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Supreme Court 18 February 2008

R v Jeffrey GILHAM

[2008] NSWSC 88

Homicide
EVIDENCE ADMISSIONS OBTAINED DURING UNLAWFUL DETENTION WHETHER SHOULD BE ADMITTED CRIMINAL LAW

Citation: R v Jeffrey Gilham [2008] NSWSC 88
Court: Supreme Court of New South Wales
Date: 18 February 2008
Judge(s): Howie J

Background

The accused stood trial for the murder of his parents. The case arose from a triple killing at a family home on 28 August 1993, in which the accused's parents and brother died. Police arrived at the scene in the early hours of the morning and transported the accused to Sutherland Police Station for questioning.

The accused participated in a lengthy electronically recorded interview (known as an ERISP) commencing at 8.22am. During the interview, a videotape ejected from the recorder at 9.07am. Police continued the interview after changing the tape rather than taking the accused before a bail court, which was sitting in Sydney at 9am that morning. Later that afternoon, the accused accompanied police back to the family home for a recorded "walk through" of the crime scene.

The accused applied by Notice of Motion to exclude the portion of the ERISP recorded after 9.07am, and the entirety of the walk-through evidence. The grounds were that police held him in unlawful custody during both events, and that certain conduct by police further tainted the evidence.

  • Whether the accused was held in unlawful custody after the tape ejected at 9.07am, given that a bail court was then sitting and police continued to detain him solely for questioning.
  • Whether admissions made after that point were obtained in contravention of Australian law within the meaning of s 138 of the Evidence Act 1995.
  • Whether the court should exercise its discretion under s 138 to exclude that portion of the ERISP and the walk-through, having regard to the competing considerations in s 138(3).
  • Whether a police officer's conduct in telling a family friend that the accused did not need a solicitor amounted to a further impropriety affecting admissibility of the walk-through evidence.

Decision

Unlawful detention after 9.07am

Howie J found, on the balance of probabilities, that the accused was held in unlawful custody after 9.07am. The common law at the time required police to take an arrested person before a court as soon as reasonably practicable. Detaining him solely for continued questioning, while a bail court was sitting, was inconsistent with that obligation. The admissions made after that point were therefore obtained in contravention of law, engaging s 138 of the Evidence Act 1995.

The s 138 discretion: the ERISP

Despite finding unlawful detention, Howie J declined to exclude the post-9.07am portion of the ERISP. His Honour applied the balancing exercise under s 138(3), weighing the seriousness of the impropriety against other relevant factors. The accused was an intelligent 23-year-old university student who appeared composed throughout the interview and was keen to explain his account. There was no suggestion the unlawful detention affected him or compromised the reliability of his answers. The questioning was fair, the accused had been properly cautioned, and he had voluntarily agreed to be interviewed. The public interest in admitting probative evidence of a serious triple killing outweighed the impropriety.

The walk-through

The walk-through took place after the accused had been formally charged with his brother's murder and had, on three separate occasions, expressed willingness to accompany police to the house. He was advised each time that he was not obliged to do so. Howie J found the conduct of the police during the walk-through was fair, and the accused appeared fully at ease throughout the recording. The balance under s 138(3) overwhelmingly favoured admission.

The solicitor incident

A family friend, Ms Patterson, attended the police station and asked whether the accused needed a solicitor. A police officer told her he did not, which Howie J found to be improper, a view Detective Ahern himself accepted. However, the accused had never sought access to a solicitor at any point during his custody, and there was no evidence he believed he was prevented from doing so. Howie J concluded it was a matter of pure conjecture whether Ms Patterson's exclusion affected the walk-through evidence in any meaningful way. Even accepting the impropriety was sufficient to engage s 138, it was not of a nature that outweighed the considerations in favour of admission under s 138(3).

Orders Made

  • The application to exclude part of the ERISP and the evidence of the walk-through is refused.

Key Takeaways

  • A finding of unlawful detention does not automatically result in the exclusion of evidence obtained during that detention; the court must still apply the balancing discretion under s 138(3) of the Evidence Act 1995.
  • Under s 138(3), relevant considerations include the gravity of the offence, the nature and deliberateness of the impropriety, the extent to which the impropriety affected the accused, and the reliability of the evidence obtained.
  • Where an accused is intelligent and composed, has been properly cautioned, and participates willingly in both a recorded interview and a walk-through, those factors can weigh significantly in favour of admission even where the detention was unlawful.
  • Improper conduct by police in denying a third party's request to provide a solicitor will not necessarily taint evidence where the accused himself never sought legal assistance and showed no sign of being disadvantaged by the absence of it.
  • Howie J applied the pre-existing common law obligation to bring an arrested person before a court as soon as reasonably practicable, finding it was breached when police continued the interview rather than taking the accused to a sitting bail court.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 85, 90, 135, 137, 138, 138(3)
- Crimes Act 1900 (NSW) (now repealed), s 352
- International Covenant on Civil and Political Rights, Article 9(1)

Cases
- Williams v The Queen (1986) 161 CLR 278
- Foster v The Queen (1993) 67 ALJR 550
- R v Horton (1998) 45 NSWLR 426
- Em v The Queen [2007] HCA 46; 81 ALJR 1896
- Michaels v The Queen [1995] HCA 8; 184 CLR 117
- DPP v Carr [2002] NSWSC 194; 127 A Crim R 151
- DPP v Coe [2003] NSWSC 363