R v Derrick Gabriel Scc [1986] ACTSC 105 (26 November 1986)

SUPREME COURT OF THE ACT

THE QUEEN v. DERRICK GABRIEL
S.C.C. No. 18 of 1986
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Criminal Law - evidence - confessions - voluntarily given - whether obtained during unlawful detention - delay in taking arrested person before a justice - discretion of trial judge to exclude evidence of confessions.

Criminal law - police powers - delay in taking arrested person before a justice - delay while person interviewed - trial - admissibility of record of interview - discretion to exclude on ground of unlawful detention - Police Ordinance 1927 s.24(1).

MacPherson v. The Queen [1981] HCA 46; (1981) 147 CLR 512

Bales v. Parmeter (1935) 35 NSWSR 182 at p.190

Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1

Williams v. The Queen [1987] HCA 36; (1986) 66 ALR 385

HEARING

CANBERRA
26:11:1986

DECISION

This morning I gave a ruling on two points of evidence, and I said that I would give my reasons after the jury retired. This I shall now do although, having regard to some of the issues involved, the reasons will not be as lengthy nor as precisely formulated as they might have been.

2. The Crown tendered, and objection was taken, to evidence of two conversations between police officers and the accused. The first conversation took place at 11.15 a.m. on Friday, 29 November 1985 at the Canberra Police Station between Detective Matruglio and the accused. It is recorded in exhibit X2, a handwritten document of some two pages. The other conversation was recorded in what is usually called a record of interview, a typewritten document. It records a conversation between 11.52 a.m. between Senior Constable Matruglio and the accused and concluding at 3.16 p.m. That conversation also occurred in the Canberra Police Station.

3. There was a lengthy voir dire hearing during which the accused, as well as several police officers, gave evidence. The accused made allegations that before and during the conversations in question he was subject to assaults and other ill-treatment at the hands of the police officers. The accused was not an impressive witness, and many of the allegations about the behaviour of the police officers were not put to them when they gave evidence. It was a classic case for the application of the rule in Brown v. Dunn and I was satisfied, on the balance of probabilities, that the accused was not assaulted or badly treated as he alleged.

4. The facts proved for the purpose of the voir dire hearing are that the accused was arrested after something in the nature of a scuffle at the service station referred to in evidence as the Mobil Times Service Station in Cooyong Street, Braddon. It is unnecessary to decide by whom precisely he was arrested and for what precise offence, though the evidence does go to indicate, I think, that he was probably arrested twice; by Constable White initially for the suspected assaults that had taken place on other persons at Garema Place, and by Sergeant Borrow after the accused had escaped, virtually, from the custody of Constable White. I am not sure of the suspected offence which Sergeant Borrow had in mind when he apprehended the accused.

5. At any rate, Sergeant Borrow who, according to the evidence as best I understand it, was the officer in charge of the police station in Civic at the time, arranged for the accused to be taken into custody and held for some time at a holding room back at the police station until Sergeant Borrow himself departed at about 8 a.m. to go to the Royal Canberra Hospital to inquire as to the welfare of the persons allegedly assaulted.

6. In my view, the departure of Sergeant Borrow did not, as a matter of law, prevent the accused remaining in the custody of the sergeant, even though the sergeant was absent from the police station for about an hour. The sergeant returned at about 9 a.m. At some later stage the accused himself was taken to the Canberra Hospital for observation as to his own injuries, or alleged injuries. The evidence on this is extremely scanty but he was returned at a later stage to the Canberra Police Station and at 11 a.m. or thereabouts he was approached by Detective Matruglio and the conversations which were recorded, as I have indicated, took place.

7. It should be observed that the accused in his evidence on the voir dire denied that the record of interview took place but it is now recognized that that denial did not disentitle the accused to a voir dire hearing nor to a consideration of the factors relating to the admissibility of confessional statements. The evidence as to the whole of the surrounding circumstances was, in my view, to be taken into consideration including the allegation on the part of the accused that the conversations did not take place. If authority is needed for that proposition it is to be found in MacPherson v. The Queen [1981] HCA 46; (1981) 147 CLR 512.

