R v Powell, Steven

The conditions of the Local Leave Order were: "(1) The above named inmate is to be taken from the correctional centre at which he/she is currently being held to the following locations

for the purpose of being interviewed and possibly charged and returned. To remain under the secure escort of correctional officers at all times. Det Snr Cst Renee Smith has charge of the matters. Contact (and then a phone number is given).

(2) The period of temporary absence is from 7:00am on Friday 26 June 2009 to 7:00pm on Friday 26 June 2009. Special conditions (if any) are listed on the reverse side of this Local Leave Order."

It does not appear that the terms of the order were complied with in as much as the accused does not appear to have been in the police custody from 7am to 7pm.

The exhibit copy appears to have been faxed on 23 June 2009 at 13.51pm. I have assumed shortly after that time Detective Renee Smith received the Local Leave Order. She would have noted: (a) The date the Local Leave Order was to take effect was Friday 26 June rather than Thursday 25 June; (b) That the Local Leave Order did not authorise the accused being taken to the Dubbo Police Station, but rather that he was to remain within the grounds of the Wellington Correctional Centre but would be escorted to the Wellington Police Control Area within the gaol.

It is a discrete designated area within the correctional facility having a charge room, dock, access to outside landline, police computer and access to police network and database and a fully equipped interview room.

Finally, the Local Leave Order would survive for twelve hours from 7am to 7pm. I note she had only sought one hour.

I note also the Local Leave Order includes the possibility of the accused being charged. There is certainly nothing in the initial request that foreshadowed any possibility of the accused being charged, nor is there any reference to his being charged although there is a reference to his being arrested in respect of the matters. It may be those who prepared the Local Leave Order did not realise that the accused had already been charged with two serious offences arising from the incidents that were to be the subject of interview on 12 April.

Senior Constable Renee Smith, Detective Senior Constable Peter Ensor and Senior Constable Simon Thorsteinsson made their way to Wellington Correctional Centre for the purposes of speaking to a number of inmates. Steven Powell was included among their lists of inmates to be spoken to. Upon arrival the three police officers were escorted by custodial staff to the Wellington Police Control Area. About 12.30pm or perhaps a little before that time Steven Powell was brought to the control area and at least technically remained under secure escort of correctional officers at all times.

Senior Constable Renee Smith received the accused at the Police Custodial Centre at Wellington Correctional Centre and introduced him to the Custody Manager, Senior Constable Thorsteinsson who entered him into police custody at 12.36pm. Whether he was informed orally that he was under arrest is not clear but he was certainly informed in writing that he was arrested. That arrest is confirmed by the custody records as occurring at 12.35pm by Detective Senior Constable Renee Smith. The grounds for arrest are identified as B & E, SMV. B & E I assume stands for break and enter and SMV, as I understands it, steal motor vehicle.

He was certainly informed orally by Senior Constable Thorsteinsson that he was "here in custody with us". He was given the standard Caution and Summary of Pt 9 of LEPRA. The first three sentences under the heading IMPORTANT are worth noting: "This Form tells you about some of the things the police will do for you when you are in their custody at a police station…You have been arrested by police and they can keep you in their custody for a reasonable time to conduct their investigations." (My emphasis)

The Caution and Summary document is signed by Senior Constable Thorsteinsson as an acknowledgement that at 12.40pm he had informed the detained person of the information contained in the form.

At very best that had been a fairly cursory explanation. I say that because at 12.36pm the accused had been entered into custody. Police had given him his custody number. His date of birth, age, his gender had been entered; his CNI numbered had been entered or perhaps generated. He identified his mother as next of kin, given her name, address and phone number and had explained to him all of his entitlements, both pursuant to LEPRA (all of this occurred) within two minutes.

That becomes apparent because Senior Constable Thorsteinsson nominated the action time for the caution as 12.38pm and he appears to have signed off on it at 12.40pm. Senior Constable Thorsteinsson then moved onto brief and then visual assessment of the custody record and a seven item questionnaire made general observation comments by 12.43pm. While he was doing all this he was also dialling 02 88428080 and identifying Jimmy Ishak from the Redfern Aboriginal Legal Service, incorrectly entered on the custodial file as being with WALS (Western Aboriginal Legal Service) non-operational for the past few years.

The accused was moved to the interview room at 12.49pm. Thus the time sequence of events set out in the custody management record and the Caution and Summary Pt 9 document would appear to be: 12.35 Arrested Detective Renee Smith

12.40 Acknowledgement of Custody Manager Part 9 Caution Summary read

12.42 Updating computer entry for record of update to custody details

12.43 Brief assessment re complaints of intoxication, pain, injury, illness, assessment of mental illness and displays of self harm, visual assessment

12.43 Questionnaire seven questions, general observations, notation of inspection frequencies

I accept the accused may well have been given the Caution and Summary of the Pt 9 LEPRA between 12.38pm and 12.40pm. I am satisfied there was no reading of the Caution and Summary Form. For the officer speaking at a normal pace to have said the words he attributed to himself in para 6 of his statement would have taken between twelve and fifteen seconds. The handling of the statement and reading of the Caution and Summary document would certainly have taken more than eight times longer to read than the forty-five words he claims to have said to the accused.

To read the Caution and Summary document silently takes just on two minutes. Orally, it must take significantly longer. I am also satisfied that no attempt was made to ascertain whether the accused really understood or could explain the cautions. Anyone who read the Caution and Summary document would readily appreciate the need to establish that a vulnerable person understood the import of the caution against contradictory messages juxtaposed to the caution.

