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Supreme Court 14 March 2019

R v Khayat (No 3)

[2019] NSWSC 1316

Public order & justice offences
EVIDENCE ADMISSIBILITY OF RECORDED INTERVIEWS

Citation: R v Khayat (No 3) [2019] NSWSC 1316
Court: Supreme Court of New South Wales
Date: 14 March 2019
Judge(s): Adamson J

Background

Two brothers faced charges of conspiracy to commit acts in preparation for a terrorist act under the Criminal Code Act 1995 (Cth). The prosecution alleged the planned acts involved an improvised explosive device and an improvised chemical dispersal device. One accused had been arrested on 29 July 2017 and held at Burwood Police Station, where he participated in a series of recorded interviews over three days.

The Crown sought to tender those recorded interviews as evidence at trial. The accused opposed their admission on three separate grounds: that police had made promises or given inducements before the interviews; that an instrument purporting to extend his lawful detention was legally invalid; and that his continued detention was unreasonable and therefore unlawful, rendering the interviews inadmissible.

The ruling addressed each ground in turn, making detailed factual findings about what occurred during the accused's time in custody, and resolving contested questions of statutory construction under Part 1C of the Crimes Act 1914 (Cth).

Legal Issues

  • Whether police made a promise or gave an inducement to the accused before the recorded interviews, such that the admissions should be excluded under sections 85, 90, or 138 of the Evidence Act 1995 (NSW)
  • Whether the instrument signed by the Chief Magistrate on 29 July 2017 purporting to extend the investigation period under section 23DF of the Crimes Act 1914 (Cth) was legally valid
  • Whether the period of detention between arrest and charge was unreasonable, making the detention unlawful and the interviews potentially inadmissible under section 138 of the Evidence Act

Decision

Ground 1: Police Inducement

The court rejected the accused's evidence that a detective instructed him to falsely admit taking a bomb to the airport, in exchange for a promise that he would not be charged and would be home within seven days (at [22]). Adamson J found the accused's evidence internally inconsistent and unreliable, citing several contradictions: his statement during the recorded interview acknowledging guilt but hoping for a benefit was irreconcilable with any genuine belief that no charge would follow (at [71]); his evidence about when he was told a solicitor had visited him shifted in ways that undermined his overall account (at [87]); and his claim that police broke a recording disc when he mentioned a promise was found to be a fabrication based on a misreading of the custody records (at [54]).

The court was satisfied that the circumstances of the admissions made it unlikely that their truth was adversely affected, satisfying section 85 of the Evidence Act (at [123]). No unfairness was identified that would warrant exclusion under section 90, and because no impropriety was established, section 138 did not require consideration on this ground (at [123]).

Ground 2: Instrument Validity

The accused accepted that the three statutory requirements in section 23DF(3) had been met, but argued that the instrument was invalid because a field in paragraph 6 of the draft form specifying the number of hours granted had been left blank, meaning the magistrate had not formally recorded a decision to extend the period (at [124]). The court found this argument did not succeed. Section 23DF(2) was characterised as a conferral of administrative rather than judicial power, requiring the magistrate only to decide to exercise the power and to fulfil the statutory requirements, not to make a formal order in the manner of a judicial proceeding (at [127]-[128]). All three statutory requirements were met on the face of the instrument, and the unfilled field was not legally fatal to its validity (at [127]).

The court went further and considered, in the alternative, whether the interviews should be admitted under section 138 even if the instrument was invalid (at [130]). Given that the contravention appeared to be an accidental oversight in an otherwise carefully completed form, the evidence was highly probative, and the offence carried a maximum of life imprisonment, the desirability of admitting the evidence outweighed the undesirability of admitting it (at [133]).

Ground 3: Reasonableness of Detention

The accused argued that even a validly extended investigation period must end when a reasonable time for investigation has passed, with reference to section 23DB(5) of the Crimes Act (at [135]). The Crown argued that once a magistrate extended the period under section 23DF, the investigation period simply ran until expiry of the extended period or charge, whichever came first (at [136]). Adamson J noted the question raised significant issues of statutory construction but found it unnecessary to resolve them (at [138]-[139]). On the evidence, the period from arrest on 29 July 2017 to charge on 3 August 2017 was reasonable in all the circumstances, given the complexity of the investigation, the number of suspects, the multiple search sites, and the particular time required to safely search the garage where the bomb had been stored (at [139]-[140]).

Orders Made

  • Recorded interviews found to be admissible.

Key Takeaways

  • A magistrate extending a terrorism investigation period under section 23DF of the Crimes Act 1914 (Cth) exercises an administrative function, not a judicial one. Provided the three statutory requirements in section 23DF(3) are met, the absence of a formally completed field in an instrument does not necessarily invalidate it (at [127]-[128]).

  • Where an instrument extending a detention period is arguably defective, section 138 of the Evidence Act may still permit admission of evidence obtained during that period. Relevant factors include the degree of impropriety, whether any contravention was accidental, the probative value of the evidence, and the seriousness of the alleged offence (at [131]-[133]).

  • Significant internal inconsistencies in an accused's evidence on a voir dire, particularly where those inconsistencies are exposed by objective materials such as custody records, transcripts, and the content of the recorded interviews themselves, can be decisive in rejecting claims that police made inducements (at [107]-[117]).

  • Under section 85 of the Evidence Act, even an incorrect belief held by an accused about the consequences of answering police questions will not necessarily make admissions inadmissible if that belief did not, in the circumstances, adversely affect the truth of what was said (at [122]-[123]).

  • The Supreme Court left unresolved whether section 23DB(5) of the Crimes Act imposes an independent reasonableness ceiling on the investigation period that operates even after a magistrate has granted an extension, though the detention in this case was found to be reasonable regardless of which construction applies (at [138]-[139]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 3E, 23DB, 23DC, 23DD, 23DE, 23DF, 26, 93FA, Pt 1C
- Criminal Code Act 1995 (Cth), ss 11.5, 101.6
- Evidence Act 1995 (NSW), ss 85, 90, 138
- Interpretation Act 1987 (NSW), s 80
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Terrorism Police Powers Act 2002 (NSW), s 5

Cases
- Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37
- Cassaniti v Croucher (2000) 48 NSWLR 623; [2000] NSWCA 95
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Gould v DPP (Cth) [2018] NSWCCA 109
- Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49