R v Deborah Joy Davidson & Ors [2000] NSWSC 187

New South Wales Supreme Court

CITATION : R v Deborah Joy Davidson & Ors [2000] NSWSC 187 FILE NUMBER(S) : SC 70023/99; 70205/99; 70206/99; 70098/99 HEARING DATE(S) : 23 February 2000 JUDGMENT DATE : 28 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 evidence - whether accused unlawfully detained - whether improper questioning Evidence Act 1995, ss85,90,137,138 LEGISLATION CITED : Crimes Act 1900, Part 10A Criminal Procedure Act, s108 CASES CITED : R v Clarke (1997) 97 ACrimR 414 R v Lockyer (1996) 89 ACrimR 457 DECISION : See para 4

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

MONDAY 28 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 Deborah Joy Davidson 1 HER HONOUR: On Wednesday 23 February 2000, Mr Stratton, who appears on behalf of the accused, Deborah Joy Davidson, made application for the contents of an electronically recorded interview between his client and police, made on 20 June 1998 ("the ERISP") to be excluded from evidence. This application, together with a number of like applications made on behalf of the other accused, was dealt with after the jury was empanelled but prior to the Crown's opening. 2 Mr Stratton's challenge to the admission of the interview was made upon two grounds: (i) the accused was unlawfully detained at the time the interview was conducted and it was thus inadmissible unless I was persuaded by the Crown that the desirability of admitting it outweighed the undesirability of so doing pursuant to s 138 of the Evidence Act 1995 ("the Act"); (ii) in the course of the interview the accused made plain that she did not wish to say anything beyond that which she asserted in answer to question 115. The continued questioning of her thereafter was improper and either attracted the operation of s 85(2) of the Act or, alternatively, should be excluded in the exercise of discretion pursuant to ss 90 and/ or 137 of the Act. 3 In the event that Mr Stratton's challenge based upon ground (i) succeeded, it would provide a basis for rejecting the ERISP in its entirety. Mr Stratton informed me, in the course of submissions, that he was confining his application to the exclusion of that portion of the interview which follows question 114 (it should be noted that by agreement between the parties questions and answers 109 to 114 will not be pressed by the Crown). 4 At the conclusion of evidence taken on the voir dire and after hearing submissions from the Crown and Mr Stratton, I ruled that in the exercise of my discretion I would reject certain of the questions and answers contained in the ERISP. The passages which I rejected are as follows: questions and answers 141, 144, 169-180 inclusive, 184-259 inclusive. 5 I now give my reasons for so ruling. 6 I will deal firstly with the issue of the lawfulness of the accused's custody. The accused was arrested together with Pieter and Mark Helmhout. The brothers Helmhout were arrested for the murder of a man named Paul Harris. All were arrested at premises at 10/30 Trinculo Place, Queanbeyan. The accused's arrest was effected around 8.45am. The three were taken to Queanbeyan Police Station. The designated custody manager at the Queanbeyan Police Station on that day was Sergeant Dagwell. Pieter Helmhout was placed into the charge of the custody manager at around 9.05am. It appears that the process of completing the requirements imposed by ss 356M and 356N of the Crimes Act 1900 takes about twenty minutes or more. Sergeant Dagwell next dealt with Mark Helmhout whom he commenced to process at 9.30am. At 10.09am or thereabouts, Detectives Porta and Walpole introduced the accused, Deborah Davidson to Sergeant Dagwell. 7 Sergeant Dagwell read out to the accused a statement of her rights pursuant to Part 10A of the Crimes Act. He then obtained information from her which he recorded on the computer. At the completion of the custody manager's protocol, the accused was placed in an interview room. She was kept there until 1.47pm when Detectives Porta and Walpole commenced the ERISP. The accused had been detained under arrest for around five hours at the time of commencement of the interview. The interview was not completed until 2.39pm. She was not charged until 6.55pm that evening. 8 Part 10A of the Crimes Act was introduced by the Crimes Amendment (Detention after Arrest) Act 1997. It commenced on 9 February 1998. The objects of the Part are set out in s 354. They include the provision of a period of time during which a person, who is under arrest, may be detained by a police officer to enable the investigation of his or her involvement in the commission of an offence. A police officer may detain a person, who is under arrest, for the investigation period provided by s 356D. Section 356C(4) provides that the person must be released within the investigation period (whether unconditionally or on bail) or brought before a justice, magistrate or court within that period or as soon as practicable after that period. 