AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 8 March 2010

R v Powell, Steven

[2010] NSWDC 84

Theft & propertyPublic order & justice offences
CRIMINAL LAW INTERLOCUTORY JUDGMENT APPLICATION TO EXCLUDE EVIDENCE RECORD OF INTERVIEW DECLINED TO BE INTERVIEWED BROUGHT BEFORE LOCAL COURT

Citation: R v Powell, Steven [2010] NSWDC 84
Court: District Court of New South Wales
Date: 8 March 2010
Judge(s): Nicholson SC DCJ

Background

A nineteen-year-old Aboriginal man was arrested in April 2009 on suspicion of aggravated break and enter and larceny of a motor vehicle. Shortly after arrest, he was offered the opportunity to participate in a record of interview (an ERISP, being an Electronically Recorded Interview of a Suspected Person). After speaking with a representative of the Aboriginal Legal Service, he declined to be interviewed, refused to participate in an identification parade, and stated he had nothing to say. These refusals were formally recorded.

He was subsequently charged, appeared in the Local Court, was refused bail, and was remanded in custody at Wellington Correctional Centre. He retained the Dubbo branch of the Aboriginal Legal Service to represent him. No new evidence had emerged between his initial arrest and what followed.

Approximately ten weeks later, police obtained an order under the Crimes (Administration of Sentences) Act 1999 to bring him out within the prison to a police control area, re-arrested him, and conducted an ERISP. At trial, the defence applied to exclude the interview from evidence. The court heard the application over two days in February 2010.

  • Whether the re-arrest of an already-charged, legally represented prisoner, for the purpose of conducting a further interview about the same offences, was lawful.
  • Whether police complied with their obligations under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2005 (LEPRA), including those relating to vulnerable persons and Aboriginal persons.
  • Whether the caution administered under Part 9 of LEPRA was adequate.
  • Whether the conduct of the interview itself was appropriate, given the accused had previously and unequivocally exercised his right to silence.
  • Whether the ERISP should be excluded under section 138 of the Evidence Act 1995 (discretion to exclude improperly or illegally obtained evidence) or section 90 (discretion to exclude admissions on fairness grounds).

Decision

The court found that the re-arrest was unlawful. The accused had already been charged with the very offences police wished to question him about, and no new evidence had emerged since the original arrest. Police were found to have used the arrest power for an improper purpose: to obtain another opportunity to interview a man who had already clearly declined. The court noted that the fact the accused was already in lawful Corrective Services custody did not diminish the arbitrariness or unlawfulness of the additional police arrest. His detention under Corrective Services allowed him limited freedoms, including association with other prisoners and participation in activities, all of which were lost upon being taken into police custody.

The court was also highly critical of the adequacy of the Part 9 LEPRA caution administered before the interview. The standard caution document was found to be poorly constructed and potentially confusing, particularly for a vulnerable person such as a young Aboriginal man held in custody. The failure to contact the accused's retained legal representatives before conducting the interview was identified as a significant procedural failure. The accused had retained the Dubbo ALS, and police made no attempt to notify that firm before approaching their client directly.

Further criticism was directed at the police questioning technique during the interview. The court found that police conduct during the ERISP was itself problematic, constituting a second and independent group of improprieties. While the court indicated that this second group alone, with some hesitation, would also have resulted in exclusion on fairness grounds under section 90, it was the unlawful arrest that provided the primary basis for exclusion under section 138.

Taking all matters together, the court held that the desirability of admitting the interview did not outweigh the undesirability of doing so, and ordered the ERISP excluded. As an alternative basis, the court stated it would also have excluded the interview under section 90 as unfair, given the circumstances in which it was obtained.

Orders Made

  • The ERISP is not to be admitted in evidence against the accused.
  • A copy of the judgment to be forwarded to the Attorney General, with a view to the Attorney General canvassing with the Minister for Police the redrafting of the LEPRA Part 9 summary and caution document, after seeking input from relevant stakeholders including the NSW Bar Association, Law Society, Criminal Lawyers Association, Council for Civil Liberties, NSW Police Force, Police Prosecutors, the DPP and Crown Prosecutors, the Public Defenders, Legal Aid Commission, and the Aboriginal Legal Service.

Key Takeaways

  • A re-arrest of an already-charged and legally represented prisoner, for questioning about the same offences in respect of which no new evidence had emerged, will be closely scrutinised as to its lawfulness, and may be found to constitute an unlawful arrest for an improper purpose.
  • The District Court confirmed that a person's existing lawful custody (in this case, Corrective Services remand) does not reduce the seriousness of a separate unlawful police arrest. The loss of even limited prison freedoms upon being placed in police custody was a relevant consideration.
  • Failure to notify a charged person's retained legal representative before conducting a further interview was identified as a significant procedural failure, compounding the unlawfulness of the process.
  • Under section 138 of the Evidence Act 1995, where evidence is obtained through an unlawful arrest, the court undertakes a balancing exercise and may exclude the evidence where the undesirability of admission outweighs the desirability. Here, the balance clearly favoured exclusion.
  • The court directed that the LEPRA Part 9 caution document be reviewed and potentially redrafted in consultation with a broad range of legal and community stakeholders, reflecting concern that the existing document was inadequate for use with vulnerable persons, particularly in the unusual setting of a prison interview.

Legislation and Cases Referenced

Legislation:
- Law Enforcement (Powers and Responsibilities) Act 2005 (NSW), Part 9
- Law Enforcement (Powers and Responsibilities) Regulations 2005 (NSW)
- Evidence Act 1995 (NSW), ss 89, 90, 138
- Crimes (Administration of Sentences) Act 1999 (NSW), s 25
- Crimes Act 1900 (NSW)

Cases:
- Swaffield v The Queen (1998) 192 CLR 159
- R v Mark Helmut [2001] NSWCCA 372

Other materials:
- NSW Police Code of Conduct and Ethics
- Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence)