R v Nean

District Court of NSW|2022-12-13

Ryan Payten Le (Accused) File Number(s): 2021/00167861

Introduction

The Accused, Jaiven Nean, is to face trial listed to commence on 27 February 2023 on an indictment containing the following 3 counts:
Count 1 alleges that on 5 March 2021 at Rose Bay he remained on land at 8 Churchill Road, Rose Bay with intent to commit an indictable offence of larceny at the residential premises at that address.
Count 2 alleges that on 5 March 2021 at Rose Bay he remained on land at 6 Churchill Road, Rose Bay with intent to commit an indictable offence of larceny at those residential premises.
Counts 1 and 2 are allegations of breaches of s.114(1)(d) of the Crimes Act.
Count 3 on the indictment alleges that on 5 March 2021 at Greystanes the Accused in company with BK, Chayce Jensen and a person unknown, robbed Buu Tin Diep and My Du of a cash register containing $250 in Australian Currency, the property of Buu Tin Diep, and that Chayce Jensen at the time of the robbery wounded Buu Tien Diep. Count 3 is an allegation brought under s.98 of the Crimes Act.
On 10 June 2021 police executed a search warrant at the Accused's residential address in Ashfield. He was cautioned, placed under arrest and taken to Burwood Police Station. While detained at Burwood Police Station the Accused participated in an electronically recorded interview with police. In that interview the Accused made a number of admissions in relation to his involvement in the offences, and I will return to the content of that interview later in this judgment.

A brief overview of the Crown Case

This brief summary of the Crown Case is taken primarily from the Crown Case Statement which was tendered before me on the voir dire without objection.
In the early hours of 3 March 2021 a black BMW M5 sedan was stolen and driven from an address in North Curl Curl. It is not contended by the Crown that the Accused was involved in the taking of that vehicle.
Around 3.55am on 5 March 2021 the black sedan drove and parked outside 8 Churchill Road, Rose Bay. It is alleged the Accused and the other four occupants got out of the vehicle and walked towards the house at 6 Churchill Road. All 5 persons were said to have their faces covered in some way and wore gloves. One of those persons is said to have carried a blue light torch attached to a pick hammer and was wearing dark coloured gloves with green panelling. Another is said to have carried a screwdriver like implement. The Accused is alleged to have worn a maroon coloured Everlast brand hoodie and black coloured Puma trackpants. Another of those persons was said to be wearing a dark hooded jacket which had an Aboriginal Health Service logo on the front, bearing the words "25 Years On".
The persons concerned, including the Accused, are alleged to have jumped the fence separating 6 and 8 Churchill Road and to have gone onto the property at 8 Churchill Road. Whilst on the ground level they are said to have tried to open several doors and one of the windows without success. The Accused and his associates are alleged to have tried to open doors on the upper level balcony without success. Those alleged facts are relied upon for count 1 on the indictment.
The Accused and his associates are then alleged to have returned to the residential property at 6 Churchill Road and approached the dwelling house with intent to steal. Those alleged facts are relied upon for count 2 on the indictment.
After the group which included the Accused, had run along Churchill Road they returned in a red Mercedes. Three of those persons got out and into the black BMW sedan, which at 4.10 am drove away. At 4.25 am that vehicle was found 3 kms from Churchill Road, unoccupied , with its lights on and no number plate. As police approached that vehicle they heard the sound of a car horn from a red coloured Mercedes parked about 20ms away which sped away from the police. That vehicle was pursued by police and the driver was eventually stopped and arrested by the police. The driver was not the Accused.
Around 5.43am on 5 March 2021 the Accused is alleged to have travelled in the Black BMW to Greystanes shopping centre along with Chayce Jensen, BK and an unknown male. They parked in one of the car spaces outside the Top Bread Bakery at the shopping centre. The four men are alleged to have left the vehicle, with the Accused remaining with the vehicle while the other 3 approached the bakery. Those 3 men had covered their faces, wore gloves and one took with him a pick hammer.
The 3 men who approached the bakery robbed the owner Buu Tin Diep and the shop assistant My Du by taking the shop's till. In doing so Jensen stabbed Mr Diep in the right forearm.
The 3 men then returned to the black BMW and drove out of the carpark and onto Merrylands Road.
Those are the essential facts relied upon by the Crown for the proof of count 3. The Accused is alleged to be liable for count 3 on the basis of an extended joint criminal enterprise.
The Crown proposes to argue that the same group of persons are responsible for the offences at Churchill Road and for the offence at the bakery on 5 March 2021, principally relying on the similarity of the clothing, head coverings and gloves worn.
On 24 March 2021 the police executed a search warrant at the residential address of BK and located a maroon coloured Everlast brand jumper and a pair of black coloured Puma brand pants. In his interview the Accused admitted that he wore those clothes to the bakery robbery. His DNA profile could not be excluded from a tape lift that came from the Everlast jumper.
The Crown Case Statement sets out a summary of admissions said to have been made by the Accused in his police interview. I will deal with the interview in detail later in this judgment.

The principal evidentiary material adduced on the voir dire.

The Crown tendered the following material: the Crown Case Statement; the Accused's recorded interview on 10 June 2021 the recording of which was played during the hearing of the voir dire; A summary of Part 9 of LEPRA signed by the Accused on 10 June 2021 whilst at Burwood Police Station; A statement dated 15 June 2021 of Detective Ryan Crossingham who also gave oral evidence on the voir dire; A statement from Senior Constable Gavin Taylor dated 28 November 2022 who was performing the role of custody manager at Burwood Police Station on 10 June 2021, and that officer also gave oral evidence; The Custody Management Record relating to the detention of the Accused at Burwood Police Station; A statement dated 23 November 2022 from a Detective Senior Constable Luke Harding who also gave oral evidence. The Crown also called oral evidence from a Senior Constable Heath Campbell and tendered a statement from a Sergeant Glenn Knox dated 8 December 2022 and he was not required for cross-examination.
The Accused read an affidavit of a solicitor Alistair Sinclair sworn 9 December 2022, which duplicated much of the material the Crown placed before me. Mr Sinclair did not give oral evidence in the proceedings. The Accused also read two further affidavits, one from Ms Lauren Stefano dated 7 December 2022 and Ms Stefano did not give oral evidence. The other affidavit was from Ms Elizabeth Daher dated 9 December 2022 and Ms Daher gave oral evidence. The Accused also called evidence from Ms Sadini Handunnetti. The Accused did not give evidence on the voir dire.
I now propose to review in detail the evidence adduced on the voir dire focussing on what occurred prior to and during the conduct of the recorded interview with the Accused, given the issues raised on the voir dire.

The evidence as to the arrest of the Accused

Detective Crossingham, the Officer in Charge of the investigation concerning the offences alleged on the indictment, gave evidence that at about 8.15 am he, in the company of other police officers, attended the premises at 13 Yabsley Place Ashfield and knocked on the front door to execute a search warrant. Upon entering those premises he found the Accused asleep in bed. That he announced his office to the Accused, told him that he was there with a search warrant in relation to an investigation of an armed robbery with wounding at a bakery at Greystanes on 5 March 2021, and that other police wished to speak with him. According to Crossingham's statement, shortly after that occurred the Accused was walked to the front yard of those premises and was placed under arrest by other police in relation to other allegations, and transferred to Burwood Police Station. The search of those premises then proceeded and Crossingham attended Burwood Police Station upon completion of the search and met with Constable Evans and Campbell.
In his oral evidence Crossingham confirmed that when the Accused left his premises and was conveyed to Burwood Police Station he was not under arrest in relation to the armed robbery at Greystanes on 5 March 2021.

The evidence as to what occurs when the Accused first arrives at Burwood Police Station

The Custody Management Record, (the CMR), from Burwood Police Station records that the Accused arrived at the station at 8.30 am on 10 June 2021. Sergeant Knox in his statement records that at that time he saw the Accused in the charge room at Burwood Police Station and was introduced to him by the Custody Manager Acting Sergeant Gavin Taylor (S C Taylor). According to Knox's statement, he said to the Accused that he was going to inform him of his rights under Part 9 of LEPRA and provided him with a form and told the Accused if there was anything in the form that he did not understand he should let the officer know. Knox also states that he read and explained Part 9 of LEPRA to the Accused and asked him to sign the bottom of the form to say that it had been read to and explained to him, and the Accused proceeded to sign the form. A copy of the signed Part 9 form is before me.
Paragraph 13 of that form relevantly provides: "If you are …an Aboriginal person or Torres Strait Islander,……..you have other rights and there are other things I will do to help you while you are here. If you are such a person you should tell me and I will tell you more about those rights and what I will do to help you."
While the form signed by the Accused concerning his Part 9 rights referred to "other rights" an Aboriginal person had in custody, the form did not tell the Accused what those rights were. The evidence is that both Knox and Taylor knew at the time the Part 9 form was signed that the Accused was an Aboriginal person. Neither officer gave evidence that he explained to the Accused the additional rights he had as an Aboriginal person in police custody.

Initial contact with Burwood Police Station by a solicitor of the Aboriginal Legal Service

Ms Stefanou a solicitor with the Aboriginal Legal Service, (the ALS), deposed in her affidavit that at 8.39am on 10 June 2021 a police officer named Glen Knox telephoned the Custody Notification Service operated by the ALS. According to her evidence, which is based upon notes she made at the time of the conversation on a standard form used by the ALS, Knox said that the police wanted to interview the Accused in relation to alleged offences of breaking and entering and stealing a motor vehicle and that a Senior Constable Campbell was the officer in charge.
Ms Stefanou gave evidence that the form records she spoke directly with the Accused and explained to him the nature of the police request to interview him and gave certain advice to him. Her evidence was that the Accused instructed her that he did not wish to participate in an interview and did not want to be taken to the interview room. The form on which Ms Stefanou's affidavit is based, records that she informed the police that the Accused did not wish to participate in an interview and did not want to be taken into an interview room.
Ms Stefanou deposed that at 9:26 am she received a further call from the police concerning the Accused who informed her that they wanted the Accused to undergo a forensic procedure application and an interview. Ms Stefanou records the advice she gave the Accused about those matters and that he had instructed her that he did not consent to a forensic procedure but would comply with a buccal swab if presented with an order by a senior officer. Ms Stefanou deposed that she spoke to one of the police officers and advised him of the Accused's instructions.
Ms Stefanou deposed that she spoke to another officer, Gavin Taylor who identified himself as the Custody Manager on duty at the time. Ms Stefanou deposed that she asked Taylor if the Accused's instructions during the earlier call had been recorded on the Custody Management Record and that Taylor had responded, "we'll note you've spoken to him".
Ms Stefanou annexed to her affidavit an email that she had sent to a Senior Constable Evans at 9.39 am on 10 June 2021 confirming the Accused's instructions that she had previously communicated to the police.
It is tolerably clear that this contact between ALS and the police at Burwood Police station concerned an investigation other than the investigation related to the 3 counts on the indictment the subject of the trial. (The evidence revealed that S C Evans with SC Campbell were investigating the Accused in relation to offences for which he was arrested at his home that day when the search warrant was executed).

