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Frederick John Beaver Robinett v South Australian Police
Supreme Court of South Australia
[2000] SASC 405; (2000) 116 A Crim R 492
SCGRG-00-119 [2000] SASC
Bleby J
24 November 2000
by Richard Edney[1]
The South Australian Supreme Court case of Robinett v South Australian Police (‘Robinett’) is potentially significant for practitioners with clients arrested and charged with street offences, who are then charged with further offences while in custody. The decision discusses the court’s discretion to exclude evidence on the basis that it has been obtained in unlawful, unfair or improper circumstances by law enforcement officials.[2]
The appellant, an Aboriginal man, was arrested on 23 May 1999 in the town of Port Germein for the offences of failing truly to answer questions, resisting arrest, offensive behaviour and drunk and disorderly. During the course of his arrest the appellant was sprayed with capsicum spray. The arresting officer then transported the appellant to Port Pirie Police Detention Centre, around 28 kilometres north of Port Germein. On the police evidence that was put before the Magistrate and accepted, the appellant was described as ‘very, very aggressive’ and behaving in a ‘most uncooperative’ manner due to being ‘severely affected by alcohol’.[3]
After placing the appellant in a holding cell and in response to the threats of the appellant, the sergeant in charge placed a tape recorder at the door of the appellant’s cell. The tape provided evidence for the offences of threatening to cause harm[4] and offensive language[5] for which the appellant was ultimately charged.
Significantly for the appellant, the tape recorder also recorded the appellant’s three separate requests for medical treatment. The appellant complained of breathing difficulties because of the effects of capsicum spray and a reoccurrence of a prior medical condition of asthma. There was also evidence that the appellant had requested legal representation that was not provided.
As the appellant was not interviewed in relation to the later offences, the only evidence that was led against the appellant in relation to these offences was the tape recording and the evidence of the police officers present at the time who allegedly heard the threats and offensive language of the appellant. When the matter was heard at the summary level an attempt was made to exclude the evidence against the appellant on the basis of his treatment by police while in custody. The appellant sought to rely on the public policy discretion that allows the court to exclude evidence, including non-confessional evidence,[6] if it finds that:
At first instance the Magistrate was not persuaded by the argument and the appellant was found guilty of both charges. The appellant appealed to the Supreme Court on the basis that the Magistrate wrongly admitted into evidence the audio recording and the statement of the police officers regarding the alleged statements of the appellant and that they ought to have been excluded on public policy grounds.[8] It was argued on the following five grounds that the actions of the police were unfair and improper:
1 Failure to administer rights under s 79A of the Summary Offences Act 1953 (SA);
2 Failure to administer rights under the Bail Act 1985 (SA);
3 Failure to obtain medical treatment for the appellant despite repeated requests by the appellant;
4 Recording of the appellant without his consent;
5 Denial of the appellant’s request for legal assistance.
Ultimately the appellant was only successful on the third ground relating to the failure of the police to accede to the appellant’s request for medical treatment.
The court, in exercising its public policy discretion, must balance opposing public interests.[9] First, there is a public interest in ensuring that those who commit criminal offences are convicted. Against that important public interest is weighed the need to ensure that the administration of justice is not demeaned by improper, unlawful or unfair behaviour by law enforcement officials.[10] The exclusion of such evidence allows the court to ensure that its own process is not used improperly. It is also a deterrent for law enforcement officials from acting in an unfair, improper or illegal manner.
On three separate occasions the appellant requested and was denied access to medical assistance. Justice Bleby observed ‘that the failure to respond to the requests for assistance was a contributing cause to the ultimate threats and abusive language.’[11]
Further, the court in this case appropriately recognised that persons in custody are in a unique position of vulnerability.[12] As Justice Bleby noted:
A police officer cannot be expected to know anything of the complainant’s medical history or the ability to diagnose or forecast the onset of a recurring condition. Complaints in those circumstances must be taken seriously. It is not for a medically untrained police officer to determine whether a complaint of this nature is genuine or not, or to take upon himself or herself the determination that it is not. People arrested and in custody, even when intoxicated, are completely disempowered in their ability to command the services or even respect that others in the community may be able to. They are likely to react to that disempowerment, and to any physical needs that may arise, in a variety of unpredictable ways. The situation is exacerbated when the person concerned is member of an already socially disempowered section of the community, such as the Aboriginal community. The consequences of ignoring requests of that nature can be catastrophic.[13]
His Honour also made reference to the recommendations of the 1991 Royal Commission into Aboriginal Deaths in Custody.[14] Justice Bleby noted that:
While the recommendations of the Royal Commission cannot be binding on this Court as prescribing essential standards of police conduct towards Aboriginal people, recommendations 122-167 of the Report provide a wide range of recommendations concerning desirable measures to be implemented in respect of the health and safety of persons in police custody. While they are obviously not prescriptive, they are indicative of changing community standards and expectations of conduct to be exhibited by police custodians, in particular in respect of Aboriginal people.
