New South Wales Supreme Court CITATION : R v Mehajer & Jacobs [2003] NSWSC 318 HEARING DATE(S) : 14-15 April 2003 JUDGMENT DATE : 17 April 2003 JURISDICTION: Common Law Division Criminal List JUDGMENT OF : Studdert J DECISION : The evidence of Mr Painter ought not to be excluded under s 138 of the Evidence Act. The trial is to proceed accordingly. CATCHWORDS : Criminal law - admissibility of evidence - whether evidence was obtained improperly - Evidence Act, s 138. LEGISLATION CITED : Evidence Act, s 138 Crimes (Sentencing Procedure) Act, s 12 CASES CITED : DPP v Carr 127 A Crim R 151 PARTIES : Regina v Mazin Mehajer Regina v John Lou Jacobs FILE NUMBER(S) : SC 070074/02; 070227/02 P.W. Miller (Crown) COUNSEL : C.A. Pike (Mehajer) R. Hoenig (Jacobs) S.E. O'Connor (Crown) SOLICITORS : Takchi & Associates (Mehajer) Jeffreys & Associates (Jacobs) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST STUDDERT J Thursday 17 April 2003 70074/02 REGINA v MAZIN MEHAJER 70227/02 REGINA v JOHN LOU JACOBS JUDGMENT (Application to exclude evidence of Christian Painter) 1 HIS HONOUR: On 7 April last a jury was empanelled following the arraignment of Mazin Mehajer and John Jacobs charged with murder. On the third day of the trial the Crown called Christian Painter, and Mr Pike of counsel, appearing for Mehajer, thereupon made application that the evidence of the witness ought be excluded. Mr Hoenig, who appears for the co-accused, did not join in that application. 2 It became apparent in the course of submissions thereafter made in the absence of the jury that the application would necessitate a lengthy voir dire involving a considerable number of witnesses and the jury was then discharged. 3 The hearing of the evidence relevant to the application made on behalf of Mehajer commenced on 14 April 2003. 4 The application for the exclusion of the evidence of this witness is based upon the provisions of s 138 of the Evidence Act 1995: "(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 5 The submission made is that the evidence obtained from Mr Painter was obtained improperly. Before considering that submission more closely, it is necessary to trace how the witness became involved in the investigations into the crime the subject of the indictment to which I have referred and also the circumstances in which he gave various accounts. 6 The prosecution case is that the crime of murder was committed on an industrial estate at Leumeah in a café there located. The deceased was assaulted in the course of a robbery at that café and died from injury sustained. The deceased was one of two victims present in the café at the time of the robbery and the other witness, although allegedly assaulted, survived, and, indeed, gave evidence at the trial before the jury was discharged. That witness was Shane Phillips. 7 There were two mobile phones stolen from the crime scene and one of these phones came into the hands of Mr Painter's girlfriend with whom Mr Painter was living at the time of execution of a search warrant. The seizure of that mobile phone by the police prompted the attendance of Mr Painter at the Blacktown Police Station on 14 June 2000 when Mr Painter gave the first account to the authorities. At that time he told the police he knew nothing about the murder and that he purchased the mobile phone from a stranger in a hotel. He said he then gave that phone to his girlfriend, Tennille Mitchell. 8 In evidence given on the voir dire the witness acknowledged that that account in that first statement was false. 9 Mr Painter was later summonsed to attend the Crime Commission in the course of its investigations concerning the alleged murder. He first gave evidence at the Crime Commission on 22 June 2000 when in sworn evidence he maintained the false version that had been given to the police earlier that month. 10 In his evidence on the voir dire Mr Painter acknowledged that he asked his brother Jason and a friend, Neil Kohler, to support his false account of the acquisition of the mobile phone by saying that they were at the hotel when he bought the phone, but, as Mr Painter also acknowledged in evidence, he became aware that these men did not support his story when they were summonsed to give evidence before the Commission. 11 Indeed, on 16 October 2000, Mr Painter was again summonsed to give evidence before the Commission and in the course of questioning was informed that Mr Kohler had told the Commission he was not with Mr Painter on any occasion when he purchased a mobile phone at a hotel. Nevertheless, in extensive questioning on 16 October 2000, Mr Painter did not retreat from his explanation as to how he obtained the mobile phone that was seized in the execution of the warrant. 12 On 16 October 2000 Mr Painter said he did not know the accused John Jacobs and he was asked these questions (pp 27-28 of transcript of evidence of 16 October 2000): "Q You've already said that you don't know Mr John Jacobs. Well, I can tell you that Mr Jacobs is known to Mezz. It may not be of significance to you, but Police investigations have ascertained that Mr Jacobs rang Mezz at 11.35 on the day Mr Cole was assaulted. The 3rd of March. 11.35 he rang him. Now at 24 minutes past 1, Mezz rang you. A. Uh huh. Q. And at 13.25, he rang you. And at 13.31 he rang you. And at 13.38 he rang you. At 14.46 he rang you. And at 16.29 he rang you. So he rang you, when you were in Campbelltown. Because your phone put you in Campbelltown at that time. 14… or 16.29 is about ten to fifteen minutes prior to the assault. Right? You're in Campbelltown, in the vicinity, and Mezz rings you. Now at 21 minutes past 6, you rang him. So you obviously do have his number. And the significant thing about that is that you're in Campbelltown, you're talking to another suspect. That suspect's talking to Mr Jacobs. Now the interesting thing about Mr Jacobs is that during the course of Mr Cole's robbery, there were two mobile phones stolen. You finished up with one. Mr Jacobs finished up with the other. See the significance now of you talking to Mezz? Well, he's talking to you and he's talking to Jacobs. You both finish up with phones that are stolen during the course of a robbery that turns into a murder. You're in the vicinity of the murder at the time. The circumstantial case against you is starting to mount up, and I can tell you that it'll continue to mount up. As I've told you before, at some stage, you're going to have to tell the truth. What you're telling us at the moment is not the truth. Now do you know Mr Jacobs? A. No. Q., Did Mezz tell you about another person who is also detained by the Police because they had the phone? The other phone? A. No. Q. You sure? A. Yes. Q. Were you ever advised by these, by Mezz or by anybody else what to say to the Police when you were interviewed? A. No. Q. You sure? A. Yes. Q. See, there were three of [sic] four, depending on what witness version you look at, at least probably four persons involved in the assault on Mr Cole. At the moment the primary suspects are you, Mr Jacobs and Mezz. It will be a matter of time before we discover who the fourth person is. What do you say to that? A. [No audible reply]" 13 In further evidence on 16 October 2000, Mr Painter denied participation in the robbery of the deceased and he denied providing any assistance to those involved in it. He expressed a willingness to provide a copy of his fingerprints to the Commission. 14 On 6 April 2001 Mr Painter was again called to give evidence before the Crime Commission and was cross examined about certain phone conversations which had been intercepted. Those phone intercepts included the interception of a conversation between Mr Painter's girlfriend and Mr Kohler's girlfriend. The intercepted conversation appears to have related to Mr Kohler not having supported Mr Painter's version as to how the latter acquired the mobile phone and to the maintenance of the friendship between the two women notwithstanding what had occurred between the two men. I propose to record here some detail of what occurred in the Crime Commission on 6 April 2001 because of the submission made by Mr Pike in reliance upon s 138 of the Evidence Act. This questioning occurred at pp 28-29: "Q. Do you recognise those voices? A. I think so. Q. Who are they? A. Sounds like Taneill. Q. And? A. My brother's defacto I think, Diane I think. [TAPE PLAYING] Q. Do you know the person they're referring to as Rocky? A. I think so yeah. Q. Who's that? A. It's one of Taneill's friends I think. Q. Could it have been Neil Kohler's girlfriend? A. I think it's his girlfriend too yeah. Q. So when there's a reference to, 'Whatever happened between the boys I don't want it to affect us' do you think that could have been referring to the incident between, where Coller rolled over and gave evidence to the Commission that in fact he wasn't with you when you acquired the phone? A. Could be. [TAPE PLAYING] Q. Diane speaking with Taneill says that it could send Chris to gaol. 'He didn't do it he was there unluckily.' That's a reference to the robbery? A. I'm unsure. Q. Well I suggest to you that this is a reference to the robbery at Colley's Café that occurred on the 3rd of the third 2000. Diane is saying that you were there unluckily and it could send you to gaol. What do you say to that? A. I don't know what she meant or what she's talking about, what she meant. Q. Well Diane says he shouldn't have, this is reference to Neil Coller, 'He shouldn't have but he had no need to sign the papers and go to court against him.' Now that's a reference to Mr Coller. A. Uh-huh. Q. I say giving evidence against, or contrary to your version. Do you agree with that? A. Yeah it sounds like it." 15 The Commissioner, Mr Bradley, then interrupted the questioning by Mr O'Connor, who was assisting the Commissioner. I record this exchange between the Commissioner and the witness: "…You see Mr Painter what you've been played is a conversation between two people, one of whom is intimately known to you and they agree that you were there but you didn't do the deed which we are most interested in. Do