Citation: R v Bevan Charles DOOLAN [2014] NSWDC 170
Court: District Court of New South Wales
Date: 17 April 2014
Judge(s): Tupman DCJ
Background
The accused, an Aboriginal man with a significant intellectual disability, was found unfit to plead and came before the District Court for a special hearing under s 19 of the Mental Health (Forensic Provisions) Act 1990. The hearing was conducted by a judge alone. He faced a charge under s 98 of the Crimes Act 1900 of assault with intent to rob whilst armed with a knife and with wounding, together with an alternative charge of reckless wounding, arising from an incident on 13 December 2012 in Redfern.
Police officers from the Redfern Local Area Command located the accused in the vicinity of the offence after identifying him from CCTV footage. He was arrested at the scene and, while waiting for a caged truck to transport him to the station, was questioned by the arresting officer. Further questioning occurred at the scene after a second officer arrived. The accused made statements that the Crown sought to rely upon as admissions.
None of the questioning at the scene was electronically recorded. At the police station, the accused was recorded on audio, but the admissions he had made at the scene were not put to him for adoption during that recorded session.
Legal Issues
- Whether the oral admissions made by the accused at the scene of arrest were admissible under s 281 of the Criminal Procedure Act 1986, given that the questioning was not tape-recorded and no explanation was provided for the absence of recording equipment.
- Whether the admissions were admissible under s 85 of the Evidence Act 1995, which requires that the circumstances in which an admission was made must not have been likely to adversely affect its truth.
- Whether, in a special hearing involving a person unfit to plead with an intellectual disability, these provisions should be applied strictly.
Decision
Section 281 and the absence of tape recording
Section 281 of the Criminal Procedure Act 1986 requires that admissions made by a suspect in response to questioning be recorded, with limited exceptions. The court accepted that general duties officers at Redfern were not provided with tape recorders, and that police management had instructed officers not to use personal mobile phones to record conversations with suspects, in part to avoid those devices being subpoenaed. However, no evidence was placed before the court explaining why general duties officers were not issued recording equipment, in contrast to highway patrol officers who are routinely provided with audio-visual recording devices. The court held that the absence of any tape recording, and the absence of any adequate explanation for that absence, meant the admissions taken at the scene did not satisfy the requirements of s 281 and were inadmissible on that basis.
The custody recording at the station
Although the accused had been recorded on audio at Redfern Police Station after his arrest, the admissions he had made at the scene were not put to him during that recorded session for him to adopt or deny. This meant there was no compliant record of those admissions available to the Crown.
Section 85 and intellectual disability
The court also considered s 85 of the Evidence Act 1995, which renders an admission inadmissible if the circumstances in which it was made were likely to have adversely affected its truth. The accused's significant intellectual disability was a central factor. The court found that, because of that disability, the accused was unlikely to have understood the caution he received or to have appreciated that he was entitled to remain silent. The fact that he continued to answer questions was itself an indication of that lack of understanding, rather than a considered choice to cooperate. The court noted no suggestion of threats, promises, or inducements by the officers, but found that the overall circumstances were sufficient to enliven s 85.
Strict application in special hearings
Tupman DCJ emphasised that these legislative protections carry particular weight in special hearing proceedings, where the accused is both unfit to plead and unable to give instructions. The court held that strict compliance with the relevant provisions is necessary to ensure the rights of such individuals are properly respected.
Orders Made
• Reject the portion of Detective Sergeant Walker's evidence and the transcript and recording of it which appears on p 5 of his statement, which the Crown sought to rely on as admissions.
Key Takeaways
- The District Court held that oral admissions made by an arrested person are inadmissible under s 281 of the Criminal Procedure Act 1986 where the questioning was not tape-recorded and no satisfactory explanation for the absence of recording equipment was provided.
- An operational police policy of not issuing tape recorders to general duties officers, combined with a prohibition on using personal mobile phones to record conversations with suspects, did not constitute a sufficient explanation to excuse non-compliance with s 281.
- Under s 85 of the Evidence Act 1995, admissions may be excluded where the circumstances of questioning were likely to have adversely affected their truth. A significant intellectual disability, combined with a probable inability to understand the right to silence, can satisfy that threshold.
- Where an accused is recorded at the police station but prior unrecorded admissions are not put to them for adoption during that recorded session, the Crown cannot rely on those admissions as a compliant record under s 281.
- Provisions governing the questioning of suspects in custody are to be applied with particular strictness in special hearings involving accused persons who are unfit to plead and have an intellectual disability, given their limited capacity to protect their own interests.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 98, 21A
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), ss 38, 85
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 19
Cases cited: No cases were cited in the decision text or metadata.