Citation: R v Ahola (No 3) [2013] NSWSC 700
Court: Supreme Court of New South Wales
Date: 8 May 2013
Judge: Button J
Background
The accused stood trial for murder. On the evening of the alleged offence, three police officers attended the scene and spoke with the accused. During those conversations, the accused made a number of statements that were exculpatory on their face but which the Crown argued were internally inconsistent, or inconsistent with his later recorded interview and other evidence.
None of those statements were electronically recorded at the scene. Hours later, the accused participated in an ERISP (an electronically recorded interview with police), during which detectives put some, but not all, of the scene statements to him. The accused generally agreed with what was put. The Crown sought to lead the scene statements through oral police evidence and through the relevant ERISP questions and answers.
Defence counsel objected to the Crown using this evidence, raising objections under section 281 of the Criminal Procedure Act 1986, and sections 85 and 90 of the Evidence Act 1995.
Legal Issues
- Whether the failure to electronically record the accused's statements at the scene rendered them inadmissible under section 281 of the Criminal Procedure Act 1986
- Whether the accused's alleged intoxication at the time of the statements made them unreliable under section 85 of the Evidence Act 1995
- Whether it would be unfair to admit the statements, or parts of them, under the discretionary exclusion in section 90 of the Evidence Act 1995, having regard to both the accused's intoxication and the selective manner in which police put the statements to him in the ERISP
Decision
Issue 1: Section 281 and the failure to record at the scene
Button J accepted that the scene statements were "admissions" for the purposes of section 281. Because they were not electronically recorded at the time, they were presumptively inadmissible. However, the court found it was not reasonably practicable for the attending officers to record the statements at the time, given the urgency of the situation and the absence of handheld recorders among general duties officers at that station. The section 281 objection did not, on its own, exclude all of the evidence, but the pathway to admissibility required that the admissions be fairly and completely put to the accused in the subsequent ERISP.
Issue 2: Section 85 and intoxication
The court acknowledged the accused was moderately affected by alcohol at the scene, and that his blood alcohol level may have been significant. Nonetheless, Button J was not satisfied on the evidence that intoxication had rendered the admissions unreliable within the meaning of section 85. The accused appeared to function coherently, and there was an inference available that he was an experienced drinker. The section 85 objection was rejected.
Issue 3: Section 90 and unfairness
This was the central battleground. Button J found that, because police had not put all of the scene statements to the accused in the ERISP, the evidence that was put, and subsequently adopted, presented an incomplete and potentially adverse picture of what the accused had actually said. Some ERISP questions also could not be traced back to anything in Senior Constable Schmidt's proposed evidence, creating a further problem of provenance. In those circumstances, admitting the partially adopted statements would be unfair to the accused.
The court drew a clear principle: where electronic recording at the scene is not reasonably practicable, police must as a fallback put all relevant material to the accused fairly and completely in a subsequent ERISP. Permitting only a selective portion to be put, and then tendering the accused's adoption of it, falls short of that standard.
Orders Made
- The evidence of Senior Constable Quick, with the exception of two questions and answers, is admissible.
- Evidence of anything alleged to have been said by the accused at the scene and heard by Senior Constable McLean or Senior Constable Schmidt that was not put to the accused in the ERISP is inadmissible.
- Questions and answers 310 to 321 of the ERISP, and the evidence from Senior Constable Schmidt and Senior Constable McLean underpinning them, are admissible.
- Questions and answers 337 to 349 are inadmissible.
- Questions and answers 325 to 336, and the evidence underpinning them, are excluded in the exercise of discretion under section 90.
Key Takeaways
- Under section 281 of the Criminal Procedure Act 1986, unrecorded admissions made to police at the scene of a serious offence can retain a pathway to admissibility where it was not reasonably practicable to record them, but that pathway depends on the admissions being put fairly and completely to the accused in a subsequent ERISP.
- The Supreme Court confirmed that selectively putting only some unrecorded statements to an accused in an ERISP, and tendering the accused's adoption of those parts, risks creating an unfair and misleading picture for the jury, warranting exclusion under section 90.
- Moderate intoxication alone does not automatically satisfy the section 85 threshold for exclusion on grounds of unreliability; the court will examine the accused's actual level of functioning and the surrounding circumstances.
- Where ERISP questions attributed statements to the accused at the scene that could not be traced to the investigating officer's own proposed evidence, the court treated those questions and answers as inadmissible.
- The decision reinforces that the obligations imposed by sections 281 of the Criminal Procedure Act and 90 of the Evidence Act operate together: a failure to record electronically at the scene shifts responsibility onto investigators to ensure any subsequent ERISP process is thorough and fair.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Evidence Act 1995
Cases
- R v Egribas (Latham J, 14 May 2010, unreported)