you understand that? A. I think so yeah. Q. We think they've got it right. We think you were a bit unlucky. We think somebody went a bit too far. We don't think it was you. We might be wrong about that someone might tell us that in due course because this inquiry will go on and on until we know exactly what happened. A. Uh-huh Q. But at the moment we don't think you did anything that killed anyone. Do you understand? They don't think you killed anyone either. A. Who's they? Q. These people that are talking on the phone Taneill and Diane. A. Oh right. Q. What's been put to you by Mr O'Connor is, they know because they're close to you and they're close to Jason and you're close to Jason. And Darren and one or two other people that have been mentioned today. And just say they are right, say we're right, say you were there, you went along to relieve someone of something for your own benefit. A. What's relieve someone what does that mean? Q. We think that some people of which you were one went along to Colley's Café to take his drugs and money. See. But one of the people who you went along with went a bit over the top and Mr Cole died as a consequence. Do you understand that? A. Yes. Q. That's what's being put to you? A. Yeah." 16 The Commissioner then said this: "Q. Alright. Now you can give evidence about that we would suggest and we also suggest that you ought to give evidence about that. I can understand why you might have some reasons for not wanting to do that. Think it might be misguided loyalty to some mates. Mates like Jacobs and Majahar or more likely that you might be concerned that persons who do these sorts of violent acts might want to do something violent to you should you cooperate with this inquiry. Now because we can demonstrate that you've told a lot of untruths about matters which are material to our inquiry, you've already put yourself at substantial risk. It's also the possibility and you should talk to Mr Roberts about this that you could be charged with other criminal offences as well. Especially if you've been involved in, if you've had knowledge of an offence that you've not disclosed. If you've caused other people to tell untruths about that and you've told untruths yourself. An alternative course would be for you to give a truthful account of what you know. That would eliminate the necessity for us to go through all of these other witnesses whom we think can put little pieces in the jigsaw. We're not really interested in prosecuting Taneill or anyone else who we think have told lies in this matter it's necessary for us to interrogate them with the possible sanction of being prosecuted for telling lies so that we can find out what the facts are. But you can short-circuit that whole process by giving an accurate account of what happened. You can do that without causing any further criminal liability to yourself. In other words if you tell me that you were there and you tell me who else was there and what happened then those answers can't be used against you. But if you need some assurance about that you can talk to Mr Roberts about it. There is some more material which we have which hasn't been disclosed to you, some if it will be today. None of it would suggest that what I've said to you is wrong, most if it suggests that what you've been saying up till now is wrong and I think it's time you thought about the course that you've set for yourself. Now without even telling us what you know it's possible for you to explore through Mr Roberts what the consequences of telling the truth might be. But if you sit there and continue to say that you can't remember or give false accounts of what happened then you're just digging a deeper hole and the hole is quite deep it's not a matter about which you can say on the one hand there's a serious matter, on the other hand there's a less serious matter. At the end of the day it's very serious. Whichever you do. Now there are some things that you might not understand about what could happen if you were to tell the truth and as I said to you through discussion with Mr Roberts and Mr O'Connor those things can be explained to you more carefully. We think you're in quite a bit of trouble already and we don't think you should get into any more trouble. Now do you want to think about your position and have a talk to Mr Roberts or do you want to go on? A. Yeah that'd be okay yeah, is that alright but?