District Court New South Wales Medium Neutral Citation: R v Morley [2021] NSWDC 681 Hearing dates: 25 October 2021; 14 December 2021 Date of orders: 16 December 2021 Decision date: 16 December 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Evidence of police interviews not to be admitted at trial. For orders - see [110] Catchwords: CRIME — Violent offences — Aggravated detain for advantage — In company – actual bodily harm inflicted CRIMINAL PROCEDURE — Trial — pre-trial application – exclusion of admissions EVIDENCE — Admissions — Criminal proceedings — improperly obtained- illegality- impropriety- unreliability - unfair prejudice – EVIDENCE — Admissions — Criminal proceedings — improperly obtained - denial of LEPRA rights - interview conducted using body worn video and mobile phone - police cant opt out of LEPRA - Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence - NSW Police Force Body-Worn Video Camera Standard Operating Procedures" Terms "protected suspect" - body worn video - mobi-phone - Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence- NSW Police Force Body-Worn Video Camera Standard Operating Procedures" Legislation Cited: Crimes Act 1900 Evidence Act Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2000 Law Enforcement (Powers and Responsibilities) Amendment Act 2014 Surveillance Devices Act 2007 Cases Cited: Bunning v Cross (1978) 141 CLR 54 Carter v The Queen (1995) 183 CLR 121 Director of Public Prosecutions (NSW) v Merhi [2019] NSWSC 1068 Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550 Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45 Festa v The Queen (2001) 208 CLR 593' [2001] HCA 72 IMM v The Queen (2016) 257 CLR 300 ; [2016] HCA 14 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 NSW v Robinson (2019) 266 CLR 619; [2019] HCA 46. Papanikolaou v R; Tomaras v R [2021] NSWCCA 135 Pearse v Pearse (1846) 63 ER 950 Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 R v EF [2013] NSWSC 1692 R v Helmout [2000] NSWSC 208 R v Ireland (1970) 126 CLR 321 R v Munce [2001] NSWSC 1072 R v Pearce [2001] NSWCCA 447 R v Rooke NSWCCA 2/9/1997 R v Rymer [2005] NSWCCA 310 Ridgeway v The Queen (1995) 184 CLR 19; HCA 66 Robinson v Woolworths Ltd [2005] NSWCCA 426 RPS v The Queen (2000) 1999 CLR 620; [2000] HCA 3 Sinclair v The Queen (1946) 73 CLR 73 CLR 316; [1946] HCA 55 The Queen v Dickman [2017] HCA 24 The Queen v Swaffield (1998) 192 CLR 159 at 185 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 Texts Cited: Illegally or improperly obtained evidence: in defence of Australia's discretionary approach TF Bathurst and S Schwartz, (2016) 13 The Judicial Review R no 1 NSW Police Force Body-Worn Video Camera Standard Operating Procedures" (BWV Manual) can be found at https://www.police.nsw.gov.au/about_us/policies_procedures_and_legislation NSW Police, Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence), 2007, National Library of Australia <https://catalogue.nla.gov.au/Record/4348953> accessed 24 October 2021). Surveillance Devices Amendment (Police Body-Worn Video) Bill 2014, Hansard Legislative Assembly NSW 22/10/2014 Category: Principal judgment Parties: Cheyne Benjamin Morley (the offender) Director of Public Prosecutions Representation: Counsel: Mr R Pettit (for the offender) Mr R Taylor, Solicitor Advocate (for Director of Public Prosecutions) Solicitors: Just Defence, Lawyers (for the offender) File Number(s): 2020/00142970 JUDGMENT Introduction 1. Cheyne Morley has been charged with two counts of detain with intent to obtain an advantage in circumstances of aggravation and special aggravation: s 86(3) Crimes Act 1900. The circumstance of aggravation is that when each offence was allegedly committed he was in company with Ben Walker, Tara Clare and Ilo Ilievski. The circumstance of special aggravation is that each complainant was occasioned actual bodily harm. 2. On arraignment the defendant said he was not guilty and the matter was fixed for trial at Wollongong District Court; first on 11th October 2021 and then, due a pandemic adjournment, for 17 January 2022. At the readiness hearing it was indicated a pre-trial issue needed resolution. The accused objects to the evidence of admissions, said to be contained in two video recordings he made with police on the evening prior to his arrest, being tendered at trial. It is argued the interviews should be excluded by operation of sections 85, 90, 137 and 138 Evidence Act 1995. Summary of allegations 1. The prosecution case is that the genesis of the detention was an attempt by the four co-accused to purchase methylamphetamine for supply in the Illawarra region. The two complainants, Mr Mitchell Clark and Mr Brendon Merrett, said they had a source for the drugs. On 11 May 2020 Ms Morley and Ms Clare accompanied the two complainants to an address in Sydney where $9,000 was exchanged for what they presumed was 2 ounces (56 grams) of methylamphetamine. Soon after the exchange they discovered they had been "ripped off" and had paid for inert white powder. Mr Morley and Ms Clare blamed the complainants for the rip-off and demanded their $9,000 be repaid by them. Mr Walker and Mr Ilievski are said to have assisted in the detention of the two complainants at a home in Monteith St Cringilla where both men were assaulted, and injured, and attempts were made to have them transfer money to the accused. Some money transfers were made to an account operated by Ms Clare. Mr Clark was also forced to sign over his Citroen van to Morley. 2. On the afternoon of 12 May 2020 the complainants were eventually allowed to leave. The police investigation 1. Police found Mr Merrett at his family home. He had obviously been assaulted but he would not tell them who had done it. He was arrested and charged with concealing a serious offence. At 7:51 PM he agreed to speak to police and participated in an interview. 2. That same evening police at about 6:30PM found Mr Clark at a local bottle shop. He too refused to speak with them and was arrested and charged with concealing a serious offence. He told police he was feeling the effects of his drug use and feared for his safety. His arrest was discontinued and he was allowed to leave. He made a police statement on 25 May 2020. 