The Queen v Tipiloura [2019] NTSC 92

Police Administration Act 1978 (NT) s 139, s 140, s 141, s 142, s 143

Bullock [2005] NSWSC 825, Grimley v The Queen [1995] NTCCA 83; (1995) 121 FLR 282, Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196, R v Karui [2016] NTSC 13, R v Miler [2015] NTSC 70, The Queen v Layt [2018] NTSC 36, referred to.

Prosecution: Office of the Director of Public Prosecutions

The Queen v Tipiloura [2019] NTSC 92

• [1] The accused is charged with one count of supplying a commercial quantity of cannabis contrary to s 5(1) of the Misuse of Drugs Act 1990 (NT). The maximum penalty for that offence is imprisonment for 14 years.
• [2] The preliminary question involves what is, in effect, an application by the Crown to admit a confession made by the accused into evidence pursuant to s 143 of the Police Administration Act 1978 (NT) in circumstances where that confession was not electronically recorded in accordance with s 142 of that Act.

Sections 142 and 143 of the Police Administration Act

• [3] Section 142 of the Police Administration Act provides, so far as is relevant for the purposes of this application:

Electronic recording of confessions and admissions

(1) Subject to section 143, evidence of a confession or admission made to a member of the Police Force by a person suspected of having committed a relevant offence is not admissible as part of the prosecution case in proceedings for a relevant offence unless:

(b) where the confession or admission was made during questioning, the questioning and anything said by the person was electronically recorded,

and the electronic recording is available to be tendered in evidence.

• [4] The history, purpose and application of the provision is described in The Queen v Layt.[1] Those purposes include avoiding protracted proceedings contesting the admissibility of alleged confessions and enhancing transparency and accountability in police investigative activity.
• [5] It is common ground in this matter that the material which the Crown seeks to adduce is a confession within the meaning of the provision, that the confession was made during questioning, that the accused was suspected of committing a relevant offence[2] at the time of that questioning, and that the confession was not electronically recorded.
• [6] The operation of s 142 of the Police Administration Act in those circumstances is to render the confession prima facie inadmissible, subject to the exercise of judicial discretion pursuant to s 143 of the Police Administration Act. That section provides:

A court may admit evidence to which this Division applies even if the requirements of this Division have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the circumstances of the case, admission of the evidence would not be contrary to the interests of justice.

• [7] The party seeking to adduce the evidence bears the onus of satisfying the court that the admission of the evidence would not be contrary to the interests of justice having regard to the nature of the non-compliance, the reasons for that non-compliance and any other relevant matter. Any factual matters relied on by the Crown for that purpose must be established on the balance of probabilities.[3] Exceptional or particular circumstances need not be established.[4]

