The King v Marcus [2025] NTSC 39

Whether statements made to police improperly obtained because accused under arrest and no caution administered prior to questioning - Accused deemed to be under arrest - Whether police officer exercising power under Australian law to detain and search the accused or to require the accused to provide information or to answer questions - Recovery order did not confer power to detain and search accused or require accused to provide information or answer questions - Whether desirability of admitting statements outweighs undesirability of admitting evidence obtained in that way - Public policy considerations in favour of admitting evidence of statements - Evidence ruled admissible.

[1] The accused is charged with one count of aiding two other people to take a child under the age of 16 years out of the custody of the child's father contrary to s 202 of the Criminal Code 1983 (NT) in conjunction with the complicity provisions in s 12 of the Criminal Code. The defence has filed notices of objection to the admissibility of two categories of evidence which the Crown intends to adduce in proof of its case. For various reasons, these objections have been made late in time. The trial is due to commence on Monday and these preliminary issues require determination as a matter of urgency.
[2] So far as is relevant for present purposes, on 31 May 2022 the Federal Circuit and Family Court made an order granting sole custody of the child to the father. On 7 August 2022, the child was abducted by the two other people. On 10 August 2022, the Federal Circuit and Family Court made a recovery order in relation to the child directing police to find and recover the child, and authorising police to enter and search any premises or place in which there was reasonable cause to believe that the child may be found. On 12 August 2022, police attended the accused's house in Darwin for the purpose of finding and recovering the child in compliance with the recovery order. The accused was present at the time. During the course of that attendance, there were various interactions between a police officer and the accused which were captured by the police officer's body worn video camera.
[3] The first category of evidence to which objection is taken is the recording of an exchange which took place between the accused and the police officer. The Crown intends to rely on that exchange as an admission against interest, a lie indicating consciousness of guilt and/or an act aiding the abduction. In that exchange, the police officer asked whether the accused knew who they were looking for. The accused advised the police officer that she had heard on the radio that police were looking for someone; that they had not been at her house; that she had not seen them; and that she did not know where they were. The defence does not dispute that the child and her mother had stayed at the accused's residence for two nights some three days prior to the exchange, and that the statements made by the accused to the police officer were untrue.
[4] The defence objects to the admission of that evidence pursuant to ss 138 and 139 of the Evidence (National Uniform Legislation) Act 2011 (NT) on the basis that the statements were improperly obtained.
[5] The first of those sections provides relevantly that evidence that was obtained improperly is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in that particular way.
[6] That general provision is given specific operation by s 139(1), which provides that evidence of a statement made by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest for an offence at the time; and (b) the questioning was conducted by an investigating official empowered to arrest the person; and (c) before starting the questioning the investigating official did not caution the person concerning their right to silence. The Dictionary defines "investigating official" to include a police officer.
[7] It is common ground that the statements were made by the accused during some form of questioning by a police officer, and that the police officer did not caution the accused concerning her right to silence before the relevant exchange took place. I am unable to accept the Crown submission that the police officer was not "questioning" the accused in the relevant sense at the material time. The questions were clearly directed to obtaining information from the accused in relation to the abduction of the child to aid in the child's recovery. The questions were not directed to a purpose unrelated to the investigation of the crime, as was the case in the circumstances under consideration in R v Naa [2009] NSWSC 851; (2009) 76 NSWLR 271.
[8] That leaves the requirement that "the person was under arrest for an offence at the time". Because the accused was not formally under arrest at the time the statements were made, the defence objection is necessarily predicated on the extended meaning of "arrest" in s 139(5). Section 139(5) provides that a person is taken to be under arrest when in the company of a police officer for the purpose of being questioned if: (a) the police officer believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or (b) the police officer would not allow the person to leave if the person wished to do so; or (c) the police officer has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so. However, s 139(6) goes on to provide that a person is not treated as being under arrest only because of subsection (5) if the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.