3. Police were alert to the possibility a crime was underway before they spoke to Mr Clark and Mr Merrett. They had begun an investigation including surveillance of vehicles, including a Citroen van and premises of interest by 4PM on 12 May 2020. The Citroen van was followed by police to an address in Unanderra. The occupants transferred to a station wagon driven by Mr Morley. The station wagon was followed to a house in Monteith St Cringila and then from southern Wollongong to the northern suburb of Towradgi. About 6PM the station wagon drove into serviced apartments at Towradgi, where it was stopped and the occupants searched by police. It was driven by Mr Morley with Clare, Walker and Ilievski as passengers. Clare, Walker and Ilievski were arrested. Although the Crown Case Statement says Mr Morley was arrested this appears to be an error, as he was not in fact arrested but rather detained only for the purpose of the search. 4. Although not arrested Mr Morley was spoken to by Detective Senior Constable Quinn. Two conversations were recorded; the first, by the body worn video of a uniformed officer; the second, on a mobile phone or police "mobi-phone" operated by Detective Senior Constable McNulty. During both recorded conversations Mr Morley was told he was not under arrest but cautioned that anything he did say might be used in evidence. He said he understood the caution. 5. Detective Senior Constable Quinn was part of the team that had followed the vehicles. He told me he had specific instructions not to arrest Morley that night, but that he was instructed to interview him. Morley was arrested the following day and has been in custody, bail refused, ever since. 6. In later evidence Detective Sergeant Flueren told me that although there were grounds to arrest the others there was, apart from his presence in the car with the others, and his possession of $365 in cash no further evidence existed in relation to Morley, "so a decision was made to release him pending further enquiries." Exhibit D statement 9 November 2021 at [18]. The complainants did not reveal Mr Morley's name to police until after the interviews with Mr Morley were concluded. Two recorded conversations 1. During the first recording, which commenced at 6:55PM on 12 May 2020, Mr Morley told Detective Quinn that $395 found on him during the search was his dole money. When asked what he'd been doing that day he said "just kicked back at some mates, houses." He nominated some suburbs he had been but did not mention Cringila. 2. In the second recording, which commenced at 7:16PM, he started by saying "Tara [Clare] hasn't done anything wrong" and she "didn't know nothing." He then gave the Detective an account of how someone had asked him to put money in his account but as he didn't have one he had asked Ms Clare, as a favour, to put the transfer through her account. He told Detectives Quinn and McNulty about a debt owed by "Fat Brian [Brendon]." And, how he was kicking back with mates at a few places as they had to sort out the repayment of the debt. 3. The first conversation has some relevance to the facts in issue at trial in that it is an account of what Mr Morley says he was doing that day: an account that can be matched for accuracy, or otherwise, with the prosecution version of events. The source of the money is also relevant as it is alleged that $4,500 was demanded from each of the complainants and at least $4,000 was extorted from Mr Clark and withdrawn by Ms Clare from her account that afternoon. Mr Ilievski was arrested with about $4,850 in cash on him. The station wagon, driven by Mr Morley and owned by his mother was seized. Later at the holding yard it was searched and two tomahawks found. 4. The second conversation is relevant as it is, in the prosecution case, a false account of how money came to be in Ms Clare's account and what Morley had been doing that day - lies volunteered in consciousness of guilt. Evidence on the voir dire Detective Quinn 1. I received as exhibits a folder containing; the Crown Case Statement, Statements of Detective Quinn, Plain Clothes Senior Constable Pleski and Senior Countable White, together with transcripts and recordings of the two conversations. The recordings were played in court. On 25 October 2021 I heard from Detective Quinn and Senior Constable Tindall. On 14 December 2021 I heard from Sergeant Fleuren and his statement was tendered. 2. Detective Quinn told me how he and Senior Countable White were initially tasked with looking for and conducting surveillance on a Citroen van. They then followed the station wagon to Towradgi. He said "I wasn't very well briefed on the job at all, I was just pretty much told to go out and conduct surveillance and look for that vehicle, and then we obviously found that and continued watching Towradgi:" TT page 5. 3. At Towradgi, Detective Quinn said, detectives attached to the Robbery and Serious Crimes Squad asked him to get an electronically recorded version from Mr Morley, which he did. He believes the request may have come from Detective McNulty: TT page 5. Between the two interviews he said "…there was a lot of stuff going on as people were getting arrested" and he was trying to liaise with different people to find out exactly where "we were going to go and seeking advice." TT page 5. 4. He said he was instructed by officers attached to the Robbery and Serious Crimes Squad to conduct the second interview. As he did so Senior Constable McNulty made the recording and asked some questions towards the end: TT page 6. 5. Prior to the interviews all he knew from the information that had been conveyed through the Robbery and Serious Crime Squad was that Mr Morley "was not to be arrested, he wasn't to be taken back." TT page 6. The impression he was given was that the first interview was just in relation to the money found, and "the second interview was more in relation to the offences being investigated": TT page 7. 6. At the time he believed some of the occupants of the station wagon were involved in the extortion/kidnapping being investigated. In cross-examination he agreed that at Towradgi he participated in the search of Mr Ilievski, Mr Walker and Mr Morley and he had no reason at that point to distinguish between any of the four occupants in that car: TT page 11. 7. Under cross-examination he confirmed that he had been specifically told not to arrest and charge Cheyne Morley. When asked "And you weren't told why?" He replied, "I believe that it was just due to insufficient evidence surrounding Mr Morley, but I was definitely instructed that he was not to be placed under arrest." He also agreed he was never told to take him to the police station for an interview; "But there is no reason that that couldn't have occurred in theory…:" TT page 13. 