Citation: R v Lamb and Thurston [2002] NSWSC 357
Court: Supreme Court of New South Wales, Common Law Division (Criminal)
Date: 24 April 2002
Judge(s): Dunford J
Background
Two accused, Lamb and Thurston, faced murder charges in the Supreme Court at Tamworth. Lamb was arrested in the early hours of 30 October 2000 and taken to Tamworth Police Station, where he was held under the custody management framework set out in Part 10A of the Crimes Act 1900. Police subsequently conducted a video-recorded interview with him and, later that morning, a videoed walkaround of the crime scene.
Lamb objected to the admission of both the recorded interview and the walkaround video. His counsel argued that police had not properly complied with the procedural requirements of Part 10A, and that the video showing Lamb in handcuffs would be unfairly prejudicial before the jury.
The ruling addressed here is a pre-trial admissibility judgment. Dunford J ruled on the objections before delivering reasons in writing after the hearing concluded.
Legal Issues
- Whether police had complied with the detention and investigation requirements of Part 10A of the Crimes Act 1900, including the correct calculation of the four-hour investigation period and any applicable "time-outs"
- Whether a detention warrant application had been validly made and made within time
- Whether the circumstances in which admissions were obtained rendered them unfair to the accused under s 90 of the Evidence Act 1995
- Whether any improperly obtained evidence should nonetheless be admitted under the discretion in s 138 of the Evidence Act 1995
- Whether showing the jury footage of the accused in handcuffs during the walkaround would be unfairly prejudicial
Decision
Part 10A Compliance and the Recorded Interview
Dunford J worked through the Custody Management Record (CMR) and associated documents in detail. His Honour was satisfied that the Part 10A caution and summary had been read to Lamb at 5.05 am, despite Lamb's denial on the voir dire (the pre-trial hearing at which the admissibility issue was argued). Lamb's own answers during the recorded interview, in which he volunteered that a sergeant had read him "a piece of paper" explaining his rights, supported that finding. His Honour had doubts about aspects of Detective Coe's evidence regarding events after the Thurston interview, but was ultimately satisfied with the accuracy of the CMR entries up to the point of the interview.
Attempts to contact a solicitor for Lamb were made at 5.15 and 5.20 am. The second call was accidentally made to the wrong number (a child care unit rather than the Aboriginal Legal Service), but Dunford J accepted this was not intentional. His Honour noted that Sergeant Lee would have been unlikely to record the wrong number if the call had been a deliberate pretence. Lamb then told the sergeant not to worry further about contacting a solicitor at that time.
The Detention Warrant and Walkaround
Some breaches of Part 10A were identified in the period leading up to the walkaround, along with inaccuracies in the records and the detention warrant application. However, Dunford J calculated that the application had still been made within the permissible time. His Honour found that the contraventions were neither reckless nor deliberate, and that with proper procedure a detention warrant could in any event probably have been issued. Critically, before the walkaround took place, Lamb's solicitor (Mr Baxter-Wright) had been notified and had conferred with Lamb about the proposed walkaround. Those circumstances weighed in favour of admitting the evidence under s 138.
Handcuffs in the Walkaround Video
Dunford J rejected the submission that showing the jury footage of Lamb in handcuffs would be unfairly prejudicial. His Honour reasoned that the jury were aware Lamb had been charged with murder by the time of the walkaround, and would not be surprised to see a person charged with murder handcuffed while walking through a park with police. The objection was dismissed.
Orders Made
• The application for a detention warrant was validly made and made within time
• The evidence of the recorded interview is admissible
• The evidence of the video walkaround is admissible
Key Takeaways
- Where an accused's own interview answers corroborate that police read him his rights, a voir dire denial of that fact may not be accepted, particularly where the accused volunteers a reference consistent with the caution having been given.
- Accidental contact with the wrong solicitor number, without any deliberate subterfuge, does not necessarily constitute a breach of Part 10A sufficient to warrant exclusion of evidence where the circumstances as a whole are considered under s 138.
- Under s 138 of the Evidence Act 1995, the non-deliberate and non-reckless nature of procedural contraventions, combined with the likelihood that proper compliance would have produced the same outcome, are relevant factors favouring admission of improperly obtained evidence.
- Prior notification of a solicitor, and a conference between the accused and that solicitor before the impugned procedure takes place, are significant considerations supporting admissibility of the resulting evidence.
- The Supreme Court held that footage of a murder accused in handcuffs during a crime scene walkaround is not necessarily unfairly prejudicial, where the jury already know the accused has been charged with murder and the handcuffing is a foreseeable aspect of that custody.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), Part 10A (ss 354 to 356Y), including s 356D (four-hour investigation period)
- Evidence Act 1995 (NSW), ss 90, 138, 142
- Crimes (Detention After Arrest) Regulation 1998 (NSW), cll 5 and 28
Cases
- R v Phung Huynh [2001] NSWSC 115
- R v Helmhout [2000] NSWSC 208; 112 ACR 10
- Bunning v Cross (1978) 141 CLR 54