Justice Bleby then considered whether the actions of the police by not obtaining medical treatment for the appellant should result in the exclusion of the evidence. His Honour concluded that the ‘circumstances are not such that the public interest in securing a conviction for that type of offence ... outweighs what would otherwise be condonation of the impropriety and unfairness, if the evidence were to be admitted.’[15] The evidence was excluded and as a result the convictions could not stand.
As noted at the outset the decision in Robinett has special significance for persons who are arrested and brought into custody. The decision is welcome to the extent that it sends a clear message to law enforcement officials that unfair and improper treatment of persons brought into custody will not be overlooked. The decision also confirms the importance of legal representatives obtaining full instructions from a client, as those instructions may allow for the exclusion of evidence at a subsequent hearing.
As his Honour rightly notes, police officers owe a duty of care[16] to those persons who are in custody and, in the context of Indigenous persons who are arrested, if police members do not discharge their duty of care the consequences may be ‘catastrophic’.[17] Moreover, the decision recognises that persons affected by alcohol are in an extremely vulnerable position whilst in custody and require protection by the law, even to the extent of excluding otherwise lawfully obtained evidence.[18]
On a broader level, the case is worth considering as the judge outlines with great clarity the reality of contemporary Indigenous/police relations. It also demonstrates that despite the Royal Commission into Aboriginal Deaths in Custody the police treatment of Indigenous persons is still problematic, thus reflecting and reconstituting the reality of past discrimination and ‘special treatment’.[19] Robinett is a clear example of how police treatment can contribute to and amplify Indigenous offending. In that respect Robinett may prove to be a useful resource in the training of police recruits.
Richard Edney is a Solicitor with the Victorian Aboriginal Legal Service.
[1] Thanks to Oliver Feild for his assistance in the preparation of this article. Of course, all remaining errors and omissions remain that of the author.
[2] The classic statement of the Australian position is found in R v Ireland [1970] HCA 21; (1970) 126 CLR 321 (3 July 1970) at 335 per Barwick CJ. A useful summary of the position in the United States and the United Kingdom is provided in JD Heydon QC, Cross of Evidence (2000) para [27230] – [27235].
[3] Robinett v South Australia Police [2000] SASC 405; (2000) 116 A Crim R 492, 494.
[4] Criminal Law Consolidation Act 1935 (SA) s 19(2).
[5] Summary Offences Act 1953 (SA) s 7(1)(a).
[6] Robinett, above n 3, 497.
[7] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 74-75 (Stephen and Aickin JJ).
[8] See for instance Ireland v R [1970] HCA 21; (1970) 126 CLR 321; Bunning v Cross, above n 7; Pollard v R [1992] HCA 69; (1992) 176 CLR 177; Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19; R v Swaffield and Pavic (1998) 192 CLR 159; Nicholas v R [1998] HCA 9; (1998) 193 CLR 173.
[9] Bunning v Cross, above n 7.
[10] Pollard v R, above n 8, 203 (Deane J). Also see Ridgeway v R, above n 8.
[11] Robinett, above n 3, 505.
[12] For a consideration of this aspect of imprisonment see R Edney ‘Judicial Deference to the Expertise of Correctional Administrators: The Implications for Prisoners’ Rights’ [2001] AUJlHRights 5; (2001) 7 Australian Journal of Human Rights 91, 103-106.
[13] Robinett, above n 3, 507.
[14] Ibid.
[15] Ibid 508.
[16] See Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177; L v Commonwealth (1976) 10 ALR 269.
[17] Robinett, above n 3, 507.
[18] For a discussion of when the drunkenness of the accused may lead to the exclusion of admissions see R v Williams (1992) 8 WAR 265.
[19] See generally C Cunneen, Conflict, Politics and Crime: Aboriginal Communities and the Police (2001).
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