R v Pieter Egbert Helmhout & Ors

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

WEDNESDAY 23 FEBRUARY 2000 70023/99 - REGINA v PIETER EGBERT HELMHOUT 70205/99 - REGINA v DEBORAH JOY DAVIDSON 70206/99 - REGINA v MARK WILLIAM HELMHOUT 70098/99 - REGINA v JOANNE ROSE DELLY

JUDGMENT - Admissibility of ERISP with Mark Helmhout 1 HER HONOUR: After the jury was empanelled but prior to the Crown's opening, Mr Corr, who appears on behalf of the accused, Mark Helmhout, made application for me to determine the question of the admissibility of an electronically recorded interview between his client and Detective McCloskey made at the Queanbeyan Police Station on 20 June 1998. Mr Corr submitted that the interview was inadmissible, having regard to the provisions of ss 84, 85 and 138 of the Evidence Act 1995 ("the Act"). Alternatively, Mr Corr submitted by reference to s 90 of that Act that I would exclude the interview in the exercise of my discretion. 2 The Crown Prosecutor agreed that it was appropriate that this matter be determined as a preliminary issue. I embarked upon a voir dire hearing pursuant to s 189 of the Act. Evidence was led by the Crown from Detectives McCloskey and Hinton, who were the two officers who conducted the interview. 3 Sergeant Hanrahan, the officer in charge of the Queanbeyan Police Station at the time, was also called. Sergeant Hanrahan spoke to the accused at the conclusion of the interview and asked him a series of formal questions which are recorded at question 354 and following. 4 Sergeant Dagwell, the custody manager at the Queanbeyan Police Station, responsible for the accused's custody in the relevant period, also gave evidence. 5 A number of exhibits were tendered on the voir dire, including the two videotapes of the interview. I viewed the whole of the interview during the course of the hearing. In the accused's case, evidence was led from the accused, Mr Jeffery, a solicitor with the Aboriginal Legal Service, and from Dr Olav Nielssen, forensic psychiatrist. 6 The challenge to the admissibility of the interview was advanced on three grounds. Firstly, it was submitted that the accused had been threatened by Detectives McCloskey and Hinton prior to the commencement of the interview. The tenor of the threat said to have been made was that, if the accused did not cooperate with the police, his de facto wife, Ms Joanne Delly, would be charged with an offence and his children might be handed over to the welfare authorities. 7 This conduct was said to be oppressive within the meaning of s 84(1)(a) of the Act. The Crown Prosecutor accepted that such behaviour, had it taken place, would be oppressive within the meaning of that section. 8 Secondly, the accused was said to have been affected (at the time of his participation in the interview) by a combination of alcohol, drugs, and underlying depression such that the Crown could not discharge the onus cast upon it pursuant to s 85(2) of the Act which provides that evidence of an admission is not admissible unless the circumstances in which it was made were such as to make it unlikely that the truth of the admission was adversely affected. 9 Thirdly, it was submitted that the police had failed to comply with the requirements of cl 28 of the Crimes (Detention after Arrest) Regulation 1998. The custody manager had not informed an Aboriginal legal aid office of the fact that the accused was being detained. This, it was submitted, amounted to improper conduct, or conduct in contravention of Australian law such as to enliven the operation of s 138 of the Act. 10 In determining the factual issues raised by these various challenges, I am to have regard to the provisions of s 142 of the Act, and I do so. 11 The accused was arrested at his home at 10/30 Trinculo Place, Queanbeyan at about 8.30am on Saturday 20 June 1998. At the time the police were in possession of information from Edward Szkudelski tending to implicate the accused, and his brother Pieter, in the murder of the deceased Paul Harris. It was said that the deceased had been killed at the Trinculo Place unit the previous evening. The deceased had been drinking at those premises with the accused, Pieter Helmhout, Edward Szkudelski, and others. 12 On the previous day, the accused had attended the funeral of his elder brother, John. Following the interment, a wake was held at the Raider's Club, Mawson. The drinking session at the Trinculo Place unit was a continuation of the wake. Edward Szkudelski told police that the deceased had been assaulted and strangled in the accused's unit and that his body had been subsequently dumped in Fyshwick. The deceased's body was located by police in the early hours of 20 June 1998 in Fyshwick at the location described by Mr Szkudelski. 13 Police obtained a search warrant to search the Trinculo Place premises. 14 Detectives McCloskey and Hinton gave evidence, which I accept, that the accused was informed at the unit that he was under arrest for a murder said to have been committed the previous night. The accused was taken to the Queanbeyan Police Station. He arrived there around 9.30am. It appears that not later than 9.33am he was handed over to the custody manager, Sergeant Dagwell. 15 Sergeant Dagwell gave evidence, which I accept, that he read to the accused a statement of his rights under Part 10A of the Crimes Act. A copy of the document in terms also identical to that read to the accused was in evidence before me. The recitation of those rights included reference to the right of an Aboriginal detainee to have a support person present. The accused is an Aboriginal person within the meaning of Part 10A of the Crimes Act. The accused said that he did not recall Sergeant Dagwell reading the statement of rights to him. He did not deny that this had been done. Sergeant Dagwell said it was his practice to read the Part 10A statement as the first thing he does after explaining to a detainee who he is. Sergeant Dagwell was not able to recall whether he had made contact with a representative of the Aboriginal Legal Service. 16 There is no record of a representative of that service or any other Aboriginal legal aid organisation attending the Queanbeyan Police Station to see the accused on that day. Mr Jeffery gave evidence that both he and his field officer, Mr Brandy, had mobile phones. Save in extreme circumstances, Mr Jeffery always leaves his mobile phone on. It is his understanding that Mr Brandy is in the practice of leaving his mobile phone on also. Neither Mr Jeffery nor Mr Brandy were contacted that day. 17 Clause 28 is in these terms: "If a detained person is an Aboriginal person or a Torres Strait Islander, then, unless the custody manager is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must: (a) immediately inform the person that a representative of an Aboriginal legal aid organisation will be notified that the person is being detained in respect of an offence, and

