Where a person is questioned whilst under the influence of drugs or alcohol, the court may choose to disregard any of the evidence that was obtained through improper, unfair or unlawful methods.
Where the Court Will Exercise Discretion
On the 29th of June 2013 at 1:40 am, a Constable and Senior Constable observed a motorcycle parked outside of a seven eleven store. They observed a man, the defendant, standing near the counter. The man was constantly moving and fidgeting. Police checked the registration of the bike and were informed that the owner of the vehicle had previously been charged with possession of drugs.
Police proceeded to intercept the man, and conduct an interview with him. The interview ran for a total of 54 minutes. A small amount of methylamphetamine was found on his person, as well as weighing and smoking instruments.
The defence sought to have the field interview excluded from the evidence in the case pursuant to the courts discretion. The defence contended that the interview breached section 423 of the Police Powers and Responsibilities Act, which provides that police should not conduct an interview with a person who is apparently intoxicated or under the influence of drugs. As such the defence requested the evidence be excluded from trial due to unfairness and/or public policy grounds.
During a pre-trial hearing, the defendant gave evidence to the effect that he had been smoking methylamphetamine that evening at a friend’s house. Leaving that place in the early hours of the morning he was then intercepted by police after stopping at the 7-11. His recollection of the interview is hazy.
At the time of interview, the defendant stated to police that he was fine and believed the drugs did not affect him. However subsequent to the interview the defendant concedes that he was wrong. After the playing of the police interview tape, and cross examination of the police officers conducting the interview, it became apparent that the defendant was, at the time of the interview, displaying signs consistent with being under the influence of drugs and that at least one officer had initial concerns over whether he was affected by drugs.
The court reached the conclusions that the defendant was affected by drugs at the time of the interview, having given thought to the evidence provided. The court also noted that the very reason police spoke to the defendant was due to him appearing drug affected. Also of consideration was the fact that the defendant had previously been arrested and had never attended or taken part in a police interview. This pattern was a stark contrast to the current state of affairs where not only did the defendant take part in a police interview, but he made concessions to police that were not in his interests. The court determined that the interview took place contrary to the provisions of the PPRA.
The mere fact that the interview was undertaken in a manner contrary to the PPRA does not however exclude the evidence automatically; it does however enliven the court discretion to exclude the evidence.
The court was concerned over the lack of compliance with the PPRA, the location of the interview, and the lack of videotape. The location of the interview, having taken place outside of a 7/11, was public and in an informal setting which led the court to be concerned over whether the defendant knew how serious the interview was. The lack of videotape evidence means it is impossible to assess the mannerisms of the defendant during the interview.
The record of interview was excluded from the trial as evidence.
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