Citation: R v Sumpton [2014] NSWSC 1432
Court: Supreme Court of NSW
Date: 13 October 2014
Judge(s): Hamill J
Background
The accused faced trial for the murder of a woman whose body was found in a burning house in South Grafton in May 2012. The prosecution case was described by the court as a powerful one, supported by DNA evidence, admissions to other persons, and substantial evidence of consciousness of guilt.
Before trial, the accused sought to exclude a recorded confession obtained during a police interview on 25 May 2012 ("the impugned interview"), conducted in a cell adjacent to the Grafton Police Station charge room using a handheld digital recorder. In the days leading up to that interview, the accused had given a series of denials and exculpatory accounts, including a lengthy electronically recorded interview (ERISP) of over 2,500 questions that concluded in the early hours of 25 May 2012.
The accused was arrested at 5:07 pm on 24 May 2012 and was not brought before a Magistrate until approximately 4:11 pm the following day. The impugned confession was obtained at around 1:00 pm on 25 May 2012, before he was taken before any authorised officer.
Legal Issues
- Whether the admissions in the impugned interview were influenced by oppressive conduct under s 84 of the Evidence Act 1995 (NSW), rendering them inadmissible
- Whether it would be unfair to admit the evidence given the circumstances in which the admissions were made, under s 90 of the Evidence Act
- Whether the admissions were obtained improperly or unlawfully under s 138 of the Evidence Act, having regard to breaches of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), including the failure to take the accused before an authorised officer as soon as reasonably practicable
- Whether unlawful conduct under LEPRA is also relevant to the question of "oppressive conduct" under s 84
Decision
Hamill J described the resolution of the objection as "extremely difficult," acknowledging that excluding a murder confession was a significant step, but finding that the police conduct and the circumstances of the admissions were subject to "very substantial and valid criticism."
The court held that the admissions in the impugned interview were influenced by oppressive conduct within the meaning of s 84 of the Evidence Act, and excluded the evidence on that basis. The judgment does not set out the full reasoning in extensive detail, as it was prepared under significant time pressure ahead of a trial commencing the following day, but it identified improper questioning during the earlier ERISP, improper pressure on the accused to change his version of events, and a failure to comply with LEPRA's requirement to take the accused before an authorised officer as soon as reasonably practicable.
On the s 138 discretion, the court observed that the unlawful conduct, including the breach of LEPRA obligations and the infringement of rights protected under Article 9 of the International Covenant on Civil and Political Rights, were relevant factors. The court also noted what appeared to be a systemic failure in the arrangements for transporting prisoners, which had contributed to the delay. Hamill J indicated that, standing alone, he would have been inclined to exercise the discretion in favour of admitting the evidence given the seriousness of the charge and the high probative value of the confession. However, because the evidence was already rejected under s 84, the s 138 question did not truly arise.
Orders Made
- The evidence (the impugned interview of 25 May 2012) was rejected.
- A non-publication order was made over the judgment until the conclusion of the trial.
Key Takeaways
- Under s 84 of the Evidence Act 1995 (NSW), admissions influenced by oppressive conduct must be excluded; the court confirmed that unlawful detention and improper questioning during earlier interviews can contribute to a finding of oppressive conduct.
- Hamill J treated LEPRA's requirement to take a detained person before an authorised officer "as soon as is reasonably practicable" as a serious obligation, the breach of which bore on the admissibility of evidence obtained during the period of unlawful detention.
- Where oppressive conduct is established under s 84, exclusion is mandatory; the court therefore did not need to exercise the discretionary exclusion under s 138, even though on the s 138 factors alone the high probative value of a murder confession might otherwise have favoured admission.
- The decision reinforces the principle, drawn from cases including R v Dungay and R v Ul-Haque, that the duty to bring an arrested person before a judicial officer promptly is a fundamental protection, and contraventions of Part 10A of LEPRA should not lightly be treated as inconsequential.
- Apparent systemic failures in police custody management arrangements were identified by the court as a relevant consideration, not merely the conduct of individual officers.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 84, 90, 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), ss 99, 114, Part 10A
- Police and Criminal Evidence Act 1984 (UK)
- International Covenant on Civil and Political Rights, Article 9
Cases
- Em v The Queen [2007] HCA 46; 232 CLR 67
- Habib v Nationwide News [2010] NSWCA 34; 76 NSWLR 299
- Higgins v R [2007] NSWCCA 56
- Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
- McDermott v The King [1948] HCA 23; (1948) 76 CLR 501
- Palmer v The Queen [1998] HCA 2; 193 CLR 1
- R v Clarke (1997) 97 A Crim R 414
- Regina v Dungay [2001] NSWCCA 443; 126 A Crim R 216
- R v Fulling [1987] 2 All ER 65
- R v Heffernan (NSWCCA, 16 June 1998, unrep)
- R v LL (NSWCCA, 1 April 1996, unrep)
- R v MM [2004] NSWCCA 364
- R v Taylor (NSWCCA, 18 April 1995, unrep)
- R v Truong (1996) 86 A Crim R 188
- R v Ul-Haque [2007] NSWSC 1251; 177 A Crim R 348
- R v Ye Zhang [2000] NSWSC 1099