R v Youssef [2015] NSWDC 49

Citation: R v Youssef [2015] NSWDC 49
Court: District Court of New South Wales
Date: 17 March 2015
Judge(s): Judge S Norrish QC

Background

The accused was arrested at approximately 3:30 am following a report of a robbery that had occurred within the previous hour. Police conducted an electronically recorded interview beginning around 7:41 am at Kogarah police station, lasting approximately 45 minutes. The accused appeared visibly tired at the outset of the interview.

The accused applied to exclude the recorded interview from evidence before trial. The application was heard on the voir dire (a preliminary hearing to determine admissibility), with evidence comprising the interviewing officer's statement and oral testimony, the recording and transcript of the interview, the Custody Management Record, and the Crown case statement of facts. The accused did not give evidence.

The core dispute centred on whether the accused had the capacity to understand his right to remain silent, whether the circumstances under which admissions were made rendered them unreliable, and whether it would be unfair to use the interview in the proceedings.

Legal Issues

Whether there was a breach of section 139 of the Evidence Act 1995 (obligation to caution a person being questioned), enlivening the discretion to exclude under section 138
Whether the probative value of the interview was outweighed by unfair prejudice to the accused under section 137
Whether the prosecution had discharged its onus under section 85 of demonstrating that the truth of the accused's representations was unlikely to have been adversely affected by the circumstances of the interview
Whether it would be unfair to use the interview in the proceedings under section 90

Decision

Issue 1: Section 139 and section 138 (Caution and Exclusion for Impropriety)

The court accepted that section 139 is purposive and extends beyond mere language ability, encompassing whether an accused genuinely understood the right to choose to remain silent (at [9]). Despite the accused's visible tiredness, the court found he had been relevantly cautioned at least twice before the interview commenced and demonstrated understanding of his right to silence through his answers at questions 5 to 7 of the transcript (at [20]-[21]). The court rejected the submission that the accused did not understand the caution, and concluded there was no breach of section 139. Accordingly, section 138 was not engaged (at [22]).

Issue 2: Section 137 (Probative Value versus Unfair Prejudice)

The court found the probative value of the interview evidence was considerable, given the nature of the Crown's circumstantial case and the significance of the accused's admissions to it (at [23]). No relevant unfair prejudice was identified that could not be addressed by directions to the jury or by editing the recording, such as using the transcript or audio only. The court declined to exclude the interview under section 137 (at [24]).

Issue 3: Section 85 (Reliability of Admissions)

The court was not satisfied the accused was drug affected. The interviewing officer did not form that view, the accused himself denied taking drugs, and a co-accused's assertion that the accused had ingested methylamphetamine was never put to him during the interview (at [31]). Although the accused appeared very tired at the outset, his tiredness diminished as the interview progressed and his answers became more engaged and lucid (at [25]-[26]). Notably, when a second officer recapped earlier answers, the accused responded with clarity, at times correcting or supplementing what had been said (at [28]). The court was satisfied that in all the circumstances the truth of the accused's representations was unlikely to have been adversely affected (at [32]).

Issue 4: Section 90 (Discretion to Exclude on Fairness Grounds)

The court noted that the accused was given opportunities to stop the interview, request a break, or sleep before substantive questioning commenced, all of which he declined (at [27]). His answers throughout reflected an ability to recall and recount events, including details such as the name of the arresting officer (at [29]). When the independent officer questioned him at the conclusion of the interview, the accused displayed heightened alertness and gave direct answers (at [30]). The court declined to exercise the discretion under section 90 to exclude the interview (at [33]).

Orders Made

Application to exclude the electronically recorded interview declined; the discretion under section 90 of the Evidence Act 1995 was not exercised to exclude the interview.

Key Takeaways

Section 139 of the Evidence Act 1995 is purposive in its operation: consistent with R v Deng [2001] NSWCCA 153, it is not confined to questions of language ability but extends to whether an accused genuinely understood the right to remain silent and that any statements may later be used in evidence (at [9], [20]).
Visible tiredness at the time of a recorded interview does not of itself establish that a person lacked the capacity to understand a caution; the court looks to the totality of the interview, including specific answers demonstrating understanding and conduct in response to offers to stop or rest (at [20]-[21], [27]).
Under section 85, the prosecution bears the onus of establishing that the truth of an accused's representations was unlikely to have been adversely affected by the circumstances in which they were made; that onus can be discharged even where the accused appeared tired, provided the overall conduct of the interview demonstrates lucid and engaged participation (at [32]).
Where no relevant unfair prejudice is identified that cannot be remedied by judicial direction or editing of the recording, the high probative value of admissions in a circumstantial Crown case will ordinarily weigh heavily against exclusion under section 137 (at [23]-[24]).
Absent positive evidence of drug affectation, a co-accused's out-of-court assertion that a person consumed drugs is insufficient on its own to raise a serious doubt about the reliability of that person's recorded admissions, particularly where the assertion was never put to the accused during the interview (at [31]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995, ss 85, 90,135, 138, 139.
- Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) - Part 9, Schedule 2.

Cases
- R v Deng [2001] NSWCCA 153
- R v Taylor [1999] ACTSC 47
- R v Shamouil [2006] NSWCCA 112
- R v XY [2013] NSWCCA 121