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Supreme Court 10 July 2014

R v Hunter (No 7)

[2014] NSWSC 1150

Homicide
CRIMINAL LAW EVIDENCE ADMISSIBILITY EVIDENCE ACT 1995 S 138 ACCUSED A VULNERABLE PERSON

Citation: R v Hunter (No 7) [2014] NSWSC 1150
Court: Supreme Court of New South Wales
Date: 10 July 2014
Judge(s): Button J

Background

The accused was charged with murder following the death of a man from injuries sustained in an assault on 20 June 2011. He is an Aboriginal person, a status that carries specific procedural protections under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) and its Regulations.

Two separate conversations between the accused and police were at the centre of the dispute. The first took place at Mt Druitt Police Station on 21 June 2011, shortly after his arrest, in which he made statements to detectives. The second occurred on 20 October 2011 at a remand centre, following his arrest on a murder charge, during which he again made brief statements before refusing to participate in a recorded interview (an ERISP, the standard recorded interview format used by NSW Police).

Defence counsel applied to exclude both conversations under s 138 of the Evidence Act 1995 (NSW), arguing that police had failed to comply with LEPRA's requirements for detained persons, in particular those applying to Aboriginal suspects.

  • Whether police complied with s 122 of LEPRA (requirement to caution the accused and provide a summary of Part 9 rights) before the two conversations occurred
  • Whether police complied with the relevant Regulations, particularly cll 27 and 33, which set out additional procedural requirements for Aboriginal persons
  • Whether the brief statements to police constituted participation in an "investigative procedure" within the meaning of LEPRA, triggering the full suite of protections under s 123
  • Whether, if any impropriety or breach occurred, the evidence should nonetheless be admitted under the balancing test in s 138(1) of the Evidence Act

Decision

On the first conversation (21 June 2011), Button J found that the caution and Part 9 summary were not provided to the accused until 6:07 PM, several minutes after the conversation took place at approximately 6:00 PM. This sequence established a failure to comply with LEPRA's requirements before the exchange occurred. Accordingly, the evidence was prima facie improperly obtained.

On the second conversation (20 October 2011), the custody manager provided the caution and Part 9 summary at the time the accused arrived, but the brief exchange with detectives occurred shortly after. Button J examined whether the relevant regulatory requirements had been met in that instance. He also considered the defence submission that the arrest on that occasion was effected for the improper purpose of questioning rather than charging the accused and bringing him before a court.

Despite finding or assuming the existence of breaches in each instance, Button J declined to exclude either conversation under s 138. The content of the statements, in which the accused claimed he was at the hospital during the relevant events, was directly contradicted by other evidence, including an affidavit from his own solicitor. Button J found the statements highly probative on a murder charge, the most serious offence known to law. Any impropriety or contravention was characterised as technical in nature, not deliberate or reckless, and it would have been practically difficult for police to have obtained the evidence in any other way, given that the accused refused to participate in a formal recorded interview immediately afterwards.

Applying each of the factors listed in s 138(3), Button J concluded that the desirability of admitting the evidence firmly outweighed the undesirability of admitting evidence obtained in the manner it was. Both conversations were admitted.

Orders Made

• The evidence of the exchange of 21 June 2011 is not excluded
• The evidence of the exchange of 20 October 2011 is not excluded

Key Takeaways

  • Even where police fail to comply with LEPRA procedural requirements before questioning an Aboriginal accused, evidence of resulting admissions is not automatically excluded. Section 138 of the Evidence Act requires a balancing exercise, not automatic exclusion.
  • Under s 138(3), relevant factors include the probative value of the evidence, the gravity of the offence charged, the nature of the impropriety (including whether it was technical, deliberate, or reckless), and whether the evidence could have been obtained by other means.
  • A technical or accidental breach of LEPRA carries materially less weight in the s 138 balancing exercise than a deliberate or reckless one.
  • Where admissions directly contradict the accused's stated account as conveyed through legal representatives, their probative value in a serious criminal trial can outweigh the undesirability of admitting improperly obtained evidence.
  • The s 138 analysis is highly fact-specific. The outcome in each of the two conversations was assessed separately, with Button J reaching the same conclusion by similar reasoning but through distinct factual findings for each occasion.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 111, 112, 122, 123, Part 9
- Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), cll 24, 27, 33
- Criminal Procedure Act 1986 (NSW), s 281
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 25, 35

Cases:
- R v Powell [2010] NSWDC 84