(b) notify such a representative accordingly." 18 The requirements of cl 28 were not met. I will return to this in due course. 19 The accused gave evidence concerning the circumstances leading up to his participation in the interview in these terms: "At first they started talking about what was supposed to have happened and I just still sorta said I don't know what youse are talking about and then that is when Detective McCloskey said to me 'I can give you ten to fifteen years if you are going to make it hard for us or I can give you five to seven years, if you don't you know, if you start talking to us'. I said, just shrugged my shoulders and that is when Detective Hinton - he got his little notebook out and sorta read out everything what I was supposed to have done, and then, I still sort of played dumb and they said, 'Well we can charge your missus too and we can always ring the welfare up and take your kids away too' and he picked up the phone, Detective Hinton did. He picked up the phone and just pressed two numbers and I said, 'Oh, well - what is it - we will talk about it', and like I said, he read all his notebook out and then we sort of went and done that interview, record of interview." 20 On a voir dire hearing to determine whether an accused's admission should be admitted into evidence in a criminal proceeding, the issue of the truth of the admission is to be disregarded unless it is introduced by the accused (s 189(3) of the Act). In this case, the issue of the truthfulness of the admission was raised in the accused's case. It was his evidence that those portions of the interview in which he made admissions as to striking the deceased, on more than one occasion, and to participating in the strangling of the deceased were not true. He had only said these things to please the police officers since his first priority was to see that his wife and children were taken care of. 21 The accused said that he had not been informed that he was being arrested for the offence of murder. His understanding was that his role that night was consistent with him being an accessory after the fact to murder but that he had played no part in the killing of the deceased. His assistance was limited to driving the car with the body and his presence at the scene of its disposal. 22 I do not consider it appropriate to embark upon a detailed examination of the evidence of the accused given on the voir dire. But it is necessary for me to observe that I did not accept his evidence in a number of respects. I note, among other matters, that in evidence in chief the accused was asked this question: "Q. When you arrived at the Police Station were you intending to take part in a record of interview? A. Yeah. I don't know this - they just put me in this room and they just, talking about things."

He was then asked: "Did you know that you had a right to remain silent when you got to the Police Station?"

He was asked: "Q. Did you intend to speak to the police about what happened? A. No, not really - not really." 23 The report of Dr Nielssen dated 21 February 2000 sets out the history that he obtained from the accused. Dr Nielssen reports: "Mr Helmhout said that based upon his experience in the justice system he had not intended to participate in an ERISP interview." 24 That does not sit well with the accused's first response when the matter was raised with him in examination in chief. I also note that the accused's evidence contained allegations against Detectives McCloskey and Hinton of a more detailed nature than had been put to either officer in the course of cross-examination. On the accused's account, it was Detective McCloskey who said: "That he could give him ten to fifteen years if he was going to make it hard for police or five to seven years if he did not."

