New South Wales Supreme Court CITATION : R v Pieter Egbert Helmhout & Ors (No.2) [2000] NSWSC 225 FILE NUMBER(S) : SC 70023/99; 70205/99; 70206/99; 70098/99 HEARING DATE(S) : 23-24 February 2000 JUDGMENT DATE : 25 February 2000 Regina v Pieter Egbert Helmhout Regina v Deborah Joy Davidson PARTIES : Regina v Mark William Helmhout Regina v Joanne Rose Delly JUDGMENT OF : Bell J C: Mr R D Cogswell SC PH: Mr A Webb COUNSEL : DD: Mr J S Stratton MH: Mr G Corr JD: Mr M Crawford-Fish C: D Knott, Director of Public Prosecutions PH: Christine Bourke SOLICITORS : DD: Brenda Duchen MH: J R Jeffery, South Eastern Aboriginal Legal Service JD: G J Piscioneri CATCHWORDS : CRIMINAL LAW - Admissibility of Delly's interview with police - voir dire - not tape recorded - whether accused was threatened - unlawful detainment - probative value Criminal Procedure Act 1986, s 108 LEGISLATION CITED : Evidence Act 1995, ss 84, 138 Crimes Act 1900, Part 10A DECISION : See para 37 THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION BELL J FRIDAY 25 FEBRUARY 2000 70023/99 - REGINA v PIETER EGBERT HELMHOUT 70205/99 - REGINA v DEBORAH JOY DAVIDSON 70206/99 - REGINA v MARK WILLIAM HELMHOUT 70098/99 - REGINA v JOANNE ROSE DELLY JUDGMENT - Admissibility of Record of Interview with Joanne Rose Delly 1 HER HONOUR: Mr Crawford-Fish, who appears on behalf of the accused, Joanne Rose Delly, made application for me to exclude evidence of an interview between Senior Sergeant Little (as he then was) and his client conducted at the Queanbeyan Police Station on 20 June 1998. 2 It was agreed that this preliminary issue might be determined on a voir dire hearing prior to the Crown's opening. 3 The grounds of challenge advanced were as follows: (i) the interview was not tape recorded and is accordingly rendered inadmissible by virtue of the operation of s 108 of the Criminal Procedure Act 1986 ; (ii) the making of the admissions was influenced by a threat made to the accused by a police officer and, accordingly, the evidence of the contents of the interview is inadmissible by virtue of s 84(1) of the Evidence Act 1995 ("the Act"); (iii) the accused was unlawfully detained at the time of the admissions and, accordingly, I would reject evidence as to the contents of the interview pursuant to s 138 of the Act; (iv) the admissions had little probative value and should, in any event, be excluded pursuant to the exercise of discretion. 4 The accused was living in a de facto relationship with Mark Helmhout as at 20 June 1998. She was the mother of two infant children. They were all living at 10/30 Trinculo Place, Queanbeyan on the date of her arrest. Mark Helmhout's younger brother, Pieter, was staying at those premises at that time. 5 On Friday 19 June 1998, Mark and Pieter Helmhout together with the accused, Joanne Delly, and others attended the funeral of Mark and Pieter's brother, John. Following the funeral there was a wake held at the Raiders Club, Mawson. Thereafter, some members of the party, including Mark and Pieter Helmhout and the accused, returned to the Trinculo Place unit. It is the Crown's case that, during the course of the evening, a man named Paul Harris (who had also attended the funeral and the wake) was strangled by Mark and Pieter Helmhout. His body was then removed from the unit and taken by car to a park in Fyshwick where it was dumped. A man named Edward Szkudelski was present both at the killing and during the disposal of the body. Sometime thereafter, Mr Szkudelski made contact with police and informed them of the location of the deceased's body. 6 Following the discovery of the body, the police obtained a warrant to search the Trinculo Place unit. A number of police executed that warrant at around 8.30am on the morning of 20 June. Mark and Pieter Helmhout were arrested and conveyed to the Queanbeyan Police Station. They were in due course charged with the murder of Paul Harris. 7 It appears that a short time later the accused was arrested and taken to the Police Station. She had her daughter, Jasmine, then aged seven months with her. 8 Senior Constable Hughes gave evidence that he had seen the accused at the Queanbeyan Police Station sometime between 8.30am and 9.00am that morning. He had been directed by Senior Sergeant Little to "baby sit" the accused. He and Senior Constable McGee sat with the accused in an office at the Police Station. He said the only other person present was Senior Sergeant Little who would come into the office periodically to check if everything was alright. Senior Constable Hughes chatted generally with the accused while they were in the office. He described it as general banter; "how have you been", "how's the bub", "good baby" and the like. 9 At 9.45am, Senior Constable Hughes had a conversation with the accused which he recorded in his notebook. Senior Constable McGee was present at this time. Senior Constable Hughes commenced by cautioning the accused. Then he asked her for an account of her movements on the previous day. She said they had gone to the funeral and later to the Raiders Club at Mawson. At about 11.30pm they had left the Club and gone home. She gave the names of a number of people who were present at her home. She went on to state that she had had a fair bit to drink and that she had gone to bed. Senior Constable Hughes then explained that he intended to conduct an electronically recorded interview with the accused. She inquired whether she had to do that. The officer told her that she was not obliged to, which the accused replied, "can I make a statement?". Senior Constable Hughes said, "Yes" to this question and the accused replied, "Then I do that". The accused signed and dated the entry in Senior Constable Hughes' notebook. 