R v Jeffrey GILHAM [2008] NSWSC 88

New South Wales Supreme Court

CITATION : R v Jeffrey GILHAM [2008] NSWSC 88

HEARING DATE(S) : 04-07/02/2008, 11-12/02/2008

JUDGMENT DATE : 18 February 2008

JUDGMENT OF : Howie J at 1

DECISION : The application to exclude part of the ERISP and the evidence of the walk through is refused.

CATCHWORDS : EVIDENCE - Admissions - obtained during unlawful detention - whether should be admitted - CRIMINAL LAW - whether detention after arrest unlawful .

LEGISLATION CITED : Crimes Act 1900 (now repealed) - s 352 Evidence Act 1995 - ss 85, 90, 135, 137, 138, 138(3), 138(3)(a), 138(3)(b), 138(3)(d), 138(3)(f), 138(3)(g)

CATEGORY : Procedural and other rulings

Williams v The Queen (1986) 161 CLR 278 Foster v The Queen (1993) 67 ALJR 550 R v Horton (1998) 45 NSWLR 426 CASES CITED : Em v The Queen [2007] HCA 46; 81 ALJR 1896 Michaels v The Queen [1995] HCA 8; 184 CLR 117 DPP v Carr NSWSC 194; 127 A Crim R 151 DPP v Coe [2003] NSWSC 363

TEXTS CITED : clause 1 of Article 9 of the International Covenant on Civil and Political Rights

PARTIES : Regina v Jeffrey Gilham

FILE NUMBER(S) : SC 2006/00002766001

COUNSEL : M Tedeschi QC with K Shead - Crown P Boulten SC with S Buchen - Accused

SOLICITORS : S Kavanagh - Crown Murphy's Lawyers Inc - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HOWIE J

MONDAY 18 FEBRUARY 2008

2006/2766001 REGINA v Jeffrey GILHAM

JUDGMENT – on admissibility of evidence 1 HIS HONOUR: This is an application by Notice of Motion filed for the accused that I reject certain evidence that the Crown proposes to lead in the trial of the accused for the murder of his parents. The evidence concerns questioning of the accused by police in the hours shortly after the police learned of the death of the accused's mother, father and brother on Saturday 28 August 1993. In particular the accused objects to the reception into evidence of that part of the video-recorded questioning ("the ERISP") that took place after 9.07 on the morning of 28 August and the video-recorded questioning of the accused at his home in what is referred to as "the walk through" that took place at about 4pm that afternoon. The facts 2 The facts for the purpose of this voir dire hearing are generally uncontentious. Police arrived at the scene of the triple killing at about 4.50am. The accused was sitting on the footpath outside his home that had been set on fire sometime earlier. At some stage he was placed into an ambulance where he was in the company of a neighbour. 3 At about 5am Detective Parsons arrived at the scene. She was on general duty the night before and attended as a result of a broadcast to the vehicle in which she had been travelling. Det Parsons spoke to the accused briefly, trying to ascertain what had happened. During this conversation he informed the officer that his brother told him that he had killed his parents and "lit them". He also said that he thought he had stabbed his brother and killed him. The detective recorded this conversation as it occurred. She then went into the house. 4 At about 5.35am Detective Ahern arrived. He became the officer in charge of the investigation. Det Parsons told him the import of her conversation with the accused. At some time shortly after 5.30am Det Ahern told certain police to convey the accused to Sutherland Police Station. It was accepted that Det Ahern wanted to question the accused. 5 When he arrived at the police station the accused was placed in the muster room and given a cup of coffee. A police officer was told in effect to keep watch upon him. I accept that at this stage had the accused sought to leave the police station he would have been refused. Further I accept that at this stage Det Ahern suspected that the accused had committed a criminal offence at least in respect of the death of his brother. He had not at that stage determined to charge the accused with any offence but wished to interview him to determine what had happened in the house. 6 Shortly after 8am Det Ahern spoke to the accused in the company of Detective Marks. That short conversation was not electronically recorded. The officer according to his statement asked the accused to tell him what happened. The accused allegedly admitted killing his brother after he had learned that his brother had killed his parents. He was asked if he killed his parents and denied that he did. The accused was asked whether he was agreeable to be interviewed and said that he was. He was then cautioned. 7 The ERISP commenced at 8.22am. The accused was again cautioned. He told police that he was born in 1970 so that he was then aged 23. He was a student studying engineering at university. The accused was questioned at length about the events surrounding the death of his parents and brother. In effect he maintained his version that he had killed his brother upon discovering that his brother had killed his parents and set fire to them. In effect he was claiming that he had been provoked into killing his brother by his brother's actions in killing his parents. During the course of the questioning the police evinced some disbelief, or at least doubt, about the veracity of the accused's account. 8 At 9.07am the interview was interrupted when the videotape ejected from the recorder. At that stage the accused had answered about 250 questions. The relevance of this interruption to the arguments placed before me will become obvious later in this judgment. The tape was changed and the interview continued. At questions 451 and 452 the accused was asked whether he would be prepared to accompany police to the house and "indicate certain things to us [where] you were standing and ………where certain things actually occurred". The accused replied, "Yeah, fine, yeah." The accused was interviewed by another police officer and made no complaint about the manner in which the interviewing police had questioned him. The interview concluded at 9.51am. 9 The accused remained at the police station. He was examined by a doctor and provided a sample of his blood at about 12.30pm. At the end of the medical examination he again indicated a willingness to accompany police to his home after being warned that he was not obliged to do so. The accused and police went to the house but on learning that the deceased bodies were still in situ it was decided, not unreasonably, to postpone the walk through. The accused was returned to the police station. 10 At about 1pm the accused was formally charged with the murder of his brother. At about 2.52pm the accused was again asked whether he was prepared to accompany police to the house and again informed that he was not obliged to do so. The accused said, "I know. I don't mind". 11 At 3.59pm the recording of the walk through commenced and the accused agreed to wear a microphone. It took about half and hour. The accused was then returned to the police station. He was placed before an authorised justice the next morning and was refused bail. The evidence 12 In evidence before me Det Ahern acknowledged that at the time the tape ejected during the interview he turned his mind to the fact that a bail court would have been sitting in Sydney but considered that he was not required to take the accused to the magistrate at that time because he was in the middle of interviewing him and was investigating all three murders. He believed that he was able lawfully to continue to interview an accused before taking him before a court in order to determine what, if any charge, was to be laid before the court. Detective Marks also gave evidence. 13 Evidence was called on behalf of the accused that on Saturday 28 August 1993 bail courts were sitting both in the Central Local Court and at Parramatta. I accept that at 9am there was a bail court to which the accused could have been taken. It is probable that a duty solicitor would have appeared for him and made a bail application. I also accept that had the accused raised with the solicitor the fact that the police were seeking to further interview him, he would have informed the accused of his right to silence and that no inference could be drawn against him if he exercised that right. 14 At some time in the morning, roughly about 9.30am a friend of the Gilham family, Ms Patterson, attended at the police station asking after the welfare of the accused. She spoke to uniformed police at the front desk. She explained that she was not a member of the family but asked if she could see the accused. She was told that she could not as he was helping them with their inquiries. She asked whether he needed a lawyer and they said he did not. There is no evidence that Det Ahern was ever made aware of this event.