New South Wales Supreme Court CITATION : R v Lamb and Thurston [2002] NSWSC 357 CURRENT JURISDICTION: Common Law Division Criminal FILE NUMBER(S) : SC 70209/01; 70066/01 HEARING DATE(S) : 3 - 13 April 2002 JUDGMENT DATE : 24 April 2002 Regina (NSW) PARTIES : Stanley Joseph Lamb - Accused Edward George Thurston - Accused JUDGMENT OF : Dunford J M.A. Macadam QC - Crown COUNSEL : P.M. Paish - Lamb A.I. Parker - Thurston S.E. O'Connor - Crown SOLICITORS : Ross Hill and Associates - Lamb Legal Aid Commission of NSW - Thurston CATCHWORDS : CRIMINAL LAW - evidence - admissions - detention after arrest for purposes of investigation - compliance with requirments of Part 10A, Crimes Act 1900 - application for detention warrant - calculation of 4 hour period - times out - CRIMINAL LAW - evidence - admissions - whether circumstances in which admissions made unfair to accused - CRIMINAL LAW - evidence - admissions improperly obtained - discretion to admit - relevant considerations - CRIMINAL LAW - evidence - accused charged with murder - videoed walkaround - accused handcuffed - whether video unfairly prejudicial to accused. Crimes Act 1900, Part 10A LEGISLATION CITED : Evidence Act 1995, ss 90, 138, 142 Crimes (Detention After Arrest) Regulation 1998, cl 5 & 28 R v Phung Huynh [2001] NSWSC 115 CASES CITED : R v Helmhout [2000] NSWSC 208 112 ACR 10 Bunning v Cross (1978) 141 CLR 54 DECISION : Recorded interview and videoed walkaround both admissible. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL DUNFORD J TAMWORTH: Wednesday, 24 APRIL 2002 70209/01 R v Stanley Joseph LAMB 70066/01 R v Edward George THURSTON JUDGMENT - On Admission of Recorded Interview & Walkaround 1 His Honour: Objection was taken on behalf of the accused Lamb to the admission of his recorded interview with police commencing at 6.18 am on 30 October 2000 and the videoed walkaround with him of the crime scene commencing at 12.32 pm that day. The grounds of objection were that the requirements of Part 10A (ss 354 to 356Y) of the Crimes Act 1900 had not been complied with, and that accordingly the evidence could not be admitted unless I was satisfied that it ought to be admitted having regard to the considerations set out in s 138 of the Evidence Act 1995. At the conclusion of the submissions I ruled both pieces of evidence were admissible and indicated I would give my reasons later, which I now do. 2 Apart from the transcripts of the interview and the walkaround, a viewing of part of the walkaround and a number of witnesses who gave evidence including the accused, the evidence also included the Custody Management Record (CMR) relating to the accused and the Local Court file relating to the application for a detention warrant in respect of the accused. The burden of proving that the video recorded interview and the walkaround qualify for admission rests on the Crown on the balance of probabilities: Evidence Act 1995, s 142. 3 The accused Thurston was arrested at 1.50 am and taken to the Tamworth Police Station where he was interviewed by Detectives Coe and Stenberg from 2.30 to 5.07 am. Meanwhile the accused Lamb was arrested at 1/44 Duri Road at 4.27 am and at 4.45 he left that address with police officers and arrived at the police station at 4.55 am. He then came under the custody of Sergeant Lee who was the Custody Manager until he was replaced in that capacity at 7 am by Sergeant McAuliffe. 4 His arrival at the police station at 4.55 am is confirmed by the entry in the CMR, the detail being entered at 4.59 am. Sergeant Lee then read him the Caution and Summary under Part 10A at 5.05 am and entered the details of so doing in the CMR at 5.12 am. He said he read him the front part of the form and summarised the back of it where there is a summary of what are referred to as "time-outs" which do not count towards the 4 hours referred to in s 356D. According to the CMR a copy was given to the accused. 5 The accused in his evidence on the voir dire denied that the Caution and Summary had been read to him, but in the subsequent interview at answer 476 the accused said, "Yeah, he just read a piece of paper saying you don't have to do anything or speak or anything", and the questioning continued. Q 477, "And that you were entitled to a solicitor and?" "Eh yeah". Q 477, "(sic)... All that sort of thing?" "Eh yeah". Q 478, "And you fully understood all your rights?" "Eh yeah". 6 In the light of the accused volunteering the reference to the Sergeant reading a "piece of paper", I am satisfied that the Caution and Summary was read to him. I'm not so sure about whether he was at that stage given a copy, but he claims he cannot read or write so giving him a copy would appear to be of little practical significance; although the CMR indicates that a copy was given. 