Citation: R v Kelsall (No 1) [2015] NSWSC 251
Court: Supreme Court of New South Wales
Date: 4 March 2015
Judge: R A Hulme J
Background
The accused faced trial in the Supreme Court on two counts arising from events on 8 September 2013 at Neutral Bay: the indecent assault and murder of a man who had been at the Oaks Hotel that evening. The Crown alleged the accused followed the deceased from the hotel to his nearby apartment, where the deceased was later found by his flatmate, covered in blood and having died from multiple stab wounds.
On 26 September 2013, the accused telephoned the investigating detective and indicated that his earlier police interview had not been entirely truthful. Detectives immediately drove to Neutral Bay and spoke with the accused in an unrecorded conversation near their police vehicle outside a Woolworths supermarket. No recording device was used at any point during this exchange.
Before trial, defence counsel objected to the Crown tendering evidence of that conversation. The admissibility question was determined on a voir dire (a preliminary hearing within the trial to determine an evidentiary dispute).
Legal Issues
- Whether the conversation between the accused and Detective Senior Sergeant Dukes on 26 September 2013 constituted an admission to which s 281 of the Criminal Procedure Act 1986 (NSW) applied.
- Whether the accused could "reasonably have been suspected" of committing an indictable offence at the time of the conversation, engaging the recording obligation under s 281.
- Whether the Crown had established a "reasonable excuse" for failing to record the conversation, as required by s 281(2)(b).
Decision
Hulme J held that s 281 applied to the conversation. By the afternoon of 26 September 2013, the detective had accumulated a substantial body of information pointing toward the accused: CCTV footage showing him following the deceased, odd explanations during his earlier interview, his admitted access to knives through kitchen work, and, critically, his own phone call that day conceding he had not told the full truth two days earlier. That combination of circumstances should have given rise to a reasonable suspicion that the accused was involved in the killing, engaging the requirements of s 281.
On the question of reasonable excuse, the Crown's position failed entirely. The detective had not inquired about the availability of a hand-held recording device at North Sydney police station, which was only minutes away. He had made no attempt to obtain any recording equipment before driving to meet the accused. North Sydney police station had dedicated facilities for recording interviews with suspects, and the accused had indicated a willingness to speak with police, so there was no apparent urgency that precluded a brief delay to secure a proper recording.
Hulme J found the detective's explanation, that he did not know what the accused would say, to be unacceptable. The court was particularly critical of the detective's decision to continue the unrecorded conversation even after administering a caution to the accused, which itself signalled that suspicion had crystallised. No reasonable excuse existed for the failure to record either the portion before or the portion after the caution was administered.
The conversation was accordingly inadmissible under s 281.
Orders Made
• The conversation between Detective Senior Sergeant Dukes and the accused on 26 September 2013 is inadmissible.
Key Takeaways
- Under s 281 of the Criminal Procedure Act 1986 (NSW), an admission made by an accused person who could reasonably have been suspected of an indictable offence, during official questioning, is inadmissible unless a tape recording exists or a reasonable excuse for the absence of a recording is established.
- A reasonable suspicion sufficient to engage s 281 does not require a formal state of mind on the detective's part; the court assessed the objective body of evidence available at the time, not the detective's characterisation of his own thinking.
- The failure to even inquire about the availability of recording equipment, where a police station with such facilities was minutes away, was insufficient to constitute a "reasonable excuse" under s 281(2)(b).
- Continuing an unrecorded conversation after administering a caution to the accused was treated by Hulme J as particularly difficult to justify and plainly inconsistent with the purposes of s 281.
- The Supreme Court applied s 281 to exclude the entirety of the conversation, covering both the portion before and the portion after the point at which suspicion was said to have arisen.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), ss 90, 135, 137, 138, 139
Cases cited: No cases were cited in the judgment.