…" 17 A short adjournment then followed. I am satisfied from the evidence on the voir dire that what then occurred was that Mr Painter took advice from his solicitor, Mr Roberts before returning to give his version as to what occurred at the deceased's shop on 3 March 2000. He told the Commissioner that he was present with the accused and the Commissioner interrupted, with the following exchange then occurring: "Q. Right. Now I know that Mr Roberts would have given you some advice about this and I know there's been some discussions between Mr Roberts and Mr O'Connor. A. Uh-huh. Q. The thing I want you to understand very clearly is that we regard this as a very positive thing that you're doing but you must tell us everything and you must get it all right. Now you might think oh well if I leave that little bit out of it someone won't get into trouble or if I leave something else out it won't make me look so bad or whatever and that's an understandable human reaction. But the problem with that is that as we go through this process at the end of the day we will know everything, and it's very important that we get everything that you can tell us, do you understand? A. Uh-huh. Q. Because if you've left something out or you've told us something that's not true then how we act in the matter thereafter will be affected by that you see? A. I don't know what you mean by that? Q. Right well if you say to us this is what happened and you don't quite get it right then we might take a different view about what you've told us than what we do if you tell us everything. A. Alright. Q. See as I understand it you want to tell the truth… A. Yeah. Q …all of it? A. Uh-huh. Q. Right. And you understand that you're not increasing your criminal liability doing that, alright. But it's very important that you get it all right. Now you might make a mistake and that's understandable and I understand that it'd be a stressful thing for you and the last few months have been very stressful for you as well and we're not here to catch you out on making mistakes but you must make a proper attempt to tell us everything… A. Tell you the best I can. Q. Mm. A. Yeah. Q. Right you understand that? A. Yeah. Q. Right. A. The best I can I'll tell you." 18 Mr O'Connor then questioned the witness and he gave an account of what occurred in the shop. He said that he saw "Mazin" hit the deceased in the side of the head and he saw John kick the victim Phillips whilst he was on the ground. 19 The proceedings were then interrupted and the Commissioner invited the witness to sit down "in a less formal environment" with Mr O'Connor and Mr Roberts to give a statement. That is what occurred. 20 I accept the evidence which Mr Roberts gave about the procedure which was adopted in obtaining his client's statement. I accept the following evidence given by Mr Roberts (p 35 of the evidence taken on the voir dire): "Q. Was anyone else present besides you, Mr Painter and Mr O'Connor? A. I think there was a lady present who was doing the typing I think she was doing the typing of the statement. I am not too sure. Q. How was the statement prepared; what was the process? A. Well from my recollection it was that a question Mr O'Connor would ask a question, Christian would answer the question and it would be put in a statement form. And at the end of the statement Christian was given the statement to read and he read over it and - he appeared to read it - and he signed it. Q. Well at any stage did Mr O'Connor tell Mr Painter what he should say? A. No. From my recollection is that Christian was the one who was saying what had happened and Mr O'Connor was trying to get it into the proper form as to getting the events in some sort of chronological and meaningful order, and I think that that's the way that the activities took place." 21 In the version of events recorded in the statement taken on 6 April 2001, Mr Painter said that he took the mobile phone from the deceased's car which was parked outside the shop. His version on 6 April inculpated both accused in what occurred on the premises, although his version was inconsistent with the account of the victim Mr Phillips in a number of respects, not the least of which was Mr Painter said it was the accused Mazin Mehajer who struck the deceased. 22 In his evidence on the voir dire Mr Painter said that, having made the statement, he later told the police he was not willing to testify, and I accept that this is so. 23 Mr Painter did attend the Campbelltown Police Station to supply a set of fingerprints on 26 April 2001 and then on 29 May 2001 he was charged with doing an act with intent to pervert the course of justice. So, too, was his brother Jason. Those charges of course related to the false accounts about the circumstances of the acquisition of the mobile phone. 24 I accept that after being charged Mr Painter changed his mind and, as he said in his evidence on the voir dire, he decided, after speaking to his solicitor, that he would assist by giving evidence. 25 On 18 July 2001 Mr Painter gave a further statement to the police at the Liverpool Police Station concerning the events of 3 March 2000. Once again that account, consistently with the account given on 6 April 2001, inculpated both accused, although again there were inconsistencies between his account and that of the surviving victim. 