[9] Given the manner in which the relevant statutory provision is framed, the question whether the police officer believed that there was sufficient evidence to establish that the accused had committed an offence calls for an assessment of the police officer's subjective belief. Unlike the operation of provisions such as s 142 of the Police Administration Act 1978 (NT), the provision does not call for the application of an objective test to determine whether the accused ought reasonably to have been seen as a suspect.
[10] It is clear from the exchange between the accused and the police officer that the police officer did not believe there was sufficient evidence to establish that the accused had committed an offence. That is unsurprising given that police officer was at the accused's residence for the purpose of executing the recovery order and the mother and child were not found at the residence. There was at that point in time no evidence at all that the accused had committed an offence. Although the police officer may have harboured a suspicion, for the provision to have operation it would have been necessary for the police officer to have the specified belief, and a mere suspicion that the accused may have committed some form of offence would not be enough: see R v Pearce [2001] NSWCCA 447, [103].
[11] There is also nothing in the exchange between the accused and the police officer which would have given the accused reasonable grounds for believing that she would not be able to leave her home if she wished to do so. The accused's questions of the police officer concerning whether she was able to move around the house during the conduct of the search, to which the police officer was unresponsive, had nothing to say about her ability to leave the premises. It is readily understandable that the police officer may not have wished the accused to be moving around the house during the course of the search, without drawing the conclusion that there was necessarily any broader stricture.
[12] However, the Crown concedes that had the accused attempted to leave the premises during the course of the search or during the course of the police officer's subsequent interaction with the accused, the police officer would not have allowed her to leave. This is a purely hypothetical inquiry in the present circumstances, as the accused did not in fact seek to leave the premises and the police officer did not in fact prevent her from doing so. It is perhaps difficult to see the basis on which the concession is made given that the police officer was attending at the accused's residence to conduct a search and effect a recovery if the child was found to be present there, and given the Crown's insistence that there was at that time no basis on which to suspect that the accused had committed any offence. The warrant did not confer any power of apprehension, and the presence or otherwise of the accused was irrelevant to the search of the premises. In addition, by the time of the exchange to which objection is taken by the defence, the search had already been conducted, the child was not found to be there, and there were no reasonable grounds for believing that the accused had committed an offence. Still, the concession has been made.
[13] In accordance with that concession, the accused is taken to have been under arrest at the material time and the police officer was therefore obliged to administer the caution before starting the questioning. I am unable to accept the Crown submission that para 139(1)(b) will only have operation in circumstances where the police officer has a lawful basis on which to make an arrest on the grounds stipulated in the police administration legislation. To adopt that construction would effectively render paras 139(5)(b) and (c) otiose. Paragraph 139(5)(a) is directed expressly to the situation in which by reason of reasonable belief the police officer has a power of arrest. Accordingly, paras 139(5)(b) and (c) must by implication be directed to circumstances where the police officer has no reasonable belief grounding the power of arrest. If para 139(1)(b) conditioned the operation of s 139(1) on the power of arrest being enlivened, the extension of the meaning of "arrest" afforded by paras 139(5)(b) and (c), and the consequential extension of the operation of s 139(1), would be overridden. The reason for the reference to an official being "empowered ... to arrest the person" in para 139(1)(b) is explicable by the fact that the definition of "investigating official" extends beyond police officers to other government functionaries who may have a power of arrest in relation to limited subject matter.
[14] Section 139(6) provides the only means by which the Crown may avoid s 139(1) operating so that evidence of the statements made by the accused are taken to have been obtained improperly. Section 139(6) requires that the police officer was exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions. The Crown says that the police officer was exercising just those powers in the execution of the recovery order. The recovery order was made pursuant to s 67Q of the Family Law Act 1975 (Cth). An order in those terms may relevantly authorise a police officer, with such assistance as he or she requires and, if necessary, by force, to enter and search any premises or place for the purpose of finding a child. The terms of the recovery order made in this case are consistent with the statutory provisions.