Understanding the LEPRA caution requires an evaluation of the right to remain silent. Included in any proper evaluation is a fact made clear by s 89 of the Evidence Act 1995 which is not referred to at all in the summary, namely, a judge or a jury cannot draw an inference or unfavourable conclusion against an accused if he fails or refuses to answer one or more questions, or refuses to respond to any questions.

What an accused is told by way of contrast in an interview is that "anything he says or does will be used in evidence against him". Thus, his remaining silent, which is something that he does, he may well understand to be something that can be used in evidence against him. S 89 of the Evidence Act makes clear it cannot be used in evidence against him. I have long wondered in my career at the Bar how many people answer questions particularly when an officer persists in questioning because he, but quite often she, usually thinks that to remain silent may be seen by the judge or jury as amounting to evidence against him.

Another matter where difficulties are obvious is the juxtaposition of the right to remain silent on the one hand and the requirement to answer police questions when required to do so; all spelt out in the LEPRA document. Indeed the requirement to answer questions is spelt out twice in the LEPRA document. To uneducated, unsophisticated, intellectually impaired or brain damaged Aborigines, the competing notions they remember, thinking perhaps, quite concretely, are difficult to understand. If most persons absorb only twenty-five percent of what they are told, and that seems to be what the psychologists are telling us, the competing propositions of rights to silence and obligations to disclose are confusing. The more so because the accused is told a second time there are exceptions to his right to silence. When, as in this case, an officer chooses to press on when an accused has said "No, he does not wish to say anything", it is not unreasonable for him to be at least unsure whether this is an occasion of the exception.

So that my observation can be clearly understood the caution appears in the second paragraph of the body Caution and Summary document. It is immediately followed by the significant qualification: "Whilst in police custody you do not have to say or do anything but anything you say or do may be used in evidence. However, there are some exceptions to your right not to say or do anything. These exceptions are contained in laws requiring you to answer questions put to you by, or to do things required by a police officer…"

The topic is revisited in the eighth paragraph in the body of the Caution and Summary document: "The police cannot ask you to say or do anything whilst awaiting for your lawyer, friend, relative, guardian or person to come to where you are, but as explained earlier there are exceptions to your right to say or do anything. Those exceptions are contained in laws requiring you to answer questions put by or to do things required by a police officer."

I note that, that is strictly speaking not the correct enunciation of the law, because wherever those requirements are, there is always an exception spelt out in the law, that is "without reasonable cause".

The reader of the document is given examples and told that police will tell him when he is required to answer. What that may mean to [a suspect] may well be unclear. There is no form of words that are used to identify, for a person who is vulnerable, when police are requiring a compliance with the law. Why would someone not think, having said, "No I do not wish to be recorded" that the next question is the police requiring answers?

At 12.52pm the interview commences. At question 3 the accused is cautioned and asked if he understands the caution. He agrees he does. That proposition is not tested at all by Detective Renee Smith. The issue raised in the caution however, that is whether he wishes to speak or not, is not raised until seven questions later. Question 10, "Okay so Stephen again as I explained Detective Ensor and I are conducting just some further inquiries in relation to the break enter and steal a motor vehicle. Mate is there anything at all you want to tell me about that?"

The use of the term "mate" I might interpose is not appropriate when a police officer is interviewing a suspect. It's use was deliberate in my view to ingratiate herself with the accused. He answered "No".

Question 12, "Okay." (Meaning, she understands that he wishes to say nothing at all) "Can you tell me where you were on that night?" Clearly question 12 comes within the scope of assisting police inquiries in relation to the break enter and steal and the motor vehicle stealing incident. It fits within the scope of the purpose nominated by Detective Smith in the accused participating in an interview in relation to the allegations. And it ignores the accused answers in questions 10 and 11 acknowledged by Detective Smith at the introduction of question 12 by the word "Okay".

It became clear at question 24 that the accused had not understood his right to silence. Frankly it would have been surprising, given the terms of the Caution and Summary document, and the warning that "Police will tell you when you are required to answer". Someone who is vulnerable and thinks concretely would interpret the "Okay" at question 12 and the continuation of the question as an indication that he is required to answer or at the very least may be required to answer. That fact is borne out by the answer to question 24.

Question 24, "Yeah can you tell me who any of them were?" Answer "Do I have to?" Question 26 to 29 reinforced the accused is reluctance. It is possible the answers to questions 30, 31, 32 and 33 are likewise motivated by the accused's reluctance to answer.

In the answer to question 36 he says "No", then in the interview hesitates and volunteers information which flows through the next few answers.

In the course of the interview Detective Senior Constable Smith deliberately pressed on with her interview after questions 10 and 11. She made no inquiry as to whether the accused was exercising his right to silence for fear that he would indicate he was. That conduct by her was not honourable, particularly where she was dealing with someone who Lepra recognises as vulnerable.

At question and answer 24 it should have been clear to Detective Senior Constable Smith that the accused did not understand his right to silence. She deliberately made no inquiry as to whether he did understand, because she knew the prosecution could seek to rely upon her asking these questions after the caution at question 3. Again she chose to ignore his vulnerable status, but sought to secure an answer to what she regarded as an important aspect of her inquiry, namely the identity of any other person who may have been with the accused that night.

