R v Derek James Gabriel [1995] ACTSC 96 (28 August 1995)

SUPREME COURT OF THE ACT

THE QUEEN v. DEREK JAMES GABRIEL
No. SCC118 of 1994
Number of pages - 3
Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Evidence - discretion to exclude videotaped evidence of statements to police - Crimes Act 1914 - statutory duty for police to give caution - at what stage duty arises - whether putting allegations is part of questioning - probative weight of lies told to police - prejudicial effect - unfairness.

Crimes Act 1914

Butera v. Director of Public Prosecutions (Victoria) [1987] HCA 58; (1987) 164 CLR 180

HEARING

CANBERRA, 14-24 August 1995
28:8:1995

Counsel for the Prosecution: Mr. G. Farmer

Solicitors for the Prosecution: ACT Director of Public

Prosecutions

Counsel for the Defence: Mr. T. O'Donnell

Solicitors for the Defence: ACT Legal Aid Office

DECISION

MILES CJ At the commencement of the trial the prosecution sought a ruling on the admissibility of conversations between the accused and a number of members of the Australian Federal Police at the City Police Station in the early hours of 21 July 1994. I ruled that the evidence, although admissible, should not go to the jury. I said that I would give my reasons later.

2. The evidence came by way of video tapes of the police conducting an interview with the accused and later charging him, together with a transcript of the conversations for the assistance of the jury in accordance with the practice approved by the High Court in Butera v. Director of Public Prosecutions (Victoria) [1987] HCA 58; (1987) 164 CLR 180.

3. Mr. O'Donnell for the accused did not seek to have the evidence ruled inadmissible on the ground that it constituted a confession or contained admissions made involuntarily. Indeed, in a sense the situation was to the contrary because the accused throughout the interview repeatedly maintained that he knew nothing abut the allegations put to him by the interviewers. The prosecution sought to have the videos admitted into evidence in the trial as false denials by the accused as to his presence at the scene, denials which were squarely in the face of the admissions made on his behalf when the trial started.

4. The chief objection to the evidence was that the interviewing police did not at the commencement of the interview administer a caution.

5. The statutory law relating to the investigation of serious criminal offences in the Australian Capital Territory is contained within Part IC of the Crimes Act 1914, an Act of the Commonwealth Parliament.

6. Part IC is headed "Investigation of Commonwealth Offences". Tucked away in sub-s.23A(6) is a provision that:

"If an offence against a law of the Australian Capital Territory is
punishable by imprisonment for a period exceeding 12 months and the
investigating official concerned is a member or special member of
the Australian Federal Police, this Part applies to that offence as
if:
(a) references to Commonwealth offences included references to
that offence; and
(b) references to a law of the Commonwealth included references to
a law of that Territory."

7. This provision is in striking contrast to the definition of "offence" in Part 1AA of the Crimes Act 1914, which is concerned with search warrants and powers of arrest, and which defines "offence" to mean an offence against a law of the Commonwealth (other than the Defence Force Discipline Act (1982)) or an offence against a law of a Territory other than the Australian Capital Territory (emphasis added).

8. Sub-section 23F(1) of the Crimes Act 1914 provides as follows:

"Subject to subsection (3), if a person is under arrest for a
Commonwealth offence, an investigating official must, before
starting to question the person, caution the person that he or she
does not have to say or do anything, but that anything the person
does say or do may be used in evidence."

9. Tucked away in sub-s.23B(6) is the further provision:

"In this Part, a reference to questioning a person is a reference
to questioning the person, or carrying out an investigation (in
which the person participates), to investigate the involvement (if
any) of the person in any Commonwealth offence (including an
offence for which the person is not under arrest).

10. These provisions are no doubt confusing to the Australian public and to the residents of the Australian Capital Territory and may not be well understood even by members of the legal profession and the Police Force.

11. I was told that it is standard Australian Federal Police practice since the introduction of Part 1C not to give a caution until the allegations into which the investigation is being held have been put to the person being questioned and until he or she indicates that he or she understands the allegations put. Apparently it is considered that putting the allegations is not part of the questioning of the person as defined by sub-s.23B(6). In the present case a considerable time and effort was spent by the investigating police putting allegations to the accused, asking him whether he understood them, and being told repeatedly that he did not understand them. It was not until question 39 that the interviewing police satisfied themselves that the accused understood the allegations and put the caution to him.

12. I have difficulty with the interpretation of sub-s.23B(6) upon which the practice is said to be founded. However, it is not necessary to give a considered opinion on that question. In most cases the problem may be avoided by excluding from the evidence any part of the interview which precedes the caution. The particular feature of the present case is that in addition to stating repeatedly prior to the caution that he did not understand the allegations, the accused thereafter continued to protest that he did not understand the allegations. Furthermore, he repeatedly stated that he did not wish to answer questions and that he wanted a lawyer present during the interview. The accused may have been deliberately obtuse in purporting not to understand the allegations. Any question whether that was so and whether such dissembling entitled the police to continue to question him also does not require to be answered. The fact is that the accused's professed lack of understanding prior to the caution set the scene for what followed the caution. On five occasions following the caution the accused indicated that he did not wish to be questioned, at least until a solicitor was present. Efforts to obtain a solicitor made by the accused via a telephone supplied by the police were unsuccessful, not surprisingly, since it was 2.30 in the morning. It was only after his own successful efforts to obtain a solicitor that the accused appeared to resign himself to answering questions.

13. These matters may or may not have been sufficient to exclude the evidence of what was said at the Police Station from the consideration of the jury. However, there are other matters.

14. The probative weight of what the accused said to the police was confined to the lies he told them about his absence from the scene of the alleged crimes. Out of court lies may of course be relied upon by the prosecution, but a very strict warning has to be given to the jury as to the conditions on which they may accept the lies as supportive of the prosecution case. Here there was a person in custody in a Police Station who had indicated repeatedly that he did not understand the allegations against him, who said repeatedly that he did not want to answer questions and who had been unsuccessful in obtaining the attendance of a solicitor. The probative value of his false denials in those circumstances could not have been very high.

15. On the other hand, there was a good deal of prejudicial material in the interview which also had very little probative weight. The videotape showed the accused aggressive, abusive, profane and possibly affected by liquor or other drug. There were references by him to Methadone and drugs, references to injuries suffered in another incident and references to previous bail. I should acknowledge that most, if not all, of this prejudicial material was volunteered by the accused and was not elicited by the questions or the nature of the questioning by the police.

16. In all the circumstances I was of the opinion that the probative value of the contents of the interview and the charging of the accused was outweighed by its likely prejudicial effect and that to admit the evidence would have been unfair to the accused. Accordingly, the evidence was excluded from the consideration of the jury.