Citation: Police v Beckett [2012] NSWLC 5
Court: Local Court of NSW
Date: 29 June 2012
Judge(s): Heilpern LCM
Background
The defendant was charged with affray following a serious altercation involving weapons in a suburban street. The confrontation occurred between the defendant and the new partner of his former partner, and resulted in significant injuries. The defendant's ERISP (electronically recorded interview with a suspected person) contained significant admissions and a version of events, making it central to the prosecution case.
When the defendant was taken into custody, the custody officer recorded that he identified as Aboriginal. However, the officer failed to notify the Aboriginal Legal Service (ALS) or inform the defendant that the ALS would be notified, as required by the Law Enforcement (Powers and Responsibilities) Regulation 2005. The interviewing officer was unaware of the defendant's Aboriginal identity and did not check the custody records.
The defendant brought a voir dire (a preliminary hearing to determine admissibility of evidence) challenging the admissibility of the ERISP under section 138 of the Evidence Act 1995.
Legal Issues
- Whether the failure to comply with the LEPRA requirement to notify the ALS of an Aboriginal person in custody constituted an illegality or impropriety within the meaning of section 138 of the Evidence Act 1995
- Whether the desirability of admitting the ERISP outweighed the undesirability of admitting evidence obtained in contravention of that requirement
Decision
Illegality or Impropriety: The prosecution conceded, and the court accepted, that the failure to notify the ALS constituted an illegality or impropriety under section 138. The statutory obligation under the Regulation is expressed in mandatory terms (using the word "must"), and the breach could not be treated as merely technical.
The Section 138 Balancing Exercise: The onus rested on the prosecution to demonstrate that the desirability of admitting the evidence outweighed the undesirability of admitting improperly obtained evidence. The court worked through the factors in section 138(3) in turn.
On the side of admission, the admissions were highly probative, the alleged victim of the unlawful violence would not be giving evidence, and the affray was a serious offence carrying a maximum of ten years imprisonment. The circumstances of the violence, including the use of weapons, the presence of children, and significant injuries, placed it in a serious category. The breach was neither deliberate nor reckless; it resulted from an error by the custody officer, though the court noted this was part of a systemic failure given the absence of any crosscheck mechanism within the custody management system. Other LEPRA safeguards had been applied, and the interviewing officer had gone beyond those requirements in cautioning the defendant and offering him the opportunity to seek legal advice.
On the side of exclusion, the court gave real weight to the significance of the LEPRA notification requirement, which exists because of serious parliamentary concern following Royal Commission findings about the treatment of Aboriginal people in custody. The court also acknowledged that the breach likely contributed to the confession, since legal advice would probably have been to say nothing. The court expressed concern that the systemic nature of the failure had been noted in earlier decisions without apparent correction.
Conclusion: The court admitted the ERISP, finding that the seriousness of the affray and the accidental nature of the breach, weighed against the other factors, tipped the balance in favour of admission. The court described the decision as not reached lightly and acknowledged genuine uncertainty in reaching it.
Orders Made
- The ERISP is admitted in evidence
Key Takeaways
- Under section 138 of the Evidence Act 1995, once an illegality or impropriety is established, the onus shifts to the prosecution to demonstrate that admitting the evidence is more desirable than excluding it.
- Failure to comply with the LEPRA requirement to notify the ALS of an Aboriginal person in custody constitutes a significant breach, not a merely technical one, given the mandatory statutory language and the legislative history arising from Royal Commission findings.
- A non-deliberate, non-reckless breach weighs in favour of admission under the section 138 balancing exercise, but the court in this decision found it did not automatically resolve the question, particularly where systemic deficiencies in police custody procedures contributed to the failure.
- The seriousness of the charged offence, here a heavily aggravated affray carrying a maximum of ten years, operated as a significant countervailing factor supporting admission of the evidence.
- The court observed that similar systemic failures in custody notification procedures had been identified in earlier decisions dating back to 2000, suggesting the absence of adequate internal crosschecks remained an ongoing concern at the time of this judgment.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
- Law Enforcement (Powers and Responsibilities) Act 2002
Cases
- Bunning v Cross (1978) 141 CLR 54
- Campbell v Director of Public Prosecutions (NSW) [2008] NSWSC 1284
- DPP v Carr [2002] NSWSC 194
- Parker v Comptroller-General of Customs [2007] NSWCA 348
- R v Ali Alkan [2010] NSWLC 1
- R v APC & CP (District Court, unreported, 7 April 2006, Nicholson SC DCJ)
- R v Camilleri [2007] NSWCCA 36
- R v Dalley [2002] NSWCCA 284
- R v Dorothy Riley (District Court, unreported, 12 February 2002, Shadbolt DCJ)
- R v Helmhout [2000] NSWSC 208
- R v Phan [2003] NSWCCA 205
- Ridgeway v R (1995) 184 CLR 19