7 It seems that these preliminary matters including the reading of the Caution, the questionnaire and the preliminary examination and assessment by Sergeant Lee, which were recorded as having been completed at 5.14 am, must have been interrupted because between 5.05 and 5.07 Sergeant Lee adopted the recorded interview with the accused Thurston, but I am satisfied that down to that stage the CMR accurately reflected what happened. 8 After this, the CMR gives rise to some confusion but, having regard to the entries in the Visitor Record of the CMR and referring not only to exhibit B on the voir dire, but also to the printout of such record made at about 8.29 that morning which forms part of the Local Court file (exhibit K on the voir dire) as explained in the evidence, I am satisfied that the accused Lamb requested a solicitor before interview. 9 At 5.15 am Sergeant Lee made a call for a legal practitioner which was unsuccessful and which he recorded at 5.20 am. Whether he called the correct number of the Kamilaroi Aboriginal Legal Service is not clear, but if he did he would have got a message that the number was unattended at that time. Then at 5.20 am another call was made in an attempt to contact the Aboriginal Legal Service but there was no answer. This is not surprising as the number dialled, 1800 101810, was the number of the Child Care Protection Unit and was unattended. The accused Lamb then told Sergeant Lee not to worry any further at that time. These details were recorded at 5.25 am. Although the wrong number was contacted I am satisfied that this was not intentional as it is unlikely Sergeant Lee would have recorded the number dialled if he knew it was the wrong number and the whole dialling operation was merely a pretence and subterfuge. 10 Furthermore, having regard to the fact that the accused's response, "Not to worry", was recorded at 5.25 am, and that by that time two attempts to contact a solicitor had apparently been made, I am satisfied that the accused probably did make that response. 11 Detective Coe said in his statement that after he completed the interview with the accused Thurston, which finished at 5.07, he attended to the formalities of sealing the tapes, briefing his superiors and various other matters including making arrangements regarding canvassing, searching and briefing arrangements to other police. He said that, "around 6 am" he attended the charge room and had a conversation with the Custody Manager, cautioned the accused and that Sergeant Lee then read aloud the form 10 A and handed the accused a copy of the document after which the accused asked for and was given a cigarette from his own property and then taken to the interview room. 12 In his evidence he said that he was also present when Sergeant Lee made the phone call to a solicitor and that he himself made at least one and possibly more phone calls to try and get a solicitor. I have grave doubts about some of this evidence. After the conclusion of the interview with the accused Thurston, Detective Coe had a number of formalities to complete, sealing, identifying and recording the audio and video cassettes and then briefing his superiors as to the progress of the investigation as recorded in his notebook and in his statement. 13 He could not, in my opinion, have had these matters completed by 5.12 am by which time the Part 10 A Caution and Summary had been read to the accused by Sergeant Lee and the reading thereof recorded. Moreover, although the entries in his notebook and in his statement are quite detailed in relation to many matters, there is nothing recorded in either place concerning those details other than that he was present when Sergeant Lee read the Part 10A Statement. In particular, there is no reference to him being present when phone calls were made or making any phone calls himself. 14 Moreover, the waiting times recorded on page 6 of the CMR show that Sergeant Lee recorded that a Waiting Time from 5.15 to 5.40 for the "arrival of investigators", and although this was not properly a "Waiting Time" within the meaning of the relevant section, it does record, in my view and supported by Sergeant Lee's evidence, that the time spent waiting for Detective Coe to complete his other duties and direct his attention to the accused Lamb was that period from 5.15 to 5.40 am, and Sergeant Lee went on to say that the accused Lamb was taken to the interview room at 5.40 am. 15 These times are impossible to reconcile. I was informed by agreement that the times shown on the video recording were wrong but it appears that the times spoken to by Detective Coe in the video were the correct times and not the times shown on the video monitor. This may have led to some of the confusion, but I am unable to say at this point of time. 16 The accused was taken to the interview room, according to the CMR, at 5.40 am but, according to Detective Coe's evidence "shortly after 6 am" and the recording of the interview commenced at 6.18 am. The accused said that whilst he was in the interview room and they were setting up the equipment and apparently while Detective Stenberg went to get some coffee, Detective Coe said to him, "If you tell me the right thing I will help you try and get manslaughter, or something like that", and by "the right thing" he thought Detective Coe meant the truth. 