When the allowance of 4 hours was made for investigation time, what was contemplated was the formal questioning of a suspect, and time preparatory for conducting a record of interview. There was a real issue as to whether police were permitted by the common law, having arrested a suspect, to have time out for the purpose of questioning before placing the accused before an authorized person for charge and bail. It was never a voiced contemplation that there should be "time out" for undercover operatives to pose as arrested detainees.

What occurred in the cells with this accused was a fishing expedition that may, or may not have been successful. It can hardly masquerade as an investigation. When LEPRA was drafted conduct of the kind that is the subject of this voir dire was unknown after arrest and before charging. None of the government, the Royal Commission, or the Courts in this country, so far as my enquiries are concerned, has dealt with conduct of this kind at this particular time in the criminal trial process. There was no law enacted to redress or support it. Understanding the terms of LEPRA are codifying the common law, there is nothing in s 114 (2) which supports the pursuit of this conduct.

Dt Smith's primary purpose in arresting the accused did not justify his arrest. It follows from my findings in respect of his arrest that the accused was treated unfairly. Although an arrest may be carried out not in accordance with LEPRA, any charge resulting from that arrest nonetheless survives. However, s.113 provides that evidentiary matters and right are not affected.

The defence seeks relief pursuant to s.90 Evidence Act 1995. It provides: In a criminal proceeding, the court may refuse to admit evidence of an admission or refuse to admit the evidence to prove a particular fact if: (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

The Crown argues, if I find an impropriety I would exercise my discretion pursuant to s.138 of the Evidence Act. While there is clearly scope for an overlapping of the work done by the two sections, there are also differences to be observed in their application. S138 applies to civil and criminal proceedings. It applies to the tender of a wide range of evidentiary matters. It seeks to deal with impropriety and unlawful conduct by a wide range of people and in a wide range of situations. On the other hand s. 90 is more targeted. It is directed only to admissions, and only admissions adduced by the prosecution. It applies only in criminal proceedings. It is targeted particularly at ensuring propriety among law enforcement officers. Not surprisingly given the different scope of each section there are different policy considerations. Improper conduct that may survive if tested against s.138 (3) may not survive - assuming it related to an admission in criminal proceedings, against the test of s.90 (b).

The relief sought is a discretionary matter. Obviously I am dealing with admissions said to have been made by the accused, and sought to be adduced by the prosecution in criminal proceedings. The issue for me is "having regard to the circumstances in which the admission was made, is it unfair to the defendant to use the evidence in the trial." It is no secret to the parties that this has been a difficult decision for the Court. The question for me is not whether the accused was treated unfairly; it is whether the reception of the admissions would be unfair to him (Cleland v The Queen (1982) 151 CLR 1 at p. 18 per Deane J.

I have found the admissions were voluntarily made. I have found they qualify as having the requisite degree of reliability to go before a jury. The Part 9 caution, although not usually so applied or understood, is capable of covering a situation where undercover operatives are or may be in a cell. Authorities such as Tofilau v R 238 ALR 650 and Em v R 239 ALR 204 stand for the acceptance into evidence of admissions made in such circumstances.

On the other hand, in my experience this is an extraordinary case. The only authority I have been able to locate from my experience and research touching upon any covert dealings with a detainee in custody pending charging is a Canadian decision R v Broyles [1991] 3 S.C.R. 595. Even that case has significant differences.

There is helpful obiter to be found in R v Mullah [2005] NSWSC 358 (11 February 2005) in a judgment of Wood CJ at CL:

The difference in the position of an accused who is involved in [covert surveillance] conversations in the course of the commission of a crime, and that of an accused post arrest, while not conclusive, also has, in my view some significance. A particular concern exists in relation to post arrest trickery or subterfuge that is designed to derogate from the fundamental right of silence, and from the privilege against self-incrimination. Somewhat different considerations apply, in my view, in relation to investigations occurring before arrest, and which are an almost inevitable feature of the kind of controlled operations, which are now permitted by statute, in response to the decision in Ridgeway v The Queen . (reference omitted).
For reasons given I regard the arrest of the accused as an unfair deprivation of his liberty. Such an unfairness is no small matter. The unfairness impinges into the consideration of circumstances in which the admissions were made. It was an extreme step taken by police in placing the accused into an environment that was owned, managed, and dominated by them, for an unfair purpose.

For reasons I have given I regard the custody records maintained by the police as an impropriety that becomes a circumstance to be taken into account on the question of fairness to the accused. For reasons I have given above I regard them as a circumstance contributing to the unfairness of allowing the admissions into evidence.

I am satisfied planned trickery and deception were used by investigating police because of a belief that the accused would not reveal anything incriminating within the normal interview structure. In doing so they were seeking to avoid, or more accurately void his right to silence. I note the remarks of Brennan CJ in Swaffield "There is a public interest in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society. (R v Swaffield 72 ALJR 339.)

I have already noted when reviewing the detail of this case that from a prosecution perspective, but for the admissions made by the accused, it is a markedly weak case. The admissions are, because of their scope, detail and reliability self-incriminatory evidence of a high order. Self- incriminatory evidence obtained in the way in which this incriminatory evidence was obtained would render this trial unfair because its admission would strike at one of the fundamental tenets of a fair trial, the right to silence. That the admissions may persuade a jury beyond reasonable doubt is not to point. The unfairness in the trial would be excusing by the trial judge the voiding of the right to silence by trickery and deceit. If the impugned evidence is the only evidence tending to incriminate the accused, the fact that the conviction of the accused depends on self-incriminatory evidence will increase the unfairness of the trial. ( R v Broyles [1991] 3 SCR 595 citing with approval R v Collins [1987] 1 SCR 265 and R v Herbert [1990] 2 SCR 151).

In all the circumstances I am persuaded that having regard to the circumstances in which the admissions sought to be relied upon by the Crown were made by the accused, it would be unfair to him to use them in evidence against him. The tender of the evidence of the recordings made by the undercover police in Cell 3 at the Newtown Police Station on 19 February 2005 is rejected.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: R v Kemp, Darren [2008] NSWDC 312

Williams v The Queen (1986) 161 CLR 278 at 306 per Wilson and Dawson JJ Cleland v The Queen Bales v Parmeter (1935) 35 S.R. (NSW) 182 at pp188-189 Tofilau v R 238 ALR 650 CASES CITED: Em v R 239 ALR 204 R v Broyles [1991] 3 S.C.R. 595 R v Mullah [2005] NSWSC 358 R v Swaffield 72 ALJR 339 R v Collins [1987] 1 SCR 265 v Herbert [1990] 2 SCR 151

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