10 Senior Constable Hughes did not arrange to take a statement from the accused following this discussion. He decided to wait for Senior Sergeant Little. The latter was a more experienced detective and Senior Constable Hughes believed that, given the gravity of the matter, it was appropriate to defer any statement taking or further interview of the accused until he obtained a direction from Senior Sergeant Little. Senior Sergeant Little was in liaison with other detectives concerning the investigation and Senior Constable Hughes did not feel he had sufficient information at his command to interview the accused. 11 At some point during the morning, Senior Constable Hughes and Senior Constable McGee escorted the accused and her baby back to the Trinculo Place unit to get some items for the baby and then they conveyed the accused and the baby to a child minder. The accused was brought back to the Queanbeyan Police Station. 12 At 1.50pm, Senior Sergeant Little conducted an interview with the accused in an upstairs room at the Police Station. Senior Constable Hughes and Senior Constable McGee were present during the interview. The interview was recorded in Senior Sergeant Little's notebook. In all, the accused was asked 81 questions (including a number of formal questions at the conclusion of the interview). The interview was not concluded until 4.55pm. 13 At the commencement of the interview the accused was, again, cautioned that she need not say anything. She was asked if she wished to communicate with a solicitor. She was asked if she agreed that she had earlier said she did not wish to be interviewed by way of a recorded interview. She agreed that was the case and gave as her reason, "I'd just rather make a statement". In response to that, Senior Sergeant Little commenced to ask her questions which he recorded (together with her answers) in his notebook. In the course of this interview, the accused gave a detailed account of the events of the preceding evening. She described being present when Pieter and Mark Helmhout commenced assaulting Paul Harris. She had seen Pieter pick up a cord. He had told her to go to the bedroom. She was aware the deceased had been strangled. It was not clear that she had witnessed this, however, Pieter and Mark had told her what they had done. The deceased's body was in the kitchen of the unit. The accused told Pieter and Mark to get the body out of her house. Pieter, Mark and Edward Szkudelski took the body away. While they were absent, the accused cleaned up the beer bottles and the ashtrays. She mopped some blood off the floor because Pieter asked her to give it a clean. About half an hour later, Pieter and Mark returned. Pieter walked straight to the couch. The accused had a smoke and went to bed. Mark had a throbbing headache so he went to bed. 14 At the conclusion of the interview, the accused was asked to read the notes. She did so and confirmed that they accurately recorded the interview. She was asked if any threat, promise or inducement had been held out to her to give the answers she had given in the interview. She said not. She was asked if the answers made by her had been given of her own free will and she said, "Yes". She signed each page of the notebook. 15 After the interview, she was escorted by Senior Constable McGee to another room in the Police Station. At 5.35pm she was conveyed back to the Trinculo Place unit by Senior Constable Hughes and Senior Constable McGee. The officers then took her to collect her children and appear to have then driven her to premises in Mawson where she stayed. 16 On 1 July, the accused attended the Queanbeyan Police Station and was shown a typewritten transcript of the notebook record of her interview with Senior Sergeant Little. She signed each page of that transcript acknowledging it as an accurate account of her interview with Senior Sergeant Little. She supplied police with a three page typewritten statement supplying further information concerning her knowledge of the circumstances surrounding the killing of Paul Harris. This statement was taken in the form of a standard witness statement. No caution was administered prior to it being taken. 17 Senior Sergeant Little said that, at the time he interviewed the accused on 20 June 1998, he did not suspect that she had committed an offence. He remained of that view when he obtained the witness statement from her on 1 July 1998. 