[15] Given its character as a coercive order, the conduct and actions authorised by a recovery order must be narrowly confined to its terms. The terms of this recovery order did not authorise the police officer to detain and search any particular person, as opposed to authorising the search of any vehicle, vessel, aircraft or premises. It also did not authorise the police officer to require any person to provide information or answer questions. I am unable to accept the Crown contention that the words "with such assistance as may be required", which appear in both the legislation and the subject recovery order, constituted a requirement for the accused to provide information or to answer questions in derogation of the right to silence and the privilege against self-incrimination. Rather, those words constitute an authorisation to the person to whom a warrant is directed to engage or enlist such other law enforcement agencies as may be required to effect the search and recovery, by force if necessary. It should be noted in that respect that a warrant of this type may be directed to a range of officers who may not have the same facility to enforce a search and entry as do police.
[16] Having regard to those considerations, I am not satisfied that at the time the police officer commenced the questioning of the accused he was exercising a power under an Australian law, being the Family Law Act, to require the accused to provide information or to answer questions. As a consequence, the accused is deemed by operation of the legislation to have been under arrest at the material time and the police officer was obliged to administer the caution.
[17] However, that is not the end of the matter. A failure to establish that a proper caution was administered will not necessarily result in the evidence being excluded. Section 139 provides a platform for the exercise of a discretion under s 138 to exclude improperly or illegally obtained evidence: see Em v R [2007] HCA 46; (2007) 232 CLR 67, [95]. As already stated, the operation of the discretion hinges on whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in this way. Once the accused has satisfied the court that the evidence was obtained improperly, the Crown must persuade the court that the balance favours the admission of the evidence: Parker v Comptroller-General of Customs (2009) 252 ALR 619, [28].
[18] In conducting that balancing exercise, s 138 is not expressly concerned with ensuring a fair trial and is not directed to relieving the accused from unfairness resulting from the relevant impropriety. The prejudice to the individual accused will almost always be present but will rarely be material. The fundamental concern of the section is to ensure that the impropriety involved in obtaining the evidence is balanced against the public interest in successfully prosecuting alleged offenders: see R v Fleming [2007] NSWSC 328, [31].
[19] Section 138(3) provides a non-exhaustive listing of the matters the court may consider in the exercise of the discretion. The most important consideration in a case such as the present will be the nature and seriousness of the improper conduct engaged in by the police officer. The authorities draw a distinction between the two extreme categories of case. At one end of the spectrum there are those improprieties which constitute "isolated and merely accidental non-compliance", and at the other end of the spectrum are cases in which the incriminating statement has been procured by a deliberate or reckless disregard of the law on the part of the law officers concerned. In the former category of case, it would ordinarily be inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds: see, in the common law context, Pollard v R [1992] HCA 69; (1992) 176 CLR 177, 203-204.
[20] The impropriety in this case was constituted by a failure to administer the caution. The right to silence is a fundamental civil liberty. That is reflected in the fact that Art 14.3 of the International Covenant on Civil and Political Rights 1966 recognises the privilege against self-incrimination and the right to silence. At the level of principle, any such impropriety is grave. It should be noted, however, that this failure did not take place during official questioning, the accused was not under investigation for criminal conduct, and the circumstances were somewhat unusual given that police were executing a federal recovery order rather than exercising any investigative or coercive power under the Northern Territory police administration legislation.
[21] It certainly cannot be said that the impropriety was deliberate or reckless in nature. This was also not an unlawfully compelled interrogation going to the very root of the administration of justice, as was considered in cases such as Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 93 ALJR 1, [100]. Nor was it a case of persistent police importunity after the subject of the questioning had repeatedly indicated he or she was exercising the right to silence, and that right was undermined and otherwise derogated: see, for example, R v FE [2013] NSWSC 1692, [61]-[64], [134]. This was a case of isolated and accidental non-compliance in which police were acting under urgency in the execution of a recovery order.
