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Supreme Court 25 February 2000

R v Pieter Egbert Helmhout & Ors (No.2)

[2000] NSWSC 225

Homicide
CRIMINAL LAW VOIR DIRE NOT TAPE RECORDED WHETHER ACCUSED WAS THREATENED UNLAWFUL DETAINMENT PROBATIVE VALUE

Citation: R v Pieter Egbert Helmhout & Ors (No.2) [2000] NSWSC 225
Court: Supreme Court of New South Wales (Criminal Division)
Date: 25 February 2000
Judge(s): Bell J

Background

Four accused were charged in connection with the alleged strangling of a man named Paul Harris following a funeral and wake in June 1998. The Crown alleged that two of the accused carried out the killing at a unit in Queanbeyan, and that a third accused, Joanne Rose Delly, was present and subsequently cleaned the premises.

On the morning after the alleged killing, police executed a search warrant at the unit. Delly was arrested and taken to Queanbeyan Police Station, where she remained throughout the day with her seven-month-old infant daughter.

At 1.50 pm, a senior detective conducted an unrecorded interview with Delly by notebook. That interview ran for over three hours and contained detailed admissions about her presence during and after the alleged killing. Delly's counsel applied on a voir dire (a preliminary hearing to determine admissibility) to have the contents of that interview excluded before the Crown opened its case.

  • Whether the absence of tape recording rendered the interview inadmissible under s 108 of the Criminal Procedure Act 1986
  • Whether the admissions were influenced by a threat from a police officer, attracting exclusion under s 84(1) of the Evidence Act 1995
  • Whether Delly's unlawful detention at the time of the interview required exclusion of the evidence under s 138 of the Evidence Act 1995
  • Whether the admissions had sufficient probative value to be admitted in any event

Decision

On the threat ground, Bell J was not persuaded that any threat had been made to the accused. The s 84 challenge accordingly failed.

On the question of unlawful detention, the Crown conceded that Delly's custody from approximately 8.30 am until after 5.30 pm was unlawful. No steps had been taken to comply with Part 10A of the Crimes Act 1900, which governs the detention and questioning of suspects. The Court accepted that the likely explanation was that the investigating officers did not suspect Delly of having committed an offence, but this did not justify keeping her at the station without observing her legal rights. Significantly, no one informed her that she was free to leave.

The Court also noted that Delly had indicated at 9.45 am that she wished to make a statement, but no attempt was made to facilitate that. The decision to wait for a more senior detective was made without any consideration of whether the delay was reasonable under Part 10A.

Applying s 138 of the Evidence Act 1995, Bell J held that the disregard for Delly's rights was serious, even accepting that the senior detective had not deliberately detained her unlawfully. Having weighed the relevant considerations under s 138(3), the Court was not satisfied that the desirability of admitting the evidence outweighed the undesirability of doing so, given the manner in which it was obtained. The interview was excluded.

Orders Made

• The contents of the accused's interview with Senior Sergeant Little on 20 June 1998 are inadmissible.

Key Takeaways

  • A Crown concession of unlawful detention, combined with a failure to comply with Part 10A of the Crimes Act 1900, provided a sufficient basis for the Supreme Court to consider exclusion of admissions under s 138 of the Evidence Act 1995.
  • Under s 138, once evidence is obtained improperly or in contravention of the law, it is inadmissible unless the court is satisfied that the desirability of admitting it outweighs the undesirability, having regard to the manner of obtaining it.
  • The absence of a deliberate intention to detain a person unlawfully does not, of itself, diminish the seriousness of the rights violation for the purposes of the s 138 balancing exercise.
  • Failing to inform a person in custody that they are free to leave is a relevant consideration in assessing whether detention was unlawful and whether the resulting evidence should be excluded.
  • Where a person in custody indicates a willingness to make a statement, an unexplained delay in facilitating that statement, without reference to the requirements of Part 10A, can contribute to a finding that the subsequent interview was improperly obtained.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 108
- Evidence Act 1995 (NSW), ss 84, 138
- Crimes Act 1900 (NSW), Part 10A

Cases cited: None identified in the provided text.