17 This is not the precise terms in which the inducement was put to Detective Coe in cross-examination (at T53) but at the end of the interview when questioned by Sergeant Lee and asked whether any threat, promise or inducement had been held out to him the accused replied, "No". I can accept that he may not know the meaning of an "inducement", but he would in my view know the meaning of a "promise"; and to both Detective Coe and Sergeant Lee he said that no promise had been made. In particular, at answers 656 to 659 he denied any promise and in particular the answer of 658 was, "I've come in here and told the truth of my own free will." 18 Moreover, as his sworn evidence on the voir dire relating to whether the Part 10A Caution and Summary was read to him was contradicted by what he said in the recorded interview itself, to which I have already referred, I am not prepared to accept the accused's evidence on this allegation, and I am satisfied that no such promise or inducement was made to him. 19 Finally, he admitted in cross-examination that he had been arrested a lot of times previously and knew he did not have to speak to police unless he wanted to. 20 There was, as is customary, a further Caution at the beginning of the recorded interview. I am therefore satisfied that the interview was voluntary and made of the accused's own free will and not induced by any threat, promise or inducement. 21 There were, however, a number of breaches of Part 10A. I am not satisfied that after the Part 10A Caution and Summary was read to him he was given a copy: s 356M (1)(b), and he was not requested to sign an acknowledgment that the information had been given, s 356M(3) but, as I say, in view of his inability to read and write, these were, in my view, breaches of little significance. 22 Section 356 requires that the person detained be informed orally and in writing that he may communicate with a friend, relative, guardian or independent person and with a legal practitioner for the purposes indicated in the section. I am satisfied that by the reading of the Part 10A Summary the accused was so informed and attempts were made on his behalf, unsuccessfully, to contact a legal practitioner. 23 The accused is an Aboriginal and therefore a "vulnerable person" within the Crimes (Detention After Arrest) Regulation 1998, cl 5 and, accordingly additional provisions apply. Under cl 20 the Custody Manager must assist a vulnerable person in exercising his rights under Part 10A including any right to make a telephone call to a legal practitioner, support person or other person. This is a positive duty to assist the vulnerable person in exercising his or her rights: R v Phung Huynh [2001] NSWSC 115 at [63], and is not limited to assisting with the making of telephone calls. The Custody Manager did assist with attempted telephone calls to a lawyer, but did not assist him with getting a support person. It is not sufficient in the case of a vulnerable person to read to him his right to contact a support person, but the Custody Manager should advise him in respect of such right, and I am satisfied that Sergeant Lee failed to do this. But there is no evidence that he would have wanted one in any event, and I can understand that some people would be embarrassed by having a relative or other person present while they were interviewed. 24 Sergeant Lee in his evidence conceded that the accused was a vulnerable person and that, accordingly, he had a positive duty to actively assist the accused but he could not recall speaking to him about his rights to a lawyer or support person beyond reading to him what was in the Part 10A Caution and Summary. 25 Under cl 28, an Aboriginal Legal Aid Organisation must be contacted and this is so whether the suspect wants such service notified or not: R v Helmhout [2000] NSWSC 208, 112 ACR 10 at [11]. An attempt was made to do so but was unsuccessful. And although he was notified by the reading of the Part 10A Summary of his right to a support person, no additional advice was given in relation to this. 26 It follows that there were a number of breaches of the regime laid down by the Act and Regulation designed to provide safeguards to persons in custody for questioning, particularly vulnerable persons. I had therefore to consider whether I should exercise my discretion to exclude the recorded interview on the ground that, having regard to the circumstances in which it was made, it would be unfair to the defendant to use the evidence: Evidence Act, s 90; or whether, having regard to the breaches indicated, the desirability of admitting the evidence outweighed the undesirability of admitting the evidence that had been obtained in the way in which it was obtained: s 138. 