R v HELMHOUT [2001] NSWCCA 372

Reported Decision : 125 A Crim R 257

New South Wales Court of Criminal Appeal

CITATION : R v HELMHOUT [2001] NSWCCA 372 FILE NUMBER(S) : CCA 60448/2000 HEARING DATE(S) : 18 July 2001 JUDGMENT DATE : 19 September 2001

PARTIES : Regina Mark Helmhout JUDGMENT OF : Ipp AJA at 1; Hulme J at 25; Sperling J at 54

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70206/98 LOWER COURT JUDICIAL Bell J OFFICER :

COUNSEL : Crown: DML Woodburne Appellant: AP Cook SOLICITORS : Crown: SE O'Connor Appellant: South Eastern Aboriginal Legal Service

DECISION : Appeal dismissed

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IN THE COURT OF CRIMINAL APPEAL 60448/00 IPP AJA HULME J SPERLING J

Wednesday, 19 September 2001 R –v- Mark HELMHOUT

JUDGMENT 1 IPP AJA : This is an appeal against a conviction for murder. The grounds of appeal challenge the decision of Bell J to admit a confession made by the appellant whilst in custody in the Queanbeyan Police Station. I agree with Hulme J that the grounds of appeal set out in the appellant's notice of appeal must be dismissed. In these reasons I wish only to deal with the further argument, raised by the Court itself during the course of the appeal, as to the admissibility of the confession. 2 As Bell J pointed out, the Crimes (Detention after Arrest) Regulation (the "Regulations") constitutes a counter balance to Pt 10A of the Crimes Act 1900 (inserted by the Crimes Amendment (Detention after Arrest ) Act 1997) which confers powers on police to detain persons under arrest for periods of time in order to enable the persons' involvement in the commission of offences to be investigated. 3 The Regulation specifies particular procedures for people identified as "vulnerable". Aboriginal persons fall within the relevant statutory definition of "vulnerable persons". Clause 28 of the Regulation modifies the application of Pt 10A with respect to vulnerable persons and therefore with respect to Aboriginal persons. It provides: "If a detained person is an Aboriginal person or a Torres Strait Islander, then, unless the custody manager is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must: (a) immediately inform the person that a representative of an Aboriginal legal aid organisation will be notified that the person is being detained in respect of an offence, and (b) notify such a representative accordingly." 4 The appellant is an Aborigine. Hence the police, in whose custody the appellant was at the time of his arrest, were required to comply with cl 28. However, they did not. The admissions the appellant made therefore constituted evidence obtained in contravention of an Australian law and s 138 of the Evidence Act became applicable. 5 The question that arose for determination by Bell J was whether "the desirability of admitting the evidence" so obtained "outweighed the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained". Her Honour answered this question in the affirmative. 6 During argument in the appeal the Court raised the issue whether, in determining whether evidence obtained in contravention of cl 28 should be admitted pursuant to s 138 of the Evidence Act , the judge should have regard to the particular characteristics of the Aboriginal person from whom the evidence was obtained in order to assess that person's capacity to deal adequately with police questioning in the absence of legal representation. This was not a topic directly addressed by Bell J in deciding that the evidence should be admitted. 7 Counsel for the Crown submitted that the question should be answered in the negative. She pointed out that the legislation made no allowance for distinguishing between Aboriginal persons on the basis of an assessment of degree of vulnerability. She submitted that the Regulation imposes safeguards for all persons falling within the category of vulnerable persons, irrespective of the actual vulnerability of the individual. 8 The words "desirability" and "undesirability" in s 138(1) are of very broad import. Section 138(3) sets out matters that are to be taken into account in making a determination under s 138(1) but specifically stipulates that they do not limit the matters that the Court may take into account. The general tenor of s 138 does not reflect an intention to confine the inquiry. 9 In my view, the argument advanced by the Crown overlooks the fact that some human beings are more vulnerable in facing police interrogation than others. Many factors bear upon an individual's vulnerability. Age, education, personality, and general experience of life are some that are relevant to an individual's capacity to deal with police questioning. Plainly, that capacity varies from individual to individual. This means that a contravention of cl 28 must have different consequences depending upon the particular characteristics of the individual who is interviewed by the police. 