Further Contact between another solicitor with the ALS and the police at Burwood Police Station

Ms Daher, another solicitor with the ALS, deposed that at 12.34pm on 10 June 2021 she received a voice mail message concerning the Accused from Burwood Police Station which she returned at 12.59pm. She recorded in notes she made of her phone call that she spoke to an officer Harding, who advised her that the Accused was in custody for armed robbery with wounding and that an officer Crossingham was the officer in charge. In her cross-examination Ms Daher accepted that in her notes of the conversation she had initially recorded that the police told her the Accused was in custody for break and enter and steal motor vehicle which had then been crossed out. The witness accepted that it was possible that the police had told her that the Accused was in custody in relation to break and enter and steal motor vehicle allegations, and that that armed robbery with wounding allegation was what the police wanted to speak with the Accused about.
Ms Daher's evidence was that she spoke with the Accused and provided certain advice to him being not to participate in an interview with the police or to go into an interview room or to consent to a forensic procedure. The solicitor also gave evidence that the Accused instructed her he did not wish to talk to the police, be taken into an interview room or to consent to a forensic procedure, and that he instructed her to inform the police accordingly. In her cross examination the witness gave evidence she had no independent recollection of the conversation with the Accused, and her evidence was based solely on what she had recorded in her notes of it.
Ms Daher deposed that she then again spoke with Officer Harding and informed him that the Accused did not want to participate in an interview, did not wish to be taken into the interview room and did not wish to be recorded in any way. Her evidence was that she advised that the Accused would not consent to a forensic procedure , being a buccal swab and photographs , but that she had explained that she had informed the Accused he needed to comply should a senior police order be made. The solicitor also deposed that she asked Harding to record her instructions in the CMR.
Ms Daher deposed to having asked Harding for the registered numbers of both Harding and Crossingham so that she could confirm the Accused's instructions in writing. The witness annexed to her affidavit an email she sent to both Crossingham and Harding at 1.26pm formally confirming the Accused's instructions which had been earlier communicated on the phone.
In cross-examination Ms Daher gave evidence that she had made no note that the Accused appeared to be intoxicated, or to have a cognitive impairment or that he appeared to be mentally unwell. The witness agreed that if the Accused appeared to be any of those things she would have recorded that in her notes and nothing to that effect was recorded. The witness agreed that if a person in the position of the Accused had complained of the police pressuring him to in some way have an interview she would have recorded that fact in her notes, and nothing to that effect was recorded.
In re-examination Ms Daher gave evidence that if a person in the position of the Accused had indicated that they did not accept the advice that had been given she would as a matter of practice record it in her notes.

The evidence of Sadini Handunetti the Accused's caseworker and support person

Ms Handunetti, a caseworker with the organisation Weave Youth and Community Services gave evidence that she had known the Accused since 2016. Her evidence was that she had received a phone call from a friend of the Accused around 9 am on 10 June 2021 advising her that the Accused was in custody. Ms Handunetti said that she called Burwood Police station to let the police know that she was the Accused's caseworker and that she would be attending the police station as soon as possible, and believed that she spoke to someone on the front desk and left her phone number.
The witness gave evidence that she again called Burwood Police station when she was on route to the station. Her evidence was that she arrived at the station around noon. Ms Handunetti gave evidence that she introduced herself at the front desk and advised that she was the Accused's caseworker, and a detective or a police officer took her to a legal visit box in the custody cells area of the station. Her evidence was that she then spoke with the Accused for about 40 minutes doing what she described as a "general sort of check in" and discussed with the Accused the possibility of making a bail application. The witness gave evidence that with the Accused's agreement, she indicated to the Accused she would go across to Burwood courthouse and attempt to obtain a Legal Aid solicitor to make a bail application on behalf of the Accused that day.
In the conversation she had with the Accused at that point Ms Handunnetti said the Accused told her the police were trying to suggest that he had been involved in other offences but he did not say how and when they were said to have taken place.
The witness gave evidence that the same police officer or detective who had shown her to the custody area escorted her back to the front desk so that she could go to the courthouse. Her evidence was that she told that officer where she was going and why, and that she would be returning. That officer, according to her evidence, did not tell her about any plans to speak with the Accused after she had left. Ms Handunnetti gave evidence that if she had been told that the intention of the investigating police was to interview the Accused, she would have stayed at the station to be the Accused's support person during the interview and would have had a conversation with the Accused about his desire to have an interview and the risks associated with that. Her recollection was that she left the police station to go to the Local Court around 1pm.
Ms Handunnetti gave evidence that while at Burwood court house she attempted to have a bail application made by a Legal Aid solicitor on behalf of the Accused before the cut off time for fresh bail applications being 3.30 pm. When she was unsuccessful in that regard, her evidence was that she returned to Burwood Police Station and was quickly collected by a detective and taken back to the cells and allowed to sit in a cell with the Accused. The witness gave evidence that no police officer had told her about what had occurred during her absence from the police station. Her evidence was that she stayed with the Accused to about 5.45 pm and that he did not specifically say that a record of interview had occurred.
In cross-examination Ms Handunnetti said that the Accused knew he had the right to have her present during investigatory procedures, but said that she did not explicitly remind him in her conversation with him that day; (T125-126). Her evidence was she had not been present as a support person for the Accused in the past. When she initially spoke to the Accused upon her arrival at the police station, she said the Accused did not tell her that the police wanted to interview him but confirmed that he had spoken with the ALS. In cross-examination the witness gave evidence she had noticed nothing abnormal about the Accused's mental wellbeing when she spoke with him. The witness also said that the Accused did not appear to be affected by drugs or alcohol, and appeared to be thinking rationally.
Ms Handunnetti also gave evidence in her cross-examination that the Accused, when she returned to the police station, did not tell her what he had told the police or anything about what the police were alleging he had done.

The Evidence of the Custody Manager Senior Constable Gavin Taylor and the Custody Management Record (CMR)

