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 (b) notify such a representative accordingly." 11 Aboriginal persons and Torres Strait Islanders are "vulnerable persons" for the purpose of the Regulation (cl 5(1)(d)). The protective nature of the scheme with respect to Aboriginals and Torres Strait Islanders is highlighted by the terms of cl 28 of the Regulation. Unless the custody manager is aware that the detained person has arranged for a legal practitioner to be present during questioning, the custody manager's obligation is to notify the Aboriginal legal aid organisation of the fact of the detained person's custody. This is so whether the detained person wishes an Aboriginal legal aid organisation notified or not. 12 Sergeant Dagwell said that he could not recall whether he had contacted the Aboriginal Legal Service in respect of the detention of Pieter Helmhout on 20 June 1998. In cross examination it was suggested to Sergeant Dagwell (in the context of the obligation imposed by cl 28) that unless a person made a request of him to remind him of the duty he may not have made contact. To this he replied: "Well, I can't recall, but irrespective of whether that person said something to me or not with respect to that, I've got to do it, I have to do it and I - well, that's what I was just saying. I know that the regulation is there that I have to do it, but I cannot recall doing it." (T.212-3) 13 Mr Jeffery, solicitor with the Aboriginal Legal Service, gave evidence that neither he nor his field officer, Mr Brandy, were contacted in relation to the arrest and detention of either Pieter or Mark Helmhout on 20 June 1998. The Crown accepted, in the light of Mr Jeffery's evidence, that no contact had in fact been made with the Aboriginal Legal Service in conformity with the requirement imposed on the custody manager pursuant to the Regulation. 14 I accept that Sergeant Dagwell did not notify the Aboriginal Legal Service on 20 June 1998. Sergeant Dagwell impressed me as an honest and conscientious officer. I consider his failure on this occasion was an oversight. It was a busy morning for him. He was required to process four persons in accordance with the Part 10A protocol. The protocol requires the custody manager to complete a pro-forma document in manuscript and to administer a questionnaire to the detained person by reference to a series of computer screen prompts. As at 20 June 1998, neither of these procedures contained a reminder of the need, in the case of Aboriginal persons and Torres Strait Islanders, to comply with cl 28 of the Regulation. Had Sgt Dagwell been prompted by the terms of the pro forma document or the questionnaire to notify the Aboriginal Legal Service I have no doubt he would have done so. The omission of a reminder, in the case of Aboriginal and Torres Strait Islander detainees, of the requirements of cl 28 appears to be a defect in the design of the protocol as it stood in June 1998. As I noted in my reasons for judgment in the related matter of Regina v Mark Helmhout 23 February 2000, if this has not been addressed in revisions to the protocol, I suggest that it should be. 15 The failure to comply with the provisions of Part 5 of the Regulation which relevantly modify the application of Part 10A of the Act enlivens the operation of s 138(1) of the Evidence Act 1995. The Crown did not seek to contend the contrary. Accordingly, the interview is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting it given the manner in which it was obtained. In this respect I have regard to the matters set out in s 138(3)(a)-(h) inclusive. 16 In the course of the interview, the accused gives a varied account of his knowledge of an assault committed the previous evening upon a person who it might be assumed is the deceased. He makes no admission to involvement in the assault. However, he does acknowledge driving the assailant and the body to the vicinity of the Oaks Estate where the body was removed from the vehicle. He says he used his brother's car for this purpose. There is evidence in the Crown case that the vehicle in which the body of the deceased was carried belonged to Mark Helmhout. Incriminating evidence (although not the body) was dumped in the vicinity of the Oaks Estate. I consider the probative value of the assertions made in the interview to be high. 17 The evidence forms an important plank in the Crown case. The Crown case depends substantially upon the evidence of a witness, Edward Szkudelski. On his own account, Mr Szkudelski was present at the time of the killing and assisted in the disposal of the body of the deceased. I will be obliged to give the jury a strong reliability warning pursuant to s 165(1)(d) of the Evidence Act in relation to the evidence of Edward Szkudelski. He is a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. It is against this background that the accused's record of interview assumes considerable significance. 18 Section 138(3)(c) requires me to take into account the nature of the relevant offence. It is sufficient to note that the accused is charged with murder. 19 I am also required to have regard both to the gravity of the impropriety or contravention and whether the same was deliberate or reckless. I consider that the failure to conform with the requirements a statutory scheme designed to provide special protections for vulnerable persons to be a serious matter. I do not consider that Sergeant Dagwell's neglect was either deliberate or reckless. He struck me as an officer who would faithfully comply with each of the requirements of the protocol given to him. It is unfortunate that none of the prompts drew attention to the requirements of cl 28. Sergeant Dagwell readily acknowledged his awareness of the terms of cl 28. I accept that, in the circumstances in which he found himself on this occasion, he simply forgot to do so. 20 Neither the provisions of s 138(3)(f) or (g) are applicable in the circumstances of this case. As to para (h), I consider there would have been no difficulty in obtaining the evidence without impropriety or contravention of an Australian law. 21 The onus is upon the Crown to satisfy me that the desirability of admitting the evidence outweighs the undesirability of so doing. On the balance I am satisfied that this onus has been discharged. My finding that Sergeant Dagwell's behaviour was neither reckless nor deliberate is important to this conclusion. 