The Queen v Hardy [2001] ACTSC 103 (2 November 2001)

Last Updated: 19 March 2002

THE QUEEN v DARREN JEFFREY HARDY [2001] ACTSC 103 ( 2 November 2001)

CATCHWORDS

ADMISSIBILITY OF EVIDENCE - record of interview - whether accused unlawfully detained - he was not - record of interview admissible.

Evidence Act 1995 (Cth), ss 90, 138, 189

Intoxicated Persons (Care and Protection) Act 1994, s 4

Crimes Act 1914 (Cth), ss 23B(2), 23C, 23R, Part 1C

Crimes Amendment (Detention after Arrest) Act 1997 (NSW)

Crimes Act 1900 (NSW), s 424A

Evidence Act 1995 (NSW), s 138

Crimes Act 1900 (ACT), s 349W

Christie v Leachinsky [1947] UKHL 2; [1947] AC 573

Williams v R [1987] HCA 36; (1986) 161 CLR 278

R v Ireland [1970] HCA 21; (1970) 126 CLR 321

Sammak v R (1993) 2 Tas R 339

R v Pearcey (1985) 63 ACTR 12

DPP v Farr [2001] NSWSC 3

Santos v R [1987] HCA 55; (1987) 61 ALJR 668

Heiss v R [1992] NTSC 77; (1992) 111 FLR 362

R v Davidson [2000] NSWSC 187

R v Ye Zhang [2000] NSWSC 1099

R v McKay (1998) 135 ACTR 29; 148 FLR 212

No. SCC 111 of 2001

Judge: Higgins J

Supreme Court of the ACT

Date: 2 November 2001

IN THE SUPREME COURT OF THE )

) No. SCC 111 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

Plaintiff

AND: DARREN JEFFREY HARDY

Defendant

REASONS

Judge: Higgins J

Date: 2 November 2001

Place: Canberra

1. On 21 February 2001, the accused, Darren Jeffrey Hardy, participated in a video and audio taped record of interview.

2. It commenced at 8:15am and concluded at 9:17am. The interrogators, Detective Constables Julian Webber and Hamish Smith, between them asked some 487 questions.

3. At the conclusion of the record of interview the accused was charged with a number of offences. Those offences include those contained in the indictment presented on 8 October 2001.

4. The subject matter of the interrogation was introduced by DC Webber in the second question:

"Okay. Darren, Constable Smith and I are making inquiries in (sic) the allegation that you, on Saturday the twenty third of December, two thousand did participate in a burglary of thirty four Woronora Street in Kaleen."

5. Another matter not relevant for present purposes was also referred to.

6. Mr Everson of counsel, for the accused, applied, pursuant to s 189 of the Evidence Act 1995 (Cth), for determination of a "preliminary question" being whether the evidence of any of the questions and answers contained in the record of interview:

"should be admitted (whether in the exercise of a discretion or not)."

(s 189(1)(a))

7. As this was a jury trial the application was, as required by s 189(2), heard in the absence of the jury. Indeed, although the accused was arraigned and a plea taken by consent, this application preceded the selection of the jury.

8. The Crown case was that, about 9:55pm on 23 December 2000, premises at 34 Woronora Street, Kaleen were forcibly entered. Two persons were seen after they had taken some property from the premises. They were disturbed by a passer-by and fled with some of the property, leaving the larger items, TV, VCR and stereo on the lawn. Jewellery and a remote control for one of those items was later found to be missing.

9. The two offenders then got into a vehicle, being a white Commodore sedan. It left the area. It seems that there was, or may have been, a driver already in the vehicle.

10. A short time later it was seen to enter the driveway of 88 Onkaparinga Crescent, Kaleen, just around the corner from Woronora Street and parked in the backyard, out of sight of the roadway.

11. Police were called. DC Webber and DC Smith arrived at 36 Woronora Street at about 10:06pm. They were informed of the above matters. They attended at 88 Onkaparinka Crescent at about 10:10pm.

12. There they observed a white Commodore sedan in the backyard, behind the gates leading to the rear of the premises. Checks revealed the registration plates did not belong to the vehicle. It had been reported stolen the previous day.

13. The occupant of the premises, a Ms Baker, told DC Webber that the vehicle belonged to a person called "Paul". A man also came to the front door. He identified himself as Adrian Stephens.

14. With Ms Baker's consent, the premises were searched shortly after 10:50pm.

15. The accused was seen in the lounge room area. He and Mr Stephens denied any involvement with the Commodore.

16. A third male, identified as "Budgie," was found asleep in one of the bedrooms. He was not questioned, however.

17. On Sunday 24 December 2000, at about 2pm, Ms Baker attended at Belconnen Police Station. She had with her six gold bracelets and a chain bracelet. She said that, after police left, the three men had produced the jewellery from a beanbag in her son's room. That jewellery was part of the property stolen on 23 December 2000.