Prior to discussing S C Taylor's evidence, I note that the evidence is that the recorded interview with the Accused the subject of the voir dire commenced at 1.35pm that day.
I have already noted that the CMR records the Accused coming into custody at 8.30 am that day and that S C Taylor was the Custody Manager. To a significant degree the evidence of SC Taylor was based upon the entries in the CMR and was in substance a reconstruction. In saying that, I am not intending any general criticism of S C Taylor accepting that he would have performed many similar custody duties since the events the subject of the voir dire and his ability to recall specific details of what occurred while the Accused was in police custody that day would be limited. He candidly admitted in his evidence that he did not have much of an independent memory of the day that the Accused was in custody at Burwood Police Station; (T61).
The witness confirmed that the Accused arrived at Burwood Police Station at 8.30am that day and that he it was ascertained he was an Aboriginal person and the witness performed an assessment of the Accused shortly after that.
The CMR records that at 8.35 am a copy of Part 9 of LEPRA was provided to the Accused and read and explained to him. While the CMR records it was S C Taylor who undertook that task, the evidence of Sgt Knox, plus the content of the relevant form, which I referred to earlier, establishes that recording is in error. The CMR records that the Accused was formally booked into custody at 8.35 am.
Between 8.40 and 8.46 am the CMR records that telephone contact had been made with "Lauren" from "Aboriginal Legal Aid". This is presumably a reference to Ms Stefanou from the ALS whose evidence I discussed earlier. The CMR records that the Accused spoke with Ms Stefanou.
At 8.49 am it was recorded in the CMR that the Accused said he was fine but reported that he recently had an infected testicle and that he would inform police if it caused him issues while in custody. The CMR also records that the Accused advised that he recently was taking medication for that infection and that he was supposed to be seeing a doctor to get further medication. S C Taylor gave evidence that at no stage while the Accused was in custody did he complain to him about any issues associated with his testicles.
The CMR records that between 9.30 and 9.38 am the Accused spoke with "Lauren" from "Aboriginal Legal Aid", again inferentially a reference to Ms Stefanou. The document records that the Accused "instructed solicitor to advice (sic) police he declines to participate in interview and does not consent to forensic procedure". When shown a copy of the email Ms Stefanou sent to S C Evans at 9.39 am that day the witness said he did recall speaking with a female from ALS and receiving an email. SC Taylor agreed he had at that point been made explicitly aware that the Accused did not want to be interviewed that day or to go into an interview room.
The CMR records that between 9.53 and 9.59 am on 10 June 2021 telephone contact was made with S Sadine at Weave Youth, whom the CMR referred to as a Caseworker from Weave Youth Service and a support person. S C Taylor agreed in cross-examination this entry meant that he was aware that the Accused had a support person.
Between 10.07 and 12.17pm the CMR records "Waiting for support person Sadine (case worker) to attend for forensic procedure.
During the period that the CMR indicates the police were waiting for a support person for the Accused to arrive at the police station, the CMR records that at 10.55 am the Accused was moved from the custody room/dock into an interview room and notes "Speaking with investigators. Not interview". Taylor gave evidence about that entry confirming that it recorded that the Accused had been moved from the dock area of the police station into an interview room and returned to the dock which is reflected in the CMR; (T51 - 52).
At 11.18 am the CMR records that the Accused had returned to the dock area and notes "Finished speaking with investigators".
In his evidence in chief Taylor was asked about who the investigators were who he was referring to in those entries and gave the following evidence, (T51-52): Q. Do you remember who those investigators were? A. I believe that would have been the detectives, Harding and - sorry, what was the other detective's name? Q. Crossingham? A. Yes, Crossingham, yes. Q. Do you recall if there were any other-- A. I believe so. I, I can't be certain. Look, I don't have - I'm going off the records a little bit here, like, I have - I don't have the greatest memory of it. Q. Do you remember if there were any other investigators that sought to speak to Mr Nean on 10 June? A. I, I can't be certain, because custody is a very - can be a very busy area and there's a lot of people in there. I can't be - I don't know, yeah, I can't say for sure.
Between 12.08 and 1.17pm the CMR indicates that the Accused was charged by a Heath Campbell who gave evidence on the voir dire. The allegation the subject of that charging was not the subject of the interview to which objection has been taken on the voir dire. S C Campbell confirmed that he was present at the Accused's address when a search warrant in relation to the other allegation was executed. He also gave evidence that he spoke with the Accused at his home address upon his arrest and the Accused indicated that he did not want to speak with police about that matter. That officer said that he also attended the Burwood Police Station and during the charging process of the Accused he spoke to the Accused intermittently while the Accused was in the custody area and did not speak to the Accused in an interview room. The witness also gave evidence that he may have asked the Accused at the station whether he wanted to be interviewed but the answer remained no, and there was no interview in relation to those allegations. He confirmed in his cross-examination that at Burwood Police Station, soon after the Accused had his rights under Part 9 of LEPRA explained to him, he again offered the Accused an opportunity to participate in a recorded interview and the Accused declined.
In relation to the source of his knowledge, as recorded in the CMR, that the Accused was being moved to the interview room, but not for an interview Taylor gave the following evidence; (T53): Q. Can I just take you to that entry where - it's under "Move Location" on page 13? A. Yep. Q. You've recorded "speaking with investigators not interview". Are you able to say where you got the information that it wasn't an interview from? A. Yeah, because I would have asked the detectives whether it was an ERISP. Based on that, I knew he had advice not to be participating in an interview from ALS. So, I would have asked them. Q. So, your best recollection is the information you were given that it was not an interview came from the investigators, is that right? A. Correct.
The movement of the Accused at that point in time from the dock to the interview room was explored further in the cross-examination of the witness. At T. 70-71 the witness gave the following evidence: Q. I mean you've written, "Speaking with investigators", safe to say that there was a conversation that you thought was happening in that room. Correct? A. Yes. Q. Just that it wasn't an interview? A. Correct. Q. And otherwise you didn't-- A. Well an ERISP. Yeah. So a formal ERISP, yeah. Q. So when you say, "Formal ERISP", you thought they were speaking to him without recording it. Correct? A. Yeah like an interview on ERISP. Recorded. Q. But you thought this was a conversation that wasn't recorded. Correct? A. Correct. Q. In a room with recording facilities? A. Correct. Q. By detectives of an accused person? A. Correct. HIS HONOUR Q. Who was a vulnerable person? A. Correct. Q. Not just any accused person, but under the regulations a vulnerable person? A. Yes. Q. And at that time, you thought there was nothing unusual about detectives doing that? A. Well people take people in those rooms to talk to them if it's loud in the dock area, or to explain to them what's going on, the procedure is to - where the matter's at, if they're going into the charge process. These conversations happen. They do happen. Q. And you don't intervene when it does? A. No. Q. Whether the person involved is a vulnerable person or not? A. No. Q. You simply let detectives do whatever they want to do in the interview room without intervening? Correct? A. Well I have - there's monitors that I monitor. Q. I take it they don't have audio? You don't know what's being said in there? A. Correct.
The CMR records that between 12.40 and 1.17 pm the police were waiting for contact from "Aboriginal Legal Aid" for the Accused.
Between 12.51 and 1.16pm the CMR records the following: "contacted ALS. Nil Answer. Message left. ALS called back and spoke with PIC (the Accused). ALS advised the PIC not to participate in interview". Taylor was asked about that entry in his evidence at T.55 and gave the following evidence: Q. Does this record indicate that you became aware of what flowed from that conversation, where it says, "ALS advised PIC not to participate in interview"? A. Yes. Q. Did that information, from your point of view, come directly from the ALS or from Mr Nean or both? A. It might have been both, yeah, because usually ALS sometimes speak to the custody manager, yeah. But I can't, I can't be certain. Q. Do you have a memory of that at all? Do you have a memory, firstly, whether or not you spoke to the ALS at this time? A. I think I may have spoken to them. Q. Do you have a memory if you spoke to the accused about this at this time? A. No, I can't recall.
SC Taylor's approach to contact from the ALS was further explored in his cross-examination and the following evidence given at T75: Q. Yes, that's a bit of a wordy question; my fault. I'm suggesting to you that you were made aware after that phone call occurred that Mr Nean did not want to do an interview, correct? A. That's the instructions, yeah, from the solicitor. Q. I just want to distinguish here because this is important. You've written down that he was advised not to participate in an interview. A. Yes. Q. What I'm suggesting to you is that it was his stated desire to police through the ALS solicitor that he did not want to do an interview. A. I don't agree with that. Q. So, you writing that there, "ALS advised person in custody not to participate in interview", you've written that there because you thought that was the ALS advice, not that that's what Mr Nean wanted to do, correct? A. Yes, that's because the - the way ALS works sometimes is I've instructed him not to participate in an interview. That, the way that's delivered, that's their instruction to him. It's not necessarily what he's instructing he wants to do. Does that make sense?
The CMR records that between 1.10 and 1.35 pm Sadini Handunnetti the Accused's support person, was contacted and in attendance. The record notes: "Case worker from Weave Youth in attendance as support person. PIC speaking with support person."
S C Taylor was taken to that entry in his cross-examination and gave this evidence: Q. Does that sound like that was approximately the time during which you remember Ms Handunetti speaking with Mr Nean using that legal box? A. Yeah, that's what the record says, yeah. Q. The point is, you were very much aware that she was present at the police station at that time? A. Yes. Q. I suggest that shortly after that, you became aware that Ms Handunetti had informed police that she was heading next door to Burwood Local Court to try and have Mr Nean's matter listed for bail? Does that sound right? A. I, no, that - sorry, can you say that again? Q. I suggest that very shortly after that, that is at 1.35pm, you became aware that Ms Handunnetti was headed or left the police station to go next door to Burwood Local Court to try and have Mr Nean's matter listed for bail. A. I can't recall that. Q. Do you remember speaking to, for example, Detective Harding at any point about Ms Handunnetti having left the police station with an intention to return? A. No, I don't recall. Or, sorry, I don't have the memory of that. Q. But you were aware she was either in the police station at the very least presumably close by immediately before the recorded interview began with Mr Nean, correct? A. Well, she was there but I don't know if she left or not. Q. Well, up the top, "Communication; speaking to him until 13.35" do you agree with that? A. Yep. Q. Page 17, down the bottom, "Move location 13.43. Participating in ERISP with investigators. PIC decided to opt against his legal advice". Do you see that? A. Yeah. Q. So, on your record, eight minutes later? A. Yes.
At 1.43pm the CMR records the Accused having been moved to an interview room and notes: "Participating in erisp with investigators. PIC decided to opt against his legal advice." Taylor gave the following evidence in chief about his recollection of the Accused deciding to not follow the legal advice he had received: Q. "Decided to opt against legal advice". Can you just explain that entry? A. Yep. So, previously, I believe he received advice not to participate in an interview, however he's changed his mind. Q. Were you there when he indicated the change of mind? A. Yeah, I was in custody, yeah. Q. Did you speak to him about that at all? A. I - I couldn't - I can't remember. Q. Can you remember how you became aware that he'd changed his mind? A. Yeah, cause he was going into the ERISP room with the investigators. Q. Had you spoken to the investigators about the instructions that had been relayed to you from the Aboriginal Legal Service? A. Yes. Q. Was that before he went into the ERISP room? A. Correct. Q. Can you just recall what that conversation was with the investigators? Before that, by "Investigators", do you mean Harding and Crossingham, Ryan Crossingham and-- A. Yes. Q. Can you just tell us about that conversation where you relayed instructions from the ALS solicitors? A. Yeah. So, I would have advised them that he's spoken to Aboriginal Legal Services and I would have informed them that originally I believe the advice from ALS was not to participate in an interview, so I would have - I would have told them that. Q. Did you speak to Mr Nean at all about this? A. Yes. I would have, yes. Q. Do you remember that conversation? A. No, not the entirety of the conversation. Q. Do you remember when that conversation was that you had with Mr Nean? A. Well it's usually following the - the conversation with ALS. Q. Do you remember what Mr Nean told you? A. Look it - it would have been something similar, advising me not to - instructing me or advising me not to interview. Q. Were you advised by anyone other than the investigators that the accused wanted to do this interview? A. Sorry? Q. The accused moves to the ERISP room? A. Yes. Q. You became aware that he'd opted against his legal advice-- A. Yes. Q. --and you can see that from - and you became aware of that from the investigators, is that right-- A. Correct. Q. --Crossingham and-- A. Correct. Q. --yes? A. Correct. Q. Is that the sole source of the information? Those two investigators? HIS HONOUR: My note was that he said that he became aware because he was - that the accused was going to be interviewed because he was going into the room with the investigators. I don't think the evidence has been that he recalled any conversation with the investigators. WITNESS: I did speak to the investigators, I did speak to them. ALLISON Q. Prior to going into the ERISP room? A. Yes because I did ask what they were doing. That - that has refreshed my memory a little bit. And they said, "Yeah, he wants to be interviewed now". Yeah. Q. And is that the conversation or-- A. Sorry, just to interrupt, because they - for this ERISP interviews, they have to check out discs from me. So, there's a - usually there's a general conversation, I do recall it now. Because they'd be - cause you've got to sign out the discs. They'll say, "Okay. He's been interviewed. Yeah, he wants to be interviewed now". Q. Is that process, speaking to them, when they've signed out the disc, is that what's caused you to put that entry in there, "Person in custody decided to opt against interview - against his legal advice"? A. Yep. Q. Add that detail onto the usual detail, which would be participating in an ERISP, I suppose? A. Yep. Q. But because he'd had legal advice and those instructions had been relayed to the police, that's why he added this additional piece of information-- A. Correct. Q. --is that right? A. Yes. Q. That was the sole source of your understanding, was it-- A. Yes. Q. --when they came and got the disc and said he does want to do the interview? A. He does. Q. Yes. A. Yes.
SC Taylor gave further evidence about his knowledge of this apparent change in the Accused's willingness to be interviewed by police that day: HIS HONOUR Q. When it's a vulnerable person and they've, on the face of it through their solicitor, indicated that they don't want to engage in an interview, do you think it would be good practice for the custody manager with vulnerable people to actually get it confirmed from the vulnerable person themselves that they now wish to engage in an interview with the police? A. Yes, and that may have happened on this occasion. Q. But you don't say that you did that here or made a note to that effect, do you? A. No, there's no note made but that's not to say it didn't happen. Q. Well, it's a pretty significant thing, isn't it, for a vulnerable person who through their solicitor, I think by the time of the recorded interview, it's been communicated that they have said they don't want to participate in an interview, then they somersault on that position and agree to do an interview. Wouldn't you accept that that's a fairly significant change in the vulnerable person's position? A. Yes. Q. So, if that change happened, shouldn't that have been recorded in the custody record? A. (No verbal reply) Q. That is, that the person was spoken to by the custody manager - the vulnerable person - and confirmed that they now wished to be interviewed? A. Yes. PETTIT Q. Just following up from that, when you saw that - to use your own entry - Mr Nean had decided to opt against his legal advice - you took no steps firstly to confirm with him whether or not he wanted a support person in that interview, correct? A. I can't say that it didn't happen. Yeah, because I can't completely recall. It is common, like, it is a procedure that you do speak to them. So, just because it's not recorded - it might be poor record-keeping because I hope you can have some understanding; there might be several people in custody. I'm trying to keep a record of numerous people in custody. So, some conversations and stuff like that, sometimes, yeah, you, you haven't, you might've not put in because of how busy it is. So, like-- Q. You have no independent memory of that though, do you? A. Sorry? Q. You have no independent memory? A. I can't recall the conversation, no, but it is, it is normal practice to do that, yes.
S C Taylor's knowledge of the role of custody manager was explored during his cross-examination. He agreed that a large part of the role involved looking after the physical welfare of persons in police custody and another part of the role involved ensuring that persons in custody understand their legal rights. He acknowledged that Aboriginal persons in police custody are legally vulnerable persons under LEPRA and the relevant regulation, and as a consequence there are additional responsibilities on a custody manager in relation to such persons. The witness agreed that if a vulnerable person made it clear that he or she did not want to speak to police, it was his job to help that person in that regard. He also agreed that it was necessary to pay particular attention to make sure that a vulnerable person is able to exercise their rights under Part 9 of LEPRA.
Sgt Taylor agreed that if a vulnerable person wanted a support person present during an investigative procedure such as an interview, a custody manager must defer that procedure until the support person arrives unless the person in custody waives their right to a support person.