26 On 28 July 2001 Mr Painter attended the crime scene with police officers, giving an on-the-spot account of what took place, and that was recorded on video and became Exhibit B on the voir dire. 27 Mr Painter, having pleaded guilty in the Local Court, adhered to his plea in the District Court concerning the attempt to pervert the course of justice and was sentenced by his Honour Judge Coleman QC on 29 October 2001 to a fixed term of six months imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge directed that Mr Painter be released from custody conditionally upon his entering into a good behaviour bond for the term of the sentence. In imposing that sentence the judge took account of the assistance given by the offender to the authorities and the offender's undertaking that he would give evidence against the accused presently before the Court at their trial now pending. 28 This concludes the narrative of events as I have found them to have occurred. It is against this background that Mr Pike's application is to be considered. 29 The police officers principally involved in the investigation of the death of the deceased were Det. Sgt Box, Det. Sgt McLean and Const. Scanlon. Each of those officers gave evidence on the voir dire and I do not understand it to be suggested that any one of those officers behaved improperly. None of them was involved in the events of 6 April 2001 and it is unnecessary for me for present purposes to record a detailed review of the evidence each of these witnesses gave. 30 Det. Sgt Box was involved in taking the first of Mr Painter's statements on the date the mobile phone was seized from his girlfriend, but he had no involvement in the taking of the statement of 6 April 2001, nor did he have any contact with Mr Painter in the period between the making of those two statements. 31 Det. Sgt Box, having learned from Mr Roberts that Mr Painter was willing to give evidence against the accused, took the further induced statement of 18 July 2001, and he was then present at the interview on 28 July 2001 at Colie's Café (recorded in Exhibit B) 32 Det. Sgt Box was asked these questions and gave these answers (T 53 on the voir dire): "Q. Did you ever put to Mr Painter a version of what you believed had taken place at Colies Cafe on 3 March 2000? A. Never, never. Q. Did you ever discuss with him what evidence you had gathered in relation to those events? A. No. Q. Did you ever suggest to him that his role in the events of that day were of a minor nature? A. No, never. Q. Did you ever talk to Mr Painter about the question of an indemnity for prosecution? A. Never." 33 I accept the truthfulness of the above evidence. 34 Det. Sgt McLean was involved in investigations as from 3 March 2000 but was not involved in the taking of Mr Painter's first statement on 14 June 2000. Nor was he involved in the taking of the statement at the Crime Commission on 6 April 2001. His recollection is that he had no contact with Mr Painter until after 6 April 2001 (T 70 on the voir dire). Det. Sgt McLean was one of the arresting officers when Mr Painter was charged with doing an act with intent to pervert the course of justice and he was present at the crime scene interview on 28 July 2001. 35 Det. Sgt McLean was asked these questions and gave these answers (T 72 on the voir dire): "Q. Did you ever give to Mr Christian Painter any version of what you believed had happened at Colies Cafe on 3 March 2000? A. No, definitely not, sir. Q. Did you ever talk to him about his role, possible role, in those events? A. No, I - I didn't play an active role in any conversation with him in relation to his - other than what you see on that video, certainly I was present there, and I asked some questions on that day. Q. Did you ever suggest to him that you believed that his role in those events might be of a minor nature? A. No. Q. Did you ever speak to him in connection with the possibility of his obtaining an indemnity from prosecution? A. No, I didn't." 36 I accept the responses recorded above as being truthful. 37 Det. Snr Const. Scanlon's first contact with Mr Painter was on 20 June 2001 at Campbelltown Local Court and he saw him at the Liverpool Police Station on 18 July 2001 when the induced statement was taken. The officer was asked these questions and gave these responses (T 116 on the voir dire): "Q. Did you ever discuss with him the question of whether he would be given an indemnity or might be given an indemnity from prosecution? A. Never, no. Q. Did you ever have a discussion with him in which you suggested that his role in the events that led to the death of Mr Cole were of a minor nature? A. No, I did not. Q. Apart from when the statement was being taken or the walk-through of the crime scene which was recorded on video, did you discuss what evidence he might give, with him? A. No." 38 I accept the truthfulness of the above evidence. 39 I find that there was no behaviour on the part of any one of the above police officers such as would warrant consideration of the possibility of excluding evidence by Mr Painter under s 138 of the Evidence Act. 40 Mr Pike's submissions focussed on what occurred at the Crime Commission on 6 April 2001; the questions asked of Mr Painter concerning the intercepted telephone conversation between his girlfriend and the girlfriend of Neil Kohler; the subsequent intervention of the Commissioner as recorded in the extracts from the transcript which I set out earlier; and the circumstances in which the later evidence was then taken. 