RvBUD

Supreme Court of the Northern Territory of Australia

Martin J.
22 & 23 October 1990

CRIMINAL LAW - Admissibility of evidence - Interception of telephone calls - Criminal Code NT ss. 23, 28(f), Telecommunications (Interception) Acts. 6(1)

CRIMINAL LAW - Attempt to pervert the cause of justice - Occasion giving rise to administration of justice

EVIDENCE - Admissibility of intercepted telephone calls - Interception not necessarily by third person - No use to be made of unlawful recording or material derived therefrom - Telecommunications (Interception) Act ss. 6(1), 7, 63

EVIDENCE - Confession where no caution - Whether police officer aware of right to remain silent

WORDS & PHRASES - "course of justice"

Cases followed:
Hilton v Wells (1985) 58 ALR 245
R v Sinclair (1989) 44 A Crim R 449

Cases referred to:
Bunning v Cross (1978) 141 CLR 54
Foord v Whiddet (1985) 16 A Crim R 464
Van der Meer v R (1962) 62 ALJR 656

Counsel for the Crown

Counsel for the defendant Solicitors for the defendant

G Hiley QC/P Murphy

M David QC/P Crowe Northern Territory Legal Aid Corr ission

mar900028
Local distribution

mar900028

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 116 of 1988

BETWEEN:
THE QUEEN AND:
MARTIN JAMES BREEN

CORAM:	MARTIN J.

RULINGS ON EVIDENCE
(Delivered 23 October 1990)

The accused Breen has pleaded not guilty to a charge upon indictment that:

"Between 8 October 1987 and 5 November 1987 at Darwin in the Northern Territory of Australia and divers other places, did attempt to pervert the course of justice in that the said Martin James Breen knowing that Malcolm Samuel Douglas had been killed at 3 Kurrajong Crescent, Nightcliff, interfered with evidence at the said scene of the death, assisted in the removal of the body of Malcolm Samuel Douglas from the said scene and assisted in the improper disposal of the said body in the Elizabeth River, and failed to report the death of the said Malcolm Samuel Douglas to a member of the Police Force, and left the Northern Territory without first advising the Police of his knowledge of the circumstances of the death of the said Malcolm Samuel Douglas, and made false, misleading and inaccurate statements to members of the Northern Territory Police Force who he knew were carrying out official inquiries into the death of the said Malcolm Samuel Douglas."

After empanelling the jury, questions as to the admissibility of certain evidence were raised, and by consent I heard argument in respect of those matters in the absence of the jury, before the opening of the Crown case.

By way of general background it appears that one Malcolm Douglas died on 8 October 1987.	The accused and David Ferguson were committed for trial for his murder.
When the matter first came before this Court Ferguson was indicted for manslaughter and Breen with being an accessary thereto.	Separate trials were ordered and Ferguson was tried first and acquitted.	He admitted to having killed Douglas and raised the issue of self defence.	The application of force which is likely to kill or cause grievous harm is justified in the case of a person when acting in self defence (s. 28(f) Criminal Code) and a person is not guilty of an offence if any act, omission or event constituting that offence done, made or caused by him was authorised, justified or excused (s. 23 of the Code).	The offence remains an offence but the person committing it is not guilty because of the circumstances under which the
offence was committed.

The Attorney-General then filed a nolle prosequi in respect of the charge against Breen and later presented an indictment upon which Breen now stands charged.	The particulars of the alleged attempt to pervert the course of

justice are contained in the indictment and the Crown has indicated that given a number of formal admissions by way of agreed facts which will be put in evidence, it proposes to call viva voce evidence from some police officers who had telephone conversations and personal interviews with the accused, Breen.	That evidence, it is said, will show the lies allegedly told by the accused and the other matters pleaded by way of particulars in the indictment.

Evidence in the committal proceedings shows that the accused was suspected of being involved in the death of Douglas early after that event.

On 14, 16, 17 and 26 October 1987 the accused had telephone conversations with two police officers, Murgatroyd and O'Brien.	Those conversations were tape recorded by the police officers.