The Evidence of an unrecorded conversation between Detectives Crossingham and Harding and the Accused

In [18] of his statement Crossingham detailed the following evidence: "Once back at Burwood Police Station, Detective Harding and I met with Nean in the Custody area. I had a brief conversation with Nean where I showed him a number of photographs of the offenders involved in the Top Bakery, Greystanes armed robbery on 5 March 2021. I invited Nean to participate in an electronically recorded interview to which he accepted. I am aware that Nean is an Aboriginal man. I am aware that Nean spoke with the Aboriginal Legal Aid on at least one occasion and spoke with a Support Person at the Police Station."
Surprisingly, Crossingham gave evidence that he made no note of the content of the conversation he had with the Accused before the electronically recorded interview took place [1] . It is particularly surprising in my opinion, given what Crossingham said in evidence was the content of the conversation, which I will shortly set out. He said he recalled that during the unrecorded conversation the Accused had been cautioned, suggesting that the conversation had a degree of formality attached to it.
Although he had made no note of the conversation and it was not recorded in any way, the detective gave evidence of its contents as follows (T.12.50 - 13.45): Q. Can you just tell the Court what occurred during that conversation as best you can recall? A. Yeah. So, I, I reiterated to the accused who I was. I introduced Detective Harding who was with me. I informed Mr Nean that we were investigating a very serious offence being the robbery with wounding. I specifically mentioned the fact that during this offence a victim was stabbed. During the conversation I showed Mr Nean a number of photographs. These photographs were of CCTV stills captured at addresses in Rose Bay which occurred approximately an hour and a half before the Top Bakery robbery. I showed Mr Nean these photographs and I firstly questioned him, "Do you know these people". I don't recall his response. I then asked - I then made the statement to Mr Nean, I, I said words to the effect of, "Jaiven, I, I believe that you are one of these offenders". Specifically I pointed to a male wearing the Everlast jumper in the CCTV stills and then I had a conversation along the lines of, "Jaiven, I believe this, this person is you". You know, "What could you tell me about that?". Again, I don't recall the response. I made the statement that it's a very serious offence. I reiterated the fact that a person had been stabbed. I made a comment that we at the robbery squad basically continue to investigate until we can, you know - I, I made the comment, it was something along the lines of, "We will continue to look at this until we solve it." And I made the statement, "Jaiven, this isn't gunna go away. I believe that's you." I said, "I can tell you that the jumper that we see here in the CCTV, has your DNA on it." I said words to the effect of, "We can sort this out here today but it's not going away." Q. Prior to this conversation - did he respond when you said that? A. I believe he said something to the effect of, "Am I getting charged with it?" and my comment was words to the effect of, "No. I'll be very honest with you. We don't have enough at the moment but it's not to say that we're not gunna come back and see you at a later date because it is very close." Q. Was there anything else said by the accused at that point? A. I believe he just, "Let's get this over and done with." Or words to that effect. Q. Was there any discussion about an interview taking place in a formal setting, a record interview? A. I don't - I don't recall. Yeah, I don't recall the exact, yeah, words but certainly I recall, "Mate, we're gunna have to talk about this in an interview." Words to that effect. Q. Do you remember, as best you can, whether or not the accused indicated a view on that? A. Yeah, I just - I think he just reiterated the phrase, "Let's just get this over and done with." Q. You've just said that you told the accused that you didn't think you had enough to charge him at that point? A. Yep. Q. Was that the truth of the matter at that point? A. Yeah. Q. From your perspective? A. Absolutely.
In cross-examination Detective Crossingham gave evidence that he and Detective Harding along with another officer that day had arrived at Burwood Police Station about 10.45 or 11 am.
The Detective agreed in his cross-examination that he knew the Accused was an 18 year old Aboriginal male and that certain additional protections applied to him for those reasons, while he was in custody, which included contacting the Aboriginal Legal Service and having a support person when interviewed; (T.22.36 - T23.9). Detective Crossingham said in his evidence he believed the unrecorded conversation he had with the Accused lasted about 2 minutes and occurred around 11 am or midday; (T14.30 - T.14.41). In giving his account of the conversation he did not indicate at what point he administered a caution to the Accused, or the terms of the caution that was administered. The officer gave evidence said that he believed this unrecorded conversation occurred around 11am or mid-day.
I note the compulsive nature of that part of the conversation when the detective said to the Accused, "Mate, we're gunna have to talk about this in an interview." Words to that effect." It will be seen that this was not later repeated in the recorded interview.
Detective Crossingham gave evidence about his knowledge of contact by the Accused with the lawyers from the ALS and the presence of a support person for the Accused at the police station that day. I will set out below the evidence that he gave on those topics. In chief the following evidence was given from T14-16: Q. Prior to the interview were you made aware that the accused had received legal advice in relation to whether or not to do an interview? A. Yeah. I don't remember specifically, you know, who he'd spoken to and that nature. I understood at the time that he'd spoken to ALS and I think the case - his caseworker may have presented even to the police station. Q. Prior to conducting the ERISP at 1.35pm, you said that the conversation in the room ended, you thought it was 11 or 12, somewhere around there but in any event, the conversation stopped. Did you have any personal dealings with the accused between the time when the unrecorded conversation stopped and then the commencement of the ERISP at 1.35pm? A. I don't think so. I think - yeah, I don't recall going to see him again. We did have a further conversation very briefly as we walked into the ERISP room. Q. What was that conversation? A. He basically asked me not to interrogate him about his co-offenders and their identities. Q. Were you made aware in - at any time between the ending of your - the unrecorded conversation and 1.35 when the ERISP was recorded, what any ALS solicitors had indicated to the police arising from legal advice that had been given? A. I don't believe so. Q. Can you just go to-- HIS HONOUR Q. When you say you don't believe so, does that mean it's possible you had been told and you can't remember? A. Yes. Sorry, are you saying is it possible that-- Q. You were told what his position was in relation to being interviewed. You said you don't believe - in answer to the Crown Prosecutor, you said you don't believe you'd been told. What I'm asking you is, does that mean you may have been told and you don't recall it? A. That is possible. Can I extend onto that response? Q. Well, it appears to me you've answered the question. You said it's possible you were told, thank you. ALLISON Q. Do you want to add anything to that? A. Well, what I will say is, in the times that I've dealt with ALS, regardless of the specific advice given, in my experience, there is very general advice and the general advice is always given not to participate in an interview and not to provide a sample of DNA without a senior officer.
In cross-examination the witness gave the following evidence on this topic at T24: Q. You would have been told, thinking back, soon after you arrived at that police station that the Aboriginal Legal Service had been contacted on behalf of Mr Nean. Correct? A. I'm speculating but yeah, surely. Q. Tell me if this sounds familiar. That you'd been told that firstly Mr Nean had relayed through the ALS that he did not want to be interviewed. A. Are you suggesting that he told me that, that Nean told me-- Q. No, I'm suggesting that it had been relayed through an ALS solicitor who had spoken to him. That his position, Mr Nean's position was that he did not want to be interviewed. Do you agree or disagree with that? A. I agree it's possible that that, yeah, was told to me, yeah. As I said before-- Q. Also-- A. --it's a matter of - seems to be a matter of course whenever we deal with Aboriginal people in custody that that is the advice. HIS HONOUR Q. Why does that matter? A. It matters, your Honour, because I'm saying I don't remember it specifically but certainly that's what I'm accustomed to.
Later the officer gave the following evidence at T25: Q. Coming back to what you may have been informed, does it sound familiar or does it ring any bells that you were told that Mr Nean did not want to go into the interview room at all? A. Look, it's - I don't recall the conversation but very possible that was said, yeah. Q. That Mr Nean did not want to go on any tape recording? A. Yeah, same, yeah. Q. That Mr Nean did not want to make or sign any written statements including any conversations recorded in a police notebook? A. Very possible. Q. So very possible that you were aware that Mr Nean did not want to do any of those things I've just mentioned. Correct? A. Correct. Q. And this is before you went to speak to him on your version in the custody room? A. Yeah, very possible, yeah.
The contact from the ALS was further explored with the Detective in cross-examination at T.28 and the following evidence was given: Q. Is it possible that Detective Harding spoke to a lawyer from the ALS at about 1pm? A. Possible. Q. Is it possible that Detective Harding relayed to you what had been said during that call? A. Possible. Q. Possible that he had relayed again that Mr Nean did not want to participate in an interview? A. Possible. Q. Did not want to be taken into the interview room? A. Possible, yeah. Q. And did not wish to be recorded in any way? A. Correct. Q. Again, is it possible that this has been relayed to you on his advice that the ALS lawyer had provided but the instructions or the position that Mr Nean had about those things? A. I - I don't recall the conversation. All I'm saying is it's very possible and probably likely that that was relayed to me, that he didn't want to go into an interview or words to that effect.
Detective Crossingham was also cross-examined about the email Ms Daher had sent to police about the Accused not wishing to be interviewed at 1.26 pm on 10 June 2021. At T 32 and following he gave the following evidence: Q. Do you recall whether or not you'd seen that email at the point that you started the recorded interview that day? A. I may very well possibly could have. Yeah, I'm not sure. Q. Do I take it that you decided to take Mr Nean into the interview room despite that email? A. Yeah. If, if I had seen it, yeah, I still took him in. Q. He never said to you words to the effect of "I've changed my mind, I want to do an interview," did he? A. That Mr Nean said that? Q. Yes. A. He never indicated to me that he didn't want to. So that, that phrase never came out of his mouth.
In re-examination at T.40 the Detective gave the following evidence on the issue of whether he had received the email: Q. Did you have your telephone, did you? A. Mobile phone? Q. Yes. A. Yeah. Q. Did that have access to your work emails? A. I did have a work phone for a short period whilst at the robbery squad. I don't have it anymore. I may have had it with me. Yeah, I don't recall though if I did. Q. Do you recall if you were checking your emails during this period of time? A. I don't recall. Q. While you were at the interview station, in a scenario such as this, is that something that would - is not uncommon for you in your course-- A. To check-- Q. --as a detective at Robbery Squad, in particular? A. --to check emails? Q. To be at a station conducting interviews-- A. Yeah. Q. --having charges processed, those sorts of things? Is that something that's common? A. Yeah, we don't have a custody area at headquarters so wherever you arrest someone, we comply with the legal obligations to convey them to the nearest police station and we work from that location. Q. When you're working from that location in a scenario like that, is it common to be checking your emails? A. Yeah, depending on sort of, what you're doing but yeah, it's not uncommon to be checking your emails. It depends on how busy you are really. If - yeah.
