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Court of Criminal Appeal 19 July 2002

R v Dalley

[2002] NSWCCA 284

Also reported as (2002) 132 A Crim R 169
Homicide
APPEAL AGAINST CONVICTION MURDER RECORD OF INTERVIEW ADMISSIONS AND INCRIMINATING STATEMENTS CRIMES ACT 1900, S352, PART 10A DETENTION WITHOUT CHARGE

Citation: R v Dalley [2002] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 19 July 2002
Judge(s): Spigelman CJ, Simpson J, Blanch AJ

Background

The appellant was convicted of murder following a jury trial in the Supreme Court at Griffith. The Crown alleged that he and three others lured the victim to an isolated location near Griffith on 2 January 1999, ostensibly to purchase cannabis, but with the intention of robbing him. The victim was killed in the course of that encounter.

A central piece of evidence at trial was an electronically recorded interview conducted at Griffith Police Station on 3 January 1999, the day of the appellant's arrest. During that interview, the appellant made significant admissions that incriminated him.

The appellant challenged the admissibility of the record of that interview on multiple grounds, each arising from alleged non-compliance with the statutory framework governing detention and questioning under Part 10A of the Crimes Act 1900. The trial judge, Bell J, admitted the evidence, and the appellant appealed against his conviction.

  • Whether the application for a detention warrant was made before the expiration of the maximum investigation period, as required by Part 10A of the Crimes Act 1900
  • Whether a telephone application for a detention warrant was invalidated by the failure to provide written verification within the required one-day period
  • Whether partial non-compliance with the requirement to give the detained person cautions and information both orally and in writing rendered the record of interview inadmissible
  • Whether the trial judge properly exercised the discretion under s 138 of the Evidence Act 1995 to admit evidence obtained improperly or unlawfully
  • What role the seriousness of the offence plays in the s 138 balancing exercise

Decision

On the detention warrant timing issue, the Court found no error in the trial judge's approach. Bell J had assessed whether the investigation period had been reasonably suspended or deferred and concluded that the decision to take all four suspects to Griffith, even though it created delays and limitations in recording facilities, was reasonable in the circumstances. The Court of Criminal Appeal found that conclusion was open to her Honour.

Regarding non-compliance with the written verification requirement for the telephone detention warrant, the Court found that this did not invalidate the warrant itself. However, partial non-compliance with the requirement to give the appellant cautions and information in both oral and written form was found to constitute an "impropriety" for the purposes of s 138 of the Evidence Act 1995.

Turning to the s 138 admissibility discretion, the Court upheld Bell J's decision to admit the evidence. The non-compliances were treated as relatively innocent rather than deliberate or reckless, and no evidence or argument was advanced that the appellant's admissions were actually influenced by the failure to provide the written statutory information. The appellant's parents had also been present with him for some time before the interview commenced.

The three judges differed on one point of principle concerning s 138(3)(c). Spigelman CJ and Blanch AJ held that the public interest in conviction and punishment carries greater weight for more serious offences, meaning the graver the crime, the more likely the discretion will be exercised in favour of admitting improperly obtained evidence. Simpson J disagreed with that approach, taking the view that seriousness of the charge does not in itself make admission more likely. The Court unanimously agreed, however, that this difference of opinion did not affect the outcome of the appeal.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Partial non-compliance with Part 10A requirements for oral and written cautions and information to a detained person can constitute an "impropriety" for the purposes of s 138 of the Evidence Act 1995, even where the non-compliance was not deliberate or reckless.
  • Failure to provide written verification of a telephone detention warrant within the required period does not automatically invalidate the warrant, but remains relevant to the s 138 assessment.
  • Under s 138, the absence of any causal link between a statutory breach and the making of admissions is a significant factor in favour of admitting the resulting evidence.
  • The Court of Criminal Appeal was divided on the proper interpretation of s 138(3)(c): Spigelman CJ and Blanch AJ held that the gravity of the offence increases the weight of the public interest in admission; Simpson J rejected that proposition. Because the appeal was dismissed on all grounds, the point was not determinative.
  • In assessing whether the investigation period was reasonably suspended or deferred, the question is whether the trial judge's discretionary judgment was open on the facts, not whether another conclusion might have been equally available.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 352 and Part 10A (including ss 356F, 356G, 356M)
- Evidence Act 1995 (NSW), s 138
- Crimes (Detention after Arrest) Regulation 1998
- Criminal Procedure Act 1986 (NSW)

Cases:
- Bunning v Cross (1978) 141 CLR 54
- Pollard v The Queen (1992) 176 CLR 177
- Williams v R (1986) 161 CLR 278
- Michaels v R (1995) 184 CLR 117
- House v R (1936) 55 CLR 499
- Bales v Parmeter (1935) 35 SR (NSW) 182
- R v Burrell [2001] NSWSC 120
- R v Rondo [2001] NSWCCA 540
- R v Phung and Huynh [2001] NSWSC 115