R v Pieter Egbert Helmhout [2000] NSWSC 208

Reported Decision : 112 A Crim R 10

New South Wales Supreme Court

CITATION : R v Pieter Egbert Helmhout [2000] NSWSC 208 FILE NUMBER(S) : SC 70023/99 HEARING DATE(S) : 25/2/00, 03/03/00, 10/03/00 JUDGMENT DATE : 22 March 2000

Regina PARTIES : v Pieter Egbert Helmhout (Accused) JUDGMENT OF : Bell J

COUNSEL : C: Mr R D Cogswell SC A: Mr A Webb SOLICITORS : C: D Knott, Director of Public Prosecutions A: Christine Bourke CATCHWORDS : CRIMINAL LAW - Admissibility of evidence - voir dire - whether police failed to comply with Regulation - state of intoxication - whether unfair to use interview in evidence. Crimes Act 1900, Part 10A LEGISLATION CITED : Crimes (Detention after Arrest) Regulation 1998, cls.5,28 (Parts 4 & 5) Evidence Act 1995, ss85,90,138,165 R v Mark Helmhout, unrep, 23/02/00 R v Donnelly (1997) 96 ACrimR 432 CASES CITED : R v Ostojic (1978) 18 SASR 188 R v Smith (1992) 58 SASR 491 R v Garth (1994) 73 ACrimR 215 The Queen v Swaffield (1998) 192 CLR 159 DECISION : See para 41

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

22 MARCH 2000 70023/99 - REGINA v PIETER EGBERT HELMHOUT

JUDGMENT - Admissibility of ERISP with Pieter Helmhout 1 HER HONOUR: On 21 February 2000, the accused, Pieter Egbert Helmhout, was arraigned before me jointly with Mark William Helmhout, Deborah Joy Davidson and Joanne Rose Delly, upon an indictment charging him with the murder of Paul Joseph Harris on 20 June 1998. Mark William Helmhout was also charged with the murder. Both Deborah Joy Davidson and Joanne Rose Delly were charged with being accessories after the fact to the murder. A jury was empanelled on that day. Prior to the Crown opening, I was invited to deal with a number of preliminary issues as to the admissibility of evidence. In the case of each accused, objection was taken to the tender by the Crown of an electronically recorded interview. 2 As a result of the ruling I made concerning the admissibility of the interview between Mark Helmhout and police, Mr Webb made an application for a separate trial in relation to his client, Pieter Helmhout. That application was successful and, pursuant to s 365(2) of the Crimes Act, 1900 ("the Act"), I directed that the count against Pieter Helmhout be severed and that Pieter Egbert Helmhout be tried separately. The jury which had been empanelled in the joint trial was discharged on 28 February 2000 without verdict in relation to Mark Helmhout, Pieter Helmhout and Deborah Davidson. The jury were directed to return a verdict of acquittal with respect to Joanne Delly. The Crown indicated that it would proceed with the trial of Mark William Helmhout and Deborah Joy Davidson and it was agreed that the trial of Pieter Helmhout would immediately follow the conclusion of those proceedings. 3 On 25 February 2000, I commenced a voir dire hearing as to the admissibility of an electronically recorded interview between Pieter Helmhout and Detectives Nixon and Squire. That hearing was not completed on that day. It was stood over for further hearing to 3 March and thereafter to 10 March 2000. In the meantime, I embarked upon the trial of Mark Helmhout. I set out this history in order to explain certain of the evidence which was before me on the voir dire hearing. 4 On 25 February, when the voir dire hearing commenced, a number of statements were tendered being the accounts of various civilian witnesses as to the events of the day preceding the killing of Mr Harris. These statements were tendered because they included reference to the observations made by the witnesses as to the extent of Pieter Helmhout's intoxication in the period prior to his arrest. By the time evidence was completed on the voir dire, I had heard evidence in the Mark Helmhout trial from these and other witnesses. The evidence in the Mark Helmhout trial concerning the accused's state of intoxication was of a more extensive nature than that contained in the statements. I was invited, by consent, to have regard to the evidence given at the trial of Mark Helmhout on this issue. I should also note that on 22 February 2000, in a voir dire hearing concerning the admissibility of the electronically recorded interview between Mark Helmhout and investigating police, James Richard Jeffery, a solicitor with the Aboriginal Legal Service gave evidence. By consent, the evidence given by Mr Jeffery on that occasion was tendered in the proceedings before me on the present voir dire. 5 Pieter Helmhout was arrested at premises at 10/30 Trinculo Place, Queanbeyan at about 8.45am on 20 June 1998. He was informed that he was arrested in connection with a murder which had taken place earlier that morning. Police had information from a man named Edward Szkudelski that Pieter Helmhout and his brother, Mark, had strangled the deceased and disposed of his body in an area of bushland at Fyshwick. 6 The accused was conveyed to the Queanbeyan Police Station where he was detained pursuant to Part 10A of the Act. He was subsequently charged with the murder of Paul Harris. 7 Shortly after his arrival at the Queanbeyan Police Station, the accused was introduced to Sergeant Dagwell, the custody manager. This was not later than 9.05am. Sergeant Dagwell attended to the completion of the custody manager's protocol which includes reading to the detained person a statement of his rights pursuant to Part 10A of the Act and administering a questionnaire to him or her. That process was completed at around 9.20am when the accused was taken to an interview room. The electronically recorded interview commenced at 9.43am. 8 Objection is taken to the admission of the interview upon two grounds: (i) the failure of the police to comply with the requirements of cl 28 of the Crimes (Detention after Arrest) Regulation 1998 ("the Regulation"), (ii) the accused's apparent state of intoxication was such that it would be unfair to the accused to use the interview in evidence. 9 Part 10A was introduced into the Act by the Crimes Amendment (Detention after Arrest) Act 1997. It makes provision for the detention of a person who is under arrest for a period of time to enable the investigation of the person's involvement in the commission of an offence. This represents a significant alteration to the position at common law. Provision is made in Part 10A, and in the Regulation, for the protection of the rights of the detained person in a number of important respects. 10 Section 356A(1)(b) provides that the regulations may make provision for the modification of the application of Part 10A with respect to Aboriginal persons or Torres Strait Islanders. That has been done by the provisions of Parts 4 and 5 of the Regulation. Clause 28 is contained within Part 5. It provides as follows: "If a detained person is an Aboriginal person or 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