In relation to knowledge of the presence of a support person for the Accused prior to the commencement of the recorded interview Detective Crossingham gave the following evidence in chief at T17: Q. You've said that you were aware that he had obtained legal advice in between the unrecorded conversation and then the recorded interview? A. I believe so. Q. What about speaking to a support person in that period. Were you aware one way or the other in relation to that? A. I believe a - I believe someone attended the police station because Burwood in itself is a little bit different to other police stations. It's got a dedicated room for like a support person. Yeah. I believe, yeah, someone came and visited him. Q. The support person wasn't present in the interview room at the time of the ERISP. Is that right? A. Correct. Q. Are you able to comment on that? A. No. Q. Do you recall whether or not there was any discussion as to whether or not the support person would be in the room? A. I can't recall. Q. Had you received any information at all in relation to whether or not the accused wanted or didn't want a support person in the room with him? A. I can't recall. HIS HONOUR Q. Did you understand the support person to have arrived at the police station before you commenced the formal interview with the accused? A. Yes. When I say "support person" I believe it was a caseworker. I think that's the title that was mentioned. ALLISON Q. Just to confirm. Were you aware, one way or the other, if the accused had spoken to the caseworker prior to the interview? A. Yeah, I believe so. Q. Was that in person at the police station after their arrival or at any other time? A. I believe it was at the police station. HIS HONOUR Q. What's that belief based on? A. Because of that room. I just - I distinctly remember the room and as I've finished up the conversation with Jaiven, the initial conversation, yeah, I do remember comments getting thrown around that yeah, there was a caseworker present.
In cross-examination on the topic of the presence of a support person the Detective said the following in cross-examination at T25 and T28: Q. I suggest to you that at that early stage before you spoke to him in the custody room that the custody manager also told you that a support person was on her way. Do you agree or disagree with that? A. Yeah, very possible, yeah. Q. She wouldn't be there until later maybe around midday? A. Again, very possible, yeah.(T25) Q. Around the same time, the person we've described as the support person or caseworker, I suggest arrived at the police station. That is perhaps soon after midday that day. Does that sound about right? A. Yeah, sounds about right based on the timings I can see on the custody record. Q. You'd been made aware before she arrived that she was coming? Correct? A. As I said before, there was - there was some conversation that, yeah there was a caseworker. I don't recall who I had that conversation with but in my mind I was aware there was a case worker that was in attendance. Q. You have some sort of memory I take it, or at least - at the very least, you'd heard that before the recorded interview was conducted, firstly a support person had arrived at the police station? Correct? A. I believe so. Q. And that after she had arrived, that support person had sat down and had a conversation with Mr Nean. Correct? A. I believe so, yeah. Q. Does it sound right that she might have actually spoken to Mr Nean for half an hour or more? A. Possibly, yeah. Q. Again, sometime between arriving and before the recorded interview beginning. Correct? A. Very possibly, yeah. Q. I suggest that she was speaking to Mr Nean in the custody area until just before the recorded interview began. Do you agree or disagree with that? A. I disagree because I don't recall the specifics of when they had a conversation. Q. I suggest to you that this support worker, her name's Ms Handunnetti and I'll refer to her as that, told either you or Detective Harding that she was going next door to Burwood Local Court to see if she - to see if she could have his matter, Mr Nean's matter, listed for a bail appearance that day. Do you have any recollection of that? A. Are you saying that that's what the caseworker said? Q. To either you or Detective Harding? A. Definitely not to me. Q. Is it possible that she told Detective Harding and that he told you that that had happened? A. Nah. First I've heard of it. Q. Were you aware whether or not police had her phone number? A. I'm not aware. Q. I suggest to you that once you became aware that she'd left the police station, it's at that point and almost immediately, that you took Mr Nean into the interview room. Do you agree or disagree with that? A. I disagree because the timings I don't recall. As I said before, I believe she was there. I believe Mr Nean had that - his conversation with her. What time that occurred, I don't recall. The conversation that they had, I don't know because I wasn't party to the conversation. That she went across the Local Court, I had no idea. Yeah. Q. You certainly didn't take any steps to inform his support person that you were intending on at the very least offering Mr Nean the opportunity at a recorded interview, did you? A. I did not speak to her, no. Q. You knew she was there? A. Yeah, I believe she was there, yeah. Q. But didn't tell her about the interview? A. I didn't talk to her directly, as I said. Q. As far as you know, Detective Harding didn't tell her about the interview either. A. I don't know if Detective Harding spoke with her. Q. To be clear, what I'm suggesting is that you actually exploited her absence to start interviewing Mr Nean. Do you agree or disagree with that? A. Definitely not, I can't agree with that. (T28)
Detective S C Harding also gave evidence on the voir dire in relation to what occurred while the Accused was at Burwood Police Station. In relation to the unrecorded conversation with the Accused that occurred before his recorded interview, in his statement of 23 November 2022 the Detective states the following: "A short time after our return to Burwood Police Station, DSC Crossingham and I met Nean in the Custody area of the station. DSC Crossingham had a conversation with Nean before he was invited to participate in an electronically recorded interview. After speaking with Aboriginal Legal Aid and a Support Person at the Police Station Nean agreed to be interviewed".
In his evidence in chief Detective Harding gave evidence that the conversation had with the Accused, in which he agreed to be interviewed, occurred while the Accused was in the dock area of the police station. He said he recalled that in the conversation Detective Crossingham showed the Accused pictures from relevant CCTV footage and told the Accused that he was believed to be one of the persons depicted and asked him for comment. That the Accused made "fairly non-committal comments" before seeking legal advice. The witness said that this conversation lasted "probably two minutes maximum".
Detective Harding gave evidence that the topic of doing a recorded interview was raised with the Accused at the time that stills from the CCTV footage was shown to him, and the detective expressed the belief that was why the Accused sought legal advice. The officer also said he recalled that the Accused had been told in the conversation that irrespective of whether he did a recorded interview the investigation would continue, and that Detective Crossingham had said that police were not at the stage of charging the Accused.
In relation to the Accused receiving legal advice Detective Harding gave the following evidence in chief at T86: Q. Can you just tell the Court about that conversation with the ALS solicitor? A. Well, I obviously don't recall everything word for word. But it's along the lines of the usual advice which is their client is - they're, they're speaking on behalf of their client, and their client has instructed they don't want to attend an interview room, speak to police further about the matter, participate in any statement, sign any document, participate in any forensic procedure. It's a fairly standard script. Q. Do you have a standard response to that? A. I do. Every time I have these conversations with ALS solicitors, I state that if that, if that's the advice they've provided their client, their client will be able to make up their own decision. Effectively, they have provided advice in relation to the matter. I, I believe that a client's entitled to make their own decisions and change their mind.
And in answer to questions from me he gave the following evidence at T.87: Q. Tell me. You've characterised the legal advice as a standard advice. You don't like it as an investigator, do you? A. It's advice that I believe insults the client, to be quite honest. Q. I see. How does it insult the client? A. Well-- Q. In particular, those people who are vulnerable people in custody. How does it insult them? A. To a degree, I believe it insults - as it - and again, I guess we're speaking fairly broad brush. But it insults the intellect of the client. It insults their decision to stick with certain advice or take people up on the advice. And it basically allows them or it disallows them to have a change of mind in a certain circumstance.
In terms of becoming aware that the Accused wished to engage in a recorded interview Detective Harding gave the following evidence in chief at T.86: Q. After the conversation with the ALS solicitor and they indicated the advice that they had given, when did you become aware that the accused wanted to take part in that interview? A. To the best of my recollection, I believe he received legal advice and then he spoke with a support person. He spoke with - to my recollection, he spoke with a support person in - there's a legal area within Burwood custody that provides a sealed side for the client and another side for the legal professional. I vaguely remember escorting a support person into that room and they had a conversation for some time. And then post that conversation, I believe Detective Crossingham's offered him the opportunity to be interviewed which he accepted. Q. And were you there when that happened? A. Yes, I believe so.
This topic was taken up with the witness in cross-examination and he gave the following evidence at T.98: Q. That despite her telling you that this is what Mr Nean didn't want to do, you just assumed that it was only the advice given to him rather than his actual personal desires, is that right? A. My, my understanding of this is that this was Mr Nean's conversation with a Legal Aid representative and, after the fact, the client may change their mind on certain portions of what has been stated.
In relation to the absence of a support person for the Accused during the recorded interview with the Accused Detective Harding gave the following evidence at T.88: Q. Did you ever discuss with the support person or the accused whether or not the support person was going to be present during the ERISP? A. It's my belief that Detective Crossingham has had that discussion and Mr Nean has refused the services of a support person during that interview. Q. What is that belief based on? A. Usually when we - whenever we have an Aboriginal person or man, woman, in custody, they will be afforded the opportunity to have a support person present during the interview process or the investigative process really. They can sometimes be in the actual dock area with them. Q. Do you have any memory of this conversation occurring between the accused and Detective Crossingham? A. No, not a clear memory, no.
This topic was also taken up with Detective Harding in cross-examination and at T99 and gave the following evidence: Q. You knew that vulnerable persons are entitled to have support persons present in interviews, correct? A. Yes. Q. You have no independent memory of confirming with Mr Nean whether or not he wanted a support person in that interview, correct? A. That's correct. Q. Now, I suggest about that conversation with the support person that - Ms Handunnetti is her name, that she spoke to him in the legal box, maybe for about half an hour, does that sound about right? A. Yep, I agree with you. Q. And that when you became aware that she was leaving, you went around to help her leave the station, correct? A. Yes, correct. Q. And she told you that she was going next door, that is to Burwood Local Court, to help have Mr Nean's matter put on for a bail application, correct? A. I don't recall. Q. I suggest to you that she told you that and that she said she'd be coming back after she made those efforts, do you agree or disagree with that? A. I can't, I can't disagree or agree with that, I don't recall. Q. And that it was minutes later, that you took Mr Nean into the interview room and commenced the ERISP, do you agree or disagree with that? A. I agree, it's a short time later that we commenced an interview, yes. Q. You didn't tell that support person, knowing she was his support person, that you had any intentions of taking Mr Nean into the interview room, correct? A. Again, I'm coming back to I don't recall any conversation I had with that support person. Q. I suggest you didn't tell her, and you didn't tell her quite deliberately? Do you agree or disagree? A. Again, speaking from my own experience, I disagree with that. But again, I can't quantify it, because I do not recall the conversation.
It seems clear on the evidence in re-examination adduced from Detective Harding, based on the contents of his mobile phone that he did not open the email from Ms Daher, confirming her conversation with him, until well after the recorded interview with the Accused had concluded; see T 102.
I note that Detective Crossingham gave no evidence of having any conversation with the Accused in which the Accused said he did not want a support person present.
Detective Harding was taken to the entry in the CMR at 10.55 which recorded the Accused "Speaking with investigators. Not interview" and accepted that was about the time he says he and Detective Crossingham spoke with the Accused in the dock. He maintained that he and Detective Crossingham spoke to the Accused in the dock and not the interview room. He raised that the entry may have related to other investigators speaking with the Accused, but the evidence of S. C Campbell and SC Taylor establishes that cannot have been so. He also indicated that the time recorded of 23 minutes in that entry was not consistent with his recollection of how long the conversation lasted.