9 The investigation period is a period which begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances; s 356D. It may not exceed the maximum investigation period. The maximum investigation period is four hours or such longer period as may be extended by a detention warrant. No detention warrant providing for the extension of the accused's investigation period was sought or obtained in this case. 10 A justice of the peace was available on call on Saturday 20 June 1998 in Queanbeyan to hear applications for bail. The accused was not released nor was she taken before a justice until the following day, Sunday 21 June 1998. This history does not suggest that those responsible for the accused's custody paid proper attention to the requirements of Part 10A of the Crimes Act. However, for the purpose of this application, I am concerned with the lawfulness or otherwise of the accused's detention up to and including the time taken to conduct the ERISP. 11 Section 356E provides that, in determining what is a reasonable time for the purposes of s 356D(1), all the relevant circumstances must be taken into account. Section 356E(2) sets out twelve circumstances to which (if relevant) attention must be directed in determining this issue. Those twelve circumstances are not an exhaustive statement of the matters which may be taken into account. When the reasonableness of the period of time during which a person was detained under Part 10A is in issue in criminal proceedings, it is the Crown which bears the onus of establishing on the balance of probabilities that the period of time was reasonable. 12 Section 356F(1) provides that certain times are not to be taken into account in determining how much of the investigation period has elapsed. Those periods are set out in paras (a) to (m). Again, the onus lies upon the Crown to show on the balance of probabilities that a particular period of time ought not to be taken into account in determining how much of the investigation period has elapsed. 13 In this case, the Crown relied particularly on s 356F(1)(b) and (c). Paragraph (b) permits the court to disregard the time that is reasonably spent waiting for the arrival (at the place where the person is being detained) of police officers whose particular knowledge of the investigation, or whose particular skills, are necessary to the investigation. At the time of the arrest of the accused, police executed a search warrant on the premises at 10/30 Trinculo Place. A black ladies' jacket was located in the bedroom in which the accused was sleeping. This jacket was the focus of considerable attention during the course of the ERISP. At the time of the accused's arrest and when she was first brought back to the Queanbeyan Police Station neither Detectives Porta nor Walpole were in possession of the jacket. The jacket was brought back to the Police Station subsequently by Detective Senior Sergeant Little. A search of the jacket revealed a card belonging to the deceased. 14 The Crown Prosecutor submitted that the time spent waiting for the arrival of Detective Senior Sergeant Little and the jacket should not count towards the calculation of the investigation period. 15 Detective Porta said that the delay associated with the interview of the accused was occasioned both by waiting for the results of inquiries which were being conducted at the Trinculo Place unit and in waiting for the electronic recording interview room to become available (T.101). 16 Detective Senior Sergeant Little (as he then was) gave evidence that he collected the black jacket from the bedroom at the Trinculo Place unit. He left those premises with the jacket at about 10.15am and returned to the Queanbeyan Police Station. That journey took no more than five minutes. On arrival at the Police Station, he handed the jacket (and the card which had been located in the pocket) to Detective Walpole (T.110). 17 I consider that the prosecution has established that the time spent waiting for the return of Detective Senior Sergeant Little with the items of physical evidence should not be taken into account in determining how much of the investigation period had elapsed. 18 The remaining period from around 10.25am to 1.47pm was wholly referable to the delay in getting access to the ERISP machine. No inquiries were made to determine the availability of a portable machine. 19 Section 356F(1)(c) provides that a further period which should not count towards the investigation period is any time that is reasonably spent waiting for facilities, for complying with s 108 of the Criminal Procedure Act 1986 to become available. This was the principal basis upon which the Crown relied for its contention that the investigation period had not elapsed at the time of the commencement (or throughout) the ERISP. 20 Evidence was led on the accused's behalf which tended to show that a portable ERISP machine had been available at the Queanbeyan Police Station on 20 June 1998. An interview conducted on a portable ERISP machine between Detective Nixon and Edward Szkudelski on 20 June 1998 at the Queanbeyan Police Station was in evidence before me on the voir dire. 21 Detective Porta said that he was not sure whether a portable ERISP machine was available at Queanbeyan Police Station on that day, although he was aware that there had been one available in the past (T.102). 22 Detective Walpole said that the morning had been spent waiting for the ERISP facility to become available. He was aware that a portable ERISP machine was available at Queanbeyan Police Station from time to time. He was not able to say whether that machine had been available at Queanbeyan on 20 June 1998 (T.114). 23 There was no challenge to the evidence that the interview room containing the ERISP machine was occupied up to 1.47pm or thereabouts when Detectives Porta and Walpole commenced their interview with the accused. 