Citation: R v Deborah Joy Davidson & Ors [2000] NSWSC 187
Court: Supreme Court of New South Wales (Criminal Division)
Date: 28 February 2000
Judge(s): Bell J
Background
Four accused were charged in connection with the death of a man named Paul Harris. One of the accused, referred to here as the accused Davidson, was arrested at premises in Queanbeyan on 20 June 1998 along with two co-accused. All three were taken to Queanbeyan Police Station, where the accused Davidson was processed by the custody manager before being placed in an interview room.
The accused Davidson remained detained for approximately five hours before police commenced an electronically recorded interview with her (known as an ERISP). The interview ran until 2.39pm, and she was not formally charged until 6.55pm that evening. No detention warrant was sought to extend the maximum four-hour investigation period permitted under the relevant legislation.
Counsel for the accused Davidson applied to exclude the ERISP, or portions of it, from evidence. The application was heard after the jury was empanelled but before the Crown's opening.
Legal Issues
- Whether the accused was unlawfully detained at the time of the interview, such that the ERISP should be excluded under s 138 of the Evidence Act 1995
- Whether periods of waiting (particularly for the arrival of investigators with relevant materials) could be excluded from the calculation of the investigation period under Part 10A of the Crimes Act 1900
- Whether the accused's answer at question 115 of the interview constituted an unambiguous invocation of her right to silence, rendering subsequent questioning improper
- Whether persistent and at times argumentative questioning later in the interview warranted exclusion of those portions under ss 85, 90, and/or 137 of the Evidence Act 1995
Decision
On the detention issue, Bell J found that the Crown had not discharged its onus of establishing, on the balance of probabilities, that the period of detention was reasonable within the meaning of Part 10A of the Crimes Act 1900. The maximum investigation period of four hours applied, and no detention warrant had been obtained to extend it. Her Honour was not satisfied that the time spent waiting for Detective Senior Sergeant Little to arrive with the jacket sufficiently justified the delay under s 356F(1)(b) or (c), at least not to an extent that brought the detention within lawful bounds. However, rather than rejecting the ERISP in its entirety on this basis, Bell J proceeded to consider the second ground of challenge and exercised discretion to reject specific portions of the interview.
On the right to silence issue, Bell J viewed the relevant portion of the videotaped interview. Her Honour found that the accused's answer at question 114 was a refusal to answer further questions specifically on the topic of a rail ticket, not a general invocation of silence across the entire interview. The answer at question 115 was not interpreted as an unambiguous refusal to answer all further questions. Relying on R v Clarke, her Honour noted that whether persistence crosses the line is a question of degree, and concluded that the questioning immediately following answer 115 had not crossed that line.
Despite that finding, Bell J rejected a number of questions and answers from question 141 onwards. The rejected passages involved persistent and at times argumentative questioning pressing the accused about a black ladies' jacket found in the bedroom where she had been sleeping, as well as allegations put to the accused in a loaded manner. The questioning elicited only further denials that added little to the Crown case, and Bell J considered there was a real danger of unfair prejudice to the accused within the meaning explained in R v Lockyer. The rejected passages were questions and answers 141, 144, 169 to 180 inclusive, and 184 to 259 inclusive.
Orders Made
- Questions and answers 141, 144, 169 to 180 inclusive, and 184 to 259 inclusive of the ERISP of the accused Davidson were rejected and excluded from evidence.
- Questions and answers 109 to 114 were not pressed by the Crown and were excluded by agreement.
- The remainder of the ERISP was admitted.
Key Takeaways
- Under Part 10A of the Crimes Act 1900, the onus lies on the Crown to establish, on the balance of probabilities, both that the investigation period was reasonable and that any periods claimed to be excluded from the calculation satisfy the relevant statutory conditions.
- A detained person's answer during police questioning is not necessarily a blanket invocation of the right to silence: Bell J treated the interpretation of such an answer as context-dependent, requiring close attention to the precise words used and the specific topic being discussed.
- Persistent and argumentative police questioning that presses an accused on topics already addressed, and that elicits only repeated denials adding little probative value, may warrant exclusion under ss 90 and/or 137 of the Evidence Act 1995 on unfair prejudice grounds.
- The Supreme Court's approach confirmed that, where police questioning is framed in a loaded or argumentative manner, individual questions and answers within an otherwise admissible interview can be severed and excluded rather than the entire record being rejected.
- Applying R v Clarke, whether persistence in questioning crosses the line into conduct that makes the resulting answers unfair to admit is assessed as a matter of degree, with no absolute rule triggered by a single equivocal response.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 85, 90, 137, 138
- Crimes Act 1900 (NSW), Part 10A (including ss 354, 356C, 356D, 356E, 356F, 356M, 356N), as amended by the Crimes Amendment (Detention after Arrest) Act 1997
- Criminal Procedure Act (NSW), s 108
Cases:
- R v Clarke (1997) 97 A Crim R 414
- R v Lockyer (1996) 89 A Crim R 457