8. He told me that Mr Morley did not appear to him to be drug or alcohol affected. He was not sure whether or not he had spoken to Mr Morley during that time between 7PM and 7.15PM as "there was a lot happening and we were trying to seek direction as to what we were going to do": TT page 6. 9. He said his reason for the second interview was to "just to get a version of his events in relation to how he come to be there today…" TT page 6. The first interview was just in relation to that Centrelink pay and the money found. The second interview was more in relation to the offences being investigated: TT page 7. 10. He accepted that ordinarily if someone was considered to be a witness they wouldn't be cautioned and the certainly wouldn't be searched prior to giving a statement and have their property taken. But here Mr Morley was cautioned before both interviews. And he was told that police were investigating extortion. 11. Detective Quinn was asked; "Is it fair to say that during the course of those interviews that you came to the view that Mr Morley may have been involved in the offending?": TT page 14 12. He answered: "Look, I didn't know the complete - the complete ins and outs of the investigation. I had very minimal knowledge of what had actually occurred. So I wasn't present for the briefings back at the police station, I was more just, just going off what I was sort of told by the officers at the scene. So I wasn't too sure where Cheyne Morley sat in the big picture of the investigation." I asked Mr Pettit to ask question again. "Q. The question was whether or not during the course of those interviews you came to suspect that he was involved in the offences? A. Yes, I did. To some degree. I don't know exactly. Again, I didn't know enough about the investigation. But the answer to the question-- Q. But you suspected he was in on it? A. Yes": TT page 14 1. He repeated that from what he knew at the time he had no reason to distinguish between the four people in the station wagon in terms of their suspected involvement in the alleged crime: TT page 15. But, that as it was very early on in the piece and as he had been told that Morley was not to be arrested and he didn't know what Mr Morley's involvement was: TT page15. However, he accepted that based on his own observations he personally had some suspicion that Mr Morley was involved in the offending: TT page 17. 2. He said he knew what the term "protected suspect" meant and that it a legal way to record an interview with a suspect: TT page 18. 3. Plain Clothes Senior Constable Luke Tindall (the officer in charge of the investigation) also gave brief evidence. He told me that at the time the station wagon was stopped in Towradgi no formal interviews with the two complainants had been conducted. Mr Merrett wasn't interviewed until 7:50PM that evening. But he said that police had a number of contacts with witnesses, including family members of Mr Merrett who were concerned about what had been done to them. Other police were taking their statements. While at Towradgi he was still piecing together the investigation. 4. When Mr Merrett was interviewed he was able to nominate Mr Morley as being involved in the offences: TT page 26. Constable Tindall accepted that at the time the decision was made to stop the station wagon in Towradgi and arrest the other three co-accused there was no clear reason to assume that the case against the other three was any stronger than it was against Mr Morley: TT page 25 & 26. 5. Significantly Constable Quinn made these concessions; 1. The reason Mr Morley wasn't treated as a protected suspect is that he'd been directed to record and interview him at the scene. 2. Ordinarily if someone was considered to be a witness they wouldn't be cautioned. 3. Property belonging to the accused was seized. 1. After the evidence closed and discussion of the issues it became clear that Detective McNulty may have relevant evidence to give. The hearing was adjourned until today so that he could be called. Detective McNulty was not called as a witness. The prosecution called Sergeant Fleuren. 2. Sergeant Fleuren told me that he was working from Lake Illawarra police station helping coordinate and provide resources to those on the ground. In his opinion it was only after the complainants nominated Mr Morley as being involved that there were reasonable grounds to arrest him. Submissions 1. Both counsel provided comprehensive written and oral submissions on 25 October 2020. Supplementary written and oral submissions were provided when the matter resumed on 14 December 2021. They have informed this judgment. 2. Mr Pettit, for Mr Morley, argued both interviews should be excluded. He relied on sections 85, 90, 137 and 138 Evidence Act. His arguments had four basis; Prejudice, Unreliability, Unfairness and Impropriety. 1. Prejudice 1. It was submitted that the interviews revealed Mr Morley was obviously drug affected and that jury might therefore be prejudiced against him; generally, as it reveals he's in illicit drug user and specifically, as the prosecution case concerned a failed drug supply and associated debts. A jury might thus give the evidence undue weight or reason that Mr Morley had some propensity for drug crime. 2. Unreliability 1. It was submitted that such was impact of illicit drugs on him that Mr Morley was unable to properly understand or respond to questioning. 3. Unfairness 1. It was submitted that procedures required to ensure fairness to a suspect were not complied with in the on-site interviews. And, that Mr Morley's intoxication compounded this unfairness. 4. Impropriety 1. Mr Pettit submitted that there was a reckless or deliberate attempt to subvert the protections given "protected suspects" by the Law Enforcement (Powers and Responsibilities) Act 2000 (LEPRA). Mr Pettit took me to the "NSW Police Force Body-Worn Video Camera Standard Operating Procedures" (BWV Manual: https://www.police.nsw.gov.au/about_us/policies_procedures_and_legislation> accessed 24 October 2021). He also referred to the "Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence)" (Code of Practice). The last version that remains publicly available is from 2007: NSW Police, "Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence)", 2007, National Library of Australia accessed 24 October 2021). It states that; "Do not conduct lengthy preliminary interviews with a suspect before a formal, electronically recorded interview at a recognised interviewing facility…. Do not conduct lengthy preliminary interviews with a suspect before a formal, electronically recorded interview at a recognised interviewing facility." 