The Commonwealth has legislated in respect of the interception of telephone calls in the Telecommunications (Interception) Act.	Sub-section 1 of s. 6 of that Act provides that for the purposes of the Act interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunication system without the knowledge of the person making the communication (sub-section (2) does not apply).	I consider

that the onus rests upon the Crown in criminal proceedings to show that the accused had that knowledge.

That sub-section provides its own definition of what is an interception for the purposes of the Act and it consists of listening to or recording by any means a communication passing over a telecommunication system without the knowledge of the person making the communication.	The meaning of that word is not restricted to a perhaps more commonly understood meaning, that is, the action of a third person taking, or seizing something on the way from one place to another or the cutting off of something from its intended destination.	There need not be any such third person and there may be an interception for the purposes of the Act where either of the parties to the bilateral conversation listens to or records the conversation without the knowledge of the other.	It is an offence for the person to make or cause another person to intercept such a communication.	Further, bys. 63 of that Act (subject to immaterial exceptions) a person shall not corr unicate to another person, make use of or make a record of, or give in evidence in a proceeding, information obtained by intercepting a communication in contravention of
s. 7.	That express provision distinguishes this type of
case from that under consideration in Bunning v Cross and like cases.	In the latter cases, the Judge has a discretion notwithstanding that evidence may have been obtained

unlawfully to admit it into evidence.	However, under this particular legislation, subject to irrelevant exceptions, there is an absolute prohibition on communicating, making use of, making a record of or giving in evidence in any proceedings, information obtained by an unlawful intercept.
It may be suggested that there is a distinction between sub-paragraph (a) and (b) of s. 63 such that the communicating, making use of or making a record of information obtained by the unlawful intercept is simply unlawful and thus evidence derived by those means may be admitted into evidence in the exercise of a discretion.	I do not think that that is the case.	It is the intercept
which is unlawful, s. 63 prohibits its use.	If I be wrong, it seems to me that the intention of the legislature is that no use should be made of unlawful recording of telephone communications and that clear indication would lead me to reject any such evidence or evidence derived as a resu'lt thereof in the exercise of discretion.	The public interest in maintaining the privacy of telephone communications is the subject matter of the Commonwealth Act and the policy of the Parliament is that that privacy should be protected, except where an intercept is authorised, notwithstanding that the unlawful intercept may lead to the detection or assist an investigation of crime.	Acts in breach of a statute may more readily warrant the rejection of the evidence in the exercise of the discretion (per Gibbs CJ., Wilson and Dawson JJ. in Hilton v Wells (1985) 58 ALR 245 at
258.

Accordingly I rule inadmissible the tape recordings of the intercepted telephone communications, and all evidence as to what was said as between the accused and any person who was recording these telephone conversations comprised in or derived from those recordings, and anything that passed between the accused and anyone who was talking to him or questioning him in relation to any information which was received during the course of the interception.
That does not render inadmissible any other otherwise admissible evidence that may have been obtained as a result of information received from any source other than that contained in the intercepted telephone communications, but it does exclude the use to which the information contained in the intercepted telephone communication was put by police in their subsequent discussions and interviews with the accused.	Evidence of what was said between the accused and any person who was listening to, or recording the telephone conversation, is admissible provided it does not rest upon
those recordings.

The above ruling applies only in respect of those telephone conversations which were intercepted by being tape recorded without the knowledge of the accused.	At this stage I have not had the opportunity of perusing carefully the whole of the transcript of the various tapes and I will hear counsel further as to the question of the accused's knowledge that tape recordings were being made at the time

of the recordings being made.	It would seem that the accused was aware of the recording at the communications between himself, O'Brien and Daulby on 17 October 1987 but not otherwise.	I will also hear counsel further, if necessary, as to evidence of the information obtained by the unlawful intercepts.

