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Supreme Court 23 February 2000

R v Pieter Egbert Helmhout & Ors

[2000] NSWSC 185

HomicidePublic order & justice offences
CRIMINAL LAW VOIR DIRE WHETHER ACCUSED WAS THREATENED

Citation: R v Pieter Egbert Helmhout & Ors [2000] NSWSC 185
Court: Supreme Court of New South Wales
Date: 23 February 2000
Judge(s): Bell J

Background

The accused, Mark Helmhout, faced trial for the murder of Paul Harris, who was allegedly killed at a Queanbeyan unit following a wake for the accused's brother. Police arrested Helmhout at his home early the following morning and took him to Queanbeyan Police Station, where he participated in an electronically recorded interview with Detectives McCloskey and Hinton.

Before the Crown opened its case to the jury, the accused's counsel applied to have the recorded interview ruled inadmissible. The application was heard as a voir dire under s 189 of the Evidence Act 1995, with evidence given by the two detectives, the station sergeant, the custody manager, a solicitor from the Aboriginal Legal Service, and a forensic psychiatrist.

The accused is an Aboriginal person, which engaged specific procedural obligations under the Crimes (Detention after Arrest) Regulation 1998.

  • Whether Detectives McCloskey and Hinton threatened the accused before the interview began, rendering the interview oppressive under s 84(1)(a) of the Evidence Act 1995
  • Whether the accused's combined state of intoxication from alcohol and drugs, together with underlying depression, meant the Crown could not satisfy s 85(2) that the circumstances of the admission made it unlikely the truth of that admission was adversely affected
  • Whether the custody manager's failure to notify an Aboriginal legal aid organisation of the accused's detention, as required by cl 28 of the Crimes (Detention after Arrest) Regulation 1998, constituted conduct in breach of Australian law sufficient to trigger exclusion under s 138 of the Act
  • Whether the interview should be excluded in the exercise of the court's discretion under s 90 of the Act on grounds of fairness

Decision

Alleged threats (s 84). Bell J did not accept the accused's evidence that the detectives threatened him with a lengthier sentence if he did not cooperate, or threatened that his de facto wife would be charged and his children referred to welfare authorities. The Crown's witnesses were preferred. Because the threshold factual finding of oppressive conduct was not established, s 84 did not operate to exclude the interview.

Impairment by alcohol, drugs, and depression (s 85). The court accepted that the accused had consumed a significant amount of alcohol in the preceding hours and was affected by depression following his brother's funeral. However, Bell J found, having viewed the entirety of the interview recording, that the accused demonstrated sufficient comprehension and coherence throughout. The Crown discharged its onus under s 85(2): the circumstances did not make it unlikely that the truth of the admission was adversely affected.

Breach of cl 28 (s 138). The custody manager failed to notify an Aboriginal legal aid organisation of the accused's detention, as cl 28 expressly required. Bell J found the omission was neither deliberate nor reckless; the custody manager had simply overlooked the obligation after completing the standard Part 10A rights procedure. While acknowledging the failure to observe an important protection for a vulnerable person, the court weighed the considerations in s 138(3) and concluded that the desirability of admitting the interview outweighed the undesirability of doing so.

Discretionary exclusion (s 90). Bell J also considered whether it would be unfair to use the admission, drawing on the High Court's analysis in The Queen v Swaffield. The accused knew of his right to silence, and his participation in the interview was not found to be the product of improper pressure. Exclusion under s 90 was refused.

Orders Made

  • The tender of the electronically recorded interview with Mark Helmhout was allowed.

Key Takeaways

  • Bell J confirmed that where a threat of oppressive conduct is alleged under s 84 of the Evidence Act 1995, the factual foundation for that allegation must first be established before the section can operate to exclude the evidence.
  • Under s 85(2), the Crown bears the onus of establishing that the circumstances in which an admission was made were unlikely to have adversely affected its truth; viewing the entirety of the recording was a significant part of how Bell J assessed whether that onus was discharged in the face of intoxication and depression evidence.
  • Clause 28 of the Crimes (Detention after Arrest) Regulation 1998 imposes a clear obligation on custody managers to notify an Aboriginal legal aid organisation when an Aboriginal person is detained; non-compliance is a significant failure engaging s 138 of the Act.
  • Under s 138, a court must weigh the desirability of admitting improperly obtained evidence against the undesirability of doing so; here, the non-deliberate and non-reckless nature of the regulatory breach was a weighty factor favouring admission.
  • The s 90 fairness discretion requires the court to consider whether, had the investigation been properly conducted, no confession might have been made at all; the accused's awareness of his right to silence and the absence of proven improper pressure were determinative on this point.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 84, 85, 90, 138, 142, 189
- Crimes (Detention after Arrest) Regulation 1998, cl 28
- Crimes Act 1900 (NSW), Part 10A

Cases
- R v Rooke (unreported, Court of Criminal Appeal, 2 September 1997)
- The Queen v Swaffield (1997) 192 CLR 159