18. There was a partial palm print of the accused on the driver's side rear panel of the Commodore.

19. During the record of interview the accused volunteered that he had spoken to the driver of the Commodore, given him some cigarettes and a lighter earlier in the evening at a time when the driver was in the vehicle.

20. The accused was not spoken to by police between 23 December 2000 and 21 February 2001.

21. At about 10:00pm on 20 February 2001 the accused was taken into custody, having been found intoxicated in a motor vehicle in a public place. He was lodged in the Canberra City Watchhouse at 10:50pm.

22. That apprehension had nothing to do with the burglary investigation. It was effected by a Constable Astley pursuant to s 4(1)(c) of the Intoxicated Persons (Care and Protection) Act 1994. That provides:

"(1) Where a police officer believes on reasonable grounds that a person in a public place is intoxicated and is, because of that intoxication-

(c) incapable of protecting himself or herself from physical harm;

the officer may take the person into custody and detain him or her."

The detention ends when, as provided for by s 4(2):

"A person detained under subsection (1) shall be released-

(a) when he or she ceases to be intoxicated; or

(b) at the expiration of the period of 8 hours after he or she is so detained;

whichever is earlier."

23. There is, also, a provision that a person is not be be permitted to remain at a police station:

" . . .for more than 12 hours after the person is first detained."

24. The latter provision is used to enable persons who are eligible to be released to remain in the police station on a voluntary basis if, for example, they are still asleep or if the hour is such that they might be at risk or inconvenienced if required to leave.

25. In the present case the detention period applicable to the accused expired at 6:00am. The period he could remain on a voluntary basis would have expired at 10am.

26. However, as DC Webber deposed in evidence on the voir dire, there was, and had for some considerable time been, an "alert" on the police computer system. This "alert" requested any police officer finding the accused to "notify" DC Webber and/or DC Smith. Thus, at 3:30am on 21 February 2001, DC Webber was notified that the accused was being detained.

27. It is not clear to me what DC Webber then believed to be the time at which the detention period was to end. Nevertheless, he attended the watchhouse with DC Smith at about 6:30am. He was briefed by the custody sergeant, Sergeant Wheeler, on the details known to him concerning the accused's apprehension and detention. DC Webber and DC Smith were then permitted by Sergeant Wheeler to speak with the accused.

28. This DC Webber and DC Smith did at about 7am. DC Webber asked the accused if he was prepared to be interviewed about the burglary in question. The accused agreed. DC Webber then suggested that the accused might like to sleep for a further hour, after which the interview would be commenced. The accused agreed.

29. At about 8am, DC Webber and DC Smith returned and escorted the accused upstairs. The interview then took place.

30. There is no complaint from Mr Everson concerning the legality of the detention of the accused in the Watchhouse. Both Mr Everson and Mr Whybrow, for the Crown, agree that the detention period ended, at the latest, at 6am.

31. Further, from the record of interview, it appears that sometime before 6:30am, the accused was told by the then Watchhouse Sergeant (not Sgt Wheeler) that he could go but he declined the offer as it was "very early and he was still tired." It seems that the Watchhouse Sergeant from whom Sgt Wheeler took over duty permitted the accused to remain in the Watchhouse though he was no longer subject to detention.

32. Nor is there any complaint of impropriety in relation to the interview itself. Appropriate warnings and notification of rights were given. It was properly recorded. The content is not disputed. It is agreed that not all, indeed very little, of the content is presently relevant. Nevertheless, the Crown wishes to be able to rely on some of it, if it should be or becomes relevant.

33. Mr Everson's objection is based upon ss 23B, 23C and 23R of the Crimes Act 1914 (Cth).

34. Subsection 23B(2) defines the terms "arrest" and "arrested" for the purpose of Part 1C of the Crimes Act 1914. That provides, relevantly:

" . . .a reference in this Part to a person who is arrested includes a reference to a person who is in the company of an investigating officer for the purpose of being questioned, if:

(a) the official believes that there is sufficient evidence to establish that the person has committed a Commonwealth offence [per s 23A(6) that includes a Territory offence punishable by more than 12 months imprisonment] that is to be the subject of the questioning; or

(b) the official would not allow the person to leave if the person wished to do so; or

(c) the official 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;"

35. In the present case, DC Webber conceded that, at the time he placed the "alert" on the police computer system he believed that he had sufficient evidence to charge the accused with offences arising from the burglary at Kaleen. He further conceded that, had the accused declined to be interviewed or sought to leave during the interview he would have arrested the accused on the charge of burglary and detained him for the purpose of charging him. I infer that he might also have continued questioning as far as Part 1C of the Crimes Act 1914 permitted.