[22] In addition to those considerations, both the probative value and importance of the evidence is significant in the proceedings. The assessment of probative value requires an analysis of the extent to which the evidence could rationally affect the proof of facts. This evidence clearly has a high probative value as lies indicating consciousness of guilt. That value is not obscured by the requirement for the jury to consider and determine whether there is a reasonable alternative explanation for the lies other than an attempt to avoid criminal liability. The evidence is also significantly probative in the assessment of whether the accused was involved in aiding the principal abductors, regardless of whether she then knew where they were or whether advising the police of her involvement would have assisted them in locating the child. The importance of the evidence is apparent from the fact that the Crown has indicated it would be required to consider its position if the evidence was ruled inadmissible.
[23] The nature of the relevant offence is particularly serious. Child abduction is an offence which causes great disquiet in the community, as it did in this case. The fact that the maximum penalty for the offence with these aggravating circumstances is imprisonment for seven years, and that the nature and extent of an offender's involvement may result in a substantially lesser penalty, does not change that characterisation.
[24] The reasons for the non-compliance in this case were that the initial purpose of the attendance was not directed to any suspicion or belief of offending on the part of the accused, and the interviewing police officer understandably did not in those circumstances think to administer the caution. There was no considered intention to flout the relevant requirement. The reception of the evidence would not be unfair to the accused given the circumstances in which the statements are alleged to have been made, and in the absence of any element of compulsion. The inculpatory tendency of the statements does not constitute a relevant unfairness or prejudice. On the other side of the equation, the probative value and importance of the evidence is high. For these reasons, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in this way.
[25] The second category of evidence to which objection is taken is constituted by a series of telephone calls, text messages and emails from one of the two principal abductors to a number of devices and accounts belonging to the accused. The defence asserts that the evidence is relevant because there is no attendant evidence that the accused received the calls or read the messages, or attributed any meaning to them if she did, or made any response.
[26] Section 55 of the Evidence (National Uniform Legislation) Act provides that evidence is relevant if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. That analysis is to be undertaken on the assumption that the evidence will be accepted by the jury. This has been described as "an undemanding definition of relevance".
[27] The principal offence in this case is the taking of the child out of the custody of the child's father against his will. The offence is charged on the basis that it continues for the duration of the taking. To establish accessorial liability on the part of the accused the Crown needs to establish, as a matter of fact, that the accused either aided the principal abductors in committing the offence or did an act for the purpose of aiding the principal abductors to commit the offence. The Crown case alleges that the offence was constituted by the accused harbouring the child at her residence, and then conveying the child from the accused's residence to a house in the rural area, so the child could not be located by either the child's father or the authorities. The Crown case is necessarily that this was done in conjunction with, and in aid of, the principal abductors. That conduct constitutes the actus reus of the offence and stands distinct from the requisite mens rea constituted by intention or foresight.
[28] The defence does not make any admission going to the necessary actus reus or mens rea beyond the concession that the child stayed at the accused's house for two nights. All other matters constituting the offence are facts in issue for the purpose of the analysis.
[29] Against that background, evidence will palpably be relevant if it demonstrates that one of the principal abductors had the accused's telephone number and email address and had made repeated contact and attempts at contact with the accused from the day of the abduction until two days afterwards, and that those messages contain directions concerning counter-surveillance tactics and the destruction of evidence. At the very least, that evidence would allow inferences to be drawn of a subsisting relationship between the accused and the principal abductor and of an understanding on the part of the principal abductor that the accused was assisting in relation to matters involving the child and her mother at the material times. That is evidence which could rationally affect the probability of the fact that the accused harboured the child at her house in conjunction with, and in aid of, the principal abductors. It is not necessary that the evidence would by itself be capable of establishing that fact. It is also not necessary that the evidence could rationally affect the determination of the accused's mental state at the time of the relevant acts, although it could also clearly assist the assessment of that matter by process of inferential reasoning.
[30] The fact that the evidence may inculpate the accused is not prejudicial in the relevant sense. The defence contends that the prejudice would lie in the risk that the jury would somehow import the intentions of the principal abductor to the accused. If there is such a risk, which I do not accept, it may be ameliorated by appropriate directions.
[31] The rulings are:

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