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Supreme Court 12 November 2013

R v FE

[2013] NSWSC 1692

Assault & violenceHomicidePublic order & justice offences
EVIDENCE S 138 AND S 139 EVIDENCE ACT 1995 IMPROPERLY OBTAINED EVIDENCE FAILURE TO CAUTION THE ACCUSED S 90 EVIDENCE ACT 1995 UNFAIR DEPRIVATION OF RIGHT TO SILENCE

Citation: R v FE [2013] NSWSC 1692
Court: Supreme Court of New South Wales
Date: 12 November 2013
Judge(s): Adamson J

Background

The accused, FE, was a 15-year-old girl charged with affray and murder arising from a stabbing at the Parramatta Transport Interchange in the early hours of 8 July 2012. The stabbing was carried out by a co-offender, Christopher Brilliantes, who pleaded guilty to murder and was sentenced separately. The Crown alleged that FE played a role in events leading up to the stabbing, including pointing at the deceased before he was stabbed.

Before the trial commenced, the court conducted a voir dire (a preliminary hearing on admissibility) to determine whether two records of interview with FE could be placed before the jury. The first interview occurred on 12 July 2012, when FE presented voluntarily at Parramatta Police Station. The second was an Electronically Recorded Interview with Suspected Person (ERISP) conducted after her arrest on 2 August 2012.

The Crown sought to rely on both interviews on two bases: first, as containing admissions by FE; and second, as containing lies that could be used to challenge her credibility if she gave evidence at trial.

  • Whether FE was a suspect or merely a witness at the time of the first interview on 12 July 2012, and whether the caution required by s 139 of the Evidence Act 1995 (NSW) was therefore mandatory
  • Whether the failure to administer the required caution rendered the admissions from the first interview improperly obtained under s 138 of the Evidence Act 1995
  • Whether, in the second interview (the ERISP), police improperly persisted with questioning after FE had unequivocally declined, through a support person, to participate
  • Whether the admissions from both interviews should be excluded under s 138 or, alternatively, s 90 of the Evidence Act 1995, on the grounds that admitting them would be more undesirable than desirable, or would unfairly deprive FE of her right to silence

Decision

The first interview (12 July 2012): Adamson J found that FE was a suspect, not merely a witness, when she presented at the police station. The CCTV footage and witness accounts already in police possession identified a female who had pointed at the deceased before the stabbing, and the description was consistent with FE's appearance. Because she was a suspect, police were required by s 139(1) of the Evidence Act 1995 to administer a caution before questioning her. No caution was given. The resulting admissions were therefore improperly obtained within the meaning of s 138.

Applying the balancing exercise under s 138(1), the court weighed the desirability of admitting the evidence against the undesirability of admitting evidence obtained in breach of the caution requirement. Her Honour found that the breach was serious, that FE's vulnerability as a 15-year-old was a relevant factor, and that the balance favoured exclusion. The admissions from the first interview were accordingly rejected.

The second interview (2 August 2012, ERISP): Prior to the ERISP, FE communicated, through a support person named Ms Hopgood, that she declined to participate in the interview and also declined to have her refusal filmed. Despite this unequivocal invocation of her right to silence, Detective Gibson proceeded to lead FE into the interview room and conduct the interview. Adamson J characterised this conduct as a "very grave" contravention of FE's rights.

The court applied s 138 to exclude the admissions from the second interview as well, finding that the desirability of admission did not outweigh the undesirability of admitting evidence obtained in such circumstances. Her Honour added that, had s 138 not applied, she would have exercised the discretion under s 90 to exclude the record of the second interview on the basis that its admission would unfairly deprive FE of her right to silence.

Orders Made

  • The interview conducted with the accused on 12 July 2012 is excluded.
  • The ERISP conducted with the accused on 2 August 2012 is excluded.

Key Takeaways

  • A person being interviewed by police is a "suspect" for the purposes of the cautioning requirement in s 139 of the Evidence Act 1995 where the available evidence, at the time of questioning, is sufficient to make them a person whom police suspect of having committed an offence. The formal status of "voluntary attendee" does not avoid that obligation.
  • Under s 138(3) of the Evidence Act 1995, the vulnerability of the person from whom evidence was obtained is a relevant consideration in the balancing exercise. The court found that the accused's age of 15 years weighed in favour of exclusion.
  • Proceeding with an interview after a suspect has unequivocally declined to participate constitutes a serious breach of the right to silence. Adamson J described Detective Gibson's conduct in persisting despite FE's communicated refusal as a "very grave" contravention.
  • Section 90 of the Evidence Act 1995 provides an independent discretionary basis to exclude admissions where, having regard to the circumstances in which they were made, it would be unfair to the accused to use the evidence. This discretion operates alongside, and separately from, the s 138 exclusionary regime.
  • Where both s 138 and s 90 are engaged, a court may make findings under both provisions. Adamson J confirmed that even if s 138 had not required exclusion, s 90 would have been exercised to exclude the record of the second interview.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 90, 138, 138(3), 139, 139(1), 139(5)
- Children (Criminal Proceedings) Act 1987 (NSW), s 13
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), regs 21, 24, 25, 29, 30

Cases:
- Bunning v Cross [1978] HCA 22; 141 CLR 54
- Em v The Queen [2007] HCA 46; 232 CLR 67
- Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494
- Petty v The Queen [1991] HCA 34; 173 CLR 95
- R v Dalley [2002] NSWCCA 284; 132 A Crim R 169
- R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1
- R v Em [2003] NSWCCA 374
- R v Ireland [1970] HCA 21; 126 CLR 321
- R v Phung and Huynh [2001] NSWSC 115
- R v Plevac (1995) 84 A Crim R 570
- R v Swaffield [1998] HCA 1; 192 CLR 159
- Reid v Howard [1995] HCA 40; 184 CLR 1
- The King v Lee [1950] HCA 25; 82 CLR 133
- X7 v Australian Crime Commission [2013] HCA 29; 87 ALJR 858