1. By reference to these documents Mr Pettit submits that conspicuously absent from any part of the manual is any guidance or permission to use the technology to conduct field interviews with suspects, including under an included list of purposes to which body-worn footage might be put (such as "witness statements"): 5. 2. Indeed, the words "interview", "interrogation", "caution", and "question" are all entirely absent from the document. 2. The BWV Manual makes only passing references to LEPRA, for example at 2.5 " BWV should not be used when the filming does not comply with LEPRA (e.g.: if a male police officer was to record a female suspect during a strip search.) 3. He submits that even if the BWV manual allows for the recording of some interviews, the policy document does not render that conduct lawful or proper. 4. Mr Pettit submitted that it was obvious that police were suspicious Mr Morley was involved with the extortion offence; otherwise his property and the car would not have been seized: ss 21 & 36 LEPRA. He said I would find that Detectives Quinn and McNulty believed there was sufficient evidence that Morley had committed the offence and accordingly that Mr Mundey should have been treated as a "protected suspect": s110 LEPRA. 5. Inferential support for that proposition could be drawn he submitted from the prosecutions failure to call Detective McNulty citing Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 305. But more particularly from Detective Quinn's evidence at T page 18: Q. Detective, have you heard the term protected suspect before? A. Yes. Q. Would you consider that to be a person who's (a) suspected of being involved in an offence but (b) is not under arrest and free to leave? A. Yes. Q. Is it the case, your understanding, is the ordinary process in those circumstances is that a person be offered to come to a police station so that they can be part 9'd, so to speak, by a custody manager? A. Yes. Q. Is it the case that in those same circumstances you've made arrangements for persons to come into the police station for those processes to occur? A. Yes. Q. The reason that didn't happen on this occasion was because you'd been directed by another police officer to record and interview him there at the scene? A. Yes.. 1. He said that even if I was not satisfied they had formed the requisite belief the Detectives 'ought' to have formed that belief': He drew my attention to two cases concerning s 139 Evidence Act. R v EF [2013] NSWSC 1692 at [100], where Justice Adamson had suggested that conclusion that an officer "ought" to have had a belief was enough and R v Pearce [2001] NSWCCA 447 at [103], where it had been held that; "It is not enough if the investigating official suspects that the person being questioned or requested to produce documents or producing the documents may have or has committed an offence. There has to be the specified belief." 2. Mr Taylor, Solicitor Advocate, for the Director of Public Prosecutions, responded: 1. Mr Morley's capacity to understand and respond to questions can be gauged by reviewing the videos. There was simply no evidence Mr Morley was intoxicated or affected by drugs and in any event nothing indicates the truth or reliability of what he said was affected. Mr Taylor took me to R v Helmout [2000] NSWSC 208; R v Munce [2001] NSWSC 1072; R v Rooke NSWCCA 2/9/1997; Sinclair v The Queen (1946) 73 CLR 73 CLR 316; [1946] HCA 55. 2. The procedure adopted by Detectives Quinn of cautioning and recording both interviews afforded Mr Morley appropriate fairness. There was no risk of unreliability deriving from the interviewing process. The evidence was relevant, admissible and had high probative value. There was no unfairness. 3. The LEPRA Act was not infringed. Detective Quinn has not formed the "belief" required by s 110 LEPRA. The section applied in its terms and accordingly Mr Morley was not strictly a "protected suspect." That section he said applied in its terms. Unlike other powers, such a search and seizure, police suspicion did not enliven a person's LEPRA tights. Critically, a police officer had to believe that there was sufficient evidence that the person had committed the offence. 4. Here, he said, Sergeant Fleuren's evidence was critical as the Sergeant was firmly of the opinion that until the complainants nominated Mr Morley there was insufficient evidence to arrest him and a decision was made to release him. 5. Even if Mr Morley was entitled to the LEPRA protections given the importance of the evidence and its high probative value meant the desirability of admitting it outweighed the desirability of its exclusion: s 139 Evidence Act. This is particularly so as any contravention of LEPRA was at worst, technical, and neither deliberate or reckless. Consideration Prejudice 1. Prejudice includes the risk that the evidence will be given too much weight by the jury (reasoning prejudice) or that its impact may destroy the fact finders objectivity (emotional prejudice). "Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury's assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence: The Queen v Dickman [2017] HCA 24 at [48]: see also Festa v The Queen (2001) 208 CLR 593' [2001] HCA 72 at [22] "If there is a real risk of such prejudice to the fair trial of the criminal charge the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial": Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 at 528-9 per McHugh J. 1. Such prejudice could arise if the jury: 1. May wish to punish the offender for socially unattractive, emotionally charged or uncharged criminal behaviour; 2. Incorrectly assess the probative value of the evidence; 3. Otherwise use the material in a way unconnected with the issues; and 4. Use the material contrary to the judge's directions. Drug use 1. I have reviewed both recordings. There is no obvious indication that Mr Morley is under the influence of a drug, legal or illegal. Mr Pettit took me to some of his facial tics and mannerisms that he said were indicative of methylamphetamine use. I saw nothing at all to indicate anything that might have elicited that conclusion let alone any suspicion. While there will be evidence at trial that Mr Morley and other accused was associated with methylamphetamine supply and use. There was no evidence at all before me to conclude that he was affected by that or any other drug during the interviews. There was nothing before me to allow that inference to be drawn. In the absence of that evidence there could be no prejudice. Unreliability 1. If Morley were obviously intoxicated that