In so far as the tape recorded telephone communications between Breen and the police are concerned which I have not ruled to be inadmissible, then what I understand to be the usual rules as to evidence will apply and that may be tendered and played back to the Jury.	A transcript may be provided to the Jury to enable the members of it to follow the tape whilst it is being played, but they will be warned that it is the tape that is the evidence and not the transcript and that the transcript can only be used for assistance.	If they are unable to decipher what is said on the tape or in their view of what is said is different to that which is recorded in the transcript then they are to proceed on the basis of the hearing of the tape and not their reading of the transcript.

Objection was taken to the admissibility of evidence of confessional material contained in statements made by the accused to investigating police, in personal contact, upon the basis that he was not cautioned in the usual way when he should have been, and that such caution as

w s given, when it was given, did not specifically relate to the charge contained in this indictment.	I bear in mind that at the time these conversations took place the accused was a police officer in the Northern Territory Police Force and he must be ta en to have been well aware of his right to remain silent.	That would not necessarily entirely dispense with the most desirable practice of giving such a caution, but I do not doubt for a minute that the accused's own mind was attuned to what he had seen and what he had done in relation to the death of Malcolm Douglas and thereafter, and that he was well aware that he might decline to answer questions should he have opted to do so.	In any event, I am not satisfied that the police delayed the giving of the caution beyond the stage when it ought reasonably to have been given, as to which see what Mason CJ. said in
Van der Meer v The Queen (1962) ALJR at p. 661.	Nor do I think it is obligatory upon investigating police to give such a specific caution as was contended for on behalf of the accused in this case.	As early as about 10.25am on the
4 November 1987 the accused was alerted to the fact that the police were interested in who it was that killed Douglas, at which time he was also asked whether he had anything to do with the disposal of the body of the deceased.	A little later in that conversation Superintendent O'Brien mentioned to the accused that he, being a policeman, would be well aware that he was not obliged to make any statement if he did not wish to do so.	All confessional material contained

in statements between the accused and the police will be admitted except in so far as they are excluded pursuant to my earlier ruling regarding the intercepted telephone communications.

The final area of dispute as to admissibility goes to any evidence referring to circumstances under which
Mr Douglas met his death and the involvement, if any, of the accused at that time.		It is known that Mr Ferguson admitted to killing Mr Douglas and that Mr Breen was present when that act took place.	The particulars in the indictment relate to things alleged to have been said and done by the accused after that occurrence comprising the attempt to pervert the course of justice.	The course of justice
err races a far wider meaning than seeing a person convicted of a criminal offence.	As his Honour Justice Vincent put it in R v Sinclair (1989) 44 A Crim Rat	451 "Where a criminal offence is involved, the crime of attempting to pervert the course of justice may be committed in many different ways and at any number of points along the pathway between the commission of that offence and the completion of all curial proceedings relative to it.	The act or omission which constitutes the attempt must, of course, be performed with the intention of obstructing that pathway in some fashion so that the journey may not, or can not be completed".	His Honour goes on to assert that an action which renders less likely the possibility of any criminal prosecution being

undertaken or succeeding in respect of unlawful behaviour, will amount to an attempt to pervert the course of justice. I agree.	The gravamen of the offence is the doing of some act which has a tendency and is intended to pervert the administration of public justice, see generally Foord v Whiddet (1985) 16 A Crim R 464.	For something to tend to pervert the administration of public justice there must be an occasion which gives rise to the administration of public justice.	It cannot be doubted that the killing of one person by another is a circumstance in which questions of public justice arise.	An offence was thus corr@itted and although it turns out that Mr Ferguson, by the verdict of the Jury, must be taken to have been justified in his killing of Mr Douglas, that is not to the point.		Nor does it matter that a miscarriage of justice may not have actually occurred.	A course of justice is embarked upon when proceedings of some kind are in being or are imminent or investigations which could or might bring proceedings about are in progress.		As I have already indicated it must be one of the elements of the offence that an occurrence had taken place which would give rise to a course of justice being implemented.	Accordingly, evidence as to the means whereby Mr Douglas met his death is admissible.	I do not think it is necessary to go into all the detail, bearing in mind that inflaming the passions of the Jury should be avoided and no more evidence need be given on that account than is probative of the essential facts, his death and the

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accused's presence at the time.	Further prejudice to the accused must be avoided.