• [8] For the purposes of this application, there is no dispute concerning the facts and conduct alleged. The nature of the non-compliance and the reasons for it was the subject of evidence from the attending police during the course of the voir dire hearing.
• [9] At approximately 7 pm on 25 May 2018 the accused and three associates left Wurrumiyanga in a five metre aluminium dinghy with the intention of collecting cannabis from Darwin and bringing it back to Wurrumiyanga. The party landed at the Buffalo Creek boat ramp approximately two hours later and collected a quantity of cannabis. The accused and each of his associates also received a one-litre bottle of Bundaberg Rum as payment for transporting the cannabis.
• [10] The party then began the voyage back to Wurrumiyanga using as guidance lights they believed to be from an oil rig off the coast adjacent to the community. At sunrise the party realised they had been mistakenly following the lights of a ship which was travelling in a different direction. The dinghy ran out of fuel and drifted into the Timor Sea throughout the course of that day. At 9 o'clock that evening a Border Force plane observed the dinghy approximately 70 nautical miles north of Charles Point. The accused and his associates signalled that they had run out of fuel. A supply ship which was the vessel closest to the dinghy was requested to provide assistance.
• [11] Shortly after midnight the supply ship reached the dinghy and took the accused and his associates on board. At approximately 7 o'clock the following morning a Water Police vessel crewed by Sergeant John Pini (Pini), Sergeant Andrew Hocking (Hocking) and another police officer rendezvoused with the supply vessel.
• [12] Police searched the dinghy and found four packages containing cannabis with a total weight of approximately 600 grams and four one-litre bottles of Bundaberg Rum. The accused and his associates were then transferred from the supply vessel to the Water Police vessel.
• [13] Hocking then administered the caution and provided the information required by s 140 of the Police Administration Act individually to the accused and his associates. Those administrations took place in the cabin of the police vessel. Water Police are not equipped with body worn video. Hocking recorded the administration of the caution in accordance with s 141 of the Police Administration Act using a digital handheld recorder in the possession of the other police officer on the vessel. After he had done so he handed the recorder back to the other officer. At that point Hocking did not intend asking any questions about the drug-related offending because he did not think the Water Police would have carriage of that matter.
• [14] An interpreter was not used for the administration of the caution or at any other time during the dealings with the accused and his associates. Hocking's evidence in that respect was that the manner in which the accused and his associates responded to questions indicated they had an adequate understanding of the English language.
• [15] Approximately 15 to 20 minutes after the administration of the cautions, Hocking then commenced to question each of the accused and his associates individually. The purpose of that questioning was to ascertain the condition of the vessel and the circumstances in which the party had come to require rescue in compliance with the requirements of the marine legislation. He did not believe he needed to record conversations conducted for that purpose.
• [16] The conversation with the accused was of approximately one or two minutes' duration. At the commencement of the conversation Hocking advised the accused that he was not obliged to say anything. That advice was given in accordance with his understanding that he did not have power to direct a person to answer questions for the purpose of the marine legislation. He then asked the accused at what time they had commenced the voyage and for what purpose. In response to the second question the accused stated they had travelled to Darwin to collect cannabis and alcohol. Hocking then asked a series of further questions directed to who they collected the cannabis and alcohol from, where they had collected it from, and whether they had received any payment. During the course of that questioning the accused made admissions to collecting the cannabis for transportation back to the Tiwi Islands and receiving the Bundaberg Rum as payment. Hocking took notes of the accused's responses. Those notes are consistent with the evidence he gave during the course of the voir dire hearing.
• [17] Hocking accepted that from the time of the third question his enquiries were directed to drug-related offending rather than to the purpose of the marine legislation. His purpose in asking those questions was to determine whether drug-related offences had been committed. Hocking's evidence was that he did not think to retrieve the handheld recorder from the other officer to record those admissions. The matter did not cross his mind at the time, and that was a mistake on his part rather than a deliberate omission.
• [18] Although Pini did not participate in the questioning of the accused and his associates, given the size and configuration of the police vessel he could hear what Hocking was asking each of them and their responses. He understood that in the latter part of the conversation with the accused Hocking was eliciting information in relation to drug-related offending. He understood the purpose of that questioning was to provide that information to the police who would assume carriage of the investigation of those matters. During the course of those conversations Pini could hear the accused and his associates saying that they had picked up the drugs from a beach in Darwin, and he was aware on that basis that certain admissions were being made.
• [19] Pini was also generally aware at that time of the requirements of s 142 of the Police Administration Act, although it did not occur to him at the time that the admissions should be recorded. It was only with the benefit of hindsight that he realised police should have done so. Pini attributed that oversight in part to the fact that it was his expectation that once they docked in Darwin the investigation into the drug-related offending would be undertaken by another division of the Police Force. That expectation and understanding was based on the fact that Water Police were rarely tasked to investigate drug crimes.
• [20] The police vessel docked in Darwin at 8.50 am the same day. Because of a relevant criminal history, one of the party was arrested by general duties officers who met the police vessel when it docked. The accused and his other associates were given notices to appear in court and released. The associate who was arrested subsequently participated in a record of interview with police and made admissions concerning the transportation of the cannabis which implicated the accused.
• [21] As it transpired, responsibility for the investigation of the accused and his other associates was subsequently allocated to the Water Police. Neither Pini nor Hocking requested the accused to participate in an electronic record of interview after their arrival in Darwin. That was due to the fact that they were involved that day in an annual search and rescue exercise involving a number of organisations which had been scheduled for some months, and for which Pini was the coordinating officer. Pini did not subsequently conduct a recorded interview with the accused or offer the accused an opportunity to participate in a recorded interview, and did not ask police in Wurrumiyanga to do so.

