Citation: R v Saifoloi Afele [2007] NSWDC 346
Court: District Court of New South Wales
Date: 12 November 2007
Judge(s): Nicholson SC DCJ
Background
The accused was charged with aggravated robbery at St Marys on 16 December 2005. Police arrived at a taxi rank in the early hours of the morning and found an elderly man unconscious on the footpath, his face covered in blood. The accused was seated approximately one metre away.
Police spoke with the accused at the scene and conducted a search of his person. In the course of that interaction, the accused made statements denying knowledge of items in his pockets, and a wallet was subsequently located on him. Those statements formed the basis of the admissions the prosecution sought to tender.
Because the accused had not entered a plea, the matter proceeded as a special hearing, with a plea of not guilty entered on his behalf. The defence applied to exclude the admission evidence on the ground that none of the relevant conversation had been recorded.
Legal Issues
- Whether the statements made by the accused during the police search constituted "admissions" within the meaning of s 281 of the Criminal Procedure Act 1986 (NSW)
- Whether those admissions were made "in the course of official questioning" as defined by s 281(4)
- Whether any of the statutory exceptions allowing admission of unrecorded evidence applied
- Whether statements that appear voluntary or spontaneous can still fall within the recording requirement of s 281
Decision
The court found that all three threshold requirements of s 281 were satisfied. The accused was, or could reasonably have been, suspected of committing the offence at the time he spoke, as evidenced by the constable's direct statement that he believed the accused had involvement. The offence was indictable and not capable of being dealt with summarily without the accused's consent.
On the question of "official questioning," the court held that a search and official questioning can overlap. The initial question, "Have you anything in your pockets I should know about?", was the operative question, and the accused's subsequent statements, including the production of the money, were treated as responses to or continuations of that question rather than wholly spontaneous utterances. Even if the statements had been spontaneous, the court held they still fell within s 281.
The court grounded this conclusion in the legislative history and purpose behind s 281. The provision emerged from concerns about police "verballing," a practice where officers fabricated or embellished admissions claimed to have been volunteered by suspects. The court reasoned that the legislature intended to capture all admissions made in the course of official engagement with a suspect, whether in direct response to questioning or offered voluntarily, in order to give that protection real effect.
The prosecution conceded it could not establish any of the exceptions permitting admission of unrecorded evidence. Accordingly, under s 281(2), the evidence was inadmissible.
Orders Made
- The application to exclude the admission evidence under s 281 of the Criminal Procedure Act 1986 was granted.
Key Takeaways
- The District Court confirmed that s 281 of the Criminal Procedure Act 1986 applies wherever an accused was, or reasonably could have been, suspected of an offence at the time of making an admission, during official questioning, concerning an indictable matter not triable summarily without consent.
- A police search and official questioning are not mutually exclusive categories and can operate concurrently, meaning statements made during a search may still be subject to the recording requirements of s 281.
- Spontaneous or apparently volunteered statements do not automatically escape s 281. The court held the provision was designed to cover all admissions made in the course of official engagement, not only those made in direct response to a directed question.
- Under s 281(2), where no tape recording exists and the prosecution cannot establish a reasonable excuse for its absence, the admission is inadmissible regardless of its apparent reliability.
- The section's origins in concerns about police "verballing," reinforced by Royal Commission findings, informed the court's broad reading of the provision's protective reach.
Legislation and Cases Referenced
Legislation
- s 281, Criminal Procedure Act 1986 (NSW) (recording of admissions by suspects)
Cases
- Driscoll (referenced in the judgment without full citation as a foundational case in the line of authority that informed s 281)