41 Mr Pike submitted the witness was alerted to the peril to which his family and friends were exposed and of his capacity to "short-circuit the whole process". The suggestion was made that his involvement was minor and there was the prospect of an indemnity if he assisted the authorities. The impropriety in what occurred on 6 April 2001 was identified by Mr Pike in his written submissions in this way: "To tell Painter in the circumstances he found himself during the course of the Commission investigation that his role was minor, and to apply the other pressures, placed almost unbearable pressure upon a young man like Painter. In a very real sense he was being forced to play the hand he was being dealt by a jaundiced process. There was a chain of causation between the impropriety and the obtaining of the evidence." 42 Mr Pike submitted that there seemed to be no good reason why the Commission should have considered Mr Painter's role in the events of 3 March as being a minor one, particularly since the witness had lied to the Commission and to the police from the outset and had enlisted others to support him in his deceit. 43 Further, Mr Pike submitted that the process by which the written statement was taken on 6 April was flawed. 44 I am not persuaded by Mr Pike's submissions and I prefer those to the contrary advanced by the Crown. 45 I do not find impropriety in the circumstances in which the evidence given by Mr Painter came to be given eventually before the Commission on 6 April 2001 nor in the circumstances in which Mr Painter made his written statement on that date. 46 "Improperly" is not defined in the dictionary for the purposes of s 138 of the Evidence Act or otherwise. However, in its ordinary meaning the word involves or connotes some sense of wrongdoing. The word "improperly" is expressed as an alternative to "contravention of an Australian law" in s 138(1)(a), and s 138(1)(b) contemplates the possibility of exclusion of evidence obtained "in consequence of an impropriety or of a contravention of an Australian law", subject to the balancing exercise contemplated in sub-s (1). 47 Section 138(2) focuses on various ways in which evidence is taken as having been obtained improperly. The sub-section is not exclusive of other circumstances in which evidence may be obtained improperly, but the circumstances it specifically contemplates do involve inappropriate behaviour in obtaining the evidence. 48 Then s 138(3) raises as a matter to be taken into account whether the impropriety was "deliberate or reckless". 49 In Director of Public Prosecutions v Carr 127 A Crim R 151 Smart AJ had occasion to consider s 138 of the Evidence Act in circumstances very different from those now before this Court. However, there are passages in his Honour's judgment which are of general relevance to the language of s 138. Smart AJ drew attention to the recommendations of the Australian Law Reform Commission's report prior to the Evidence Act which, as his Honour observed, are embodied in s 138: "31 The Australian Law Reform Commission Report which preceded the Evidence Act 1995 reviewed the then existing discretion to exclude improperly obtained evidence including the public interests supporting admission and those supporting exclusion. The ALRC did not discuss what 'improperly' meant. It recommended that an approach based on the existing discretionary approach be adopted. It suggested that the conflicting concerns in this area and the wide variety of circumstances necessitated such an approach. It proposed some changes. It recommended that the nature of the conflicting interests which should be balanced should be indicated precisely and the articulation of factors which should be taken into account in the exercise of the discretion. The report adopted the comment of Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 74 that what is involved 'is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy.' 32 The report listed a number of factors which it suggested were relevant to the balancing discretion. It was pointed out that if the impropriety was the result of a mistaken belief by an officer that he was entitled to do what he did this would tend to reduce the seriousness of the misconduct. However, it was noted that it was largely irrelevant to the criminal suspect that his rights were infringed deliberately or mistakenly. He has suffered the same damage regardless of the mental state of the officer. 33 The recommendations of the Law Reform Commission have largely been embodied in s.138. Among the matters that the Court is to take into account under s.138 is the nature of the relevant offence and the nature of the subject matter of the proceeding and the gravity of the impropriety." 