27 I am satisfied that although such breaches were not deliberate or intentional, certainly more could have been done, but the accused was willing to answer questions, was fully aware that he did not have to, and had told the police not to worry when they could not get in touch with the Aboriginal Legal Aid Service whom they had endeavoured to contact. The accused has been arrested on a number of occasions previously and was therefore not unfamiliar with the processes of criminal investigation, and he gave the unequivocal answer 658 which I have already quoted. I was therefore not satisfied that in the circumstances in which the interview was conducted it would be unfair to use that interview against the accused within the terms of s 90. 28 It was therefore necessary to consider the provisions of s 138, including the particular matters set out in ss (3); and it is convenient to deal with those paragraphs seriatim: (a) The evidence is of extremely high probative value containing, as it does, direct admissions of the accused's involvement in the vicious attack on the deceased which caused his death. (b) The importance of the evidence is increased by the fact that there were no eyewitnesses to the assault, and it is otherwise a circumstantial case. (c) The offence with which the accused is charged is murder, the most serious offence in the criminal calendar. In Bunning v Cross (1978) 141 CLR 54 at 74-5, 78 the High Court made it clear that the more serious the offence the greater the public interest in admitting evidence which may lead to the conviction of the perpetrators, and the Australian Law Reform Commission has expressed a similar view: see ALRC 26 vol 1 p 964. (d) I have already said, more could have been done particularly by way of advising the accused to have a support person present, but the other breaches were rather of a technical nature and, apart from the right to such support person, the accused was aware of his rights. I shall deal with inaccuracy in the CMR later when considering the walkaround, but they do not significantly affect the recorded interview. (e) Although the dialling of the wrong number for the Aboriginal Legal Service was careless, I do not regard it as deliberate or reckless, nor do I regard any of the other breaches referred to in that way. Although, as I have said, more could have been done, I would expect that Tamworth Police Station would be under a great deal of pressure at this hour of the morning with two people arrested for questioning in relation to the apparent vicious killing of a man in a park, and other police were no doubt directed to various assignments to seek further evidence in relation to the matter. (f) This is not relevant but I note that the accused had been arrested on a number of previous occasions and was familiar with his rights and would not be as overawed by unfamiliar surroundings and processes in the same way as a child may or a person arrested for the first time have been. (g) No other proceedings are likely in relation to the breaches. (h) The provisions of Part 10A could have been fully complied with and the evidence probably still been forthcoming, but this can only be speculation. 29 Bearing all these matters in mind, particularly the high probative value and the importance of the evidence, the seriousness of the offence and the accused's willingness to answer questions, and the fact that there was no deliberate flouting of the requirements, I was satisfied that the desirability of admitting the evidence outweighed the undesirability of admitting evidence which had been obtained in the way it had, and accordingly admitted the evidence of the interview. 30 Towards the end of the interview the accused was asked (Q 642) whether he was prepared to point out to the detectives the places in Granny Munro Park where the events described in his interview had taken place and have it recorded on video to which he replied in the affirmative. 