• [22] The discretion is cast in broad terms. A court may admit the evidence if to do so would not be contrary to the interests of justice. In making that determination, the court may have regard not only to the nature of and reasons for the non-compliance, but also to any other relevant matter. The "interests of justice" involve a range of considerations in this context. Those considerations include whether the voluntariness of the confession is unfairly compromised and matters of public policy.
• [23] The reception of a confession is not unfair because it has inculpatory effect. There is no suggestion in this case that the alleged confession was the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, or that it was preceded by an inducement or threat by the police officer concerned. It was made relatively spontaneously and during the course of a very brief period of questioning. That assessment of voluntariness is directed to the question of fairness, rather than to the truth of the confession.[5]
• [24] So far as considerations of public policy are concerned, it may be accepted that confessions which are made as the result of acts in breach of statute may warrant the rejection of the evidence. There was no unlawful conduct or breach of a statutory protection in this case. The first public interest purpose of s 142 of the Police Administration Act is to obviate disputes concerning the admissibility of confessions and admissions. It is not unlawful for a police officer not to make an electronic recording of a confession. Rather, s 142 of the Police Administration Act renders a confession inadmissible unless it has been electronically recorded and the recording is available to be tendered in evidence, subject to the exercise of the discretion. The second public interest purpose is to promote transparency, but there is no suggestion of inappropriate police conduct in this case beyond the failure to record the confession.
• [25] The "reasonable excuse" exception under the Western Australian legislation was considered by the High Court in Nicholls v The Queen.[6] Although the Western Australian provision is structured differently to s 143 of the Police Administration Act, it gives rise to similar considerations. As to those considerations, McHugh J stated (footnotes omitted):[7]

The focus of any inquiry directed to the application of the 'reasonable excuse' exception must take account of the conduct of the police, as well as the fairness or otherwise to the accused of permitting the admissions to be admitted. In construing similar provisions in MDR, Wicks J held that the conduct of the police officers was relevant to the question whether it would be 'in the interests of justice' to admit evidence of admissions by the accused. His Honour thought relevant matters included whether non-compliance with the provisions was deliberate or the product of a reckless disregard of the provisions or was inadvertent or otherwise excusable. Such matters are also relevant in determining whether there was a 'reasonable excuse' for not recording the admission.