24 The portable ERISP machine permits the recording of an interview which complies with the requirements of s 108 of the Criminal Procedure Act in that it tape records the contents of the interview. However, it does not have the capacity to record the interview on videotape. I accept that a portable ERISP machine was present at Queanbeyan Police Station on 20 June 1998. There is no evidence that it was in use prior to 1.30pm when the interview with Mr Szkudelski was commenced. 25 It appears clear that the lengthy delay, prior to the commencement of the interview, was brought about by waiting for the standard ERISP machine to become available. In the initial phase of the interview, after obtaining the accused's agreement that her rights under Part 10A of the Crimes Act had been read to her, this question and answer are recorded: "Q. Do you agree since then we've pretty well been waiting for the availability of this machine and you've been waiting and had some lunch and some more smokes and coffee? A. Yes." 26 Prior to the interview the accused was provided with refreshments. Section 356F(1)(j) provides that this period of time is to be taken out when calculating the investigation period. There was no evidence as to how long was taken up with the provision of lunch to the accused. It would seem that at least two hours were spent waiting for the ERISP equipment after the time when the jacket and card were made available to Detectives Walpole and Porta. The interview itself occupied another 52 minutes. 27 Neither Detective Porta nor Detective Walpole appears to have turned his mind to the question of whether an alternative to the standard ERISP machine might be available. I do not consider this omission to mean that the time spent waiting for the ERISP was not reasonable within the meaning of s 356F(1). The delay occasioned by waiting for the ERISP interview facilities to become available was a long one. On balance, I consider that it remained within the bounds of that which was reasonable. Accordingly, I do not consider that the accused's custody was unlawful as at 1.47pm or during the balance of the time taken up by the interview. 28 I should note that if I were to have found that the accused's custody was unlawful, I would have been of the view that the desirability of admitting the evidence outweighs the undesirability of admitting it having regard to the manner in which it was obtained; s 138(1). In this regard, I consider that the matters to be taken into account pursuant to s 138(3) favour admission. I accept that Detectives Walpole and Porta did not deliberately shut their minds to the availability of alternative equipment to the standard ERISP machine which was located at Queanbeyan Police Station. I would not categorise any failing on their part as deliberate or reckless within the meaning of s 138(3)(e). 29 The second ground of challenge related to the conduct of the questioning of the accused. During the interview, the accused was asked some questions concerning the purchase of a train ticket with a pension card. This line of questioning concluded with this exchange: "Q.114 O.K. How did you get, which train station did you arrive at? A. I won't answer it. Q.115 In relation to any of these matters do you wish to answer any more questions at all? A. All I'll say is I went to bed last night, I crashed out and I just spun out, I mean, all I did was come down for a funeral." 30 Mr Stratton submitted that, by her answer to question 115, the accused indicated an unambiguous intention to say nothing more than that which is embodied in the answer. For the police to persist with further questions thereafter was to disregard the accused's right to silence. It was submitted that I would reject the balance of the interview following answer 115 in the exercise of my discretion pursuant to ss 90 and/or 137 of the Act. 31 I viewed that portion of the videotape of the interview showing answers 114 and 115. It is to be noted that answer 114 is plainly referable to the accused's refusal to answer further questions on the topic of the rail ticket. I do not consider answer 115 to be a statement that the accused was refusing to answer further questions generally on the topic of the investigation into the death of the deceased. I note the observations of Hunt CJ at CL in R v Clarke (1997) 97 ACrimR 414 at 419-20. His Honour observed that it is a question of degree as to whether persistence has crossed the line so as to render it unfair to the accused to use the answers in evidence. I do not believe that line was crossed by the questions which followed answer 115. 32 I did reject a number of questions and answers contained in the interview from question 141 on, as set out at the commencement of these reasons. I do not propose to go through those passages of the interview in detail. Generally, the rejected questions involved pressing the accused on her answer concerning her asserted lack of knowledge of the black ladies' jacket. The questioning was persistent and, at times, argumentative. It elicited further denials. Other questions which I rejected involved allegations being put to the accused which, again, elicited denials. In a number of instances, the questions were framed in a somewhat loaded way (see, for example, questions 219 and 225). Overall, the accused's denials added little to the Crown case. I considered that there was a danger of unfair prejudice (in the sense in which that concept was explained in R v Lockyer (1996) 89 ACrimR 457 at 460) to the accused. **********