Questions 27 and 28. In evaluating this conduct by Detective Senior Constable one does not have regard to the answer but to the approach of the senior constable. Again her approach was not honourable. She then took him to a photograph of a screwdriver. A screwdriver had been seized from his property on 13 April.

I have inferred from the terms of question 30 the picture shown to the accused was not that screwdriver. I may be wrong. If I am then question 30 was misleading.

Question 36 is a double barrelled question. I suspect it was deliberately asked that way so that there was necessarily an ambiguity about the answer. It does, however, reveal that Detective Smith was conscious that the accused had indicated he did not wish to participate. If she had any doubt about that proposition, it was not honourable that she should continue with the interview without clarifying the issue. Again her conduct is not to be evaluated on the result of the questioning, which after a hesitation following the answer "no" began a voluntary sequence of answers from the accused that may have been self serving.

Questions 46 and 47 contain an assertion of fact that the accused has not agreed to. It should not have been asked in that form.

Question 55 produced material from the accused that was inadmissible. The questioner is not to be blamed for that, but question 56 to 62, I think it is, should not have been asked. They not only raise prejudicial material, the topic could never have been relevant to police inquiries or the trial.

Question 64 produced another unresponsive answer and there was no attempt by the questioner to put a stop to the prejudicial material until question 71.

Question 133 contains or comes close to containing an inducement "so we can confirm with your cousin that you were walking with up there".

Question 192 contains an assertion of fact that the accused had not agreed to.

Question 193 is premised upon the truth of that assertion and produces the speculative answer given in 194.

Questions 193 and 194 were unfair questions. An interview is not an occasion for proving through hearsay, names or facts the prosecution must prove if it seeks to rely upon those facts.

Question 247 and 248 offer an inducement "because your cousin obviously would have information that we can check to confirm your story". It misrepresents the police intentions set out in Voir Dire Exhibit 11, ie to identify the second offender and to establish Powell's exact involvement in the incident. This question has an aura of trickery and dishonesty about it. It confirms the police well recognise the accused's vulnerability and were seeking to take advantage of it. See also question 252.

Question 282 is another assertion of fact about keys which the accused has not agreed to. Further it ignores the effect of the answer given in 194. "I probably might have picked them up".

Question 294 the accused appeared to me to be exasperated at this time.

Question 318 Senior Constable Ensaw had a three page statement in his hand. It is likely he sought that statement at question 300. An advocate in court is not permitted, when questioning about a sequence of events, to present to a witness he is cross-examining another witness's statement as presenting a more reliable version of events, if that is what Detective Senior Constable Ensaw proceeded to do at question 318.

If Senior Constable Ensaw was seeking to put the prosecution case he should have done so properly. His holding a witness statement and summarising evidence from it was capable of intimidating or at the very least confusing and confounding the accused. Remember he was a vulnerable person. It resulted in the accused speculating at question 320 and 321.

The danger and prejudice to him appears in the first sentence in question 327. Although I have not seen the witness statement I am certain the witness never said 'Steven Powell ran.' This whole line of questioning using this method was unfair and inadmissible. The questions were met with an argumentative answer which again would not have been permitted had he been giving evidence.

Question 328 was prefaced by an opinion of the police officer. It also constitutes an inadmissible thing. While the question itself may have been admissible, prefaced as it was by an opinion, it was unfair. Question 332 is put as an assertion of fact. The question should have been asked either "did you say 'the keys"…"et cetera'" or "I put it to you that you said 'the keys…" "et cetera".

Questions 336 and 337 are open to the same criticism I made when those questions were asked at questions 46 and 47, at 192, 193 and at 282. It is not without significance that, in this relatively short record of interview, there are some twelve areas where police appear to try to take advantage of an accused in questionable or unfair ways.

Putting to one side whether the caution was adequate, or given so that it was understood, none of the other areas I have criticised would necessarily result in the interview being rejected. But the overall quality of sensitivity to the need to make appropriate effort to avoid exploiting an arrestee's vulnerability is a factor I am entitled to consider.

This should be taken into account when exercising discretions excited by s 138 and judgment assessments required by s 90 of the Evidence Act 1995. There seems a recklessness about the whole approach to the interview from the moment it was determined to make an application, to the final stages of questioning- a recklessness that is best expressed as "well let's give it a go. If some questions get knocked out so be it. If they don't we're ahead."

HIS HONOUR: 69. Gentlemen I have set out a number of provisions of LEPRA and the regulations which I can read out or I can indicate the sections I have set out and then in the judgment set them out.

70. The statutory provisions that apply are to be found in two sources, Part 9 of the Law Enforcement (Powers and Responsibilities) Act (2005) and the second part in the Law Enforcement (Powers and Responsibilities) Regulations (2005).

71. Part 9 Division 1, preliminary, s 109(a)(b)(c) 11 10(2)(a) 11 10(4)(9) - and I want to read that on to the record because that becomes relatively important.

109 Objects of Part The objects of this Part are: (a) to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person's involvement in the commission of an offence, and

(b) to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a Magistrate or other authorised officer or court without delay or within a specified period, and

(c) to provide for the rights of a person so detained. 110 Definitions … (2) A reference in this Part to a person who is under arrest or a person who is arrested includes a reference to a person who is in the company of a police officer for the purpose of participating in an investigative procedure, if: (a) the police officer believes that there is sufficient evidence to establish that the person has committed an offence that is or is to be the subject of the investigation, or

(4) For the purposes of this Part, a person ceases to be under arrest for an offence if the person is remanded in respect of the offence. 112 Modification of application of Part to certain persons (1) The regulations may make provision for or with respect to the modification of the application of this Part to: (a) ….