31 The interview was completed at 7.48 am after being adopted before an independent officer, Sergeant McAuliffe, who had replaced Sergeant Lee at 7 am. Detective Coe subsequently spoke with Dr Fisher and arranged for him to come and take a blood sample from each accused and Dr Fisher later attended and did so. At 9.24 I am satisfied Detective Coe had a conversation with Mr Baxter-Wright, the solicitor for the Kamilaroi Aboriginal Legal Service and told him of his intention to apply for a detention warrant and to conduct a walkaround. Mr Baxter-Wright saw the accused twice on that day accompanied by Ms Bond, and it appears from the CMR that one of these conferences was from 9.30 to 9.50 am. 32 The time during which a suspect can be held for questioning without a detention warrant is four hours: s 356 D; but certain times do not count (s 356F), and provided it is applied for before such four hours expires, a detention warrant can be obtained from an authorised justice extending the period during which the suspect may be detained for further investigations: s 356G. 33 In addition to the breaches relied on in respect of the recorded interview, it was also submitted that accurate records were not kept: 356V; that the detention warrant was not applied for within the four hours and was obtained on false information, and also that Sergeant McAuliffe failed to assist the accused as a vulnerable person in relation to the detention warrant, and failed to give him a copy of the CMR: S 356V(5). There may have been some other breaches of a technical nature but these were the main matters of substance. 34 The first error in the CMR relied on is in respect of the box headed "Visitor Record" which records telephone calls which should have been included in the "Communication Record"; otherwise this part of the record is accurate. 35 The "Communication Record" records two calls, one at 8.01 am to number 67666733 about which no evidence was given, and another one at 9.13 am to Dr Fisher to the effect that medical attention was required. This was inaccurate in that the accused did not require medical attention, but the police wanted a doctor to attend and examine any marks or wounds of the deceased and take blood. This would not be the provision of medical attention but would be part of the investigation. 36 In the section marked "Waiting Times" it is recorded that Mr Baxter-Wright and his assistant, Ms Bond, arrived at 9.30 am and spoke with the accused, leaving at 9.50 am. This accords in substance with the evidence of Mr Baxter-Wright who said he was informed by Detective Coe that the two accused were in custody charged with murder, and he and Ms Bond spoke with the accused Lamb twice that morning. He also said he was informed that the police were applying for a detention warrant and wished to conduct a walkaround, and that he discussed this latter matter with the accused. 37 The other entry under "Waiting Times" is from 5.15 to 5.40 am, described as "Arrival of Investigators" and appears to represent the period between when Sergeant Lee completed the formalities on the accused's arrival, and Detective Coe arrived in the Charge Room, having completed the formal matters relating to his interview with the accused Thurston. This should not have been recorded as a "Waiting Time" as s 356F(b) refers to time "reasonably spent waiting for the arrival at the place where the person is being detained of police officers ...." In other words, the arrival of the investigating police at the police station where the suspect is being held, not waiting for the investigating police to complete other tasks when they are already at the relevant station, although another time which can be taken into account is in para (C), namely, time reasonably spent waiting for facilities for complying with s 424A to become available, which would cover waiting for the ERISP facilities to become available. 38 As I understand Det Stenberg's evidence, which was not entirely clear on this point, he was preparing the application for the detention warrant. From the time he obtained a printout of the computer generated CMR up to that time at 8.29 am (exhibit K) until he went to see the Justice at 9.15 am, and a warrant was issued at 9.30 am to operate from 10 am. 39 The CMR (exhibit B) contains two forms of application marked A and B but the Local Court file (exhibit K) only contains the latter. I was satisfied that however document A came into existence, it was not used, and that the document in the CMR marked B, which forms part of exhibit K, was the application form which was placed before the justice. 40 There are some inaccuracies in the such application, particularly in para 2 as to "Waiting Times", and I have some doubt about para 8 that the detained person had been informed of his right to make representations to the authorised justice. He certainly was when the Part 10A Summary was read out to him some four hours earlier, but he should have been informed again in clear and explicit terms, and as a vulnerable person been given advice about it. 41 Moreover, two questions arose in relation to the times, firstly, whether the application was made within four hours and whether the four hours had expired prior to the commencement time for the detention warrant at 10 am. 42 The accused was arrested at 4.27 am. The times which do not count are set out in s 356F and I deal with them in turn: (a) although arrested