The Electronically Recorded Interview with the Accused

As I noted earlier, the recorded interview commenced at 1.35 pm. The Accused was formally cautioned at Questions (Qs) 9 and 10. At Q11 the Accused confirmed he was an Aboriginal man, and at Q13 - 14 he confirmed that he had spoken to his "caseworker" and the ALS prior to the interview and that he had been provided with certain advice. He was not asked whether having received that advice he wished to be interviewed. The next question Q14 was in the following terms:
"Um, and, and furthermore, Javien, do you agree that we've had conversations leading into this interview, uh, with regard to, um, your involvement in these offences?" to which the Accused answered "Yeah". On the evidence the police were referring to the conversation they gave evidence of having with the Accused in which, according to their evidence, he agreed to be interviewed. Despite making no record at any time of what they said to the Accused during that conversation, the officers do not record what it was that they said to the Accused and allow the Accused to confirm the accuracy of what had been put to him in the unrecorded conversation.
After Q16 the police specifically asked questions about the alleged armed robbery at Greystanes that they were investigating. At Q's 16 -25 the Accused confirmed he was present in the black BMW at the time of the armed robbery and what clothes he was wearing and identified himself in certain photographs. At Q26 the Accused indicated he did not wish to tell the police who else was involved; See also Qs 97/98. At Qs 29 -30 the Accused stated that he initially sat in the passenger seat of the vehicle, but then got into the driver's seat and waited for the others. At Qs 31 - 33 the Accused stated that he did not know what the other persons were going to do; See also Q65, 229 and 230. At Q34 the Accused stated that he drove the vehicle with the others away. At Q35 he stated that there was no discussion in the car about what the other persons had done, but at Q36 the Accused said that the others had with them what they had used to rob the shop. At Q47/48 the Accused stated that the others got "probably $100" from the armed robbery and he received $20; See also Q193. At Q81-83 the Accused confirmed the mobile telephone number he used at that time and was then asked a number of questions based on the data the police had obtained about the phone's location at certain relevant times.
At Q213 the Accused made an admission in relation to the allegation that is concerned with 8 Churchill Road Rose Bay.
At Qs. 239 - 242 the Accused said he did not see anyone with a knife on the night of the alleged armed robbery.
Towards the conclusion of the interview SC Taylor entered the interview room and the investigating police left. SC Taylor then had the Accused confirm that he had taken part in the interview of his own free will, had understood his rights in the Part 9 document he had been given, had not received any promises or inducements to engage in the interview, and had no complaints about how it had been conducted. The Accused made no complaint about how he had been questioned during the ERISP to the custody manager.

Relevant factual findings

While it may be accepted the Accused had his Part 9 rights read to him and he signed the relevant form, I note nowhere in that form or in the evidence of Knox or Taylor were the additional rights available to him as an Aboriginal person in custody explained to him.
To some extent the Crown argued that the Accused knew what those rights were because Ms Handunnetti gave evidence that she understood he knew of his right, to a support person in an interview, although she had not reminded him of it that day and had not been his support person in a previous interview. There was little evidence about the Accused having been in police custody previously and what he had had explained to him on those occasions about his rights, or when those occasions were, in terms of their proximity to the 10 June 2021. There is no basis in the evidence, in my opinion, for any inference the 18 year old Accused recalled, if he ever knew, what the additional rights referred to in the Part 9 document were that he was entitled to.
The evidence, in my opinion, establishes on the balance of probabilities that by 9.40 am on 10 June 2021 the custody manager, SC Taylor, knew the following: The Accused was an 18 year old Aboriginal male and was therefore a vulnerable person in custody in so far as the regulation under LEPRA was concerned. That the Accused had spoken to a solicitor from the ALS and had instructed that solicitor that he did not want to be taken to an interview room, be interviewed by the police or engage in a forensic procedure. The evidence also establishes that by 11am both detectives Crossingham and Harding knew the Accused was an 18 year old Aboriginal person.
That despite the above, at about 11 am that day, SC Taylor permitted detectives Crossingham and Harding to take the Accused from the dock area of Burwood Police Station and engage in a conversation with the Accused about the allegations they were making against him. That conversation had a degree of formality to it as Crossingham said in evidence that during the conversation, he had administered a caution to the Accused. It was, therefore, in essence, an unrecorded interview with the Accused. The evidence is that during that conversation the Accused was questioned by the investigating police about the matters the subject of the trial and told that at that point, the police considered that they had insufficient evidence to charge the Accused. Despite the conversation with the Accused having a degree of formality attaching to it and occurring in an interview room at a police station where it clearly could have been recorded, the police made no attempt to record the conversation. I do not consider, as the Crown submitted, it is correct to describe this conversation as an "off the record conversation". The Accused was cautioned and the police made reference to it in their police statements and in a statement of facts that was provided to the Local Court; See T37/38.
The police also made no notes of the conversation. I cannot accept the evidence of Crossingham and Harding that the conversation was a brief 2 minute conversation which occurred in the dock area of the police station, in light of the contents of the CMR and the evidence of SC Taylor.
In that regard, I am satisfied that the police who had arrested the Accused that morning in relation to other allegations, were not the police who took the Accused into the interview room at that time. In that regard, I earlier set out the evidence of Detective Campbell. It is inherently improbable that the custody manager made such significant errors in the CMR when recording that movement of the Accused from the dock area, which the evidence of Crossingham and Harding suggests. I note the CMR records when the movement of the Accused to the interview room commenced, a notation that it was not for an interview and when the movement concluded and the Accused was returned to the dock. I am satisfied that despite SC Taylor being aware the Accused was a young, vulnerable Aboriginal , whom had through a solicitor expressed a desire not to go into an interview room, Taylor permitted Crossingham and Harding to: (a) take him to an interview room and be questioned about the allegations the subject of their investigation without checking with the Accused that he wished to go into an interview room and be questioned by the police; (b) that Taylor permitted that to occur without asking the Accused whether he wished to speak further with an ALS solicitor, and (c) that Taylor permitted that to occur without specifically advising the Accused that he was entitled to have a support person present and asking the Accused whether he wished to wait for his support person to arrive. I am also satisfied that Taylor made no attempt to speak with the solicitor from the ALS to inform her that the Accused was to be taken into an interview room and spoken to by investigative police.
On the evidence before me, Taylor made no specific inquiries of the investigating police as to why they were taking the Accused into an interview room when he had expressed the desire through the solicitor with whom he had spoken, not to go into one.
In assessing the propriety of what occurred in relation to that unrecorded interview, it is immaterial that the contents of it are not sought by the Crown to be admitted in the trial. That is because it forms part of the evidence of how the police dealt with the Accused while he was in custody and which led to him, on the evidence, engaging in the recorded interview. What occurred in relation to that unrecorded interview with the Accused was, in my opinion, improper.
I am satisfied that around 1 pm another solicitor with the ALS, Ms Daher, spoke with the Accused and ascertained that his instructions were that he did not want to be interviewed by Detectives Crossingham and Harding. I am also satisfied that this was communicated to Harding shortly there after. I set out earlier the evidence of both Ms Daher and Harding about their conversation. On the police evidence, it was prior to that conversation that Crossingham and Harding had the unrecorded conversation with the Accused in which he said he was prepared to be interviewed. The evidence is that Harding at no time told Ms Daher that in fact the Accused had agreed to be interviewed by the police, when she spoke to him to inform him that the Accused did not want to be interviewed. The evidence is silent as to why Harding did not raise this with Ms Daher given the nature of their conversation. It seems it might well have been due to an improper attitude Harding displayed when giving evidence about the role and advice given by ALS solicitors to vulnerable people in custody. The evidence from Crossingham, Taylor and Harding about their approach to being informed by solicitors from the ALS that a client did not wish to be taken into an interview room and engage in an interview, was not an appropriate one for police to have in relation to vulnerable persons in custody. The evidence supports a finding that they considered that allowing an Accused to speak to an ALS solicitor was a "tick that box" [2] requirement, and that ALS had a "standard script" [3] in relation to advice that was given by ALS solicitors to their vulnerable clients when they were in custody. It was clear, not just from the terms of their evidence, but the manner in which they gave evidence on that topic, that they considered the advice was inappropriate and not helpful to the police and their investigations. SC Taylor showed in his evidence, aspects of which I set out earlier, that he had no understanding of the difference between communications from the ALS about the advice they had given to a client and the communication of a client's instructions.
I am satisfied that between 1.10 and 1.35 pm Ms Handunnetti was present at the police station to perform the role of a support person for the Accused, and that both the Custody Manager SC Taylor and the two investigating police knew she was there in that capacity. At that stage the investigating police were intending to conduct a formal recorded interview with the Accused. At no time did any of the police tell Ms Handunnetti that was their intention before she left to go to Burwood Local Court to speak with a solicitor on behalf of the Accused about the making of a bail application later that day. There was no real challenge to Ms Handunnetti's evidence that she had told one of the detectives dealing with the Accused, inferentially Harding, that she was leaving the police station, why she was doing so and that she would be returning. The recorded interview commenced some 8 minutes later. The custody manager made no attempt to confirm directly with the Accused that he was willing to be interviewed and was no longer accepting the advice he had been provided with from two different solicitors that he should not participate in an interview. Nor did the custody manager take any steps to confirm with the Accused that he was content for the interview to commence without his support person being present, she having left the police station a short time before the interview commenced, having told one of the investigating police it was her intention to return.
In all the circumstances, in particular, how soon after Ms Handunnetti left the police station the interview commenced, I am satisfied that the investigating police deliberately did not tell Ms Handunnetti that they proposed to interview the Accused before she left the police station, because they did not want her to speak further with the Accused about what was proposed or to be present during the interview. I accept her evidence that if she had been told of the intention of the police in that regard, she would have stayed at the police station to be the Accused's support person during the interview and would have spoken to the Accused to confirm that he wished to be interviewed and advised him of the risks associated with being interviewed. The significance of the police not telling Ms Handunnetti of their intention to interview the Accused is more significant in my opinion, because on their own evidence, they at that point in time had insufficient evidence to charge the Accused and also because it left a young 18 year old Aboriginal man unsupported during a police interview which was designed to have him incriminate himself in the offences which the officers were investigating. If they had told Ms Handunnetti of their intention to interview the Accused it is likely the interview would not have occurred.
The evidence supports a finding that the custody manager Taylor made no direct inquiry of the Accused to ensure that he had genuinely decided to change his position and to reject the legal advice he had received on two occasions that day, and to engage in an interview with the police. This was, in my opinion, a particularly significant failure by Taylor given he was aware that the investigating police had spoken to the Accused for approximately 20 minutes in an interview room where no audio recording was made of what was said to the 18 year old Aboriginal Accused and Taylor did not know what had been said to the Accused by the investigating police.
The evidence satisfies me that the Accused was not affected by alcohol, prohibited drugs, or any form of mental illness during the period he was in custody. I am satisfied that the Accused had explained to him his basic rights in custody and gave an indication to Knox that he understood them.