(b) Aboriginal persons or Torres Strait Islanders, or …

113 Effect of Part on other powers and duties (1) Existing powers relating to arrest and other matters This Part does not: (a) confer any power to arrest a person, or to detain a person who has not been lawfully arrested, or

(b) prevent a police officer from asking or causing a person to do a particular thing that the police officer is authorised by law to ask or cause the person to do (for example, the power to require a person to submit to a breath analysis under Division 3 of Part 2 of the Road Transport (Safety and Traffic management) Act 1999 , or

(c) independently confer power to carry out an investigative procedure. (2) Certain evidentiary matters and rights not affected Nothing in this Part affects: (a) the operation of: (i) the following provisions of the Evidence Act 1995 : section 84 … section 90 (Discretion to exclude admissions) section 138 (Exclusion of improperly or illegally obtained evidence) section 139 (Cautioning of persons), or (b) any law that permits or requires a person to be present at the questioning of another person who is under arrest (for example, the presence of a parent at the questioning by a police officer of the parent's child), or

(c) the right of a person to refuse to participate in any questioning of the person or any other investigative procedure unless the person is required by law to do so, or … Division 2 Investigation and questioning powers

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

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

Division 3 Safeguards relating to persons in custody for questioning

122 Custody manager to caution, and give summary of Part to, detained person (1) As soon as practicable after a person who is detained under this Part (a " detained person ") comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing: (a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and

(b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorised officer and that the person, or the person's legal representative, may make representations to the authorised officer about the application. (2) The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer.

… 123 Right to communicate with friend, relative, guardian or independent person and Australian legal practitioner (1) Before any investigative procedure in which a detained person is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may: (a) communicate, or attempt to communicate, with a friend, relative, guardian or independent person: (i) to inform that person of the detained person's whereabouts, and (ii) if the detained person wishes to do so, to ask the person communicated with to attend at the place where the person is being detained to enable the detained person to consult with the person communicated with, and (b) communicate, or attempt to communicate, with an Australian legal practitioner of the person's choice and ask that Australian legal practitioner to do either or both of the following: … (3) The custody manager must defer for a reasonable period any investigative procedure in which the person is to participate:

(b) if the person has asked any person so communicated with to attend at the place where the person is being detained: (i) to allow the person communicated with to arrive at that place, and (ii) to allow the person to consult with the person communicated with at that place.

(5) If the person has asked an Australian legal practitioner communicated with to attend at the place where the person is being detained, the custody manager must: (a) allow the person to consult with the Australian legal practitioner in private and must provide reasonable facilities for that consultation, and

(b) if the person has so requested, allow the Australian legal practitioner to be present during any such investigative procedure and to give advice to the person. (6) Anything said by the Australian legal practitioner during any such investigative procedure is to be recorded and form part of the formal record of the investigation.

(8) An investigative procedure is not required to be deferred to allow the person to consult with a friend, relative, guardian, independent person or Australian legal practitioner who does not arrive at the place where the person is being detained within 2 hours after the person communicated with the friend, relative, guardian, independent person or Australian legal practitioner. This does not affect the requirement to allow an Australian legal practitioner to be present during an investigative procedure and to give advice to the person. Law Enforcement (Powers and Responsibilities) Regulations 2005 Part 4 Investigations and Questioning Division 3 Vulnerable persons

24 Vulnerable persons (1) A reference in this Division to a vulnerable person is a reference to a person who falls within one or more of the following categories: (a) … (d) persons who are Aboriginal persons or Torres Strait Islanders, (2) Pursuant to section 112 (1) of the Act, the application of Part 9 of the Act to vulnerable persons is modified by this Division. 27 Support person may be present during investigative procedure

(1) A detained person who is a vulnerable person is entitled to have a support person present during any investigative procedure in which the detained person is to participate.

(3) Before any such investigative procedure starts, the custody manager for the detained person 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 wishes to have a support person present, the custody manager must, as soon as practicable: (a) give the detained person reasonable facilities to enable the person to arrange for a support person to be present, and

(b) allow the detained person to do so in circumstances in which, so far as practicable, the communication will not be overheard. (5) The custody manager must defer for a reasonable period any such investigative procedure until a support person is present unless the detained person 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. 28 Relationship between entitlement to support persons and entitlement to consult

(1) A detained person who is a vulnerable person is entitled to a support person under clause 27 or to consult with a friend, relative, guardian or independent person under section 123 (4) of the Act, but not both. 33 Legal assistance for Aboriginal persons or Torres Strait Islanders (1) If a detained person 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.

(2) (Repealed) 34 Cautions (1) If a detained person 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 understands the caution.

(2) If the detained person 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.

72. Although not binding legislation, the Code of Practice for CRIME (Custody, Rights, Investigation Management and Evidence) is said to complement the NSW Police Code of Conduct and Ethics by providing an ethical framework for police in dealing with suspects by reinforcing the need for all officers to act with honesty and integrity when investigating offences. The Code of Practice for CRIME and the NSW Police Code of Conduct and Ethics are based on each member of the NSW Police Force acting in accordance with certain values, four of which are identified as; + Integrity is place above all + The rule of law is upheld + The rights and freedoms of individuals are preserved + Authority is to be exercised responsibly
73. While a reference to a vulnerable person includes an Aboriginal or Torres Strait Islander the word 'vulnerable' is not defined. I have taken it to mean "Not immune to or protected against criticism, temptation, influences or inducement."

