Citation: R v Campbell, Campbell & Baka (No 1) [2007] NSWDC 150
Court: District Court of New South Wales
Date: 24 July 2007
Judge(s): Berman SC DCJ
Background
The accused Simon Campbell was one of three defendants charged with involvement in the importation of tablets containing pseudoephedrine, a prohibited precursor substance. A central element of the prosecution case was that Campbell knew the nature of what he was handling when he unpacked boxes from a shipping container. His alleged admission that he thought the contents were "dodgy" was described as a high point of the Crown's case.
Following Campbell's arrest, police conducted an electronically recorded interview at AFP headquarters. Earlier that day, police had also conducted a separate, unrecorded conversation with Campbell, which was separately documented as an AFP Record of Conversation. Campbell had indicated during the recorded interview that he was willing to assist police and did not initially seek legal advice.
Before the jury was empanelled on the substantive trial, the court heard a preliminary argument about whether the admissions made during the recorded interview should be excluded from evidence. The defence submitted that the manner in which the interview was conducted rendered those admissions inadmissible.
Legal Issues
- Whether the admissions made by Campbell during the electronically recorded AFP interview were obtained as a result of oppressive conduct, engaging section 84 of the Evidence Act.
- Whether, if oppressive conduct was established, the Crown could prove on the balance of probabilities that the admissions were not influenced by that conduct.
- Whether the earlier AFP Record of Conversation (the separate unrecorded exchange) should also be excluded.
Decision
The court found that the police interview crossed the line into oppressive conduct commencing from question 108 of the transcript. At that point, officers told Campbell he "had to" explain himself and convince them he was telling the truth, referenced consequences for himself and his family, expressed repeated disbelief in his denials, accused him explicitly of lying, and raised their voices. The court observed that Campbell had earlier disclosed concern about collecting his young daughter, and the references to his family were made in that context, adding further pressure.
Berman SC DCJ noted that police officers often face a genuine tension between advancing an investigation and obtaining admissible evidence. The court accepted that some pressure during questioning is a legitimate part of police practice, but held that the cumulative effect of what was said, how it was said, and the officers' aggressive and disbelieving approach went beyond what the law permits when the product of that questioning is to be used against the accused.
Applying the approach in R v Zhang [2000] NSWSC 1099, the court held that section 84 does not require a single identifiable cause of the admission. Where oppressive conduct is one of several factors that combine to produce an admission, and the Crown cannot negative that conduct as a contributing cause, the evidence must be excluded. The court was not satisfied the Crown had discharged that burden.
The court drew additional support from common law voluntariness principles (noting that under the pre-Evidence Act position the admissions would likely have been excluded as involuntary), though it applied the statutory test under section 84 rather than the common law.
Orders Made
- The entirety of the AFP electronically recorded interview is excluded from evidence.
- The AFP Record of Conversation (exhibits 1B and 2B) is not excluded, with the court noting it contains admissions not challenged on oppression or unfairness grounds. The relevance of exhibit 2B was reserved for further argument.
Key Takeaways
- Under section 84 of the Evidence Act, a court must exclude admissions influenced by oppressive police conduct, and the Crown bears the burden of proving on the balance of probabilities that the oppression did not influence the making of the admission.
- A single identifiable act of oppression is not required. As confirmed in R v Zhang, multiple factors working together, including tone, references to family, expressions of disbelief, and aggressive cross-examination during interview, can collectively constitute oppressive conduct for the purposes of section 84.
- The District Court drew a clear distinction between conduct that advances an investigation and conduct that produces admissible evidence, noting that police may make tactical choices that serve the former at the cost of the latter.
- Where a recorded interview contains admissions that are excluded, but an earlier separate record of conversation contains admissions not tainted by oppression or unfairness, those earlier admissions are not automatically excluded alongside the later record.
- Common law voluntariness principles, while not the applicable test under the Evidence Act, were treated by the court as providing useful contextual support when assessing the statutory question under section 84.
Legislation and Cases Referenced
Legislation:
- Evidence Act (NSW), sections 84 and 90
Cases:
- McDermott v The King (1948) 76 CLR 501
- R v Zhang [2000] NSWSC 1099 (Simpson J)
- R v LL (Unreported, Supreme Court of NSW, 1 April 1996)