could affect the reliability of his answers to questions asked in the interview. But there is no evidence before me he had used drugs at all. And, I could not draw any such inference from his appearance or speech in the interviews. Reliability of an answer can as Mr Pettit suggests be impugned by the conduct of investigating police; such as inducements or false promises or a denial of procedural fairness. There is no evidence Mr Morley was offered any inducement. While it is possible something was said to him between the two interviews. There is no evidence before me what, if anything, was said. Nor can I infer from the recorded second interview what might have been said let alone that an inducement or threat was made, Mr Morley was aware his friend and Ms Clare had been arrested and in the second interview he volunteered an account that sought to exculpate her. Unfairness 1. The evidence before me is that neither statement was a product of a trick or threat nor other unfair conduct by police. Mr Morley was told he did not have to speak. He chose to do so. He knew what he said was being recorded. What was said was volunteered. There is no evidence an police officer was aware he was drug affected and sought to take advantage of that fact. 2. Modern technology and, in particular, a video record provides a rational resource from which credibility assessment might be made: R v Rymer [2005] NSWCCA 310 at [62] 3. Here both interviews were audio and video recorded. That in itself could not be unfair. To the contrary, we now have a contemporaneous record of at least part of the police interaction with Mr Morley that evening, reducing the capacity for controversy about what was said and done: Director of Public Prosecutions (NSW) v Merhi [2019] NSWSC 1068 at [37]. The use of the recorded statements at trial would not be unfair. Relevance and Probative value All evidence must be "relevant" in order to be admissible but not all evidence that is relevant is admissible. Evidence is not admissible if it is excluded by one of the provisions of the Evidence Act. That Act requires or permits the exclusion of evidence, or limit its use, by reference to its "probative value:" IMM v The Queen (2016) 257 CLR 300 ; [2016] HCA 14 at [78]. 1. Relevant evidence is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding;" s 55 Evidence Act. The probative value of evidence, "means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue:" Dictionary Evidence Act. 2. Accordingly, I have to ask for each interview: how much is what is set out in it rationally capable of contributing to the jury's assessment that the existence of a fact in issue is more or less probable? 3. On the prosecution case, at its highest, the jury will be asked to reason from what was said in both interviews to a conclusion that the existence of certain facts are more or less probable. 4. What was said in both interviews is relevant to the prosecution case that in simple terms alleges Mr Morley was party to a detention that led to the extortion of money from the two complainants. The true source of any money found on him. His association with the others arrested that evening, So too is any evidence that he was with them and what he was doing with them earlier in the day. His knowledge of a debt and his role and knowledge of how that debt was to be repaid will be critical issues at trial. The proposed evidence, particularly the second interview, will thus have high probative value at trial. Illegality and impropriety 1. Police conduct should be assessed in the context it occurs: Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550. The Evidence Act does not define what is "improper": Robinson v Woolworths Ltd [2005] NSWCCA 426 at [22]. Actions that are not strictly illegal can be improper if they are "quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement": Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 at 36 [23]. Such conduct can be contrasted with conduct which merely blurs or contravenes those standards in some minor respect; "it must be 'quite inconsistent with' or 'clearly inconsistent with' those standards". Further, those "minimum standards" must be assessed "in a particular context": Robinson v Woolworths Ltd at [23]. 2. On the afternoon of 12 May 2020 police were aware of the possibility that a serious crime had been committed. So much is obvious from the fact that both complainants were arrested and when they chose not to say what had happened arrested for concealing a serious offence, despite the fact both were the alleged victims of the offending. Police had a number of suspects associated with vehicles and addresses. A surveillance operation was quickly put in place. Given the time and urgency not all those involved could be fully briefed. That is entirely understandable. 3. What is clear however is that the following decisions were made: 1. To stop the station wagon. 2. To search detain and the occupants. 3. To seize the station wagon for later detailed search. 4. To arrest each the other three occupants 5. That Mr Morley not be arrested. 6. That Mr Morley not be taken back to the police station. However decisions were made to: 1. To question Mr Morley about the money found on him 2. To question Mr Morley about what he had been doing that day. 1. There is nothing before me to suggest that Detective Quinn knew Mr Morley was any less a suspect in a serious crime than the other three. He had been following the vehicles that afternoon. 2. There is no evidence before me why a direction was given not to arrest Mr Morley. The evidence from Sergeant Fleuren is that despite police knowing the car that was stopped was registered to a Ms Morley it had been determined that there were reasons to arrest Clare, Walker and Ilievski but there was not enough evidence to arrest Mr Morley. It was not until the complainants were spoken to later that night that decision was made. 3. Detective Quinn had found cash on a person who was with those who were to be arrested for a possible extortion offence. He asked for an explanation. he was given one. At no stage before or after the questions was there grounds to suspect the offence had been committed by Mr Morley 4. However, having received an exculpatory response so far as the cash was concerned Detective Quinn returned to speak to Mr Morley and initiated questioning relevant to the investigation the investigation in general. He did so on direction. He believes that direction came from Detective McNulty, who also asked some questions. 