Vulnerability, where it exists, is not something that disappears. Vulnerability is likely to remain throughout a record of interview. In the absence of a lawyer or support person, care should be taken by investigating police, always bearing in mind the vulnerability of the interviewee.

At common law, a person who was placed under arrest was required to be charged and taken forthwith before a magistrate. LEPRA s 114 altered the common law by providing for a detention period for the purpose of investigating whether the suspect committed the offence for which he was arrested. Even if the arrest was not formalised for the purposes of Pt 9 LEPRA a suspect in the company of a police officer for the purpose of participating in an investigating procedure was caught by LEPRA provisions as being a person who "was under arrest" if the police officer believed there was sufficient evidence to establish that the person has committed or is to be the subject of the investigation (s 110)(2).

There is ample evidence I have already referred to establishing the accused was under police arrest on 26 June. As a consequence he was in police custody at Wellington Police Control Area in the Wellington Correctional Centre. At the time of his arrest at 12.35 the accused was on remand. Bail had been refused, for the very offence Detective Renee Smith was investigating. However, for the purposes of LEPRA the accused ceased to be under arrest for an offence if he is remanded in respect of the offence (s 110)(4). The accused qualified as such a person.

This was described in the custody management records as "old detected offences were B & E, SMV". Whatever label is put on them, he was remanded in respect of those offences, said to have occurred in Bourke on 12 April 2009. Even if police were contemplating upgrading or recasting a charge or charges that were before the court, he was under arrest for those offences. There is a difference between the meaning of the words "offence" and "charge". The word "offence" for the purpose of the criminal law refers to criminal conduct, a cause of transgression or wrong that is punishable by the criminal law. A charge is a specific allegation contained in an indictment or information, and defined in the Crimes Act 1900 or elsewhere as specified offensive conduct.

In this case the accused was remanded in respect of wrongful conduct of breaking and entering on 12 April 2009. However charged, that wrongful conduct was expressly charged in the CAN before the court. In those circumstances, any arrest for him in relation to that wrongful conduct ceased to be an arrest to which LEPRA applied. That does not mean it was not an arrest, it simply was an arrest to which LEPRA did not apply. The consequence was that he was to be taken before a magistrate and charged forthwith. It was a common law arrest, if it was any arrest at all.

Given the accused had already been charged and remanded in respect of his alleged offending conduct, s 99(1) and (2) of the Law Enforcement (Powers and Responsibilities) Act were already exhausted, and if not exhausted were negated by s 99(3). There was no basis (hereafter the first basis), in other words, for the police to arrest the accused in relation to any offending conduct in the nature of a break and enter or a steal motor vehicle that may have been committed in Bourke on 12 April, and which were now the subject of charges on an information of some kind, probably a CAN, before the court.

The arrest by police was also unlawful upon the basis that it was to provide police with an opportunity to offer the accused an opportunity to participate in an interview in relation to allegations being made by police, in order to identify a second defendant and to establish Powell's exact involvement in the break enter and steal and the steal motor vehicle charges then before the courts. There was nothing in s 99 providing a statutory fiat for arresting a suspect for questioning. This was not some oversight by Parliament; it represented a deliberate curtailment of police powers.

The arrest affected at 12.35 by Detective Senior Constable Smith was for the purpose of interviewing the accused. That arrest was unlawful. That is the second basis (hereafter the second basis), then, for holding that the accused was unlawfully arrested. Either of those views of the unlawful arrest, and both of them, enliven the application of s 138 of the Evidence Act by virtue of the unlawful conduct of police. It also enlivens consideration of the issue that if the police had conducted themselves lawfully, there would have been no record of interview.

In Swaffield v The Queen (1998) 192CLR 159, Brennan CJ reviewed a number of common law cases on the history of the unfairness discretion. His Honour noted a discretionary category of exclusion arose after the rule against admission of involuntary confessions was established, and in response to a new set of circumstances. It became known as the discretion to exclude for unfairness. "Dixon J appears to have regarded the propriety of the conduct of the police as the critical factor in the exercise of the discretion, in much the same way as the nature and effect of the conduct of persons in authority had come to be regarded as the critical factor in determining whether a confession was voluntary. His Honour said: '...[A]ll that seemed to be intended is that [the judge] should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all circumstances and considering the fairness of the use made by the police of their position in relation to the accused.'"

Earlier in the same judgment, Brennan CJ had cited a passage from an English case where Devlin J (as he then was) was reported to have directed a jury in these terms. "So great is our horror at the idea that a man might be questioned, forced to speak and perhaps to condemn himself out of his own mouth that we afford to everyone suspected or accused of a crime, at every stage and to the very end, the right to say 'ask me no questions, I shall answer none, prove your case.'" ( R v Adams reported in Hayden, Evidence Case and Materials 3rd Edition 1991) p 158.

Brennan CJ saw a statement of principle by his predecessor, Mason CJ, as extending the scope of the fairness discretion. In Van der Meer, Mason CJ said: "[T]he police conduct of the interrogation was such as to make it unfair to use the later statements made by Ailif, and those made by Storhannus, against them. Had the police observed the principles governing the interrogation of suspects, it might well have transpired that the statements would not have been made in the form in which they were made. " (My emphasis)

Consideration Of The First Basis For Exclusion 85. I am satisfied this is the very unfairness to which s 90 of the Evidence Act 1995 is directed. I would exclude the ERISP pursuant to s 90 of the Evidence Act 1995.