8. In all the circumstances I was satisfied on the balance of probabilities that the accused participated in the conversations in question in the exercise of a free choice and that he acted voluntarily.

9. The further question arose, however, as to whether in the exercise of discretion the evidence as to these conversations should be excluded.

10. Firstly, I deal with a submission that the accused was unlawfully detained at the Canberra Police Station from the time of his arrival there prior to 6 a.m. It was argued that there had been a failure to comply with s.24(1) of the Police Ordinance, 1927, which at the time provided as follows:

"24(1) Any person apprehended without a warrant

shall be forthwith delivered into the custody of
the member of the Police Force who is in charge of
the nearest police station, in order that the
person may be secured until he can be brought
before a magistrate to be dealt with according to
law, or, if the person has been apprehended for any
offence against this Ordinance, or any offence
punishable upon summary conviction, or if in any
other case the member of the Police Force deems it
prudent to take bail, until he has given bail for
his appearance before a magistrate."

11. The evidence before me did not satisfy me that the accused should have been considered eligible to be granted what is called police bail, nor was it submitted that the accused should have been granted police bail. The submission was founded, rather, on certain evidence which it was said should lead me to the conclusion that the person in charge of the police station was not Sergeant Borrow but somebody else referred to as the charge sergeant. However, the evidence on this aspect was difficult to understand and incomplete to say the least. The evidence given by Sergeant Borrow himself I accept and it was to the effect that he was in charge of the police station, and as I have said, in my view, the accused at all relevant times remained within his custody. There was therefore no failure to comply with s.24 of the Police Ordinance as it then stood.

12. The further submission was in the alternative, and it was that at least from 11 o'clock or thereabouts, the accused was unlawfully detained or, to put it another way, no longer lawfully detained in that he had not been brought before a justice to be dealt with according to law. Therefore, it was submitted, the court's discretion should, for that reason, be exercised to exclude evidence of confessions obtained during that unlawful custody.

13. The law on this subject has been the subject of consideration recently but, in my view, it has not really changed at all since the pronouncement of Sir Frederick Jordan some 50 years ago in Bales v. Parmeter (1935) 35 NSWSR 182 at p 190 where the Chief Justice of New South Wales said:

"If a person has been arrested, and is in process
of being brought before a magistrate questioning
within limits is regarded as proper in New South
Wales indeed, within very narrow limits, it is
regarded as proper in England; but a police officer
has no more authority to restrain the liberty of a
suspected person for the purpose, not of taking him
before a magistrate, but of interrogating him, than
he has of restraining the liberty of a person who
may be supposed to be capable of supplying
information as a witness."

14. In my view, and indeed it was conceded and properly conceded by the Crown Prosecutor in the present case, that at some time after 11 a.m. on the day in question, further detention of the accused by the police was unlawful. The events occurred on the morning of a Thursday and no reason was advanced why the accused could not have been brought before a justice at the Law Courts Building sometime during the course of the morning before then. The court building is virtually adjacent to the police station, and a justice, in the absence of any evidence to the contrary, was presumably available.

15. But the question arises, how is the discretion to exclude the admissible evidence to be exercised? The decision of the High Court in the decision of Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1, lays down broadly that admissible confessional material is to be excluded when to admit it would not be fair to the accused or when on the balance of relevant competing factors the public interest requires its exclusion.

16. Nevertheless, there seems to have been a division of opinion in the High Court as to whether there is a general principle that wherever confessional material is obtained from a person in unlawful custody public interest requires that the discretion should be exercised in favour of the accused. In Cleland, the Chief Justice, with whom Wilson J. agreed, took the view, as expressed in the headnote, that it will be only in a very exceptional case that a voluntary confession which it would not be unfair to the accused to admit could be rejected on the ground of public interest.