50 His Honour then went on to make the point with which I respectfully agree that the word "improperly" and the phrase "in consequence of an impropriety" should not be narrowly construed: "34 Section 138(2)(a) deems evidence of an admission and evidence obtained in consequence to have been obtained improperly if the questioner knew or ought reasonably to have known that the act or omission of the questioner was likely to impair substantially the ability of the person being questioned to respond rationally. Section 138(2)(b) also deemed evidence to have been obtained improperly if the questioner made a false statement knowing or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person being questioned to make an admission. Actual knowledge is a subjective matter. The test of 'ought reasonably to have known' is objective. Put very broadly, s.139 provides that for the purposes of s.138(1)(a) evidence of a statement made or an act done by a person during questioning or official questioning is taken to have been obtained improperly if the questioner does not administer a caution. Questions of knowledge or intent are not relevant under s.139. Under s.138(1) and (3) it is not necessary for there to be the subjective element of bad faith or abuse of process or abuse of power or intentional wrongdoing in relation to the offence of offensive language. Section 138(2) and s.139 indicate that the word 'improperly' and the phrase 'in consequence of an impropriety' should not be narrowly construed." 51 A value judgment is required in all the circumstances of the particular case as to whether evidence is to be considered as having been obtained improperly. 52 The evidence available to the Crime Commission as at 6 April 2001 justified the conclusion that prior to the interruption of Mr Painter's evidence on that date he had not been telling the truth, and the objective of the Commission was to ascertain the truth. The witness was afforded the opportunity to give a truthful account of his involvement and the Commissioner used language that made it plain that what was being sought was the truth. In the passage recorded at para 16 above the Commissioner expressly posed as an option for the witness "to give a truthful account of what you know." Later he used the words "but you can short-circuit that whole process by giving an accurate account of what happened". And later: "Now without even telling us what you know it is possible for you to explore through Mr Roberts what the consequences of telling the truth might be". And then still later: "Now there are some things that you might not understand about what could happen if you were to tell the truth and as I said to you through discussion with Mr Roberts and Mr O'Connor these things can be explained to you more carefully." Then in the further remarks I recorded in para 17 above, the witness was once more enjoined to tell the truth. 53 The evidence from Mr Roberts and from Mr O'Connor as to the circumstances in which Mr Painter gave his written statement on 6 April 2001 do not disclose irregularity. I referred to Mr Roberts' account earlier. Mr O'Connor in his evidence, acknowledged that an ERISP machine was probably available and hence could probably have been used, but it does not follow to my mind that it was improper to obtain Mr Painter's account in the way in which it was obtained in the form of the statement that was taken. I do not find that any of the content of the statement was suggested to Mr Painter by any person in the room where the statement was taken. I entertain no disquiet on the evidence that what was recorded in that statement may have come from some source other than Mr Painter. In that context I am mindful of the evidence of Mr Roberts to which I referred earlier at para 20. 54 Before the interruption of the proceedings on 6 April 2001 Mr Painter was told of the Commissioner's belief as to the extent of Mr Painter's involvement. Whether that belief was at the time well founded it is difficult to judge. It is true, as Mr Pike submitted, that Mr Painter had consistently lied to the Commission and he had endeavoured to have others lie for his benefit. The evidence available to the Commission from Mr Phillips certainly did not exonerate Mr Painter and the intercepted telephone conversation that had taken place between the two women only expressed their views which were probably based upon what Mr Painter had told them. However, the Commission had heard evidence from witnesses other than Mr Painter prior to 6 April 2001, including the two accused. I do not know precisely what evidence the Commission had considered prior to that time, and I am unable to find that the Commissioner did not genuinely entertain the belief conveyed by him to Mr Painter in the remarks recorded in paras 15 and 16 above. 