10 In my view, the consequences to the particular individual of a contravention of cl 28 are highly relevant to a determination under s 138(1). This was accepted in principle in R v Phung & Huynh [2001] NSWSC 115 where Wood CJ at CL was required to make a determination under s 138(1) in regard to a police interview which had involved contraventions of various statutes, including the Regulation (although, not cl 28). In holding that the interview should not be admitted, his Honour said: "I take into account the fact that [the accused person] had a background of drug addiction, that he was separated from his parents, and that he had a limited education and capacity to read English. I also take into account the fact, it would seem, that he had used drugs within the 24 hours preceding the interview, a period during which he had allegedly been involved in two separate instances of serious criminality, and which was likely as a consequence, to have been a somewhat turbulent period for him". 11 Put in another way, the consequences in question may make it unfair for the evidence to be admitted. In my view, considerations of fairness are to be taken into account in making a determination under s 138(1). I appreciate that s 90 of the Act deals specifically with evidence that should not be admitted because its use may be unfair, but that is no reason to exclude considerations of fairness from s 138. The use of particular evidence may not be so unfair as to warrant refusal under s 90, but when taken with other matters may be refused under s 138. The two sections address different categories of circumstances and the considerations relevant to each are not mutually exclusive. See in this regard R v Phung & Huynh where Wood CJ at CL applied considerations of fairness in deciding under s 138 to refuse to admit evidence of a police interview different to that referred to above. As his Honour put it: " I would exclude the evidence, since I am of the view that the apparent failure of those concerned to secure compliance with the regime gives rise to an unfairness, and outweighs the probative value of the admissions obtained, powerful as they might have been". 12 In any event, in my view, the issue raised is resolved by s 138(3)(d) which requires the Court to take into account the "gravity" of the contravention concerned. I do not see how the gravity can be considered without reference to the consequences of the contravention on the individual concerned. A contravention of cl 28 involving an Aboriginal youth, who does not have a good command of English, who has had no dealings with police, who has lived his entire life in, say, desert surroundings and has never lived in a town or city, could well be severe. On the other hand, the consequences if the Aboriginal person is of mature years, has had many dealings with police and is not intimidated by the idea of being questioned by them, and who, generally, may be regarded as a well educated, sophisticated and worldly wise person, are likely to be minimal. 13 Next, counsel for the Crown submitted that it was not the duty of Bell J, of her own accord, to consider the capacity of the appellant. It was said that it was not incumbent on a trial judge to conceive of all possible arguments that could affect the exercise of discretion. The appellant, himself, had not raised the issue at the voir dire and, it was submitted, the evidence did not disclose any reason to embark on such an inquiry. 14 I do not accept the submission based on lack of evidence. The very fact that it was common cause that the appellant was an Aborigine and, hence, a vulnerable person within the meaning of the Regulation, required such an inquiry to be undertaken. 15 It is a general principle that, whatever the line of defence adopted by counsel at the trial, the judge may be required to instruct the jury as to a defence that arises on the evidence even if that defence has not been raised on the accused person's behalf: Van Den Hoek v R (1986) 161 CLR 158 at 161; Holland v R (1993) 117 ALR 193 at 204; R v Hopper [1915] 2 KB 431 at 435 ; Pemble v R (1971) 124 CLR 107. 16 By analogy, when a court is called upon to exercise a discretion under s 138(1) of the Evidence Act , it seems to me, generally speaking, that the court should take into account all significant matters that have a bearing on the admissibility of the evidence, despite the fact that some such matters may not be relied upon by the parties. In my opinion, the fact that the appellant was an Aborigine was sufficient to trigger the need for Bell J to take into account the particular characteristics of the appellant and the consequences of the contravention of cl 28 upon him when exercising her discretion under s 138(1), even though his counsel at the hearing made no reference to this aspect. 17 It was next submitted on behalf of the Crown that the mere absence of any reference to the appellant's personal characteristics and capacity to deal with police questioning does not mean that her Honour gave no consideration to the question. Counsel submitted that the appellant's capacity to understand and deal with police questioning was implicitly resolved by her Honour when dealing with s 84(1)(a), s 85 and s 90 of the Evidence Act . 