18 It appears Senior Sergeant Little was the officer principally responsible for the conduct of any inquiries concerning the accused as at 20 June 1998. He said that, in the technical sense, the accused was classified as under arrest while she was at the Police Station that day. His own attitude was that, had she indicated she wished to leave, he would have permitted her to do so. Section 108 of the Criminal Procedure Act 1986 19 Mr Crawford-Fish submits that the evidence of the admissions contained in the interview are not admissible since the requirements of s 108(2) of the Criminal Procedure Act 1986 have not been met. The Crown accepts that the admissions contained in the interview are admissions caught by s 108. Section 108(2) is in these terms: "Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made." 20 Section 108(4) provides that "reasonable excuse" includes the refusal of a person being questioned to have the questioning electronically recorded. 21 Mr Crawford-Fish accepts that his client refused to agree to her interview with Senior Sergeant Little being electronically recorded. It is his submission that s 108(2)(a)(ii) mandates that, in such a case, the investigating official obtain a tape recording of the person's statement that he or she refused to have the questioning tape recorded. 22 I do not consider s 108(2)(a)(ii) bears the construction for which Mr Crawford-Fish contends. I am satisfied that the Crown has established (within the meaning of s 108(2)(b)) that there was a reasonable excuse why a tape recording, as referred to in s 108(2)(a), could not be made. Accordingly, this ground of challenge to the admission of the contents of the interview fails. Section 84 of the Evidence Act 1995 23 The accused said that, while she was at the Queanbeyan Police Station that morning, a police officer said to her, "if I didn't tell the truth and I went to Court I would look like a bad mother". The accused said she considered this remark to be a threat. It led her to decide that she should tell the police the truth. Thereafter, she participated in the interview with Senior Sergeant Little. 24 On the accused's behalf it was submitted that the making of such a remark in the circumstances amounted to oppressive conduct within the meaning of s 84(1) of the Act and that the Crown had failed to show that it had not influenced the accused in the making of the later admissions to Senior Sergeant Little. 25 The Crown Prosecutor accepted that, if the remark was made, it would amount to oppressive conduct for the purposes of s 84(1). He submitted that I would reject the accused's evidence as to the making of the remark. 26 It was the accused's account that when she was taken to the Police Station she had been spoken to by a police officer who asked her questions about what had happened the previous night. She had told lies to him and been caught out. It was at this time that the officer pointed out to her if she didn't tell the truth and the matter went to court she might look like a bad mother. The officer who said this to her was in the room from the start when she was taken to the Police Station (T.155 line 26). She was asked what happened after that and she said, "Well, I got caught out and then I had the threat actually made to me, so I thought that, something in my brain just told me that I'd better tell the truth because I could lose my kids" (T.155 line 32). 27 The Crown submits that I would reject the accused's evidence since she was at odds with both Senior Constable Hughes and Senior Constable McGee who described no such incident. They were present with the accused in an office at the Police Station during the morning prior to the time when Senior Sergeant Little conducted his record of interview with her. 28 No evidence was led to establish who arrested the accused or who conveyed her to the Queanbeyan Police Station. When Senior Constable Hughes first saw her she was already in the office at the Police Station. Thereafter, he described himself and Senior Constable McGee as, effectively, "baby-sitting" her. 29 It was Senior Constable Hughes' recollection that Senior Constable McGee had been present with him and the accused throughout the morning (T.134 line 26). Senior Constable McGee said that he had attended to other duties which had taken him out of the office where Senior Constable Hughes and the accused were located. His Duty Book entries tended to confirm that to be the case. It was his recollection that Senior Constable Hughes was not present in the office with the accused the whole time either but that he had come and gone too (T.147). 30 The accused's evidence was, at times, difficult to follow as to the sequence of events that morning at the Police Station and as to which officers were present at relevant times. Evidence was led to show she has no criminal record. She said that she had been "stressed out". I accept that she was. I did not think the lack of precision in her evidence affected its reliability in the sense of truthfulness. I was inclined to believe the accused. I think it likely that, at an early stage while she was present at the Police Station that morning, a remark of the character which she describes was made to her by a police officer. It is not suggested that Senior Sergeant Little nor Senior Constables Hughes or McGee made the remark. 