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Supreme Court 4 July 2014

R v Hunter (No 6)

[2014] NSWSC 1149

Public order & justice offences
CRIMINAL LAW EVIDENCE ADMISSIBILITY CRIMINAL PROCEDURE ACT 1986 (NSW) S 281

Citation: R v Hunter (No 6) [2014] NSWSC 1149
Court: Supreme Court of New South Wales
Date: 4 July 2014
Judge(s): Button J

Background

The accused faced serious charges, including murder, arising from an incident in June 2011. During the investigation, police officers had conversations with the accused on three separate occasions: in a police vehicle on 21 June 2011, at Mt Druitt Police Station later that same day, and at a correctional facility in October 2011.

Defence counsel objected to the admission of statements the accused allegedly made during those conversations. The objection rested on s 281 of the Criminal Procedure Act 1986 (NSW), which requires that admissions made "in the course of official questioning" by a suspect must be electronically recorded to be admissible, unless a reasonable excuse for the absence of a recording is established.

The voir dire (a preliminary hearing to determine admissibility) proceeded on the written statements of police officers alone, without oral evidence or cross-examination.

  • Whether the alleged admissions were made "in the course of official questioning" within the meaning of s 281 of the Criminal Procedure Act 1986 (NSW)
  • Whether a police officer's statement, as opposed to a direct question, can constitute part of a "course of official questioning"
  • Whether administering a caution and advising an accused of their arrest constitutes "official questioning"
  • Whether, in the absence of a tape recording and without a reasonable excuse for its absence, any of the three passages should be excluded

Decision

First passage (police vehicle conversation): Button J found that this entire passage was made in the course of official questioning and that no tape recording was made or reasonable excuse offered for its absence. The conversation took place after the accused had been arrested and while he was being transported by detectives who were actively investigating the matter. The whole of the first passage was therefore excluded under s 281.

Second passage (Mt Druitt Police Station): The alleged admissions in this passage arose when the accused responded spontaneously while being informed of his arrest and having his caution administered. Button J held that advising an accused of the grounds for arrest and administering a standard caution does not constitute "official questioning." The accused's responses were not elicited by questioning but by the notification process itself. None of this passage was excluded.

Third passage (gaol conversation): The analysis divided this passage into two parts. The first portion, where the accused responded to being informed of his arrest and rights, was treated the same way as the second passage: not official questioning, and therefore not excluded. The second portion was different. After the accused declined to participate in a recorded interview or sign a notebook entry, Detective Sergeant Lowe made the statement "It is just a matter of time before you're charged with murder." Button J found, applying the High Court's reasoning in Kelly v The Queen, that a statement made with the purpose of eliciting a response can form part of a "course of official questioning" even if it is not framed as a direct question. The detective's remark was characterised as official questioning. Because no recording was made of the accused's response to it ("He hit me and you're going to charge me?"), and no reasonable excuse was offered, that exchange was excluded.

Orders Made

• The whole of the first passage pertaining to the conversation in the police vehicle is excluded.

• None of the second passage pertaining to the conversation at the police station is excluded.

• None of the third passage pertaining to the conversation at the gaol is excluded, except for the final statement of Detective Sergeant Lowe and the words alleged to have been said by the accused, "He hit me and you're going to charge me?"

Key Takeaways

  • Administering an arrest caution or informing an accused of the grounds for their arrest does not, of itself, constitute "official questioning" under s 281 of the Criminal Procedure Act 1986 (NSW). Spontaneous responses to such notifications fall outside the section's exclusionary operation.

  • Under s 281, a police officer's statement intended to elicit a response from a suspect can form part of a "course of official questioning" even where it is not framed as a question. Button J applied the High Court's reasoning in Kelly v The Queen [2004] HCA 12 to reach this conclusion.

  • Where an admission falls within the scope of s 281 and no tape recording exists, the absence of a reasonable excuse for the lack of recording results in mandatory exclusion. The Crown bears the burden of establishing that reasonable excuse.

  • The characterisation of conduct as "official questioning" is a factual determination made in light of all surrounding circumstances, including the purpose of the officer's conduct and the context in which exchanges occurred.

  • A suspect's refusal to participate in a formal recorded interview does not preclude subsequent informal exchanges from being classified as official questioning if those exchanges are pursued by investigators with the purpose of obtaining a response.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 281

Cases
- Bryant v R [2011] NSWCCA 26
- Kelly v The Queen [2004] HCA 12; 218 CLR 216
- R v Horton (1998) 45 NSWLR 426
- R v Naa [2009] NSWSC 851