Citation: R v Mobbs & Dogramaci [2013] NSWDC 103
Court: District Court of New South Wales
Date: 15 April 2013
Judge: Berman SC DCJ
Background
Two accused were standing trial when a preliminary legal issue arose before the jury could be empanelled. The issue concerned a statement made by one of the accused (referred to here as the accused) to police at Mount Druitt Police Station on 30 October 2008, approximately five years before the trial commenced.
Police had attended premises leased by the accused to execute a search warrant, suspecting a drug manufacturing operation. The accused was not present when police arrived, was telephoned, and returned to the premises. Shortly after arriving, he was arrested and taken to the police station.
At the station, a decision was made to interview the accused not as a suspect but as a potential witness. The resulting statement was headed "Statement of a Witness" and contained admissions. The Crown sought to tender the statement against the accused at trial. Defence counsel objected, relying on section 281 of the Criminal Procedure Act.
Legal Issues
- Whether the accused was, or could reasonably have been, suspected by an investigating official of having committed an offence at the time the statement was taken.
- Whether the admissions were required to be electronically recorded under section 281 of the Criminal Procedure Act.
- Whether the Crown could establish a "reasonable excuse" for the failure to electronically record the interview.
- Whether the definition of "reasonable excuse" in section 281 is exhaustive or merely illustrative.
Decision
Berman SC DCJ found that the accused remained a suspect throughout, despite the decision to label him a witness for the purposes of the interview. The Crown conceded that a reasonable suspicion of offending existed based on telephone intercepts. His Honour went further, holding that the circumstances at the premises alone, including a drug laboratory, a locked internal door, and items consistent with drug manufacture in the living areas, were sufficient to establish reasonable suspicion independently of the telephone intercepts.
The court examined a statement from Detective Inspector Iorfino, which recorded that the decision to treat the accused as a witness was made because his knowledge of the drug manufacture had not been "clearly established" and that further review of the evidence was needed before charges could be preferred. His Honour found that this confirmed the accused was still a suspect: the need for further investigation to confirm or dispel a suspicion is itself indicative of ongoing suspicion, not its absence.
On the question of reasonable excuse, the Crown argued that investigating police did not know about the telephone intercepts at the time and that this ignorance provided the excuse for not recording electronically. His Honour rejected this. The telephone intercepts had nothing to do with the suspicion the police actually held on the day of the arrest. The Crown failed to establish any reasonable excuse for the absence of electronic recording.
His Honour also addressed, in passing, the submission that the three circumstances listed in the definition of "reasonable excuse" in section 281 are exhaustive. He indicated he would have rejected that submission quickly, noting that the word "includes" in New South Wales legislation is rarely if ever read as limiting a definition to only those matters listed.
Orders Made
The statement made by the accused on 30 October 2008 was ruled inadmissible and will not be admitted in the trial.
Key Takeaways
- Under section 281 of the Criminal Procedure Act, admissions made by a person who is, or could reasonably be, suspected of an offence must be electronically recorded unless a reasonable excuse for non-recording is established.
- The District Court held that labelling an interview as a "witness statement" does not alter the legal analysis where the person remained a suspect in substance throughout the encounter with police.
- A reasonable excuse for failing to electronically record must connect to the actual basis for the suspicion police held at the relevant time. An excuse resting on information police were unaware of, and which was unrelated to the suspicion they did hold, will not suffice.
- The word "includes" in the definition of "reasonable excuse" in section 281 is not exhaustive: the three listed circumstances do not close off other potential grounds for a reasonable excuse.
- Sufficient circumstances to ground reasonable suspicion existed from the physical state of the premises alone, without reliance on telephone intercept material.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 281
Cases:
No cases were cited in the judgment.