55 Turning to the question of an indemnity, it was Mr O'Connor's recollection that the question of an indemnity was raised on 6 April 2001. His evidence about this (at T 79 on the voir dire) was this: "Q. Well, sticking with the occasion of 6 April 2001, do you recall what you said regarding an indemnity? A. That the taking of an induced statement was the first step in making application for indemnity, should Mr Painter ask for one, and that at some stage later if he decided to give evidence on behalf of the Crown - something we wished him to do - that the Commission would make arrangements for an application to be submitted on his behalf and that we would be supportive of that. Q. You said that you recollected that the question of an indemnity that had been raised by you on an earlier occasion? A. Yes, I think I discussed it with Mr Roberts on the previous occasion that Christian had attended the Commission. Q. Was Christian present during that discussion? A. I don't think - oh, no. No, he wasn't. Q. At any stage did you promise Mr Painter an indemnity? A. No, that wasn't within my power." 56 I accept the evidence above referred to and I observe that it is consistent with what later occurred. 57 Following the events of 6 April Det. Sgt Box gave evidence that work was commenced on an application in relation to a possible indemnity for Mr Painter. However that activity was suspended when Mr Roberts informed the police that Mr Painter would not be giving evidence. 58 Subsequently, when that decision was reversed, Det. Sgt McLean said that he prepared a lengthy submission forwarded to the Campbelltown office of the Director of Public Prosecutions. Det. Sgt McLean's evidence was that he prepared his report acting on advice from Det. Sgt Box. The evidence of Det. Sgt McLean at pp 72-73 was as follows: "Q. Did you have any involvement in preparing any reports with regard to the obtaining of an indemnity? A. No, sir. I did prepare a - quite a lengthy submission which was submitted to the Campbelltown office of the Director of Public Prosecutions, the exact date of that I'm not sure again. I can refer to my notes if you'd like. Q. I think that was 23 July 2001? A. Yes, that would be right. Certainly I prepared that report acting on advice from Det Box that I understood that he had received from the New South Wales Crime Commission and from an advice we received from the New South Wales Police Legal Services. Now I should point out that that submission was not to make application for an indemnity. Without having the document in front of me, it was merely a question to the Director as whether this person should be considered for an indemnity based on the evidence that he could give and the evidence that may be available against him should any proceedings be instigated against him." 59 In addition to that oral evidence, there was the evidence, being an exchange of letters between the Crime Commission and Mr Roberts in Exhibit C. On 1 May 2001 Mr O'Connor wrote to Mr Roberts seeking confirmation of Mr Painter's undertaking given on 6 April 2001 to give evidence on behalf of the Crown. Mr O'Connor advised Mr Roberts in that letter that that confirmation was required before an indemnity application was submitted to the Director of Public Prosecutions for consideration. Mr Roberts responded two days later advising that Mr Painter had decided he did not wish to give evidence. Exhibit C also contains a file note made by Mr O'Connor on 23 May and at that time Mr Roberts advised Mr O'Connor that his client did not wish to proceed with the indemnity application. 60 Considering the evidence in point, I do not find that there was impropriety in what Mr Painter was told concerning the possibility of indemnity nor do I find that there was any impropriety in the measures taken following 6 April 2001 in the pursuit of a grant of indemnity. 61 For the reasons I have expressed I do not find evidence was obtained improperly from Mr Painter on 6 April 2001 or subsequently in the statements taken from him on that date and on 18 July 2001. Nor was the evidence taken at the crime scene on 28 July 2001 tainted with impropriety. 62 In the circumstances therefore it is unnecessary for me to undertake the balancing exercise contemplated by s 138 of the Evidence Act. I should add that had I concluded the Commission behaved improperly in expressing its belief concerning the role of Mr Painter, in what was said by Mr Bradley (at paras 15-16 above), I would nevertheless have been minded to allow the evidence obtained on 6 April 2001 and in the later induced statement taken by Det. Sgt Box on 18 July 2001 because the desirability of admitting such evidence outweighed the undesirability of admitting it. I would have done so after taking into account each of the elements referred to in s 138(3). It is apparent on the face of the remarks made by the Commissioner in paras 16 and 17 above that the witness was being urged to tell only the truth before he acted on independent advice to provide the evidence that followed such remarks. The crime here charged is murder and the evidence Mr Painter can give is very significant evidence. Of course whether it is ultimately acted upon by a jury is a matter to be determined in due course. 63 I conclude therefore that the evidence of Mr Painter ought not to be excluded under s 138 of the Evidence Act and the trial is to proceed accordingly. ********** Last Modified: 05/22/2003 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.