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District Court 16 December 2021

R v Morley

[2021] NSWDC 681

Public order & justice offences
TRIAL APPLICATION ILLEGALITY IMPROPRIETY UNRELIABILITY UNFAIR PREJUDICE DENIAL OF LEPRA RIGHTS

Citation: R v Morley [2021] NSWDC 681
Court: District Court of New South Wales
Date: 16 December 2021
Judge: Haesler SC DCJ

Background

The accused faced two counts of aggravated detention for advantage under s 86(3) of the Crimes Act 1900. The prosecution alleged that he and three co-accused held two men against their will at a residential address in the Wollongong area, assaulted them, and extracted money and property from them after a drug purchase went wrong.

On the evening of 12 May 2020, police stopped a vehicle driven by the accused at serviced apartments in Towradgi. His three passengers were arrested, but the accused was not. He was described by investigating officers as someone against whom there was insufficient evidence to arrest at that point. Police had, in fact, given specific instructions that he was not to be arrested.

Despite not being arrested, the accused was subjected to two electronically recorded conversations with detectives at the scene. The first was captured on a uniformed officer's body-worn video camera; the second was recorded on a police mobile phone (a "mobi-phone"). Both recordings were made without the accused being given the rights that apply to a "protected suspect" under the Law Enforcement (Powers and Responsibilities) Act 2000 (LEPRA). A pre-trial application was brought to exclude both recordings from evidence at trial.

  • Whether the two recorded conversations constituted admissions by the accused and whether those admissions were reliable under s 85 of the Evidence Act 1995
  • Whether admitting the recordings would be unfair to the accused under s 90 of the Evidence Act 1995
  • Whether the probative value of the recordings was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act 1995
  • Whether the admissions were improperly obtained within the meaning of s 138 of the Evidence Act 1995, and if so, whether the court should nonetheless admit them after weighing the competing considerations
  • Whether the recording methods used (body-worn video and mobi-phone) satisfied the requirements under relevant police operating procedures
  • Whether the police could avoid their LEPRA obligations simply by directing officers not to formally arrest the accused

Decision

The court focused primarily on s 138 of the Evidence Act 1995, which requires a court to exclude improperly or illegally obtained evidence unless the desirability of admitting it outweighs the undesirability of doing so. Haesler SC DCJ found that the accused had become a "protected suspect" within the meaning of LEPRA because, by the time of the second interview in particular, there were reasonable grounds to suspect his involvement in the serious offences under investigation. That status triggered statutory obligations to inform him of his rights, obligations the police did not fulfil.

The court rejected the proposition that police could avoid LEPRA's requirements by issuing internal instructions not to arrest. The judge found that the protections built into LEPRA were enacted precisely to replace the common law right to be brought before a court immediately upon arrest, and that those protections cannot be sidestepped by the simple mechanism of declining to formalise a detention. No satisfactory explanation was offered for why the accused was denied his Part 9 LEPRA rights.

In weighing the s 138 considerations, the court acknowledged the seriousness of the alleged offences (which carry a maximum penalty of 25 years imprisonment) and the probative value of the recordings. However, the court concluded that the impropriety was sufficiently grave to warrant exclusion. The accused had been interrogated about very serious offences while his statutory protections were withheld, and the possibility that he might have given the same account had those rights been observed did not assist the Crown, given that no justification for the non-compliance was provided.

The first interview was partially excluded: only the portion in which the accused answered questions directed to the investigation (rather than routine matters concerning the money found on him) was caught by the ruling. The second interview, which was directed entirely to the subject matter of the investigation and recorded on a mobi-phone without compliance with relevant procedures, was excluded in its entirety.

Orders Made

  • The portion of the first interview from page 3 after "From Centre Link" until page 4 "So the money…" is not to be admitted as evidence at the accused's trial.
  • The second interview is not to be admitted as evidence at the accused's trial.

Key Takeaways

  • Under s 138 of the Evidence Act 1995, the District Court excluded electronically recorded police interviews where the accused had been denied his "protected suspect" rights under Part 9 of LEPRA, finding the impropriety too grave to overlook despite the seriousness of the charges.

  • A person need not be formally arrested to attract protected suspect status under LEPRA. Where there are reasonable grounds to suspect involvement in a serious offence, the statutory rights regime applies regardless of whether an arrest has been formalised.

  • Police cannot, by directing officers not to formally arrest a person, opt out of the statutory obligations that attach once the threshold for protected suspect status is reached. The court treated the internal direction to detain without arrest as an inadequate basis for bypassing LEPRA.

  • The recording of interviews using body-worn video cameras and mobi-phones engages specific procedural requirements under NSW Police Force operating procedures. Failure to comply with those procedures contributed to the finding of impropriety under s 138.

  • In the s 138 balancing exercise, the fact that properly conducted interviews might have produced the same evidence did not weigh in favour of admission where no explanation was provided for the non-compliance with the accused's statutory rights.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(3)
- Evidence Act 1995 (NSW), ss 85, 90, 137, 138
- Law Enforcement (Powers and Responsibilities) Act 2000 (NSW), Part 9
- Law Enforcement (Powers and Responsibilities) Amendment Act 2014 (NSW)
- Surveillance Devices Act 2007 (NSW)
- Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence)
- NSW Police Force Body-Worn Video Camera Standard Operating Procedures

Cases
- Bunning v Cross (1978) 141 CLR 54
- Carter v The Queen (1995) 183 CLR 121
- Director of Public Prosecutions (NSW) v Merhi [2019] NSWSC 1068
- Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550
- Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45
- Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
- NSW v Robinson (2019) 266 CLR 619; [2019] HCA 46
- Papanikolaou v R; Tomaras v R [2021] NSWCCA 135
- Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7
- R v EF [2013] NSWSC 1692
- Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66