Should I be in error in my application of s 90, for reasons I shall give, I would also exclude the interview in exercise of assessing the desirability of admitting the evidence against the presumption - that the evidence should be excluded as required by s 138 of the Evidence Act 1995.

The court is required to take into account a number of matters in determining whether the desirability of admitting the evidence outweighs the undesirability of evidence obtained in the way in which it has been obtained. (a) The probative value of the evidence: the record of interview establishes the accused was in the area of the break-in and motor vehicle theft. It establishes an admitted nexus with the vehicle by virtue of his hosing it at a point in time when the vehicle was on fire. It establishes that the accused was in the presence of at least one other person at the relevant time. It may also establish a line the Crown may seek to use as a consciousness of guilt. That may require an exercise of discretion by the trial judge separate to the one I am considering.

In the face of an objection to it so doing, I could not rule out that while the apparent line may be permitted to stand as to going to the accused's credit, it would not be left to the jury as capable of a consciousness of guilt, because it may reasonably be explained as being told to protect a cousin. I do not regard the evidence from the record of interview as crucial to the Crown case. There is, apparently, independent evidence that the accused had keys to the car in his pocket; that the person who hosed the car had moments before exited the driver's seat. There is little or nothing in the record of interview which advances the Crown's case evidentially out of the mouth of the accused, other than perhaps the lie as a consciousness of guilt. (b) The importance of the evidence in the proceeding: the circumstances in which the record of interview was conducted will necessarily disclose, I would have thought, the accused was in custody. The introductory remarks and his prison attire make that plain. There are several references from the accused to his being "in here" or similar words. At the time of his initial arrest, he was not in custody. The delay in the interview necessarily raises the prejudicial issue not present when he was arrested.

The importance of the evidence to the Crown case as reviewed when assessing its probative value: Because of the editing of numerous portions of the interview, there will be obvious gaps which may invite unwarranted speculation that a jury will need to be cautioned about. Such editing, even with directions, may leave residual suspicion against the accused. (c) The nature of the relevant offence and subject matter of proceedings: the indictment charges allege an aggravated break, enter and steal, and an aggravated assault with intent to take motor vehicle without the consent of the owner of the motor vehicle. There is no doubt the break, enter and stealing, and the stealing of the motor vehicle are crimes of some frequency in Dubbo, where this offence is alleged to have occurred.

In the event of a guilty verdict on either charge, a term of imprisonment is a real and reasonable possibility. So far as one can tell from what appears in the record of interview, the defence is likely to be one of "it wasn't me". In running such a defence, I regret to acknowledge the accused's Aboriginality is likely to be an unspoken factor in operation in the jury room. I should note it is a feature of an otherwise unspecified identification. (d) The gravity of the contravention: in considering this matter, I intend to consider it in two parts. Firstly, in respect of the lawful arrest on both bases, then I will also consider other improprieties that taint the record of interview.

The unlawful arrest: I am satisfied Detective Smith's primary purpose in arresting the accused was for the purposes of questioning him. The power of arrest is welded so tightly to the important duties of a police officer, that each police officer ought to know its limitations, that is, the limitations of the power to arrest.

It is inconceivable that Detective Smith did not know she was not permitted to arrest an accused for the purpose she set out in her application on 16 June. I am satisfied her actions in arresting him for that purpose were planned and deliberate.

In fairness, I cannot be satisfied her conduct was undertaken knowing it was a serious breach of the power to arrest, but if it was unknowing then her ignorance was inexcusable and dangerous; dangerous because the liberty of citizens and residents should be secure from mistakes based upon ignorance of a power daily used by this officer.

The arrest for purposes of questioning of the accused came in circumstances where he had previously indicated (by previously here, I mean, 12 April) he did not wish to participate in an interview. This arrest came because he had (earlier) exercised his right to be silent. Such arrest could be rightly seen as an harassment of him for so exercising his right to silence.

For any Court to readily or easily excuse an unlawful arrest in such circumstances - mid-sized country town, close knit police community, large Aboriginal population and frequent advice from Aboriginal Legal Services not to say anything - would signal to police that if Aboriginal or other suspects refused on the occasion of their original arrest to participate in an ERISP, a second arrest for the purposes of questioning would be likely to be excused and permitted by a Court in the face of defence objection.

The arrest was executed upon a person who by virtue of his race, is recognised as being vulnerable in respect of the purpose for which it was made. The arrest was without notice to the solicitor having carriage of the accused's matter, or the ALS at Dubbo. There were at least two occasions when notice should have been given if the police were acting fairly - on 16 June 2009 when the application to the Corrective Service Commissioner was made and on 23 June 2009 when details of the Local Leave Order became available. That unfairness was in breach of the Police Code of Conduct and Ethics, rule 4, "An employee of the New South Wales Police must treat everyone with respect, courtesy and fairness " (my emphasis).

It also constitutes a breach of the Code of Practise for CRIME, earlier referred to, namely, "treating suspects fairly, avoiding behaviour which could be regarded as unfair and using only lawful and proper means to obtain evidence". (f) The arrest was in contravention of article 9 of the International Covenant on Civil and Political Rights in that it constituted an arbitrary arrest followed by a period in arbitrary detention in police custody. (g) Proceedings in respect of impropriety or contravention have not been taken and are not likely to be taken. (h) The difficulty of obtaining evidence without contravention. It would never have been possible to obtain confessional evidence in the circumstances of this case without such a breach, but the obtaining of evidence in contravention of the power of arrest of a vulnerable person comes at too high a price, in circumstances where the suspect has already refused to be interviewed.