That allegation was not put to Detective McCloskey but it was put to Detective Hinton. 25 The Crown Prosecutor submitted that I would reject the accused's version given in evidence. He submitted that it was inherently implausible that a man whose only involvement in the crime had been as an accessory after the fact would confess to involvement in the killing in the belief that he would be charged with a lesser offence than murder. Had this happened it is inconceivable that when charged with murder he would make no complaint. Mr Corr submitted that to the extent that his client was being taken to task for failing to complain to Sergeant Hanrahan the Crown was being somewhat unrealistic. Would an Aboriginal person in custody be likely to complain to one officer about what he perceived to be the unfair conduct of that officer's colleagues? I accept the force of Mr Corr's submission in that regard. 26 As to what is said to be the inherent implausibility of the accused's version, I bear in mind that I am concerned with his allegation that he was threatened by the police prior to the commencement of the interview. Whether the threats induced him to make a false confession or a true confession would not matter for the purposes of the discharge of the onus imposed upon the Crown pursuant to s 84 of the Act. However, I do have regard to the Crown's submissions as to the implausibility of the account offered by the accused in assessing the weight that I give to his evidence generally. 27 I do not consider the accused's appearance on the videotape or the manner or the contents of his answers is suggestive of a man who was recounting a script furnished to him in a pre-interview discussion. I also note that the accused told Dr Nielssen this: "He said he could remember the important details of the events leading up to Mr Harris's death, and said it was roughly in accordance with the account given in the ERISP, although he said that several details had been suggested to him by the police." 28 In evidence, Dr Nielssen was asked this question by the Crown Prosecutor: "Q. Did Mr Helmhout say anything to you about the police telling him what to say for parts of the interview? A. He did, but when I attempted to ask him what parts he had been told to say, he wasn't able to direct me to the specific examples." 29 In the light of the accused's evidence, I consider that to be a significant answer. 30 I accept Detectives McCloskey and Hinton in preference to the accused as to the events leading up to the conduct of the interview. I do not find that threats of the character described by the accused were made. 31 Accordingly, I am satisfied that the interview and the making of the interview were not influenced by oppressive conduct or indeed any other conduct falling within the terms of s 84(1)(a). 32 There was evidence that the accused had consumed a quantity of alcohol and other drugs in the period leading up to his arrest. His brother had died a week before the subject events. In that week, it was his account he had been consuming substantial quantities of amphetamines. He had also consumed a fair amount of marijuana. After his brother's funeral he had one shot of heroin. 33 He had also drunk a considerable quantity of alcohol following the funeral. He said he had consumed probably half a dozen schooners or more of beer at the Raiders Club and that he had drunk further alcohol after the group had returned to the Trinculo Place unit. He thought he had drunk about five or six stubbies of beer at this time and, after the beer ran out, he had probably two stubbies of wine. 34 The accused gives an account of his alcohol consumption in the interview broadly consistent with that given in evidence, although without reference to the stubbies of wine. 35 The accused had also consumed some prescription drugs in the period prior to the interview. There was evidence that he had consumed Oxazepam tablets. 36 Dr Nielssen expressed this opinion in his report: "In response to your specific question regarding Helmhout's state of mind at the time of the ERISP, I believe he is likely to have been in an acutely depressed state because of a combination of the grief following his brother's death, his predicament in having been charged with the offence, and also the after effects of having taken large doses of amphetamines over the week before the funeral. He is also likely to have been affected by the cumulative dose of oxazepam, an anxiety reducing sedative, which may have affected his judgment in agreeing to give the interview."