22 An alternative (although in some respects related) basis upon which the admission of the interview was challenged related to the evidence of the accused's state of intoxication at the time of the interview. The interview commenced at 9.43am. It was concluded at 11.07am. It appears that the deceased was killed in the early hours of the morning of 20 June. There is a considerable body of material to suggest that the accused was very intoxicated during the course of the afternoon and evening of 19 June and continuing into the early hours of the following morning. 23 The accused was described by the witness, Noel Gardener, as being "very, very intoxicated". Michael Bradley described him as being "pretty out of it" when he observed him around midnight on the evening of 19 June. He demonstrated how the accused's head was lolling from side to side. A shop assistant from the Mac's Liquor outlet at Woolworths, Queanbeyan, gave evidence that he refused to serve the accused since he appeared to be too intoxicated. This would have been around 10.30pm on 19 June 1998. The witness noted that the accused's speech was slurred, he smelt of alcohol, he was not able to stand straight and was stumbling all over the place. There were a number of other witnesses of who gave accounts consistent with the view that the accused, Pieter Helmhout, was very intoxicated in the hours preceding the killing. He appears to have been smoking marijuana as well as drinking a substantial quantity of beer and other alcoholic drinks. 24 The police were contacted by the witness, Edward Szkudelski, at 5.15am on 20 June. I consider it reasonable to infer that the accused had his last drink not later than 5.00am on that morning. 25 Detective Nixon was the officer in charge of the investigation. He conducted the interview with the accused. He said that when he first spoke with the accused "I thought that he had had a heavy night". He said that accused smelt both of alcohol and of cigarettes. He did not consider that the accused was under the influence of any intoxicant at the time he first spoke with him. Detective Squire was also present during the interview. He said of the accused, "He appeared to me to have had a big night, hung over". He formed the opinion that the accused was coherent. He noted that the accused responded appropriately to the questions asked of him. When police first saw the accused in the Trinculo Place unit, Detective Squire observed that he may have been a bit unsteady on his feet. However, he did not note signs of unsteadiness back at the police station. The accused's eyes were bloodshot. 26 Margarite Helmhout gave evidence on the voir dire. She is the mother of the accused. She was an impressive witness. Among her achievements, she co-founded the Aboriginal Legal Service in Queanbeyan. She has worked for a number of years with young offenders, both as a Commonwealth and New South Wales Public Servant. Mrs Helmhout had viewed a portion of the record of interview between Detective Nixon and her son. She said, "that is not my son talking". It was her opinion that the accused was affected by a combination of matters, including deep grief, some anxiety, alcohol, marijuana and other drugs at the time of the interview. She had made observations of the accused on the day of the funeral. She said it had taken him half an hour to put his shoes on. He was experiencing deep grief and a sense of devastation. 27 I viewed the whole of the record of interview during the course of the voir dire hearing. The accused's appearance and demeanour during that interview are consistent with a view that he was still affected, to some degree, by the effects of the substantial quantity of alcohol and drugs consumed in the preceding hours. Mr Webb characterised his answers as having, at times, a rambling quality. There are passages in the interview where that seems to me a fair description. 28 The only authority to which I was referred which touches on the question of intoxication as it may relate to the admissibility of admissions under the provisions of the Evidence Act is Regina v Donnelly (1997) 96 ACrimR 432. In that case there was some evidence that the accused was affected by prescribed drugs in combination with a condition of severe depression. Hidden J in the context of reviewing the considerations set out in s 85(3) of the Act observed (at p.441): "The common law relating to the admissibility of confessions by persons suffering a mental disorder or disability was summarised by Gleeson CJ in R v Parker (1989) 19 NSWLR 177 at 183-4, and what his Honour there said, is applicable mutatis mutandis, to the relevant provision of the Evidence Act . As his Honour observed, 'Persons who are intellectually handicapped or who suffer from disease or disorder of the mind are by no means necessarily incapable of telling, or admitting the truth'." 29 The Crown contends that the accused's answers in the course of the interview contain a number of patently false assertions. Broadly, the accused gives an account that he was drinking by the river the previous evening when a stranger assaulted someone who may have been deceased. The stranger then required the accused, at gunpoint, to obtain a car and convey him and the body to the vicinity of the Oaks Estate. There are a number of implausible aspects to the account. No expert evidence has been led to suggest that accused's state of alcohol intoxication was such as to give rise to concerns as to confabulation. Mr Webb does not submit that the circumstance that the accused may still have been intoxicated raises an issue as to the admissibility of the interview pursuant to s 85(2) of the Evidence Act. 30 It was Mr Webb's submission that I would exclude the interview in the exercise of the discretion conferred by s 90 of the Evidence Act. That section permits a court to refuse to admit evidence of an admission if, having regard to the circumstances in which it was made, it would be unfair to the accused to use it. Mr Webb submits that the circumstance that the accused was still suffering the effects of intoxication in combination with the failure of the custody manager to comply with cl 28 of the Regulation together produce a result that it would be unfair to admit the evidence. 