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Court of Criminal Appeal 16 December 2010

Doklu v R

[2010] NSWCCA 309

Also reported as 208 A Crim R 333
Assault & violenceHomicide
CRIMINAL LAW CONVICTION APPEAL CRIMINAL PROCEDURE ACT S 281 EVIDENCE ACT S 85 EVIDENCE ACT S 90 WHETHER ANY RELEVANT UNFAIRNESS

Citation: Doklu v R [2010] NSWCCA 309
Court: NSW Court of Criminal Appeal
Date: 16 December 2010
Judge(s): Macfarlan JA; Simpson J; Hall J

Background

The appellant was convicted by a majority jury verdict in the District Court of attempting to administer poison (Chlorpyrifos, an insecticide) to his wife with intent to murder her, and of assault occasioning actual bodily harm. The Crown's case was that in the early hours of 26 August 2006 the appellant poured the chemical over his wife's head and face after she refused his sexual advances, telling her he intended to kill both of them. During the struggle that followed, his wife stabbed him several times with a kitchen knife and fled the house.

When police arrived, they found the appellant lying in the gutter with serious stab wounds. In response to questions from a constable at the scene, the appellant made statements admitting he had tried to give his wife poison. Those admissions were made before he was cautioned. The constable cautioned him immediately after the admission, and a later detective invited him to participate in a recorded interview, which he declined.

The appellant appealed his conviction on two broad grounds: first, that evidence of admissions to three witnesses (a police officer, a neighbour, and a treating doctor) was wrongly admitted at trial; and second, that the trial judge's directions to the jury about the possibility of a majority verdict were legally flawed.

  • Whether the admission made to the police constable was governed by s 281 of the Criminal Procedure Act 1986 (CPA), which requires electronic recording of admissions made to investigating officials when a suspect is or could reasonably be suspected of having committed an offence
  • Whether any failure to electronically record the admission was excused by a "reasonable excuse" under s 281 CPA
  • Whether the admissions to the police officer, the neighbour, and the treating doctor should have been excluded under s 85 of the Evidence Act 1995 (reliability concerns arising from the circumstances) or under s 90 (discretionary exclusion for unfairness)
  • Whether the appellant's physical condition at the time (he had serious stab wounds and was agitated and distressed) meant he was incapable of understanding or properly participating in the questioning
  • Whether the trial judge's direction to the jury about the availability of a majority verdict undermined the required direction, drawn from Black v R (1993) 179 CLR 44, that the jury must first make every effort to reach a unanimous verdict

Decision

Admissibility of the admissions

The Court upheld the trial judge's ruling that the admissions to the police constable were admissible. On the s 281 CPA question, the Court accepted that at the point the constable first asked "What happened here?", the police had not yet formed any suspicion that the appellant had committed an offence. Their initial investigation focused on the appellant's wife in connection with the stabbing. It was only once the appellant began volunteering incriminating information that reasonable suspicion arose, at which point the constable cautioned him promptly and correctly. The recording requirement in s 281 was therefore not triggered from the outset, and the Court was satisfied that any relevant excuse for not electronically recording the exchange was made out on the facts.

The Court also rejected the argument that the admissions should have been excluded under s 85 of the Evidence Act as unreliable. Although the appellant was injured and agitated at the time, the Court found no basis to conclude that those circumstances made the truth of the admissions unlikely to be adversely affected. Nor did the Court find error in the trial judge's exercise of discretion under s 90 to admit the evidence. The Court was satisfied that the admissions to the neighbour and treating doctor had also been properly admitted.

Majority verdict directions

The appellant challenged the trial judge's directions to the jury on the basis that mentioning the possibility of a majority verdict, at the same time as or in close proximity to the Black v R direction (requiring the jury to try its utmost to reach unanimity), undermined the force of that direction. The Court acknowledged that raising the prospect of a majority verdict before it became strictly necessary to do so was inadvisable, and the judgment contains observations to that effect. However, the Court did not find that the directions, considered as a whole, created a real risk that the jury failed to try its utmost to reach a unanimous verdict. This ground also failed.

Overall result

The appeal was dismissed on all grounds. The Court granted leave for the appellant to rely on an additional ground raised in the notice of appeal (Ground 4), but that ground also did not succeed.

Orders Made

  • Leave granted under rule 4 of the Criminal Appeal Rules to rely upon Ground 4 in the Notice of Appeal
  • Appeal dismissed

Key Takeaways

  • Under s 281 of the Criminal Procedure Act 1986, the electronic recording obligation is triggered when an accused is, or could reasonably be, suspected of having committed an offence at the time the admission is made. Where suspicion arises mid-conversation as a result of the suspect's own volunteered statements, the section does not apply retroactively to earlier questions asked before suspicion was formed.

  • Exclusion under s 85 of the Evidence Act 1995 requires a finding that the circumstances in which an admission was made were likely to adversely affect its truth or reliability. Physical injury or agitation at the scene does not automatically satisfy that test.

  • In dismissing both grounds of appeal, the Court confirmed that the admissibility of admissions involves a careful, context-specific analysis across s 281 CPA, s 85, and s 90 of the Evidence Act, each operating independently.

  • Simpson J expressly declined to endorse a broad proposition (drawn from earlier authority) that police officers should, as a matter of prudence, specifically invite a suspect to participate in a recorded interview focused on an earlier unrecorded admission. Her Honour observed that each case turns on its own facts, and that such a targeted request could in some circumstances amount to unwarranted pressure that risks further exclusion.

  • The Court of Criminal Appeal flagged that raising the prospect of a majority verdict before it is strictly necessary is inadvisable, as it risks diluting the force of the Black v R direction requiring the jury to exhaust every reasonable effort to reach unanimity.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), ss 85, 90
- Jury Act 1977 (NSW)
- Crimes Act 1900 (NSW), ss 29, 59(1)
- Criminal Appeal Rules (NSW), r 4

Cases
- Black v R [1993] HCA 71; (1993) 179 CLR 44
- Em v R [2007] HCA 46; (2007) 232 CLR 67
- George v Rockett [1990] HCA 26; (1990) 170 CLR 104
- Hanna v R [2008] NSWCCA 173; (2008) 73 NSWLR 390
- R v Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
- R v Keenan Mundine [2008] NSWCCA 55
- RJS v Regina [2007] NSWCCA 241; (2007) 173 A Crim R 100
- Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1965-1966) 115 CLR 266