I accept this opinion. 37 None of the police who gave evidence on the voir dire considered that the accused had been obviously affected by alcohol or drugs at the time of the interview. In particular, I note that Sergeant Dagwell paid regard to this consideration as one of the matters which he took up with the accused in the course of administering a questionnaire to him. Sergeant Dagwell recorded that the accused was suffering from some physical problems but he made no note of noticeable affectation by drugs or alcohol. 38 The appearance of the accused in the course of the lengthy videotaped interview together with the responses that he gives to the questions asked of him does not, to my mind, give rise to concern that in consequence of his ingestion of drugs and/or alcohol he was significantly (in the sense of noticeably) incapacitated. His answers are responsive. At times they are lengthy and contain a good deal of volunteered detail. On more than one occasion the accused gives a physical demonstration of the events that he is describing. He does not appear to exhibit any difficulty in coordination. I also note that the accused's evidence is suggestive of him having a good recall of the course of the interview. During the interview he was asked about the effects of alcohol upon him and he told the police that it caused him to "blackout like a pork chop". There is nothing to suggest that the effects of alcohol or drug affectation was of that order on him on this occasion. 39 I note that Dr Nielssen observes in his report: "The answers recorded in the transcript of the interview are reasonably coherent, and do not suggest that he was delirious acutely mentally ill." 40 Dr Nielssen did not have the benefit of observing the appearance of the accused on the videotape. I consider, as I have noted, that a viewing of the videotape tends to confirm that the accused was coherent during his interview. 41 In considering the onus placed upon the Crown pursuant to s 85(2) I have regard to the observations of Barr J in Regina v Rooke (unreported, CCA, 2 September 1997) at p 15. I am concerned with whether the circumstances of the official questioning were such as to produce unreliable evidence. I am satisfied that the Crown has discharged its onus of establishing that the circumstances in which the admission was made was such as to make it unlikely that the truth of the admission was adversely affected. 42 This brings me to a consideration of the failure of the police to contact an Aboriginal legal aid organisation in accordance with the obligation imposed upon them by law so to do. The Crown accepted, having regard to the evidence of Mr Jeffery which was not the subject of challenge, that I would find (as I do) that the Aboriginal Legal Service was not notified that the accused, Mark Helmhout, was being detained in custody at the Queanbeyan Police Station. 43 The Crown further accepted that the failure to comply with the obligation imposed upon the custody manager pursuant to cl 28 of the Regulation produced the result that the interview was obtained improperly or in contravention of Australian law within the meaning of s 138(1) of the Act. Accordingly, the evidence is not to be admitted unless I am of the opinion that the desirability of admitting it outweighs the undesirability of admitting it, given that it was obtained in the way that it was. 44 In considering this matter, I have regard to the considerations set out in s 138(3). I note that those considerations are not an exhaustive statement of the matters to be taken into account in determining whether the evidence might be admitted, notwithstanding that it has been obtained improperly or in contravention of an Australian law. 45 Firstly, I turn to the probative value of the evidence. "Probative value" is defined in the dictionary to the Act. The "probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Viewed in this way, the probative value of the evidence must be put as very high. 46 The next consideration set out in s 138(3) is the importance of the evidence in the proceeding. Mr Corr submits that the Crown still has available to it the evidence of the witness, Edward Szkudelski. He notes that Mr Szkudelski's version is corroborated in some respects by other evidence. 47 Equally, Mr Corr was frank in acknowledging that the interview forms a central plank in the Crown's case against the accused. This was, in my view, a realistic concession. 48 I consider the interview to be of critical importance. There are passages in the interview capable of providing support of the version of events described by Mr Szkudelski. Without this material, Mr Szkudelski's version might be considered suspect. Mr Szkudelski was present at the scene and, on his own account, accompanied the accused and Pieter Helmhout to the place where the body was dumped. 49 I next turn to the nature of the offence and it is sufficient to state that the accused is charged with murder. 50 I must have regard to a number of things which include the gravity of the impropriety or contravention and whether it was deliberate or reckless. I consider the failure to comply with the requirements of the Regulation is a serious matter. Part 10A of the Crimes Act was inserted by Act No.48 of 1997 and confers power on police to detain persons under arrest for a period of time in order to enable the investigation of the person's involvement in the commission of an offence. The introduction of this Part effected a significant departure from the common law. In order to balance the desirability of allowing police the opportunity to investigate suspects' involvement in crime with respect for individual liberties and, importantly, the right to silence, a number of protective provisions were introduced in Part 10A. Importantly, the custody manager is charged with the provision of information to the detained person pursuant to ss 356M and 356N. 51 Section 356A provides that the regulations may make provision with respect to the modification of Part 10A in relation to, inter alia, Aboriginal persons. This has been done. Aboriginal persons fall within the definition of "vulnerable persons" for the purposes of the Regulation. 