36. Mr Everson submits that during the questioning the accused was therefore deemed to have been arrested and to be "under arrest" by virtue of s 23B(2). However, submits Mr Everson, the accused had not been informed that he was under such arrest in respect of the burglary. Hence, on the authority of Christie v Leachinsky [1947] UKHL 2; [1947] AC 573, the arrest was unlawful as no cause for it had been notified to the accused. Accordingly, the accused was not in lawful custody but was being unlawfully detained for questioning when he was interviewed.

37. In Williams v R [1987] HCA 36; (1986) 161 CLR 278, the High Court rejected the view that the questioning of an arrested person concerning suspected offences was a misuse of that power per se but there was no power to detain the person simply for questioning before bringing that person before a justice to be charged. Thus although an arrested suspect could be questioned, that did not permit interrogators to delay taking the suspect before a justice to be charged.

38. Part 1C of the Crimes Act 1914 was inserted in 1991. It was designed, in part, to permit investigating officers, including police, to delay taking a person in custody following arrest before a magistrate (or justice) to be charged for a limited period. The trade off for this restriction on the liberty of the citizen was the enactment of various rights to be accorded to such a citizen. Thus there is a statutory right to a caution (s 23F), to communicate with friends, relatives and/or lawyers (s 23G), amongst others.

39. There had, in the past, been a tendency for some investigators to avoid the need to give a caution by the device of delaying placing a suspect under arrest, though the investigator believed the person to be an offender. That had been countered by the courts regarding the requirement for a caution (and other standards for fair interrogation of suspects) as coming into effect once a police officer had determined to interrogate a person as a suspect rather than as a potential witness. (see e.g. R v Ireland [1970] HCA 21; (1970) 126 CLR 321; Sammak v R (1993) 2 Tas R 339).

40. Any identifiable impropriety, usually breach of the so-called "Judges' Rules," gave rise to a discretion to reject the evidence so obtained. The mere fact of the illegality of the detention would but rarely have resulted in exclusion. The accused carried the onus of persuasion - see R v Pearcey (1985) 63 ACTR 12. Nevertheless, it was considered by various legislatures to be appropriate to regularize the situation to some extent. For this Territory, (and New South Wales) ss 90 and 138 of the Evidence Act 1995 govern the exercise of discretion to exclude illegally or improperly obtained evidence.

41. Under s 90, evidence adduced by the prosecution may be excluded, though otherwise admissible, if the court is of the view that it would be "unfair to a defendant to use the evidence."

42. Smart AJ in DPP v Farr [2001] NSWSC 3 reviewed the recent authorities referring to these sections. The effect of s 90 is that the onus is on the defendant to establish the fact of the relevant unfairness and to persuade the Court that the unfairness requires the exclusion of the evidence.

43. Section 138 provides the source of the discretion to exclude evidence, otherwise admissible, obtained improperly or illegally.

44. The onus is on the defendant to establish the fact of the impropriety or illegality. The prosecution then carries the onus of persuading the Court that, despite the impropriety or illegality:

" . . .the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."

45. Similar provisions to Part 1C where, notwithstanding arrest, a suspect may be detained without charge, usually for a prescribed period have been enacted in other jurisdictions. (see e.g. Santos v R [1987] HCA 55; (1987) 61 ALJR 668).

46. Provided the conditions attached to that modification of the general rule concerning detention following arrest are adhered to, the detention will be lawful.

47. In the Northern Territory the prescribed period was referred to as "a reasonable period" following "lawful arrest."

48. The nature of the discretion and the manner of its exercise were considered by the Court of Criminal Appeal (NT) in Heiss v R [1992] NTSC 77; (1992) 111 FLR 362.

49. In both Santos and Heiss, the accused person had been formally and lawfully arrested. The question was whether the detention period following arrest and before charge was lawful.

50. Bell J considered and gave similar effect to the Crimes Amendment (Detention after Arrest) Act 1997 (NSW). It provides for a "reasonable" period of time as opposed to a fixed time extendable by order - see R v Davidson [2000] NSWSC 187 and R v Ye Zhang [2000] NSWSC 1099 (per Simpson J).

51. Whilst in Davidson a formal arrest was performed before questioning, Ye Zhang is a case where the accused moved from witness to suspect and then to defendant. The suggested application of s 138 Evidence Act 1995 (NSW) (identical to the Commonwealth Act), was by reason of the failure electronically to record admissions as required by s 424A of the Crimes Act 1900 (NSW).

