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District Court 30 January 2023

R v Nean

[2023] NSWDC 34

Public order & justice offences
ERISP ADMISSIBILITY POLICE IMPROPRIETY VULNERABLE PERSON POLICE CONDUCT

Citation: R v Nean [2023] NSWDC 34
Court: District Court of New South Wales
Date: 30 January 2023
Judge(s): Buscombe DCJ

Background

The accused, an 18-year-old Aboriginal man, faced trial on three counts: remaining on residential premises with intent to commit larceny at two addresses in Rose Bay (Counts 1 and 2), and armed robbery with wounding at a bakery in Greystanes (Count 3). The alleged offences occurred on 5 March 2021.

On 10 June 2021, police executed a search warrant at the accused's home, arrested him, and transported him to Burwood Police Station. While in custody, the accused participated in an electronically recorded interview in which he made a number of admissions concerning his involvement in the offences.

The accused brought a motion seeking to exclude the recorded interview from evidence at trial. He argued that the police had breached obligations under the Law Enforcement (Powers and Responsibilities) Act 2002 and its regulation governing the treatment of vulnerable persons in custody, and that the interview should be excluded under sections 84, 90, and 138 of the Evidence Act 1995.

Legal Issues

  • Whether the recorded interview was obtained improperly or in contravention of an Australian law for the purposes of section 138 of the Evidence Act 1995
  • Whether, if so, the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that manner
  • Whether the admissions should be excluded under section 90 of the Evidence Act 1995 as unfair in the circumstances
  • Whether the police conduct amounted to oppressive conduct justifying exclusion under section 84 of the Evidence Act 1995

Decision

Issue 1: Breaches of the Law Enforcement Regulation and Impropriety

The court identified a series of breaches of the Law Enforcement (Powers and Responsibilities) Regulation 2016 by both the custody manager and the investigating detectives. By 9.40 am, the custody manager knew the accused was an 18-year-old Aboriginal person and therefore a vulnerable person under the regulation, and that the accused had instructed an Aboriginal Legal Service solicitor that he did not wish to be interviewed or taken into an interview room (at [108]). Despite this, the custody manager permitted the detectives to take the accused into an interview room at approximately 11 am and conduct an unrecorded conversation in which the accused was cautioned and questioned about the alleged offences (at [109]-[111]). That unrecorded exchange was, in substance, an interview, and the court found it constituted a breach of the custody manager's obligations under clause 29 of the regulation (at [135]).

Further breaches included the failure to re-administer the caution in the presence of the accused's support person (a breach of clause 38(2)), the failure to advise the accused of his entitlement to a support person during the recorded interview (clause 31(3)), and the failure to inquire whether the accused wished to proceed without his support person (clause 31(5)) (at [136]-[138]). Most seriously, the court found that the two investigating detectives deliberately refrained from telling the accused's support person that they intended to interview the accused before she left the police station to attend Burwood courthouse, so that she would not be present during the interview (at [116]). That deliberate omission breached clause 31(1) of the regulation (at [139]). The combination of these breaches established that the recorded interview was obtained in contravention of an Australian law and through improper conduct (at [142]-[145]).

Issue 2: Section 138 Balancing Exercise

Having found illegality and impropriety, the court turned to the section 138(3) factors. The admissions carried considerable probative value and the offences were serious, both of which favoured admission (at [148]-[150]). However, the gravity of the contraventions weighed heavily against admission. The deliberate concealment of the interview intention from the support person was characterised as an egregious breach, designed to ensure an 18-year-old Aboriginal man had no independent support during an interview aimed at extracting admissions at a time when the police acknowledged they had insufficient evidence to charge him (at [155]). The reckless conduct of the custody manager and the deliberate conduct of the detectives together supported exclusion, as did the fact that compliance with the regulation would have been straightforward (at [156], [158]). The court also observed that it is important for law enforcement to understand that the rights of Aboriginal persons in custody must be given genuine effect and not treated as a procedural formality (at [159]-[160]). The desirability of admitting the evidence did not outweigh the undesirability of admitting evidence obtained in that manner, and the recorded interview was excluded under section 138 (at [161]).

Issue 3: Section 90

The court held that, had the recorded interview not already been excluded under section 138, it would have been excluded under section 90 as unfair to allow the Crown to rely on admissions obtained in circumstances where the accused was denied rights he held under the regulation (at [165]).

Issue 4: Section 84

The court did not find that the police conduct amounted to oppressive conduct within the meaning of section 84. Drawing on the analysis in R v Sumpton [2014] NSWSC 1432, the court accepted that "oppressive" requires something in the nature of burdensome, harsh, or wrongful exercise of authority amounting to unjust or cruel treatment. While the police conduct was wrongful, it did not reach that threshold when compared to the more extensive misconduct considered in Sumpton (at [170]-[171]).

Orders Made

  • The recorded interview (ERISP) conducted with the accused by police on 10 June 2021 is excluded from evidence at trial.

Key Takeaways

  • The District Court confirmed that compliance with the Law Enforcement (Powers and Responsibilities) Regulation 2016 in relation to vulnerable persons, including Aboriginal persons in custody, is not a "tick the box" exercise: the rights must be given genuine and substantive effect, consistent with observations made by Wood CJ at Common Law more than two decades ago in R v Phung and Huynh (at [132]-[133]).

  • Multiple regulation breaches, including reckless failures by a custody manager and a deliberate decision by investigating detectives to conceal their interview intention from a support person, collectively established both illegality and impropriety sufficient to engage section 138 of the Evidence Act 1995 (at [142]-[145]).

  • Where police deliberately exclude a support person from an interview of a vulnerable accused at a time when police acknowledge they lack sufficient evidence to charge that person, the gravity of that conduct weighs heavily in favour of exclusion even where the admissions concerned have significant probative value (at [151]-[156]).

  • A wrongful exercise of police power in obtaining admissions does not automatically constitute "oppressive conduct" under section 84 of the Evidence Act 1995. The threshold requires conduct of a burdensome, harsh, or cruel character, assessed by reference to the full circumstances, and not every regulatory breach will satisfy it (at [170]-[171]).

  • Section 90 of the Evidence Act 1995 provides an independent discretion to exclude admissions that would be unfair to the accused, and the District Court indicated it would have exercised that discretion to exclude the interview had section 138 not already applied (at [165]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 sections: 84,90, 138, 189(3)
- Law Enforcement (Powers and Responsibilities) Act 2002 and the regulation made thereunder.

Cases
- EM v The Queen (2007) 232 CLR 67
- Higgins v The Queen [2007] NSWCCA 56
- R v Phung and Huynh [2001] NSWSC 115
- R v Sumpton [2014] NSWSC 1432