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Supreme Court 15 October 2012

R v Pitts (No 1)

[2012] NSWSC 1652

Homicide
EVIDENCE STATEMENT OF AN ACCUSED ACCUSED CAUTIONED BY POLICE STATEMENT OF AN ACCUSED PRIVILEGE AGAINST SELF INCRIMINATION PERSISTENT QUESTIONING BY POLICE

Citation: R v Pitts (No 1) [2012] NSWSC 1652
Court: Supreme Court of New South Wales
Date: 15 October 2012
Judge: Adamson J

Background

The accused faced a murder trial arising from a stabbing that occurred on 2 August 2011. The central factual issue was whether the accused had acted in self-defence or in defence of family members at the time of the fatal stabbing.

Police conducted two interviews with the accused on the same day as the incident. The first was an initial recorded interview at the accused's unit in Redfern. The second was a formal Electronically Recorded Interview of a Suspected Person (ERISP) conducted at a police station.

Before the trial commenced, the accused brought pre-trial applications to exclude both interviews. Adamson J heard these applications on 15 October 2012, the day before the trial was due to begin, and rejected both interviews.

  • Whether the initial interview was properly obtained for the purposes of s 139 of the Evidence Act 1995, given that the caution delivered to the accused was immediately followed by a reference to unstated "conditions" and a warning that failing to comply with those conditions might constitute a criminal offence.
  • Whether the privilege against self-incrimination could constitute a "reasonable excuse" under s 12 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPR Act) in the context of a police request for the accused's identity.
  • Whether the ERISP should be excluded under ss 85, 90, and 138 of the Evidence Act 1995, given that the accused had repeatedly declined to answer questions but police continued to question him.

Decision

The Initial Interview and s 139

Adamson J found that the caution given during the initial interview did not comply with s 139(1)(c) of the Evidence Act 1995. Although the arresting officer initially delivered the standard caution, the officer immediately followed it with a reference to unspecified "conditions" and warned the accused that failing to comply with those conditions might constitute an offence. Because there were in fact no conditions with which the accused was required to comply, the combined effect of the caution and this warning was misleading and confusing. The suggestion of a criminal sanction for non-compliance was, in Adamson J's view, directly contrary to the purpose of the caution required by s 139(1). The initial interview was therefore taken to have been improperly obtained.

On the identity question, it was common ground that s 11 of the LEPR Act did not apply because the accused had already been arrested before any mention of conditions. Following Fullerton J in DPP v Horwood [2009] NSWSC 1447, the accused had a reasonable excuse within the meaning of s 12 of the LEPR Act for declining to provide his identity at that point.

Adamson J then considered whether to exercise the discretion under s 138 to admit the evidence despite the impropriety. Her Honour declined to admit the initial interview, applying the statutory balancing exercise and concluding that the desirability of admitting the evidence did not outweigh the undesirability of admitting improperly obtained evidence.

The ERISP

On the ERISP, the accused had indicated at the outset that he did not wish to answer questions. Police nonetheless persisted with questioning, using sympathy and encouragement as techniques to draw out responses. Adamson J noted additional contextual factors: the interview occurred on the same day as the incident, the accused had visible head and hand injuries with blood still present, and those injuries diminished his capacity to resist the pressure applied. Her Honour found that the accused's answers were not given voluntarily and that the questioning was not fair within the principles set out in R v Plevac (1995) 85 A Crim R 570. The ERISP was excluded under s 90 of the Evidence Act 1995 as unfair, and was also found inadmissible under s 85(2) because the circumstances were such that the truth of any admission may have been adversely affected.

Orders Made

• The ERISP (Electronic Record of Interview with Police) is inadmissible

Key Takeaways

  • A police caution that otherwise complies with s 139(1)(c) of the Evidence Act 1995 may be rendered non-compliant if it is immediately followed by a reference to unstated conditions and a warning that non-compliance could constitute a criminal offence, even where the officer acted under an honest mistake about the applicable law.
  • Under s 12 of the LEPR Act, the privilege against self-incrimination can constitute a "reasonable excuse" for declining to provide identity details where a person has already been arrested before the existence of any conditions is raised (following DPP v Horwood).
  • Persistent police questioning after a suspect has clearly declined to answer, combined with techniques designed to encourage responses, can render those answers involuntary and the questioning unfair for the purposes of s 90 of the Evidence Act 1995.
  • Where an accused has been injured in the incident under investigation and those injuries remain visible at the time of interview, diminished capacity to resist questioning pressure is a relevant consideration in the s 138 and s 90 balancing exercises.
  • Under s 85(2) of the Evidence Act 1995, an admission is inadmissible where the circumstances of its making were such as to make it unlikely that the truth of the admission was unaffected.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 85, 90, 138, 139
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 11, 12

Cases
- DPP v Horwood [2009] NSWSC 1447 (Fullerton J)
- R v Plevac (1995) 85 A Crim R 570