5. He has advanced no reason for the interviews other than matters which should have caused him to suspect that because Mr Morley he was in company with the others he himself may either be a witness to, or himself have been involved in, the offence. 6. As soon as he commenced the second interview, and perhaps even during the first, Mr Morley volunteered information that implicates himself in the offence. At the very least from that point there was sufficient evidence upon which Detective Quinn and McNulty could have formed a belief that Mr Morley was implicated in the offence, poorly briefed as he was. He did not stop the interview. He did not inform Mr Morley of his LEPRA rights. He appears to have taken to heart the advice he had been previously given not to arrest him. 7. Any independent view he formed as to Mr Morley's status was overridden by his early instructions not to arrest him but interview him at the scene. He did bring him back to the police station for questioning and he did not give him the opportunity of having his LEPRA rights explained to him. 8. If Mr Morley had been arrested or taken back to the police station before the interviews he would have had the benefit of the protections set out in Part 9 LEPRA. It is not in dispute that he was interviewed without those protections. The question remains, so far as each interview is concerned, whether: 1. Was he was entitled to LEPRA Part 9 protections, and 2. if he was improperly denied, them what the consequences are. Part 9 LEPRA 1. The objects of Part 9 are set out in s 109 LEPRA. They modify the common law rule that a person once arrested must be brought before a court without delay: Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88. They are primarily directed to providing for the period of time that a person under arrest may be detained to enable the investigations and most relevantly here: "109 (d) to provide for the rights of a suspect who is in the company of a police officer in connection with an investigative procedure but who is not so detained." 1. To that end in 2014 the concept of "protected suspect" was introduced into LEPRA. A "protected suspect" means; " a person who is in the company of a police officer for the purpose of participating in an investigative procedure in connection with an offence if— (a) the person has been informed that he or she is entitled to leave at will, and (b) the police officer believes that there is sufficient evidence that the person has committed the offence": s 110 LEPRA 1. Part 9 LEPRA applies to a protected suspect: s 111 LEPRA. Division 3 Part 9 LEPRA sets out the safeguards given to those detained under Part 9. A custody manager must caution a protected suspect, as well as give them a summary of their rights: s122 LEPRA. Those rights include: 1. To communicate with a support person or lawyer. 2. An protected suspect must be informed orally and in writing of their right to speak to a friend, relative, guardian or independent person, and that (with certain specific exceptions) they may speak to a lawyer (who may also be present during any investigative procedure): 123, 125, 126 & 127 LEPRA. 3. To medical attention that, if required, must be immediately arranged; s129 LEPRA. 4. To reasonable refreshments and access to toilet facilities: s130 LEPRA. 1. Custody records must be maintained including recording the reason for the denial of any rights and the time when a person was denied those rights: ss 131 & s 131(g) LEPRA. Police recording of interactions with the public 1. LEPRA makes no provision at all for official police questioning outside of the strictures of Part 9, which is titled "Investigations and questioning". But of course police do ask questions all the time and modern technology allows those calls to be recorded. It is generally a good thing they are as there is then a complete audio and visual record of what was said allowing any controversy to be better able to be resolved: DPP v Merhi at [36] 2. Section 50A Surveillance Devices Act 2007 permits the use of body worn video devices by police. As the then Attorney General noted when the provision was introduced: "The devices will operate as a modern day equivalent of a police notebook providing for a contemporaneous record of observations and events in the field.": Surveillance Devices Amendment (Police Body-Worn Video) Bill 2014, Hansard Legislative Assembly NSW 22/10/2014; DPP v Merhi at [36]. 1. Mr Taylor took me to the police "Standard Operating Manual" where it is noted that body worn video is intended to cover: 1. first response crime and incident investigation. BVW can be very effective for recording the location of objects and evidence at the scene of a crime or during a search situation in the field; and 2. conversations with members of the public which may relate to an incident, is relevant to an investigation, potential criminal proceedings, or contains possibly valuable information. Consideration s 138 1. Section 138 LEPRA provides, relevantly, that: 1. Evidence that was obtained— 1. improperly or in contravention of an Australian law, or 2. in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless 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. 1. Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning— 1. did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or 2. …. 1. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account— 1. the probative value of the evidence, and 2. the importance of the evidence in the proceeding, and 3. the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and 4. the gravity of the impropriety or contravention, and 5. whether the impropriety or contravention was deliberate or reckless, and 6. whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights. 7. whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and 8. the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 1. The High Court has held that a police officer has no power to arrest a person, without warrant, under s 99 LEPRA until the officer forms the intention to charge the arrested person. And, then only for the purpose of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for an offence. Nothing in LEPRA displaces the criterion that an arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with a crime is an arrest for an improper purpose and is unlawful: NSW v Robinson (2019) 266 CLR 619; [2019] HCA 46. 