at 4.27 am they did not leave the premises where he was arrested until 4.45 am and they arrived at the police station at 4.55 am, therefore the appropriate allowance is only ten minutes. (b) as already indicated, the investigating police were already at Tamworth Police Station and no time can be allowed under this paragraph. (c) refers to awaiting the availability of the interview room where ERISP equipment was. Thurston's custody record shows that he was returned to the custody manager's custody at 5.20 am but the formalities relating to the accused Lamb were not completed by Sergeant Lee, according to his CMR until 5.16 am. Accordingly, I only allow four minutes under this paragraph. (d) attempts to contact a legal representatives, one minute. (e) and (f) are not relevant. (g) as already indicated, awaiting the arrival of Dr Fisher was not for medical attention but was part of the investigation and nothing can be allowed under this paragraph. (j) the accused was provided with breakfast from 8 to 8.30 am according to the CMR and I allow thirty minutes for this paragraph. (k) was not relevant. (l) refers to any time that is reasonably required to prepare, make and dispose of any application for a detention warrant. It appears that for the purpose of preparing the application a printout of the CMR to that stage was obtained at 8.29 am and Detective Stenberg saw the authorised justice at 9.15. I do not accept that it should have taken 45 minutes to prepare the application, but I was prepared to allow a quarter of an hour to prepare the application, and the evidence establishes that the making of the application actually took 15 minutes from 9.15 to 9.30 am. Also at the end of that time and within paragraph (d) there was a 20 minute conference between the accused and his legal representative Mr Baxter-Wright from 9.30 to 9.50 am, a total of 20 minutes. 43 All those "time-outs" add up to 95 minutes. He was arrested at 4.27 am, and the four hours would have expired at 8.27 am. When one adds 95 minutes to that time, one arrives at 10.12 am and the detention warrant was in force from 10 am. Therefore, he was not unlawfully detained without a detention warrant. 44 However, it is also important to note that the application was made at 9.15 am, and by that time he had not seen Mr Baxter-Wright and, accordingly, the 20 minutes for the legal consultation could not be taken into account in calculating the time permitted for making the application, but on my calculations, the 75 minutes added to 8.27 am is 9.42 am, and I am satisfied the application was made within time. 45 Therefore, although there were some breaches of Part 10A prior to the video walkaround and some inaccuracy in the records and in the application, the application was, in my view, validly made, and made within time. 46 I should add that I accept Detective Stenberg's evidence that apart from the matters set out in the application form he also gave oral evidence before the authorised justice when making the application. 47 I turn therefore to the provisions of s 138. The evidence contained in the walkaround is of high probative value, but is not so important to the Crown case as the recorded interview in view of the admissions made in that interview. The contraventions were not reckless or deliberate and with proper procedure and record keeping it is probable that the detention warrant could still have been issued. Otherwise, generally similar considerations apply as with the recorded interview in respect of the matters referred to in s 138(3). 48 However, there is another important factor in respect of the walkaround and that is that before it was undertaken Mr Baxter-Wright was notified of the arrest, the charge and the police intentions to seek a detention warrant and have the walkaround. And before the walkaround took place the accused had a conference with Mr Baxter-Wright where the walkaround was discussed. In those circumstances I was satisfied that the evidence of the video walkaround should be admitted. 49 One other objection was taken to the admission of the walkaround, and that was that the accused is shown in the video handcuffed, and it was submitted that to show this video to the jury would be unfairly prejudicial to the accused. I reject this submission. The jury know that by the time of the walkaround the accused had been charged with murder. They do not live on another planet and I would expect them to be amazed if they saw a man who had just been charged with murder walking around a park even in the company of police, without being handcuffed. It was for these reasons that I admitted the evidence. The recorded interview and the videoed walkaround were both admissible. ********** Last Modified: 07/12/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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