52. However, Simpson J took the view that a breach of s 424A was not a relevant illegality or impropriety. Her Honour said:

"(par 72) There is nothing in s 424A that governs conduct of interviews by police officers; the section is concerned only with the evidentiary consequences of the unavailability of tape recordings of admissions. The intent of the legislature was, no doubt, to encourage investigating officials to conduct interviews in such a way as would not result in their rejection for evidentiary purposes, but failure on the part of investigating officers to respond to such encouragement does not constitute impropriety."

53. In the present case, the accused, though physically in a cell, was free to leave the watchhouse whenever he wished to. It was open to DC Webber or DC Smith to have terminated that freedom by formally arresting the accused at any time after they arrived at the watchhouse.

54. They chose not to do so. Instead they invited the accused to participate in a record of interview. There was no unfairness or impropriety involved in requesting the accused so to do. Nor is any suggested.

55. Section 23R of the Crimes Act 1914 states:

"To avoid doubt, it is declared that this Part [1C] does not confer any power to arrest a person or to detain a person who has not been lawfully arrested."

56. For present purposes, it was agreed that the only relevant power of arrest without warrant was that conferred by s 349W Crimes Act 1900 (ACT).

57. That section requires the arresting officer to believe "on reasonable grounds" that the person has committed a relevant offence and that proceeding by summons would be ineffective to achieve the purposes referred to in s 349W(1)(b).

58. Such an arrest, if lawfully effected, places the arrested person in lawful custody. It is an offence to escape, attempt to escape from or resist, that custody.

59. It is true that s 23C Crimes Act 1914 deems a situation where a suspect is "assisting police with their enquiries" in any of the circumstances referred to in s 23B2(a), (b) or (c) to be a "lawful arrest." That, however, is not for the purposes of s 349W but for the purpose of Part 1C of the Crimes Act 1914. That deeming provision triggers the suspect's statutory entitlement to the rights conferred on a suspect by Part 1C.

60. However, it does not, in my view, convert the agreement of the accused to participate in a record of interview into an "arrest" within the usual meaning of the term, either at common law or under s 349W.

61. The continued presence of the accused with DC Webber and DC Smith was not enforceable, had he chosen to end it, by reference to the offences of escaping from or resisting lawful custody. He was not in lawful custody unless and until the investigating officers chose lawfully to arrest him.

62. It was submitted by Mr Everson that such a view was inconsistent with the view adopted by Crispin J in R v McKay (1998) 135 ACTR 29; 148 FLR 212.

63. In that case, the issue raised, by Mr Everson as it happens, was that the power of detention of an arrested person during the investigation period, as provided by Part 1C, was unconstitutional. It was, he had submitted, contrary to the separation of powers implicit in Chapter III of the Constitution.

64. Crispin J rejected that argument. His Honour noted that Part 1C was enacted as a result of Williams v R supra (see the Explanatory Memorandum).

65. At par 13, his Honour commented:

"I do not accept that any expansion of the concept of arrest as a consequence of this section authorises arrest for the purposes of investigation. In my view the section is intended to do no more than make it clear that a person who is being interrogated by an investigating official should be regarded as being under arrest once any of the conditions referred to in paragraphs (a), (b) or (c) are fulfilled. It should be noted that s 23R, which commences with the optimistic words "to avoid doubt", declares, inter alia, that Part 1C does not confer any power to arrest a person. This provision confirms my view that s 23B(2) was not intended to provide any new power of arrest."

66. With due respect to Mr Everson's argument, I do not read his Honour's comments as construing s 23B(2) so as to provide a new form of lawful arrest unable to be lawfully activated unless the usual preconditions for a lawful arrest are complied with. That is, reasonable belief that the suspect had committed the relevant offences and advice to the defendant that he or she is under arrest as a result. Indeed, his Honour's comments seem to me to be entirely consistent with the construction of ss 23B(2), 23C and 23R which I have adopted.

67. It follows that it was not a contravention of any law, nor was it improper, for DC Webber and DC Smith to interrogate the accused so long as he was prepared to consent to be interrogated, even if they intended, in due course, to arrest and charge him with an offence so that he was deemed by s 23B(2) to be under lawful arrest at the time of questioning. The deeming provision simply activated the rights to be accorded suspects under Part 1C.

68. There was no other suggested reason to reject the record of interview. I ruled, accordingly, that it was admissible insofar as it might be or become relevant to the present proceedings.

I certify that the preceding sixty eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Associate:

Date: 2 November 2001

Counsel for the: Crown: Mr S Whybrow

Solicitor for the: Crown: ACT Director of Public Prosecutions

Counsel for the: Accused: Mr C Everson with Mr G Blank

Solicitor for the: Accused: Legal Aid Office (ACT)

Date of hearing: 8 October 2001

Date of judgment: 2 November 2001