Citation: Regina v Raad Fajloun [2007] NSWDC 364
Court: District Court of New South Wales
Date: 14 November 2007
Judge(s): Cogswell SC DCJ
Background
In November 2005, two general duties constables attended a reported domestic disturbance at a Guildford West address. They found a man (the accused) and a woman (the complainant), who had visible injuries including scratches, bruising to her face, and apparent pain in her midsection.
One constable began speaking informally with the accused. During that conversation, the accused made several statements, the most significant being an alleged admission that he had broken down a door, grabbed the woman, and brought her to the house. These statements were relevant to charges of aggravated break and enter and commit a serious indictable offence, and aggravated kidnapping.
The conversation was never recorded. Defence counsel objected to the Crown tendering the evidence of those unrecorded admissions, raising challenges under both the Evidence Act 1995 and the Criminal Procedure Act 1986.
Legal Issues
- Whether the accused was "under arrest" within the extended definition in s 139(5) of the Evidence Act 1995 at the time the admissions were made, such that the absence of a caution meant the evidence was taken to have been obtained improperly under s 139(1).
- Whether, under s 138 of the Evidence Act 1995, the desirability of admitting the improperly obtained evidence outweighed the undesirability of admitting it.
- Whether s 281 of the Criminal Procedure Act 1986 rendered the unrecorded admissions inadmissible, and, if so, whether a reasonable excuse existed for the failure to record them.
Decision
Section 139: Was the accused under arrest?
The court found the constable did not subjectively believe there was sufficient evidence to establish that the accused had committed an offence, and had not given the accused any grounds to believe he would not be free to leave. However, the constable's own evidence established that she would, in fact, have prevented him from leaving by asking him to wait and calling her partner if he attempted to go. That was sufficient to satisfy s 139(5)(b), and the accused was therefore "under arrest" for the purposes of s 139. Because no caution was given, the questioning was taken to have been conducted improperly.
Section 138: Should the evidence nevertheless be admitted?
Applying the balancing exercise required by s 138, the court found the evidence highly probative and important, though not critical to the prosecution case. The charges were serious. Critically, the court characterised the impropriety as neither deliberate nor reckless. The constable was responding to what appeared to be a domestic matter, was a probationary officer, and had no appreciation of the potential seriousness of the offending at the time. The impropriety was described as "almost technical." The court concluded that the desirability of admitting the evidence outweighed the undesirability, and overruled the objection under s 138.
Section 281 Criminal Procedure Act: Reasonable excuse for non-recording?
The court accepted that s 281 applied: the accused could objectively have been suspected of committing an offence, and the questioning related to an indictable offence. The admissions were therefore prima facie inadmissible in the absence of a recording. However, the court found a reasonable excuse for the failure to record. The constable and her partner were not issued with any recording equipment for general duties work, and there was no practical access to recording devices at the time. Combined with the informal and open-ended nature of the conversation, and the fact that the officers had no expectation of a matter of that seriousness, the court concluded a reasonable excuse was established. The objection under s 281 was also overruled.
Orders Made
- Both objections overruled.
- Evidence of the unrecorded admissions admitted.
Key Takeaways
- The extended definition of "under arrest" in s 139(5) of the Evidence Act 1995 can be satisfied even where an officer does not formally arrest a person, provided the officer would in practice have prevented the person from leaving.
- Under s 138, a technical or inadvertent failure to caution does not automatically result in exclusion. Where the impropriety was neither deliberate nor reckless, and the evidence is highly probative in serious proceedings, the balancing exercise may favour admission.
- A reasonable excuse under s 281(4) of the Criminal Procedure Act 1986 can be established where general duties officers had no access to recording equipment, provided that factual foundation is made out in evidence.
- The accused's refusal to participate in a subsequent recorded interview is itself capable of constituting a reasonable excuse for the absence of a recording, consistent with the Court of Criminal Appeal's approach in Reid [1999] NSWCCA 258.
- The characterisation of police conduct, specifically whether the failure to comply with procedural requirements was innocent, inadvertent, or the product of inexperience, bears directly on the s 138 balancing exercise.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), ss 138, 139
Cases
- Regina v Bullock [2005] NSWSC 825 (Buddin J)
- Reid [1999] NSWCCA 258