Consideration Of The Second Basis For Exclusion- Other Improprieties, Subject To Scrutiny

97 I have already rejected Senior Constable Thorsteinsson's evidence that he read through the entirety of the LEPRA Part 9 Caution/Summary with the accused. In fairness, LEPRA did not require this. Section 122 puts the obligation on the custody manager no higher than an obligation to caution both orally and in writing a suspect that he does not have to say or do anything but anything he does say or do may be used in evidence. I am satisfied Senior Constable Thorsteinsson informed the accused both orally and by supplying him with a copy of the Part 9 Summary/Caution of the terms of the caution, that is, the caution itself.

98 It is one thing, however, to inform a person of the terms of a caution; it is entirely another to effect a caution so that an accused, and in particular a vulnerable accused, understands his right to participate and his right not to participate and to remain silent.

Given the content of the Caution/Summary document, the explaining of a caution so that an unrepresented, vulnerable person understands it, is no mean feat. By virtue of Regulation 24 of the Law Enforcement (Powers and Responsibilities) Regulations 2005 an Aboriginal person is to be regarded by police as "vulnerable" for the purposes of the Part 9 LEPRA and investigation by police.

I have already noted about twelve features of the interview that were unsatisfactory. Many of them share a common theme, advantage taken of a vulnerable accused. I also note that there was an absence of admission in the prosecution case up to 22 June 2009, because the accused had chosen not to be interviewed, and no attempt had been made to interview him.

If, as is likely, Senior Constable Smith regarded the prosecution case weaker or the investigation incomplete because she had not tested the accused's decision not to be interviewed on 13 April, then she had a conflict of interest in deciding to try to interview him for a second time. Such a position put her in an ethical dilemma. Had she had regard to the NSW Police Code of Conduct and Ethics she would have seen Rule 7 required that an employee of the New South Wales police must take reasonable steps to avoid conflicts of interest, report those that cannot be avoided, and cooperate in their management.

Nothing said by Ipp AJA in R v Mark Helmut [2001] NSW CCA 372, is to be understood as diminishing the requirement that an Aboriginal person is to be regarded by police as a vulnerable person for the purposes of Part 9 of LEPRA.

Given that LEPRA and the associated regulations, classifying Aboriginal persons as vulnerable, was passed by the New South Wales Parliament, it is difficult to understand the extreme example of an Aboriginal youth his Honour selected in paragraph 12 of his Honour's judgment. The number of Aboriginals in New South Wales who would replicate the metaphorical youth described by his Honour in that paragraph are minimal or miniscule. There may be more of them in Western Australia where his Honour earlier practised.

One must assume, when the New South Wales Parliament passed the act and approved the Regulations, it well knew the general profile of Aboriginals resident in all areas of New South Wales, city, regional and rural. It may well make sense that a Court evaluating the affront to a vulnerable person would have regard to the level of vulnerability. I am far from convinced that a custody officer involved in an investigative procedure is excused from complying with Regulation 24 unless the Custody Manager reasonably believes the person is not Aboriginal. That is because there are wide spread cultural norms among Aborigines that contribute to their vulnerability. These include, but are not limited to, a desire to avoid confrontation with strangers, or authority figures, and a predisposition to agree with propositions put to them, even though adverse to their interests. While alcohol, drugs, mental health issues, education and experience in European culture may dissipate these cultural norms, the norms are well recognised among anthropologists, lawyers, and I believe, the police.

It is apposite at this stage that I seek to assess the accused's level of vulnerability. No evidence was led from either side on this question. I regard both as having an interest in the issue. It is clear the accused has had past dealings with the police. That being so, I have inferred he has been cautioned numerous times and probably given the LEPRA Caution/Summary document many times. There is no evidence that he has previously participated in a formal record of interview. I am not prepared to infer he has done so. At the time of his interview he had just turned nineteen. His answer to question 24 makes clear he had not understood either caution given to him by Thorsteinsson, or Detective Smith. He appears to be a concrete thinker. After being told by Detective Smith he did not have to reveal the identity of any of the other boys, particularly as I read the sequence of questions leading up to 24, he seems resolute in not disclosing the name of his cousin throughout the interview, even though he discloses other information. I do not rule out that his understanding of the caution remained impaired throughout the whole of the interview, to a point where he was only confident he did not have to disclose his cousin identity, but otherwise was unsure about answers touching his own involvement.

If I have not made it clear, I do not rule out that he may have answered questions because he was worried that a failure to answer would look bad in court. I am satisfied he abuses alcohol, but more than this I cannot say. For instance, I cannot say if he is brain damaged as a consequence. I am satisfied he has been in custody before and his last custody was at the Wellington Correctional Centre. He normally resides in Bourke. It is likely he is unemployed because of prior custody and his limited time on release. It is likely he has not completed Year 12 and I do not rule out that he may not have completed Year 10. He was unable to remember his girlfriend's address; her last name and did not know how to spell it. At the time of his arrest he appeared to be without the support of his aunt and girlfriend. As to his relationship with his parents or siblings, if any, the evidence is silent. His answers to questions suggest below average intelligence and inadequate or poorly developed powers of reasoning. I regard his vulnerability as below the middle of the spectrum of vulnerability as experienced by Aboriginal persons dealing with police.