31 In R v Ostojic (1978) 18 SASR 188, Wells J (with whom Hogarth J and King J agreed) considered that statements made by a person so severely intoxicated as to be unaware of "his surroundings, of the identity of his interrogator, and of the drift of questions put that he is incapable of choosing whether to speak or not and is just gabbing" might be involuntary. His Honour was, of course, concerned with the position at common law. However, his Honour went on to observe (at p 197): "Liquor may loosen a man's tongue; it may impair his ability to continue fraudulent conduct when under close questioning; it may inhibit his inventiveness and hence weaken his capacity to lie effectively. In such circumstances, if there is no more, I see no ground in principle or authority for excluding his answers..…it is a question of fact and degree." 32 In R v Smith (1992) 58 SASR 491, Perry J excluded admissions made by an intoxicated accused. There was expert evidence that given the combination of mild organic brain damage and a probable blood alcohol reading of .2, the accused was likely to be amnesiac for the subject event and, if questioned, likely to confabulate. His Honour considered the evidence pointed to the accused being incapable of making a rational decision between speaking and remaining silent (at p 500). He rejected the admissions as not voluntary. 33 In R v Garth (1994) 73 A Crim R 215, Olsson J, with whom Prior J agreed, held that admissions contained in an electronically recorded interview with an intoxicated suspect were voluntary. His Honour took into account that the accused's answers to questions generally appeared coherent and responsive. When asked to read three pages of a detective's handwritten notes, the accused did so without apparent difficulty, on occasions identifying errors in them concerning the spelling of his name. He was able to gesticulate during the interview and his motor functions appeared coordinated and controlled. He had demonstrated a remarkable memory for various details of the events of the day. His Honour concluded that the appellant: "… fully appreciated his situation, agreed to answer questions, understood what was asked of him and gave rational responses, the accuracy of a number of which were independently verified by other objective evidence". (At p 234) 34 As noted above, I consider the appearance of the accused during the course of the interview to be consistent with a person still affected, to some degree, by the effects of the substantial quantity of alcohol and drugs consumed by him some hours earlier. However, I am satisfied that the accused was aware that he had been arrested and was being interviewed in connection with an allegation of murder. The introductory questions and answers make clear that the accused was aware of his surroundings and that he was able to recall the sequence of events from the time he was woken by police and informed that he was under arrest. In answer to question 23 he corrected a piece of incidental information he had supplied in the preceding answer. The accused acknowledged both that Sergeant Dagwell had told him he was entitled to have a solicitor present (question 26) and that he was cautioned (question 25). 35 In answer to question 29, the accused said, inter alia, "I don't know the Paragon Mall out at Fyshwick". This has some significance for present purposes because, at the very commencement of the interview, Detective Nixon informed the accused "Detective Squire and myself are making enquiries into the discovery of a body at the Paragon Mall, Fyshwick earlier this morning". There is no further reference to the Paragon Mall until the accused's answer to question 29. It would appear that the accused was able to absorb information given to him and to retain it for a period. 36 Detective Nixon asked the accused if he agreed that he had been informed that he was allowed to telephone a lawyer (question 32). To this the accused replied "well I don't think I need one at the moment". The accused's view in this respect might be thought to have been ill-advised, but the significance of the exchange is that the accused acknowledged that he had been informed of his right to contact a lawyer and, again, he appears to have been able to recall the earlier discussion. 37 Generally, the accused's answers to the questions asked of him were responsive. The account he gave might be thought to be, at times, implausible. However, when his attention was directed to a topic, he responded appropriately in the sense of giving an answer to that question. 38 In The Queen v Swaffield (1998) 192 CLR 159 at 189, Toohey, Gaudron and Gummow JJ, in considering the "fairness discretion" at common law, observe: "Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted." 39 The fact that the accused may have made admissions (using the term in the way in which it is defined for the purposes of the Evidence Act) in part because his tongue was loosened by the effects of alcohol and drugs does not, in my view, make it unfair to admit the interview for the reasons given in Ostojic. 40 I have given consideration to whether the failure of police to contact an Aboriginal legal aid office in combination with the accused's state of intoxication might make it appropriate to exercise my discretion to exclude the interview. Had the police investigation been conducted in accordance with the statutory scheme, the Aboriginal Legal Service at Queanbeyan would have been notified of the accused's detention. There would have been no obstacle to a solicitor, or field officer from that Service, attending and giving the accused some advice. In the event the accused received no legal advice and, while still affected to some degree by intoxicating substances, participated in an interview with the investigating police. I do not know that I can infer what advice might have been given to the accused had a representative of the Aboriginal Legal Service spoken with him. I do not see how I can infer what the accused's response to any advice might have been. 41 Having regard to the opening passages in the interview, I accept that the accused was not so affected by alcohol or drugs as to not understand that he had a right to refuse to answer questions. Further, I accept he was informed that he had a right to make contact with a lawyer and that he chose not to do so. In these circumstances, I am not of the view that it would be unfair to the accused to allow the evidence to be given. ********** 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.