18 It is only necessary for me to deal with the submission based on s 85. 19 Section 85(2) provides that evidence of an admission is not admissible unless the circumstances in which it was made were such as to make it unlikely that the truth of the admission was adversely affected. Section 85(3) provides: "Without limiting the matters that the court may take into account for the purposes of sub-section (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject". 20 The appellant submitted to Bell J that, at the time of the interview, he had been affected by a combination of alcohol, drugs and underlying depression such that the Crown could not discharge the onus cast upon it pursuant to s 85(2). Bell J held, however, that there was nothing to suggest that the effects of alcohol or drug ingestion incapacitated the appellant significantly in the course of the interview. 21 Bell J had found that the appellant had a good recall and was coherent during the interview. In dealing specifically with s 85(2), her Honour said: "I am satisfied that the Crown has discharged its onus of establishing that the circumstances in which the admission was made was such as to make it unlikely that the truth of the admission was adversely affected". 22 The appellant has not suggested that, in making that decision, Bell J did not have proper regard to the considerations referred to in s 85(3), namely, any relevant condition or characteristic of the appellant, including age, personality and education and any mental, intellectual or physical disability to which he was or might appear to be subject. In my view, her Honour must be taken to have considered all these matters in concluding that the circumstances relied on did not make it unlikely that the truth of the admission was adversely affected. 23 The matters set out in s 85(3) to which Bell J so had regard all bear on the appellant's individual capacity to deal with police questioning. In my view, her Honour must be taken to have considered these matters in exercising her discretion under s138(1). After all, immediately before dealing with s 138 she had discussed the argument raised in connection with s 85(2). 24 In the circumstances, I accept that her Honour properly exercised her discretion under s 138(1) and had proper regard to the appellant's personal characteristics in concluding that the evidence obtained in contravention of cl 28 should be admitted. 25 HULME J: On 21 March 2000 the Appellant was convicted of a charge that on 20 June 1998 he murdered Paul Joseph Harris. On 22 June 2000 Justice Bell sentenced him to imprisonment for 18 years including a non-parole period of 13½ years. 26 He has appealed against his conviction. The only ground of appeal is that her Honour erred in law in admitting into evidence an electronically recorded interview between the Appellant and investigating detectives. What the Appellant said in that interview formed a significant part of the Crown case against him. 27 At the trial unsuccessful objection was made to the admissibility of the ERISP on three bases - that the Appellant's participation in it followed on threats by investigating police, that the Appellant's answers were unreliable because at the time he was affected by, inter alia, alcohol and other drugs, and that the evidence in the ERISP was obtained in contravention of Clause 28 of the Crimes (Detention after Arrest) Regulation 1998. In his appeal, it is only the last of these 3 matters that is relied upon, together with the terms of s138 of the Evidence Act which provides:- (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) 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. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) 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, and (g) 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 (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 28 Clause 28 is in terms:- "If a detained person is an Aboriginal person or a Torres Straight Islander, then, unless the custody manager is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must: (a) immediately inform the person that a representative of an Aboriginal legal aid organisation will be notified that the person is being detained in respect of an offence, and (b) notify such a representative accordingly." 29 Despite some evidence from the Appellant that the detectives gave him information to the effect of that referred to in paragraph (a), it was common ground in the appeal that the custody manager at the time, a Sergeant Dagwell, did not comply with either sub-paragraph between the time of the Appellant's arrival at the police station at about 9.20 am on 20 June 1998 and the time of the interview at 11.28 am later that day. 30 The errors raised in the Appellant's submissions and said to have been committed by Bell J in deciding that notwithstanding the contravention of Regulation 28, the ERISP should be admitted were as follows:-