Wellington Correctional Centre Police Control Area & Exercise Of The Accused LEPRA Rights

The selection of the Wellington Control Area for the interview, so far as I can tell, was contrary to the desires of police who had nominated the Dubbo Police station as the site at which the interview should take place. That selection necessarily made more problematic the capacity of the accused to exercise his rights for a friend or support person or his right to have a lawyer present. The final decision as to whether the friend or lawyer would be present would be one in the control of the Corrective Services rather than the police force. As was earlier noted, police themselves were escorted from the gate to their area in the Wellington Correctional Centre.

As the decision earlier made as to venue was made by the Corrective Services demonstrates, the police could not guarantee that it could deliver any friend or lawyer who turned up to the gaol to the interview room. I am satisfied this is a matter overlooked by Detective Smith prior to arriving and overlooked by Detective Thorsteinsson as he quickly recited the caution and rights.

In circumstances of [the accused's] custodial situation within the prison, it was necessary to be frank with the accused about full access to his LEPRA rights if he had them. What part, if any, these difficulties played in the accused's decision not to seek the presence of a lawyer, friend or support person, is unknown. For example, would the lawyer or visitor have been let in [past the prison gate] outside visiting hours- something the accused's may have had preconceptions about, particularly if the period between 12.30 and 1.30 was not a scheduled visiting time.

I do not seek to be critical solely of Detective Smith or Senior Constable Thorsteinsson, I have wondered whether the accused's own solicitors have sought instructions on this, because certainly there were no questions asked. What I do take into account, however, is that this is a matter which should have been considered by Detective Smith in the three days prior to attending the Wellington Correctional Centre. It was incumbent upon her to ensure full access to the rights provided to the accused by LEPRA, if she was able so to do. It exacerbates the significance of her failure to give notice to the accused's solicitors, or the ALS, so that they could have investigated whether they would have had a right to access.

These problems should not be looked upon as being isolated. Apparently police were intending to see a number of inmates of the gaol this day. How many of them qualified as vulnerable is moot, but one could reasonably expect, given the population at the Wellington Correctional Centre, a number of them would have been. It is likely some, if not all, of that number would have been asked to participate in an interview.

None of the evidence I have referred to in this second group has been obtained in contravention of an Australian law, but has been obtained by conduct that was improper and not in accordance with police ethics requiring fairness to the accused. Those problems arising because of the venue selected by Department of Corrective Services were matters outside the control of the police at Wellington Correctional Centre. Whilst that does not diminish their impact upon the accused, none of the police officers are responsible for that difficulty. Nonetheless, that still leaves for consideration the inadequacy of the caution given by the custody manager - inadequate because he had not taken the necessary care to ensure the caution was understood - the conduct of the interrogators during the interview, and the lack of attention to the issue whether the accused would have full access to his LEPRA rights within the confines of the Wellington gaol.

It seems to me comments earlier made as to the importance of the evidence, its probative value will still be as I earlier reviewed it. The gravity of impropriety in each case when assessing this aspect relates to the accused's understanding and capacity to exercise his right to silence. I regard the contraventions as reckless, or negligent. I do not regard these contraventions as breaching any international covenant. I understand no proceedings will be taken in respect of the impropriety although I will be forwarding this judgment to the Attorney General with a request that consideration be given to re-drafting the LEPRA Caution/Summary document.

My earlier observation in respect to obtaining the evidence without impropriety apply here. If I was confronted solely with this second group of improprieties I would in the face of that second group have held, after some hesitation, that the desirability of admitting the interview did not outweigh its undesirability. But in the second group the defence arguments could not have been as powerful, or given the same weight, as was given to them in respect of the unlawful arrest. Nonetheless, I am entitled to take this second group into account when determining my attitude to the unlawful arrest.

I will be excluding evidence pursuant to section 138 upon the basis that the accused was unlawfully arrested. Does the fact that the accused was already in custody reduce the seriousness of the breach? No! It does not diminish the arbitrary nature of the arrest. The custody the accused was in allowed him a capacity to move about the prison, associate with other prisoners, join in activities such as card games, relaxation, reading and other activities. Limited as this capacity was, whilst in police custody none of these things were available. The unlawful purpose of the arrest was not the less unlawful because he was in custody. His being in Corrective Service custody does not relieve the Court of its task of protecting him against any unlawful arrest.

On either basis of his unlawful arrest, and taking the two together, I have determined the desirability of admitting the evidence is outweighed by the undesirability of admitting it.

On the basis of the unlawful arrest of the accused the ERISP is not to be admitted in evidence against the accused. If I be wrong, I have already indicated I would exclude the ERISP pursuant to s 90 of the Evidence Act, because having regard to the circumstances in which it was made it would be unfair to the defence to use the evidence.

I direct a copy of the judgment be forwarded to the Attorney General with a view to having him canvass with his colleague, the Minister for Police, the desirability of having the LEPRA part 9 Summary/Caution document redrafted after seeking input or advice or submissions from relevant stakeholders, including, but not necessarily limited to, the New South Wales Bar Association, The New South Wales Law Society, the Criminal Lawyers Association, the Council for Civil Liberties, the New South Wales Police Force, the New South Wales Police Prosecutors, the DPP and Crown Prosecutors, the Public Defenders and Legal Aid Commission, and the Aboriginal Legal Service.

The order is that the ERISP is not to be admitted.

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