Relevant Legal Principles

As I noted earlier the Accused relies upon s.84, s90 and s.138 of the Evidence Act for the exclusion of the ERISP. Of central importance to each of those arguments is a consideration of certain provisions contained in LEPRA and the regulation made under it, and whether or not the evidence shows that the police breached any of the obligations placed upon them once the Accused had entered police custody on 10 June 2021.
There was no suggestion that the Accused had not been lawfully arrested. That being so, s.99(4) of LEPRA provided that he could be detained by a police officer under Part 9 for the purpose of investigating whether he had committed the offence for which he had been arrested and for any other purpose authorised by Part9.
The objects of Part 9 of LEPRA include providing for the rights of a detained person and providing for the rights of a suspect who is in the company of a police officer in connection with an investigative procedure but who is not so detained; (s.109).
Division 3 of Part 9 is titled "Safeguards relating to persons under arrest and protected suspects". Of relevance to the arguments advanced on behalf of the Accused are the following provisions: Section 122 which requires a custody manager to caution a detained person or protected suspect and give them a summary of their rights. Sections 123, 125-127 deal with the right to speak to a lawyer and to have them present during any investigative procedure. Section 131 of LEPRA requires custodial records to be maintained and for a custody manager to take detailed particulars relating to an arrested person or a protected suspect.
Section 112(1) of LEPRA allows regulations to be made modifying the application of Part 9 of that Act to Aboriginal persons. There was no issue in the proceedings before me that the Accused was an Aboriginal person. Regulations have been made in regard to what the regulation refers to as a "vulnerable person"; clause 28 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (LEPRR). The definition includes Aboriginal persons.
Clause 29 of LEPRR provides that: (1) The custody manager for a detained person or protected suspect who is a vulnerable person must, as far as practicable, assist the person in exercising the person's rights under Part 9 of the Act, including any right to make a telephone call to a legal practitioner, support person or other person.
Clause 31 of LEPRR relevantly provides: (1) A detained person or protected suspect who is a vulnerable person is entitled to have a support person present during any investigative procedure in which the detained person or protected suspect is to participate. (2) ………. (3) Before any such investigative procedure starts, the custody manager for the detained person or protected suspect must inform the person that the person is entitled to the presence of a support person during the investigative procedure. (4) If the detained person or protected suspect wishes to have a support person present, the custody manager must, as soon as practicable - (a) give the detained person or protected suspect reasonable facilities to enable the person to arrange for a support person to be present, and (b) allow the detained person or protected suspect to do so in circumstances in which, so far as practicable, the communication will not be overheard, and (c) if the person has asked a friend, relative, guardian or independent person communicated with to attend at the place where the person is being detained - allow the person to consult with the friend, relative, guardian or independent person in accordance with section 123(4) of the Act. Note - Section 123(4) of the Act requires a custody manager to allow the person to consult with the friend, relative, guardian or independent person in private and must provide reasonable facilities for that consultation. (5) The custody manager must defer for a reasonable period any such investigative procedure until a support person is present unless the detained person or protected suspect has expressly waived his or her right to have a support person present. (6) An investigative procedure is not required to be deferred under subclause (5) for more than 2 hours to allow a support person to arrive at the place of detention. (7) A custody manager is not required to comply with subclauses (3)-(5) if the custody manager believes on reasonable grounds that - (a) doing so is likely to result in an accomplice of the detained person or protected suspect avoiding arrest, or (b) doing so is likely to result in the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or (c) doing so is likely to result in hindering the recovery of any person or property concerned in the offence under investigation, or (d) doing so is likely to result in bodily injury being caused to any other person, or (e) the safety of other persons requires that the investigative procedure be carried out as a matter of urgency.
There is no suggestion on the evidence here that clause 34(7) of the regulation was engaged here.
The role of a support person during an interview is directly addressed in clause 34 of LEPRR, which implicitly emphasises the importance of that role. Clause 34 provides: (1) The custody manager for a detained person or protected suspect who is a vulnerable person is to inform any support person for the detained person or protected suspect that the support person is not restricted to acting merely as an observer during an interview of the detained person or protected suspect and may, among other things - (a) assist and support the detained person or protected suspect, and (b) observe whether or not the interview is being conducted properly and fairly, and (c) identify communication problems with the detained person or protected suspect. (2) The custody manager is to give a copy of the summary referred to in section 122(1)(b) of the Act, to - (a) the support person, and (b) any interpreter for the detained person or protected suspect who attends in person at the place of detention. (3) If the support person or the detained person's or protected suspect's legal representative is present during an interview of the detained person or protected suspect, the support person or legal representative is to be given an opportunity to read and sign any written interview record. (4) Any refusal by the support person or legal practitioner to sign a written interview record when given the opportunity to do so must itself be recorded.
Clause 35 of LEPRR permits a support person to be excluded from an investigative procedure if the support person unreasonably interferes with the procedure. That clause has no application to the facts here.
The importance of the role of a support person is again apparent from the inclusion of clause 38 in the regulation. That clause provides as follows: (1) If a detained person or protected suspect who is a vulnerable person is given a caution, the custody manager or other person giving the caution must take appropriate steps to ensure that the detained person or protected suspect understands the caution. (2) If the detained person or protected suspect is given a caution in the absence of a support person, the caution must be given again in the presence of a support person, if one attends during the person's detention. (3) A reference in this clause to the giving of a caution is a reference to the giving of a caution 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.
The term "investigative procedure" does not appear to be defined in the LEPRA or in the LEPRR. It is implicit in the regulation, and in particular clause 34, it includes the conduct of an interview with the vulnerable person about the offences that are being investigated. I consider that both the unrecorded and recorded interviews with the police fall within the concept of investigative procedure for the purposes of the LEPRR.
The important role of the ALS in relation to Aboriginal persons held in custody is also enshrined in LEPRR. Clause 37(1) of LEPRR provides: (1) If a detained person or protected suspect is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person 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 the Aboriginal Legal Service (NSW/ACT) Limited will be notified - (i) that the person is being detained in respect of an offence, and (ii) of the place at which the person is being detained, and (b) notify such a representative accordingly.
In considering the approach to be taken to the issue of whether the police complied with their obligations in relation to a regulation intended to assist vulnerable persons, such as an Aboriginal person, I have had regard to what Wood CJ at Common Law said more than 20 years ago about the predecessor of the regulation under consideration in R v Phung and Huynh [2001] NSWSC 115. Although the observations His Honour made were in the context of their application to a vulnerable person who was a child, I consider they have equal application to a consideration of the position of an Aboriginal teenager who was 18 years of age. His Honour at [60] and following observed that there was a "need for custody managers to provide a contemporary statement of what occurred in relation to each case in which they become involved, and not merely to rely at some later date, when an issue arises, on computer generated or standard summary forms which, in many instances, require little more than a tick or cross in a box. If left until an issue arises, it is unlikely that these documents will be sufficient to refresh the custody manager as to precisely what was said or done. [61] Wherever possible it would be highly prudent for custody managers to record by audio or video tape, their conversations with an accused, and with his or her support person in those circumstances where an interview occurs or investigative procedures are undertaken during a detention period. Preferably this should occur in all such cases but certainly it should be done in those involving serious offences. [62] Moreover, it is important for investigating police to give full effect to the legislative regime now in force, and to ensure that not only do they understand and comply with it, but also to see that the custody manager does what is expected of him or her. Had contemporary records been kept or statements prepared concerning the relevant dealings with the accused and with the support persons, it may well have been the case that some of the matters identified as problems in this case, would have been answered. [63] Additionally, I observe that police should not automatically assume that their obligations under the legislation, can be met by a rote reading of the requisite cautions and advice, or by the handing over of printed forms for an accused to read for himself or herself. Nor should they assume that compliance can be proved by the securing of a simple signature or initial on the custody management report. ………. Moreover, the regulations give rise to a positive obligation to assist a vulnerable person in exercising his or her rights - see regulation 20."
My review of the evidence of the police as to their understanding of the requirements in relation to the Accused, demonstrates that they had a adopted an approach consistent with the type of approach disapproved of by Wood CJ at Common Law, i.e. one of seeing the regulation concerning vulnerable persons in custody as involving no more than the ticking of a box, or a rote reading of a Part 9 statement to the Accused and the obtaining of a signature upon it. It is also concerning that no regard was had to the observations His Honour made all those years ago about a custody manager recording in a detailed way what was said to a vulnerable person and their support person, and their response, to ensure it could be determined that their obligations under the regulation had been fulfilled.
The findings I set out earlier establish a number of breaches of the regulation by the custody manager in relation to the Accused. The specific breaches are as follows:
In relation to the unrecorded interview conducted with the Accused before the ERISP, SC Taylor as the custody manager, failed to assist the Accused, as far as practicable, to exercise his rights under Part 9 of LEPRA. The custody manager in relation to the interview that occurred in an interview room at 11 am failed to ascertain directly from the Accused that he did want to be interviewed and allowed the investigating police at around 11 am to take the Accused into an interview room, caution him, and ask him questions about the allegations they were investigating. This in circumstances where the custody manager had been told by Ms Stefanou of the ALS that the Accused did not want to go into an interview room or be interviewed. The custody manager before that interview commenced also failed to inquire of the Accused whether he knew that he was entitled to a support person present at that time, and whether he wanted the support person present when he was spoken to by the police on that occasion. The conduct I have referred to constituted a breach of the custody manager's obligations under clause 29 of LEPRR.
The evidence is that the Accused was cautioned by Knox when his Part 9 rights were explained to him and by the investigative detectives during the unrecorded interview. The evidence establishes that Detectives Crossingham and Harding, along with SC Taylor, the custody manager, knew that Ms Handunnetti was in attendance at the police station between approximately 1.10 and 1.35 pm, and the caution was not re-administered to the Accused in her presence. That is a breach of clause 38(2) of the LEPRR.
In relation to the ERISP, I consider that the failure of the custody manager SC Taylor, having been told on two occasions by solicitors for the ALS that the Accused did not want to go into an interview room, to confirm directly with the Accused that he did want to be interviewed, and wanted to proceed without a support person, constitutes a breach of clause 29 of LEPRR.
The failure of SC Taylor to advise the Accused that he was entitled to a support person during the recorded interview constitutes a breach of clause 31(3) of the LEPRR. His failure to inquire whether the Accused wished to proceed with the interview in the absence of his support person constituted a breach of clause 31(5) of the LEPRR. His failure to advise Ms Handunnetti of the scope of her role while acting as a support person constituted a breach of clause 34 of LEPRR.
Earlier I found that Crossingham and Harding deliberately did not tell Ms Handunnetti of their intention to interview the Accused while she was at the police station. That conduct constituted a breach of clause 31(1) of the LEPRR in my opinion.

