R v Mark William Helmhout & Anor [2000] NSWSC 218

New South Wales Supreme Court

CITATION : R v Mark William Helmhout & Anor [2000] NSWSC 218 FILE NUMBER(S) : SC 70205/99; 70206/99 HEARING DATE(S) : 09/03/00, 10/03/00 JUDGMENT DATE : 10 March 2000

Regina v Deborah Joy Davidson PARTIES : Regina v Mark William Helmhout JUDGMENT OF : Bell J

C: Mr R D Cogswell SC COUNSEL : DD: Mr J S Stratton MH: Mr G Corr C: D Knott, Director of Public Prosecutions SOLICITORS : DD: Brenda Duchen MH: J R Jeffery, South Eastern Aboriginal Legal Service CATCHWORDS : CRIMINAL LAW - Application to Discharge Jury - prejudice - evidence tending to disclose past criminality LEGISLATION CITED : Crimes Act 1900, Part 10A Crimes (Detention after Arrest) Regulation 1998, cl.28 R v Knape [ 1965] VR 469 R v Waring (No.2) [1972] QdR 263 The Queen v Koppen (1975) 11 SASR 182 CASES CITED : Maric v R (1978) 20 ALR 513 R v Weaver [1968] 1 QB 353 The Queen v Glennon (1992) 173 CLR 592 Crofts v The Queen (1996) 186 CLR 427 Australian Criminal Trial Directions DECISION : Declined

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

10 March 2000 70205/99 - REGINA v DEBORAH JOY DAVIDSON 70206/99 - REGINA v MARK WILLIAM HELMHOUT

JUDGMENT - Application to Discharge Jury

1 HER HONOUR: On Thursday 9 March 2000, Mr Corr who appears on behalf of the accused, Mark William Helmhout, made application for me to discharge the jury following the admission of some evidence from Sergeant Dagwell tending to disclose that the accused had, on a previous occasion, been arrested and detained in police custody. 2 The evidence was given late in the day. At the conclusion of Sergeant Dagwell's examination in chief, Mr Corr made his application. He submitted that the disclosure of material of this nature carried such potential for prejudice that the proper exercise of my discretion required the discharge of the jury. He referred me to the authorities collected on this point in Australian Criminal Trial Directions, Glissan and Tilmouth, Butterworths at para 4-800-15-10. 3 I stood the matter over to 9.30am the following day to enable further consideration of the application. On Friday, 10 March 2000, Mr Corr took me to a number of authorities; R v Knape [1965] VR 469 at 473; R v Waring (No. 2) [1972] Qd.R 263 at 270-271; The Queen v Koppen (1975) 11 SASR 182 at 185; Maric v R (1978) 20 ALR 513 at 519-520. Before turning to a consideration of the authorities, it is appropriate to set out the circumstances in which the matter arose. 4 Sergeant John Warren Dagwell was the custody manager at the Queanbeyan Police Station on 20 June 1998 when the accused was brought into custody pursuant to the provisions of Part 10A of the Crimes Act, 1900. Among the issues in this trial are (i) the extent of the accused's intoxication by alcohol and/or other drugs at the time he participated in an ERISP on the morning of 20 June 1998, (ii) whether prior to participating in that interview he had been threatened by the detectives in charge of the investigation and (iii) the failure of Sergeant Dagwell to comply with the requirements of cl 28 of the Crimes (Detention after Arrest) Regulation 1998. In the light of these issues, the Crown Prosecutor led evidence from Sergeant Dagwell (without objection) as to the questions asked of the accused and the answers received in the course of completing the custody manager's protocol. The protocol requires the custody manager to inquire as to the detainee's state of intoxication. The detainee is also asked if he or she is an Aboriginal or Torres Strait Islander. This latter consideration is relevant to the cl 28 issue. The questions to be asked of detainees are brought up on the computer screen as the custody manager completes the protocol. Provision is made for either an affirmative or negative answer to be recorded by typing "Y" or "N". In the course of his evidence, Sergeant Dagwell was shown a bundle of computer generated documents being the Part 10A protocol relating to the accused. He was invited to recount his questions, and the accused's responses, by reference to those documents. Both the Crown Prosecutor and Mr Corr had copies of a set of computer generated documents (being the Part 10A protocols relating to the accused), however, it appears that neither had the complete set. Sergeant Dagwell's bundle, MFI 16, included the following question: "Q: Is this the first time you have been arrested and placed in police custody?"