2. Put in different terms, absent a lawful arrest under s 99 LEPRA, Pt 9 has no operation. If there is a lawful arrest, a police officer may "detain" a person for the investigation period. Part 9 has operation only when there has been a lawful arrest and, then, subject to the protective procedures and provisions in Pt 9: Robinson at [112] 3. The High Court in Robinson considered LEPRA as at 2013. Part 9 LEPRA was amended to add the concept of 'protected suspects' in 2014 but that provision did not be become operational until 1 September 2016: Law Enforcement (Powers and Responsibilities) Amendment Act 2014 4. There is a public interest in admitting all relevant, reliable and probative evidence: R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54 at 74. But while the discovery, vindication and establishment of truth are main purposes of ac criminal trial; "Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much:" Pearse v Pearse (1846) 63 ER 950 at 957, cited in Bunning v Cross at [111] and Carter v The Queen (1995) 183 CLR 121 at 133 Illegally or improperly obtained evidence: in defence of Australia's discretionary approach TF Bathurst and S Schwartz, (2016) 13 The Judicial Review R no 1. 5. There is a public interest, "in ensuring that the police do not adopt tactics that are designed simply to avoid the limitations on their inquisitorial functions that the courts regard as appropriate in a free society:" The Queen v Swaffield (1998) 192 CLR 159 at 185 6. Judicial integrity and the moral integrity of the criminal justice system must be preserved and judges should not be complicit in condoning or allowing illegality: TF Bathurst & S Schwartz, Ibid. 7. Where evidence has been improperly or illegally obtained s 138 Evidence Act puts the onus on the prosecution to satisfy the court that it should be admitted. This shifting of the onus means that the conduct should be justified and explained. The court must be persuaded that the evidence be admitted despite the impropriety through which it was obtained. Judges must scrutinise the relevant misconduct carefully and to consider all of the competing policy concerns which come into play before admitting such evidence. Section 138(3) sets out the factors and policy concerns that must be considered when exercising that discretion to admit the improperly obtained evidence; most of which had been previously identified at common law. Determination The first interview 1. The first interview will contain evidence relevant to the trial. It contains evidence of probative value and importance. The first part of the interview relates to the cash found on Mr Morley. There is no issue that he had been lawfully detained for the purpose of a search and that cash was found on him. While Detective Quinn may have had a suspicion about the cash he had no basis for arresting him solely because of the possession of that cash. He was entitled to ask for an explanation and he got one. 2. In the ordinary course a police officer is entitled, after caution, to ask someone about what was found on them so that their suspicions can be allayed. Such conversations were, before BWV recordings, generally recorded in a notebook, which the person being interviewed was invited to sign as a correct record. 3. There was nothing improper, let alone illegal in using BWV for this purpose at this time. To the contrary, rather than a notebook entry the jury will have an actual video and audio recording of the whole interaction, so any controversy about what actually happened can be resolved. Nothing in LEPRA, the Code of Practice, BWV Manual prevents such interviews being conducted. There is nothing to indicate that at that time Detective Quinn believed that there is sufficient evidence that the person has committed an offence related to the $350 found. 4. There is accordingly no reason, applying either ss 85, 90 ,137 or 138 Evidence Act, to reject tender of the initial and concluding parts of interview or the concluding questions relating to the cash found . 5. However, in the middle of the interview Detective Quinn turns to the topic of what Mr Morley was doing that day" Obviously" he says "want to know where you've been today that's all." With respect that was not all. The Detective wanted to question Mr Morley about the events that had led to his mother's car being stopped searched and seized and those he was with being arrested. And his wallet and iPhone being seized as exhibits: Statement Det. Quinn [10]. Those parts of the first interview may have probative value to the trial. That part should treated in the same manner as the second interview. The second interview 1. The second interview may have substantial probative value to the prosecution case. It contains both possible admissions, that is; representations adverse to the person's interests in the outcome of the proceeding" Dictionary Evidence Act. Mr Morley told the Detectives was doing that day, who he was with and his involvement in recovery or and processing of 'debt' money. It contains possible lies; lies told knowing the truth might implicate him. 2. There is nothing intrinsically, obviously or even inferentially unfair or prejudicial in what was asked or the conduct of the interview the recording of it that requires exclusion of the second interview on the basis of ss 85, 90 or 137 & 138 Evidence Act. 3. There is nothing overt or obvious about Mr Morley's behaviour or demeanour that requires the exclusion of the interview: s137 Evidence Act. 4. However, unlike the first interview Mr Morley was being asked questions directly relevant to the offence under investigation the extortion of money from Clark and Merrett. Detective Quinn told me that; "the second interview was more in relation to the offences being investigated": T page 7. 5. At the start of the second interview and before the caution is administered Morley asks "Well what are you recording me for? Quinn replies "cause we want to make a record of what you've basically told us what has happened here today." Mr Morley then volunteers information and responds the questions about the matter under investigation. 6. While Detectives Quinn and McNulty may not have been fully briefed on an investigation that was still ongoing and evolving they knew enough to know that; the station wagon was connected with the Citroen and addresses in Cringila; that suspects were in car being driven by Mr Morley and that he was connected to them and had been with them that day. 7. Mr Morley was informed that he was entitled to leave at will: s 110 (a) LEPRA. At issue here is whether a police officer that is Quinn and or McNulty believed that there is sufficient evidence that the person has committed the offence?: s 110 (b) LEPRA. 