17. On the other hand, the other members of the Court favoured the view that public interest considerations would generally require the discretion to be exercised in favour of the accused if a confession were made whilst in unlawful custody. Murphy J. said at p.16:

"Where a confession was obtained by unlawful or
improper conduct then, in my opinion, the evidence
should generally be excluded."

He continued:

"A confession or admission resulting from an
interrogation
interrogation whilst in unlawful custody should
ordinarily be rejected on public policy grounds.
There are very powerful social considerations in
deterring police from unlawfully imprisoning
persons. The general rule may be departed from if
the unlawful or improper conduct was technical or
slight. A "rule of reason" also should be
followed. Evidence obtained by unlawful or
improper conduct should be almost automatically
excluded on trials of minor offences, but otherwise
in trials for the most serious crimes."

Deane J. said at p.27:

". . . where a confession has been procured while the
accused was unlawfully imprisoned by the police,
special circumstances, such as the illegality being
slight, would commonly need to exist before the
balancing of considerations of public policy would
fail to favour the exclusion of evidence of the
confession."

Dawson J., at p.35, looking at the questions of voluntariness and fairness, rather than public policy, said the following (which would not appear to be entirely consonant with the headnote):

"It is not, however, difficult to see that little
is ordinarily required to persuade a trial judge
that a confession obtained whilst an accused person
is in custody, particularly unlawful custody, is
not shown to be voluntary or is such that it would
be unfair to the accused to admit it in evidence
against him."

18. The nature of the discretion to exclude evidence obtained from a person in unlawful custody was further considered in the more recent decision of Williams v. The Queen [1987] HCA 36; (1986) 66 ALR 385. The Chief Justice expressed the following view at p 390:

". . . the fact that a confession was unlawfully
obtained does not lead to the automatic rejection
of the evidence, although evidence of the
confession may, most exceptionally, be rejected for
that reason by the judge in the exercise of his
discretion."

19. The Chief Justice expressed the further view that the trial judge had misdirected himself if he thought that the fact that the accused was questioned about matters other than those for which he had been arrested made his detention unlawful.

20. All the judges in Williams' case, however, considered that the detention was unlawful because the accused had not been brought before a justice as soon as practicable. The four judges apart from the Chief Justice did not appear to express a view one way or the other as to whether the learned trial judge had exercised his discretion wrongly in rejecting the evidence of the confession.

21. It seems to me for the purpose of the present case that it is not necessary to have to decide between the conflict of views represented on the one hand, perhaps, by Gibbs, CJ. and on the other hand, by Deane J. and Murphy J. There are factors in the present case which lead me to a conclusion that it would be unfair to allow the record of interview to go into evidence. I would add that the same factors would lead me to reject the record of interview on public interest grounds. It is established as a matter of fact that the accused was taken into custody at 5.30 a.m. after what would have to be considered a sleepless night, after consumption of a considerable amount of alcohol and after being injured to the extent that it was considered necessary for him to go to hospital for observation. He was held until the first conversation occurred just after 11 o'clock, and he was held continuously in custody and questioned until 3.30 p.m. or thereabouts. All that, in my view, leads to a likelihood that although on the balance of probabilities the accused participated in the recorded interview voluntarily, the reliability of what he said was affected by fatigue and like factors.

22. On the question of discretion, it is also relevant to take into account that no reasons were ever proffered by the police as to why the accused was not taken before a magistrate. What occurred seems to have been in accordance with what has been regarded hitherto as normal police practice, that is, to conduct an interview of an arrested person and particularly an interview which is recorded in a formal way, before the person is charged. There is also doubt at least as to whether the accused was in the custody of the officer in charge of the police station under s.24 of the Police Ordinance 1924, although I have already decided on the balance of probabilities that he was in the custody of the officer in charge. However, all those factors led me to consider that in the exercise of my discretion I should reject the record of interview for unfairness, and on the public policy ground.

23. As to the conversation which took place at 11.15, it occurred shortly after the accused returned from hospital and was brief in duration. I thought that evidence of that conversation would not involve any unfairness if it were admitted and I so ruled.