• [26] On the basis of the evidence given during the course of the voir dire hearing, it may be accepted that the non-compliance in this case was inadvertent rather than deliberate or reckless. When the course of questioning commenced the purpose was to elicit the information required by the marine legislation rather than the investigation of drug-related offending. The confession was in the first instance a spontaneous response to a question concerning the purpose of the voyage.[8] Neither Pini nor Hocking anticipated that they would have carriage of an investigation into drug-related offending. Although both were generally aware of the requirement imposed by s 142 of the Police Administration Act, there was no deliberate or mindful attempt to circumvent that requirement.
• [27] The accused identifies a number of matters which he says militate against the admission of the confession.
• [28] The first relates to the conduct of police, and is essentially directed to public policy considerations. Police had the means to record the confessions, as had been done with the administration of the caution. Police were aware of the requirement imposed by s 142 of the Police Administration Act. The failure to do so did not arise from any misapprehension. The confession was not spontaneous or unexpected in the sense that it was first made in response to a question concerning the purpose of the voyage which might have been expected to elicit a confession, and the questioning was thereafter directed specifically to the drug-related offending. No attempt was subsequently made to confirm the confession in an electronically recorded interview. While those criticisms are no doubt valid, in my assessment they do not constitute the type of unlawful conduct or flagrant breach which would render the admission of the evidence contrary to the interests of justice. Nor was this a case in which investigating police intentionally chose not to record a relevant conversation such that the admission of the confessional statements would be, in effect, to "make up for deficiencies in the police investigation".[9]
• [29] The second matter raised by the accused is that a consequence of the failure to record the admission is that the full context of the conversation in which it was made is unclear. The notes taken by Hocking are said to be "inadequate to convey the subtleties of the conversation in terms of word choice and tone". The accused relies in that respect on the decision of this Court in R v Karui.[10] The charge in that case was one of sexual intercourse without consent. The police arrested the accused and he participated in a formal interview with police which was recorded and ran for 30 minutes, during which he denied having sexual intercourse with the complainant. The accused's DNA was not found on the victim or in the bedroom where the rape was alleged to have taken place. There were some doubts about the complainant's reliability.
• [30] Later that day the accused was transported to Darwin on a police plane. The accompanying officer reported that during the course of the flight the accused stated that he had gone to the house in question to visit his grandmother; stated that he "never put my fingers in [the complainant]"; asked what would happen if the witnesses did not come to court; and asked whether it was possible to extract DNA if there was no semen. Although the accused had been cautioned prior to the conduct of the formal interview, he had not been further cautioned before the conversation which took place on the aircraft.
• [31] That conversation extended over approximately 15 minutes. The Court found that it was difficult to gain an understanding of the flow of the conversation over that period, that the notes taken by the accompanying police officer were in some parts lacking in clarity, that a number of the statements had little or no probative value, and that the statements which had any probative value could only operate as implied admissions rather than confessions. The Court's ultimate refusal to admit the admissions was based on the fact that they were made as part of a more extended conversation, the context and other content of which had not been established and could not be tested. Given the absence of evidence of the full context, the jury could be greatly disadvantaged in assessing the evidence with consequent prejudice to the fair trial of the accused.[11]
• [32] Those concerns do not present in this case. The conversation was relatively brief and consisted of some five questions and answers; Hocking's evidence of the context may be effectively tested at trial; and the statements made by the accused are confessional in nature rather than implied admissions which are heavily dependent on context to permit a proper assessment. Given the length and content of the relevant interview, it also cannot be said that the absence of an electronic recording deprives the accused in any meaningful or material way of the opportunity to challenge police as to the manner of the questioning.[12] In particular, the accused did not give evidence during the course of the voir dire hearing and there is no suggestion on his behalf that the nature and content of the interview was anything other than as described by the attending police officers.
• [33] The third matter relied on by the accused is the fact that no attempt was made by police to ascertain whether the accused required or wished to have the assistance of an interpreter prior to the administration of the caution or the conduct of the subsequent questioning. Hocking's evidence in relation to that matter is described above. The earlier recording of the administration of the caution was received into evidence during the course of the voir dire hearing. Although the accused's responses in that recording are monosyllabic, that does not lead necessarily to the conclusion that his facility with the English language was such that unfairness arose as a result. No evidence to that effect was called during the course of the voir dire hearing.

• [34] The nature of the non-compliance was a failure to record a conversation during which the accused allegedly made frank and uncomplicated confessions to drug-related offending. The reasons for that non-compliance were that the initial purpose of the interview was not directed to drug-related offending, and the interviewing police officer did not in those circumstances think to record the conversation after the confessions were first made. There was no considered intention to flout the relevant statutory provision. The reception of the evidence would not be unfair to the accused given the circumstances in which the confession is alleged to have been made, and would not prejudice the fair trial of the charge.
• [35] For these reasons, I am satisfied that the admission of the evidence would not be "contrary to the interests of justice" within the meaning of s 143 of the Police Administration Act.

• [36] The evidence from police officers concerning the confession allegedly made by the accused on 27 May 2018 is admissible in the trial.

[1] The Queen v Layt [2018] NTSC 36 at [24]- [35].

[2] See definition of "relevant offence": Police Administration Act, s 139.

[3] Cf Crimes Act 1958 (Vic), s 464H(2); Criminal Code (WA), s 570D; Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 at [217].

[4] Evidence (National Uniform Legislation) Act 2011 (NT) s 142.

[5] Evidence (National Uniform Legislation) Act 2011 (NT) s 189(3).

[6] Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196.

[8] Although the confession was allegedly made during the course of official police questioning, the question to which the initial confession was made was not directed or designed to elicit a response in relation to drug-related offending. The confession was made spontaneously in that sense. As to the admissibility of spontaneous confessions generally, see Bullock [2005] NSWSC 825.

[9] Cf R v Miler [2015] NTSC 70. That case was complicated by the fact that the police evidence concerning the accused's status as a suspect had changed over time, and that the other two men who had formed part of the group identified by a security guard as containing the perpetrator could not be located.

[10] R v Karui [2016] NTSC 13.

[11] R v Karui [2016] NTSC 13 at [48]- [49].

[12] Cf Grimley v The Queen [1995] NTCCA 83; (1995) 121 FLR 282 at 302-303.