8. I have not heard from Detective McNulty. In a criminal trial great care has to be taken in drawing inference from the unexplained absence of a witness as "the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused." RPS v The Queen (2000) 1999 CLR 620; [2000] HCA 3 at [29]; Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45 at [6] and [17]; Papanikolaou v R; Tomaras v R [2021] NSWCCA 135. This is not a criminal trial it is a pre-trial application. 9. In a civil trial "the failure of a party … to give evidence leads rationally to an inference that the evidence of that party … would not help the party's case." But even in a civil trial "an inference will be no more than conjecture unless some fact is found which positively suggests, or provides a reason, in the circumstances particular to the case, that a specific event happened or a specific state of affairs existed:" Jones v Dunkel at 305. 10. I can safely conclude, as Detective Quinn said he believes, the instruction to interview Mr Morley came from Detective McNulty. Detective McNulty absence makes it easier therefor to conclude police did belief Mr Morley had committed the offence for which the other three had been arrested. No other reason to caution and interview him has been advanced. 11. Detective Quinn at no stage said he formed the belief three was sufficient evidence that Mr Morley had committed the extortion or kidnapping offences but that cannot end the matter. He twice cautioned Mr Morley. He said he would not ordinarily caution or search a witness: T page 14. He accepted that both interviews, but more so the second interview, were directed to the offences being investigated: T page 7. He had a personal suspicion about Mr Morley; Q. Putting to one side the fact that you've been told that he wasn't to be arrested, based upon only your own observations, the surveillance upon him, going to the house, the fact that he was searched, the money taken from him, you must have personally had some suspicion that he was involved in the offending, correct? A. Yes. 1. The only reason he did not act on that suspicion and accord Mr Morley his rights as a protected suspect was because he had been directed to record an interview there at the scene. Nothing here turns on his use of words suspicion rather than belief. I find that he had formed the necessary belief but he did not act on it because he had been instructed not to arrest Mr Morley or bring him to the station but to interview him at the scene. 2. Had that instruction not been given and obeyed Mr Morley would have been either arrested by Detective Quinn like the other three suspects or at the very least, once it became obvious he was present when events occurred, he would have been offered a formal interview as a "protected suspect.' If he had all his LEPRA Part 9 protections and rights would have had to have been afforded him. 3. Neither the impugned part of the first interview or the second interview involved preliminary requests for an explanation of otherwise suspicious behaviour. Both were "lengthy preliminary interviews" that should, in compliance with the Code of Practice have been recorded at a recognised interviewing facility. His Part 9 LEPRA rights were denied him. 4. I accept that Sergeant Flueren, at some stage, formed a view, informed by other Detectives, that there was not enough evidence to arrest Mr Morley but he was not present when Mr Morley took part in the first interview. Nor did he play any part in the decision to conduct the second interview. 5. Whatever he thought, or now thinks, police cannot 'opt out' of LEPRA to meet investigatory exigencies. And that is what Detective Quinn did presumably on instruction from Detective McNulty. If they do choose to 'opt out' they cannot expect what they record to be admitted unless s 138 Evidence Act considerations require that admissions. 6. The impugned part of the first interview and the second interview was improperly obtained in breach of Mr Morley's Part 9 LEPRA rights. He was denied the protections of that Act. 7. Turing to s138 (3) Evidence Act considerations: 1. the proposed evidence is probative value and the important of the evidence in the proceeding, It is not however crucial or even critical. Other evidence is available to the prosecution. 2. the offences for trial are very serious criminal proceedings with a maximum penalty of 25 years imprisonment. 3. the impropriety was grave as it denied Mr Morley statutory protections that were put in place when the common law right to be taken before a court immediately on arrest was removed or modified. 4. While there is insufficient evidence before me to determine where the whether the impropriety or contravention of LEPRA was deliberate or reckless the effect was the same as the decision to arrest or detain was taken from Detective Quinn and McNulty. 5. Article 9 International Covenant on Civil and Political Rights may have been infringed. 6. No other proceeding (whether or not in a court) is likely to be taken in relation to the impropriety or contravention, and 7. There may have been no difficulty in obtaining the evidence without impropriety or contravention of an Australian law as had Mr Morley been given his rights he may have offered the same explanation... 1. No reason was put to me why Mr Morley was denied his LEPRA rights and why those obligations were not meet. Police cannot, by a direction to other officers not to arrest, opt out of those statutory obligations. The first interview contained questions about the investigation to a suspect , The second interview was not preliminary it was a further interrogation directed to the matter that had led to; the car Mr Morley was driving being stopped, he and his passengers being searched, his car seized and his passengers arrested. 2. While he was free to go and was cautioned the police conduct of the impugned part of the first interview and second interview and denial of his Part 9 rights has not been justified or explained. A person who was believed to have been involved in very serious offences was interrogated and denied his LEPRA rights. Despite the obvious importance of the evidence I have not been persuaded that the evidence should be admitted; the impropriety through which the proposed evidence was obtained was too grave. Orders 1. The portion of the first interview from page 3 after "From Centre Link" until page 4 "So the money…" is not to be admitted as evidence at Mr Morley's trial. 2. The second interview is not to be admitted as evidence at Mr Morley's trial ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2022