Citation: Regina v Barry Douglas [2000] NSWCCA 275
Court: Court of Criminal Appeal, New South Wales
Date: 28 July 2000
Judge(s): Mason P, Sully J, Sperling J
Background
The appellant was charged on 17 counts arising from a series of armed robberies and weapons offences committed across Sydney between 1995 and 1997. After a tip-off from a co-offender who had agreed to assist police, the appellant was arrested on 28 May 1997 in possession of firearms. On the day of his arrest, he participated in two lengthy electronically recorded interviews (ERISPs) at Penrith Police Station and made full admissions to both the weapons offences and a series of knife-point robberies on the northern beaches. A further ERISP conducted at Maroubra Police Station on 12 June 1997 produced admissions relating to additional robberies.
The appellant was tried before a District Court Judge and jury on the remaining counts after a directed acquittal on one charge. He was convicted on all remaining counts. The longest of the concurrent sentences imposed was 16 years imprisonment with a minimum term of 12 years, relating to a shotgun robbery charged under s 97(2) of the Crimes Act.
The appellant appealed against conviction on two grounds: that the ERISP admissions obtained on the day of arrest should have been excluded, and that the trial judge erred in refusing to order separate trials on each count.
Legal Issues
- Whether the ERISP admissions made at Penrith on the day of arrest should have been excluded under ss 84, 85, or 135 of the Evidence Act, particularly in light of a police officer's refusal to allow the appellant to make a phone call to a lawyer before being interviewed
- Whether the trial judge erred in refusing the appellant's application for separate trials on each of the 17 counts in the indictment, given the risk of unfair prejudice from running multiple charges together
Decision
On the admissions ground, the Court found that s 84(1) of the Evidence Act did not require exclusion of the Penrith ERISPs. Section 84 is directed at situations where the will of a person in custody has been broken down by improper pressure, oppression, or conduct that is inhuman and degrading. The Court found nothing of that character here. Importantly, the argument that the denial of phone access "influenced" the appellant to confess had not been run at trial in that way, and there was nothing in the evidence to support it on appeal.
The Court also found no basis to exclude the admissions under s 85, which concerns reliability. Everything in the circumstances pointed away from any suggestion that the truth of the admissions had been adversely affected. The ERISP transcripts contained repeated cautions and the customary acknowledgments that no improper inducements had been offered.
On the separate trials ground, the Court held that the trial judge had not erred in the exercise of his discretion. At the time the application was made, there was no suggestion the ERISP admissions were unreliable. Identity was the only real issue on the robbery counts, and the ERISPs contained full admissions. The Crown had explicitly confirmed it would not rely on similar fact reasoning to link the robberies. The jury received repeated directions to consider each count separately, and the Court found there was little risk of unfair prejudice arising from the joint trial.
The Court drew on the South Australian decision in Reg v McDonald (1979) 21 SASR 198, where it was recognised that where a confession encompasses multiple offences and no victim identification evidence creates cross-contamination risk, an appropriate jury direction can adequately address any risk of prejudice, removing the basis for ordering separate trials.
Orders Made
- Appeal against conviction dismissed
Key Takeaways
- Under s 84(1) of the Evidence Act, exclusion of admissions requires a finding that police conduct was oppressive, inhuman, or degrading in a way that broke down the accused's will. A refusal to allow a phone call, without more, did not meet that threshold on the facts here.
- Arguments raised for the first time on appeal that were not run at trial carry significant forensic difficulty. The Court declined to find that the denial of lawyer access "influenced" the admissions where that case had not been advanced below.
- A trial judge retains a broad discretion in applications for separate trials. In dismissing the joinder ground, the Court confirmed that this discretion is assessed by reference to the grounds advanced at the time of the application, not arguments developed later.
- Where the sole evidence implicating an accused across multiple counts is a comprehensive confession, and victim identification evidence does not create cross-contamination risk, the risk of unfair prejudice from a joint trial may be adequately managed by appropriate jury directions rather than severance.
- Repeated and clear jury directions to consider each count separately remain a relevant and effective mechanism for addressing potential prejudice arising from the joinder of multiple charges.
Legislation and Cases Referenced
Legislation
- Evidence Act (NSW), ss 84, 85, 135
- Crimes Act (NSW), ss 94, 97(1), 97(2)
Cases
- R v Truong (1996) 86 A Crim R 188 (distinguished)
- The Queen v Swaffield (1998) 192 CLR 159 (distinguished)
- Clarke (1997) 97 A Crim R 414 (referred to)
- R v Guldur (1986) 8 NSWLR 12 (referred to)
- R v Verma (1987) A Crim R 441 (referred to)
- Sutton v The Queen (1984) 152 CLR 528 (referred to)
- De Jesus v The Queen (1986) 61 ALJR 1 (distinguished)
- Reg v McDonald (1979) 21 SASR 198 (followed)