Citation: [2014] NSWDC 82
Court: District Court of New South Wales
Date: 27 June 2014
Judge(s): Mahony SC DCJ
Background
Two accused, George Heleta and Sailosi Osuji, faced trial on charges of wounding a person with intent to cause grievous bodily harm and firing a firearm in a public place, arising from a shooting incident at Pendle Hill on 7 April 2012. The Crown sought to rely on ERISP (electronically recorded interview of a suspected person) interviews conducted with two witnesses, Octevian Camille and Joe Abousleiman, who had originally been charged separately in connection with the same incident. After those charges were withdrawn, Camille and Abousleiman became Crown witnesses.
Camille had been in police custody for nearly eight hours before his interview commenced at 9.30am on 8 April 2012. The interview covered the circumstances in which Camille attended a birthday party, was ejected, went to a police station, and then drove with Abousleiman and others, including the accused, to the vicinity of the party before gunshots were fired and the group drove away.
Counsel for Heleta objected to the admissibility of the entirety of Camille's ERISP interview. The objection was supported by counsel for Osuji. The matter was heard as a voir dire (a preliminary hearing to determine the admissibility of evidence) before the jury.
Legal Issues
- Whether the police conducted Camille's ERISP interview improperly, by employing leading or cross-examining tactics and relying on information already obtained from Abousleiman
- Whether the interview evidence should be excluded under section 137 of the Evidence Act 2005 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
- Whether the evidence should be excluded under section 138 of the Evidence Act 2005 on the basis that it was improperly obtained
Decision
Issue 1: Alleged impropriety in the conduct of the interview
Counsel for Heleta argued that because police had already interviewed Abousleiman before interviewing Camille, the officers conducting the Camille interview effectively cross-examined him and, when dissatisfied with his answers, adopted and put to him what Abousleiman had said. The submission characterised the resulting interview as "fruit from the poison tree." The court rejected this framing. After reviewing the ERISP interview in full, the court found that the investigating officer had conducted the interview in a manner consistent with standard police questioning. Certain passages were identified as unfair and would be redacted, but these did not taint the whole interview.
Issue 2: Section 138 of the Evidence Act 2005
The court found that the investigating officer did nothing during questioning that he knew or reasonably ought to have known was likely to substantially impair Camille's ability to respond rationally. Nor did the officer make any false statement intended to cause Camille to make an admission. The court also found that the use of information obtained from Abousleiman, while informing the questions put to Camille, did not amount to impropriety. The evidence was given voluntarily, and no conduct meeting the threshold for exclusion under section 138 was established.
Issue 3: Section 137 of the Evidence Act 2005
The court declined to exclude the evidence under section 137, finding that the probative value of the interview was not outweighed by the danger of unfair prejudice to the accused. The court noted that any risk of prejudice arising from specific passages could be addressed through redaction of those passages and appropriate jury directions regarding speculation and any gaps left in the interview or its transcript.
Orders Made
- Application for the ERISP interview of Octevian Camille to be ruled inadmissible is refused.
- Preliminary rulings as to admissibility made in respect of the ERISP interview of Joe Abousleiman, which had been held subject to this ruling, are now ruled finally admissible.
Key Takeaways
- The District Court confirmed that police use of information obtained from a prior interviewee, when questioning a subsequent suspect or witness, does not of itself constitute impropriety sufficient to enliven the exclusionary discretion under sections 137 or 138 of the Evidence Act 2005.
- Under section 138, exclusion of evidence requires a finding that the investigator knew or ought to have known that their conduct was likely to substantially impair the person's capacity to respond rationally, or that a false statement was made to induce an admission. Neither element was established on the facts here.
- Where unfair passages within an ERISP interview can be identified and redacted, and appropriate jury directions given, the court may admit the remainder of the interview rather than excluding the whole record.
- Voluntariness of the evidence remains a significant factor in the exercise of the court's discretion. The court's finding that Camille gave his evidence voluntarily weighed against exclusion in the absence of proven police impropriety.
- The high probative value of the evidence in serious criminal proceedings was a relevant consideration under section 138(3), and the fact that some of the same evidence might have been obtainable from another source did not weigh heavily in favour of exclusion.
Legislation and Cases Referenced
Legislation
- Evidence Act 2005
Cases
- Graham v R (1998) 195 CLR 606
- R v Clarke (1997) 97 A Crim R 414
- R v Plevac (1995) 84 A Crim R 570
- R v Powell [2010] NSWDC 84
- R v Pritchard [1991] 1VR 84
- Swaffield v R (1998) 192 CLR 159
- Van der Meer v R (1988) 82 ALR 10