Application of sections 84,90 and 138 of the Evidence Act (EA) to my findings

At the outset I note the Accused on the voir dire did not put in issue the truthfulness of statements he made in the ERISP. The truthfulness or otherwise of any admission is, therefore, to be disregarded on the issue of the admissibility of any admission; see s.189(3) of the EA. See the discussion of that provision by Simpson J (as her Honour then was), in R v Ye Zhang [2000] NSWSC 1099 at [52].
I propose to initially consider the application of s.138 of the EA. Section 138 of the EA relevantly provides as follows: (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.
The onus is on the Accused under the provision to establish that the evidence was obtained improperly or in contravention of an Australian law. In my opinion, the combination of the several breaches of the LEPRR by both the custody manager and the two investigative police officers in how they dealt with the Accused while he was in custody, leads to the conclusion that the ERISP conducted with the Accused was obtained in contravention of an Australian law.
There is no definition of "impropriety" in the provision. However, it has been said by the High Court that in relation to a consideration of police conduct the issue of impropriety is to be determined by considering the "minimum standards of police conduct"; see Kadir v The Queen (2020) 267 CLR 109 at [14].
In my opinion, minimum standards of police conduct require the police to conduct themselves fairly in relation to how a vulnerable 18 year old person is dealt with while in custody, and that as far as possible, compliance with the requirements imposed on how such a person is to be dealt with should generally be accepted as a minimum standard for police. This is because the vulnerability of young Aboriginal people, in particular, in police custody, is very well known.
In my opinion, the findings that I set out earlier show that the manner in which the police dealt with the Accused while he was in custody was improper in the relevant sense, and was unfair.
The ERISP, given those findings, 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. The Crown bears the onus of establishing that the evidence should be admitted given the finding of illegality and impropriety that I have made.
I now turn to consider the factors in s.138(3).
The admissions made by the Accused in the interview as to his presence at the scene of the armed robbery, to driving away from it and sharing in the spoils of it clearly have considerable probative value. I do note though that he stated that he did not know what was to occur. This factor favours admission of the evidence.
The evidence has some importance to the Crown case brought against the Accused, although it was not submitted that the Crown had no case against the Accused without the evidence of the admissions contained in his interview. This factor favours admission of the evidence.
The alleged offences, but in particular the armed robbery offence, are serious offences, however, the Crown appears to accept that on its case the Accused had a somewhat limited role in the commission of the offence. This factor favours admission of the evidence.
I consider that the gravity of the contravention and impropriety was significant, in particular the contraventions and impropriety which involved the failure to re-caution the Accused in the presence of a support person, and deliberately not informing the support person of the police intention to interview the Accused before she left the police station to go to the court house, to seek to arrange a bail application for the Accused.
The rights enshrined in the LEPRR are not to be seen as some sort of "tick the box exercise". The rights contained in the regulations are very important rights designed to ensure that, in an interview situation in particular, a vulnerable person is treated fairly having regard to their vulnerability. The role of a support person under the regulation is to protect Aboriginal persons from any disadvantage inherent in their Aboriginality, as well as to protect them from any form of police impropriety. Compliance with the regulation is required to ensure that an Aboriginal person is not overawed by being interviewed by detectives in a police station, and to provide comfort that there is an independent person present during the interview [4] .
The gravity of the contraventions and impropriety favours exclusion of the ERISP.
I consider that in relation to the breaches of the regulation by the custody manager SC Taylor, those breaches are more in the nature of reckless breaches, arising out of what appeared to be a poor understanding of the rights of an Aboriginal person in custody and what was required to properly assist that person to exercise those rights and to ensure that they were dealt with fairly while held in custody. I consider, however, that there was a high level of recklessness associated with those breaches, in particular the failure to have the Accused re-cautioned in the presence of a support person and the failure to confirm directly with the Accused that he wished to be interviewed and without the presence of a support person, in light of the communications received via the ALS.
The most serious breach of the regulation by Crossingham and Harding was the deliberate failure to tell Ms Handunnetti of their intention to interview the Accused before she left the police station. That was an egregious breach in my view, designed to ensure that an 18 year old Aboriginal man had no support from a support person, and no assistance from her, during an interview designed to have him make admissions at a time when the police considered they had insufficient evidence to charge the Accused.
The reckless and deliberate nature of the contraventions and impropriety supports exclusion of the ERISP.
It was suggested that the impropriety and contraventions here was contrary to or inconsistent with Article 26 the International Covenant on Civil and Political Rights which dictates that all persons are equal before the law and without discrimination are entitled to equal protection under the law. That provision appears to be concerned with discrimination based upon race, colour and the other matters listed in the Article. I do not see the police conduct as amounting to discrimination as that term is used under Article 26.
There was no difficulty in the police conducting the interview in compliance with the regulation. Clearly they had the means to do so, and to a significant degree chose not do so, in particular in relation to the right to a support person. In these circumstances, I consider this factor favours exclusion of the evidence.
I have also considered the fact that it is important that law enforcement officials understand that the rights of Aboriginal persons in custody must be properly understood and given effect to and should not be viewed as an impediment to a proper police investigation. It is a notorious fact that many Aboriginal people are held in police custody, and it is fundamental to a fair Australian society that the rights the Parliament has given them are properly enforced.
When I way up the above factors I have come to the conclusion the desirability of admitting the evidence does not outweigh the undesirability of obtaining evidence that has been obtained in the way in which the ERISP was obtained.
For those reasons I consider that the ERISP conducted with the Accused should be excluded from the evidence adduced at trial.
As I have determined that a proper application of s.138 of the EA results in the exclusion of the ERISP, I will deal relatively briefly with the arguments raised in relation to s.84 and s.90 of the EA. I will deal with s.90 first.
Section 90 of the EA relevantly 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.
It would seem that the precise scope and operation of this provision is yet to be settled; see the summary of relevant cases contained in Uniform Evidence Law: Odgers 17th Edition. In particular, there was a divergence in approach amongst the judges of the High Court when the provision was considered in Em v The Queen (2007) 232 CLR 67. It seems there is some overlap between s.90 and s.138 of the EA, although Gummow and Hayne JJ considered that the discretion in s.90 would only need to be considered if the evidence had not been excluded under other provisions of the EA, including s.138; see [109]. Gleeson CJ and Heydon J in that decision considered that : "The language in s.90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning"; see [56].
The findings I set out earlier about the conduct of the police, in my opinion, establish that having regard to the circumstances in which the admissions were made by the Accused in the ERISP, which involved a denial to an 18 year old Aboriginal Accused, of rights he had under the LEPRR and the importance of those rights, it would have been unfair to the Accused to allow the Crown to use the admissions contained in the ERISP. If I had not excluded the ERISP by virtue of the operation of s.138 of the EA, I consider that in all the circumstances here concerning how the Accused was dealt with in custody, I would have excluded the ERISP under s.90 of the EA.
Section 84 of the EA provides: (1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by-- (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.
In my opinion, there is no evidence that there was directed to the Ac violent, inhuman or degrading conduct as referred to in s.84. The real issue in relation to the application of this provision is whether there was "oppressive conduct" directed towards the Accused. There is no definition of what constitutes "oppressive conduct" for the purposes of the provision. It has been said that it is not limited to "physical or threatened physical conduct but can encompass mental and psychological pressure"; see Higgins v The Queen [2007] NSWCCA 56.
Hamill J in R v Sumpton [2014] NSWSC 1432 conducted a review of the authorities as to the meaning of "oppressive" within the section. "Oppressive" for the purposes of the provision should not be given an expansive meaning. Hamill J citing R v Fulling [1987] 2 ALL ER 65 considered that "oppressive" in the section required, "the exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc; the imposition of unreasonable or unjust burdens." See Sumpton at [128].
Hamill J in Sumpton considered that the case he was considering was not a case where oppressive conduct was clearly established, but was a case that was at the "boundaries" of oppressive conduct; see Sumpton at [130] and [131]. In coming to that conclusion His Honour noted a number of matters which included: that the Accused had been unlawfully detained for a number of hours, that he was in police custody for over 20 hours before he was taken before a magistrate. Aspects of the questioning of the Accused were unfair and improper involving the Accused being ridiculed and belittled. The Accused had been denied access to a lawyer having asked for one. He had made complaints to the custody manager about the interviewing police. The Accused had been approached a number of times about being interviewed when he had clearly and repeatedly said he did not want to answer questions. The full list of such matters are set out at [135] of His Honour's judgment.
While my findings as to the conduct of the police can be characterized as the exercise of a lawful power in a wrongful manner, not every wrongful exercise of power by police amounts to oppressive conduct within the meaning of s.84 of the EA in my opinion. When I have regard to the conduct of the police in Sumpton and His Honour's conclusion in relation to it, and compare it to the wrongful police conduct I have found established here, I do not consider that the conduct here amounts to "oppressive conduct" within the meaning of s.84 of the EA.
I would not have excluded the ERISP conducted with the Accused on 10 June 2021 on the basis of s.84 of the EA.

Order:

The record of interview conducted with the Accused by the police on 10 June 2021 is not to be admitted into evidence in the Crown case.

Endnotes

I further note in passing that the witness gave evidence that no officer involved in the whole of the investigation over a period of 18 months made any note of their conduct of the investigation; (T.20.11).
T16L16
T86 L10-13; T87 L26-27
See similar comments by Wood CJ at CL in Phun and Huynh [2001] NSWSC 115 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2023

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