Citation: R v MEYN, John Michael (No 1) [2012] NSWSC 1441
Court: Supreme Court of New South Wales
Date: 21 November 2012
Judge(s): Beech-Jones J
Background
The accused was charged with the murder of his former de facto partner on 8 April 2011. He was arrested that afternoon at a national park lookout, where police noted he had been drinking, and was transported to Penrith Police Station. Police conducted a series of electronically recorded interview sessions (known as an ERISP) commencing at 7.36pm that evening and concluding at 3.23am the following morning, with total interview time of approximately two hours and nineteen minutes and breaks totalling over five hours.
Before the jury was empanelled, senior counsel for the accused applied on a voir dire (a preliminary hearing conducted in the absence of the jury to determine admissibility) to have the entire ERISP excluded. The application was principally directed at the final interview session, conducted between 2.21am and 3.23am, on the basis that the accused had been roused from sleep to participate.
The accused's counsel argued that the recording was obtained improperly because police failed to properly assess whether the accused was competent and genuinely consenting to be interviewed, given his level of intoxication and fatigue at the relevant time.
Legal Issues
- Whether the ERISP was "improperly obtained" within the meaning of s 138 of the Evidence Act 1995, particularly in light of the accused's alleged intoxication and fatigue during the final interview session
- Whether the interviewing officers were reckless as to the accused's physical and mental state, specifically by failing to consult the custody management records that noted his intoxication before commencing the interview
- Whether, if impropriety was established, the desirability of admitting the evidence outweighed the undesirability of admitting improperly obtained evidence
Decision
Beech-Jones J declined to exclude the ERISP, finding that the threshold for impropriety under s 138(1) of the Evidence Act had not been established. The court applied the test from Robinson v Woolworths Ltd, which requires that conduct be "quite inconsistent" or "clearly inconsistent" with the minimum standards society should expect of law enforcement, not merely questionable or less than ideal in hindsight.
The judgment acknowledged a potential concern: the interviewing officers had not checked the custody management records before commencing the interview, and those records noted the accused was "moderately affected" by alcohol. Had they done so, they would have been better informed about his condition. However, on the evidence, the officers conducted their own bona fide assessments of his competence before and during each interview session. They repeatedly cautioned him, suspended the interview when he expressed doubt or difficulty, and allowed him an opportunity to sleep.
Regarding the decision to rouse the accused for the final interview session, the court accepted that the justification offered by the lead detective (minimising time in custody) was not particularly compelling. However, the court found that what matters is not whether an alternative, more favourable course was available, but whether the actual conduct crossed the threshold of impropriety. The detective's decision to wake the accused was conditioned on the accused being competent to continue, and the questioning did not proceed in the face of any manifest incapacity.
Because impropriety under s 138(1) was not established, the court did not proceed to weigh the desirability of admission against the undesirability of admitting improperly obtained evidence. The challenge to the tender of the ERISP was rejected.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 138 of the Evidence Act 1995, the party seeking exclusion bears the onus of establishing impropriety; if impropriety is made out, the burden then shifts to the party tendering the evidence to show its admission is nonetheless desirable.
- The impropriety threshold, drawn from Robinson v Woolworths Ltd, is a high one: conduct must be clearly inconsistent with minimum law enforcement standards, not merely less fair than an available alternative.
- A failure to consult custody management records recording an accused's intoxication may be relevant to whether officers were reckless as to the accused's condition, but it does not automatically constitute impropriety where officers conducted their own genuine, contemporaneous assessments.
- Rousing a suspect from sleep to resume an interview is not, by itself, improper where the interview was halted immediately if the suspect showed any inability or unwillingness to continue, and where the questioning did not proceed in the face of manifest incapacity.
- Pointing to a course that would have been more favourable to an accused is insufficient to establish impropriety under s 138(1); the court evaluates the conduct actually adopted against the standard of what society should require of law enforcement, not against an ideal alternative.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Powers and Responsibilities) Act 2001 (NSW), Part 9
Cases
- Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612
- Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494