AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 29 July 2008

R v Kemp, Darren

[2008] NSWDC 312

Theft & propertyPublic order & justice offences
CRIMINAL LAW TRIAL INTERLOCUTORY APPLICATION EXCLUSION OF EVIDENCE OF ADMISSIONS ACCUSED PLACED IN DESIGNATED CELL LEPRA PROVISIONS REVIEWED

Citation: R v Kemp, Darren [2008] NSWDC 312
Court: District Court of New South Wales
Date: 29 July 2008
Judge(s): Nicholson SC DCJ

Background

The accused faced four counts arising from the armed robbery of two Westpac ATMs at the Sydney Easter Show in March 2005, with approximately $680,000 taken. He was arrested nearly two years later, in February 2007, by detectives from Strike Force Piccadilly, a task force investigating a series of ATM thefts.

Shortly after his arrest, police placed the accused in a designated cell at Newtown Police Station that was fitted with a lawfully installed listening device. Two undercover police officers, posing as fellow detainees, were placed in the cell with him and engaged him in conversation. During those exchanges, the accused allegedly made incriminating admissions about his involvement in the robbery.

The Crown sought to tender recordings of those cell conversations. The accused applied under section 90 of the Evidence Act 1995 to have the evidence excluded, arguing it would be unfair to use admissions obtained in those circumstances.

  • Whether the arrest was lawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), or whether it was effected for the illegitimate purpose of placing the accused in a position where undercover operatives could extract admissions
  • Whether the investigation period for questioning available under Part 9 of LEPRA was validly enlivened, given the circumstances of the arrest
  • Whether it would be unfair to the accused, under section 90 of the Evidence Act 1995, to allow the use of admissions obtained through the covert cell operation
  • How section 90 (unfairness) differs from section 138 (discretionary exclusion for improper conduct) in this context

Decision

The court examined the strength of the prosecution's evidence before the arrest. The principal pre-arrest evidence consisted of a potentially unreliable account from a former associate of the accused (who the Crown was not even calling at trial), weak circumstantial evidence from a police constable linking the accused to a fluorescent vest, and a security guard whose evidence was thin on identifying detail. The court found that, but for the cell admissions, the prosecution case was markedly weak.

Nicholson SC DCJ concluded that the arrest was not a genuine investigative arrest directed at charging the accused on the available evidence. Rather, it was made for the purpose of placing the accused in a controlled, police-dominated environment so that undercover operatives could inveigle admissions from him. An arrest for that ulterior purpose was unlawful. Because the arrest was unlawful, the investigation period for questioning under Part 9 of LEPRA was not validly available.

The court also found that the police deliberately used trickery and deception because they believed the accused would not incriminate himself through a conventional interview. This was designed to circumvent his right to silence. The custody records were maintained in a way the court characterised as an impropriety, further contributing to the unfairness of the situation.

Applying section 90, the court held that admitting the recordings would render the trial unfair. The right to silence is a fundamental tenet of a fair trial, and excusing its deliberate circumvention through deception would itself constitute unfairness. Where self-incriminating evidence obtained by such means is the only material evidence against an accused, the unfairness is heightened further.

Orders Made

  • The tender of the recordings made by the undercover police in Cell 3 at Newtown Police Station on 19 February 2005 was rejected.

Key Takeaways

  • An arrest made not for the genuine purpose of charging an accused on available evidence, but to place that person in an environment controlled by police for the extraction of admissions, is an arrest for an unlawful purpose under LEPRA.
  • Where an arrest is unlawful, the statutory investigation period for questioning under Part 9 of LEPRA is not validly enlivened, and the protections and powers attaching to that period are unavailable to police.
  • Section 90 of the Evidence Act 1995 focuses on fairness to the accused in the circumstances of how admissions were obtained, and this inquiry is distinct from the section 138 discretion, which addresses whether evidence should be excluded because of improper or unlawful conduct by investigators.
  • Deliberately placing an accused in a police-controlled cell environment and using undercover operatives to obtain admissions, specifically to avoid the right to silence, constitutes a form of trickery and deception that can render those admissions unfair to use.
  • The District Court emphasised that the unfairness of admitting such evidence is compounded where the impugned admissions constitute virtually the entirety of the incriminating evidence against the accused.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 90, 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9
- Crimes Act 1900 (NSW)
- Bail Act 1978 (NSW)

Cases
- Williams v The Queen (1986) 161 CLR 278
- Cleland v The Queen
- Bales v Parmeter (1935) 35 SR (NSW) 182
- Tofilau v R 238 ALR 650
- Em v R 239 ALR 204
- R v Broyles [1991] 3 SCR 595
- R v Mullah [2005] NSWSC 358
- R v Swaffield 72 ALJR 339
- R v Collins [1987] 1 SCR 265
- R v Herbert [1990] 2 SCR 151