31 It is clear that the accused was asked some questions by Senior Constable Hughes at about 9.45am and that these were recorded in his notebook. At that time, the only information she gave concerning events following the return to the Trinculo Place unit was that she had gone to bed. When the accused spoke to Senior Sergeant Little she abandoned this stance and admitted to having been present during some of the assault upon the deceased and to the events which took place thereafter. It was not clear to me whether the accused was saying that the threat had been made prior to 9.45am. There is nothing in the account of the conversation between herself and Senior Constable Hughes which shows her being caught out lying. If the threat was made prior to this time, how can it be said that it influenced the making of the later admissions? She was, after all, prepared to be less than truthful in the conversation she had with Senior Constable Hughes. Against this is the view that the accused was seeking to convey that the threat occurred after the initial conversation recorded in Senior Constable Hughes' notebook but before the interview with Senior Sergeant Little. This is the sense of a passage in her cross-examination at T.159: "Q. When you said you started from scratch after the threat, was scratch when you had the first interview in the notebook? A. Not that I can recall. I think it was after the first statement virtually before I'd actually given the truth about the one that we have exhibit." 32 The onus lies on the Crown to establish that the making of the admission was not influenced by the making of the statement. The Crown Prosecutor points to the accused's answers given at the conclusion of the interview in which she says that she was not subjected to any threat, promise or inducement and that the interview was given of her own free will. The Crown relied on this passage in the accused's cross-examination: "Q. And I am saying to you that that answer was correct, that no threat had been made to you, what do you say to that? A. It was but I didn't think about it at the time." (T.163) 33 On one view the accused acknowledged by this answer that the earlier statement had not been operating on her mind at the time of the interview with Senior Sergeant Little. However, I think this is a too restrictive and somewhat artificial interpretation to place on it. I take the accused to have been saying that, when Senior Sergeant Little asked her the question at the conclusion of the interview as to whether she had been subject to any threat promise or inducement, she did not think of the earlier statement made to her concerning how she might be viewed by a court should she not speak truthfully to the police. 34 It is upon the Crown to affirmatively satisfy me that the statement did not influence the making of the admission. I do not consider the Crown has discharged that onus. Accordingly, I find that the contents of the accused's interview with Senior Sergeant Little on 20 June 1998 are inadmissible. 35 I should note that, in the light of the evidence as to her unlawful detention, I would have excluded the contents of the interview in any event pursuant to s 138. The Crown readily acknowledges that the accused's custody from around 8.30am to sometime a little after 5.30pm on 20 June 1998 was unlawful. She was arrested and conveyed to the Queanbeyan Police Station where she was detained throughout the day. There was no attempt made to comply with the provisions of Part 10A of the Crimes Act. I think the likely explanation for this is that no officer, connected with the investigation of the death of Paul Harris, suspected that she had committed an offence. Certainly Senior Sergeant Little (who appears to have been the officer most closely connected with the investigation with respect to the accused, Delly,) did not have such a suspicion. Nonetheless, she was held at the Police Station throughout the day. I accept that, had the accused told Senior Sergeant Little that she wished to leave the Police Station, he would have permitted her to do so. However, no one told her that. There can be no doubt she was in custody at least until around 5.30pm. At 9.45am, she told Senior Constable Hughes she would be willing to make a statement. No attempt was made to give her the opportunity so to do. Senior Constable Hughes considered the appropriate course was to wait for Senior Sergeant Little who had more knowledge of the progress of the investigation. No consideration appears to have been given as to whether the delay occasioned by waiting for Senior Sergeant Little was reasonable having regard to the requirements of Part 10A. 36 I consider the disregard of the accused's rights evidenced by her lengthy unlawful custody to be serious. This is not to say that Senior Sergeant Little deliberately detained the accused unlawfully. The matter was not explored for the purpose of this voir dire inquiry. I had the impression that Senior Sergeant Little had not turned his mind to the question of the accused's custodial status during the course of the day on 20 June 1998. He was frank in his evidence when the matter was raised. 37 Once it be accepted that evidence was obtained improperly or in contravention of the law, it is inadmissible unless the Court is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it having regard to the way in which it was obtained. Having regard to the various considerations to be taken into account pursuant to s 138(3) of the Act, I would not be so persuaded in this case. ********** Last Modified: 09/25/2000 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.