Citation: R v Pieter Egbert Helmhout [2000] NSWSC 208
Court: Supreme Court of New South Wales, Criminal Division
Date: 22 March 2000
Judge(s): Bell J
Background
The accused was charged with murder arising from the killing of a man in Queanbeyan in the early hours of 20 June 1998. He was arrested that morning and taken to Queanbeyan Police Station, where the custody manager completed a rights protocol and administered a questionnaire before an electronically recorded interview (ERISP) commenced at 9.43am.
The accused was an Aboriginal person. Evidence before the court established that the Aboriginal Legal Service had not been notified of his detention, as required by the applicable regulation. Civilian witnesses and trial evidence also indicated the accused had consumed alcohol and drugs in the period before his arrest.
The admissibility of the ERISP was contested on a voir dire (a preliminary hearing held in the absence of the jury to rule on an evidentiary question) before Bell J. That voir dire ran across three hearing dates and was considered alongside evidence from the concurrent trial of a co-accused.
Legal Issues
- Whether the police failure to notify an Aboriginal legal aid organisation of the accused's detention, in breach of clause 28 of the Crimes (Detention after Arrest) Regulation 1998, warranted exclusion of the ERISP.
- Whether the accused's state of intoxication at the time of the interview was such that it would be unfair to admit the interview in evidence.
- Whether the combination of the regulatory breach and the accused's intoxication, taken together, warranted exclusion of the interview.
Decision
On the regulatory breach: Bell J accepted that the custody manager had not contacted the Aboriginal Legal Service as required by clause 28 of the Regulation. That clause operates as an automatic obligation: the custody manager must notify an Aboriginal legal aid organisation of a detained Aboriginal person's custody regardless of whether the person requests it, unless the person has already arranged for a lawyer to attend. The Crown conceded the breach. However, the court considered whether, had the Regulation been complied with, a representative might have attended and given advice, and concluded it was not possible to infer what advice would have been given or how the accused would have responded to it.
On intoxication: The court examined evidence from civilian witnesses and trial evidence concerning the accused's state during the period before his arrest, as well as the opening passages of the ERISP itself. Bell J found that, while the accused was affected to some degree by alcohol and drugs at the time of the interview, he was not so impaired as to fail to understand that he had a right to refuse to answer questions. The court further noted that the accused was informed of his right to contact a lawyer and chose not to do so.
On the combined grounds: Bell J considered whether the regulatory breach and the intoxication, viewed together, might warrant exclusion. The court accepted the accused participated in the interview while still affected by intoxicating substances and without any legal advice, due in part to the failure to notify the Aboriginal Legal Service. Nevertheless, given the accused's demonstrated understanding of his rights, the court was not satisfied that admission of the interview would be unfair.
The ERISP was accordingly ruled admissible.
Orders Made
• The interview evidence is admitted and allowed to be given
Key Takeaways
- Clause 28 of the Crimes (Detention after Arrest) Regulation 1998 imposes an unconditional obligation on the custody manager to notify an Aboriginal legal aid organisation when an Aboriginal person is detained, whether or not the person requests it, unless a lawyer has already been arranged.
- A demonstrated breach of the clause 28 notification obligation does not automatically result in exclusion of a subsequent police interview; the court must assess the consequences of the breach and the overall fairness of admitting the evidence.
- Where an accused's intoxication does not prevent genuine understanding of the right to silence and the right to legal advice, it is not, without more, sufficient to render a police interview inadmissible on unfairness grounds.
- The combination of a regulatory breach and intoxication may nonetheless be weighed together when considering discretionary exclusion, but the inability to infer what advice might have been given or acted upon can limit the weight of the regulatory breach in that assessment.
- Under the Evidence Act 1995 (NSW) and the common law fairness discretion, unreliability of a statement is a relevant but not sole consideration; the court must look to whether improper police conduct, even if proven, would have altered the outcome had the investigation been properly conducted.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), Part 10A
- Crimes (Detention after Arrest) Regulation 1998 (NSW), cls 5 and 28 (Parts 4 and 5)
- Evidence Act 1995 (NSW), ss 85, 90, 138, 165
Cases:
- R v Mark Helmhout (unreported, 23 February 2000)
- R v Donnelly (1997) 96 A Crim R 432
- R v Ostojic (1978) 18 SASR 188
- R v Smith (1992) 58 SASR 491
- R v Garth (1994) 73 A Crim R 215
- The Queen v Swaffield (1998) 192 CLR 159