52 Part 5 of the Regulation, which contains cl 28, is expressed to modify the application of Part 10A of the Crimes Act with respect to vulnerable persons. Aboriginal persons are thus persons who have been identified as needing special protection for the purposes of Part 10A. 53 Unless the custody manager is aware that a detained Aboriginal person has arranged for a legal practitioner to be present during questioning, the custody manager must inform that person that a representative of an Aboriginal legal aid organisation will be notified of the fact of the person's detention and must notify such a person. 54 In this case, the evidence is that the accused was asked whether he wished the services of a solicitor or whether he wished to contact a friend. To both questions he said, "No". I should observe that, in the course of his evidence, the accused said that the investigating police had given him an account that they were unable to contact anyone from the Aboriginal Legal Service. I do not accept that evidence. It emerged for the first time in the course of the accused's evidence, no such suggestion having been put to the police in the course of cross-examination, notwithstanding the central importance of that matter having regard to the issues agitated on this voir dire. 55 Neither Detective McCloskey nor Detective Hinton was challenged as to their respective accounts that the accused had been offered the opportunity of contacting a solicitor and that he had declined to do so. The making of such an offer and the accused's response is confirmed in the opening section of the electronically recorded interview. 56 However, the fact that I find the accused was informed of the right to contact a solicitor and that he declined to do so is not to the point. It is to be observed that the custody manager is required to notify an Aboriginal legal aid organisation and that obligation remains upon the custody manager (save in a circumstance where he or she is aware that arrangements have been made for a legal representative to attend) even where the detained Aboriginal person says he or she does not wish legal assistance. That serves to underscore the strongly protective nature of the regime under Part 10A with respect to Aboriginal persons. 57 I next consider whether the failure was a deliberate or reckless one. I unhesitatingly accept that it was not deliberate. I found Sergeant Dagwell to be a witness of truth. It was not suggested on behalf of the accused that I would find otherwise. Sergeant Dagwell was emphatic that he understood it was his obligation to notify the Aboriginal Legal Service. In similar circumstances he had done so on other occasions. He knew Mr Brandy well. It was his evidence that he could not recall whether he had made contact on this occasion. As I have noted, I find that he did not. 58 What is the explanation for that failure and does it constitute a reckless disregard by the Sergeant for the obligations imposed on him? Sergeant Dagwell was involved that morning, as custody manager, in processing (in the sense of conforming with the protocols relating to persons detained pursuant to Part 10A) Pieter Helmhout, Mark Helmhout, Deborah Davidson and Edward Szkudelski. I accept that it was, from his point of view, a busy morning. The physical conditions of the Queanbeyan Police Station at the time made the scene somewhat chaotic. More importantly to my mind, neither the custody management record completed in manuscript nor the computer program designed to record custody actions made provision to prompt or remind Sergeant Dagwell of the notification requirement imposed by cl 28 of the Regulation. This is a defect in the design of the Part 10A protocols which, if it has not been corrected, in my view, should be. Sergeant Dagwell impressed me as an officer who would faithfully carry out each function he was required to perform as he attended to the completion of the handwritten and computer prompts. I consider it likely that, on this day, Sergeant Dagwell did just that. He commenced by the rote reading of the Part 10A document which he frankly observed was a long screed and it had been his experience that detainees tended not to ask questions arising out of it. He then moved to the process of completing the custody management record, Ex G, and to the questionnaire which is performed in answer to computer prompts. Nothing reminded him of his obligation pursuant to the Regulation and I find that he overlooked it. I do not consider that that failing was reckless. 59 It is not submitted that the contravention was contrary to or inconsistent with a right recognised by the International Covenant on Civil and Political Rights, nor is it submitted that para (g) of s 138(3) is relevant to my determination of the present case. 60 As to the consideration contained in para (h) of that subsection, I find there would have been no difficulty in complying with the Regulation. 61 The failure to comply with an important protection designed to safeguard the accused's interests as a vulnerable person is a significant one. However, ultimately, having weighed the various matters that I am required to take into consideration, I have determined that the desirability of admitting the interview outweighs the undesirability of admitting it, notwithstanding that it was obtained following that failure. In arriving at this determination, my view that Sergeant Dagwell's omission was neither deliberate nor reckless is important. 62 I should note that I have also given consideration to the exercise of my discretion under s 90 of the Act to refuse to admit evidence of an admission if, having regard to the circumstances in which it was made, it would be unfair to use the evidence. The High Court considered the content of the so-called fairness discretion at common law in The Queen v Swaffield (1997) 192 CLR 159. The majority noted that their statement of the law in this area was conformable with the requirements of the Act. One aspect of the fairness discretion of which the majority spoke at p 189 was the consideration that no confession might have been made at all had the police investigation been properly conducted. 63 The accused's evidence is that he was aware of the right to silence. As I have noted, I do not accept that he was threatened or that his participation in the interview was the product of those threats. I do not consider that it would be relevantly unfair to the accused to use the admission. 64 For these reasons, I propose to allow the tender of the interview. **********

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