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Supreme Court 9 September 2016

R v Barakat; R v Younes (No 2)

[2016] NSWSC 1255

Public order & justice offences
EVIDENCE ACCESSORY AFTER THE FACT TO MURDER EVIDENCE NOT OBTAINED IMPROPERLY APPLICATION REFUSED EVIDENCE NO UNFAIRNESS APPLICATION DISMISSED WORDS AND PHRASES

Citation: R v Barakat; R v Younes (No 2) [2016] NSWSC 1255
Court: Supreme Court of New South Wales
Date: 9 September 2016
Judge: N Adams J

Background

The accused stood charged as an accessory after the fact to a murder committed in July 2013. The Crown case was that the accused's silver Subaru WRX was used by the alleged shooter and an unknown companion, who waited outside the victim's home before the fatal shooting. The accused was not alleged to have been present at or complicit in the murder itself.

The Crown's case against the accused rested on a narrow factual basis: that he subsequently assisted the principal offender by concealing knowledge of who had driven his vehicle. Several weeks after the murder, police served on the accused a formal "Form of Demand" under s 14(1)(c) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), requesting him to identify the driver and any passengers in his car at the relevant time. On two separate occasions, the accused declined to nominate the co-accused as a driver or passenger.

The accused applied to have all evidence arising from that demand excluded at trial. The Crown indicated that, if the application succeeded, the charge against the accused could not proceed.

  • Whether s 14(1)(c) of LEPRA permitted the specific questions asked by police during the "Form of Demand," including questions that went beyond identifying the driver and passenger to inquiring about all persons who had used the vehicle in the preceding four weeks.
  • Whether the absence of a caution before police questioning rendered the evidence improperly obtained under s 138 of the Evidence Act 1995 (NSW).
  • Whether, even if not improperly obtained, the admission evidence should nonetheless be excluded under s 90 of the Evidence Act on the ground that it would be unfair to the accused to use it in the circumstances in which it was made.

Decision

Section 138 application: Was the evidence improperly obtained?

Adams J found that s 14(1)(c) of LEPRA clearly and unambiguously empowers police to require the owner of a motor vehicle to disclose the identity of its driver and any passengers where the officer reasonably suspects the vehicle was used in an indictable offence. The word "require" in the section carries a mandatory, compulsive quality consistent with the purposes of the provision. Her Honour accepted that the questioning went somewhat beyond the narrow demand to identify the driver and passengers, but concluded the evidence was not obtained improperly. The Second Reading Speech for the predecessor legislation confirmed that the power was designed specifically to fill a gap in police powers, allowing them to demand identity information from vehicle owners in connection with serious crimes, not merely traffic offences.

On the caution question, the court held that no caution was required. A right to silence caution arises in the context of voluntary police questioning, not where a person is under a statutory obligation to provide information. Because the accused was under a legal duty to answer under s 14, there was no occasion for a caution to be given. Accordingly, the accused did not establish impropriety on the balance of probabilities, and the s 138 application failed.

Section 90 application: Was it unfair to use the admissions?

The accused also argued that the representations made during the demand process constituted "admissions" and should be excluded under s 90 of the Evidence Act on grounds of unfairness. Adams J rejected this application, finding that the accused's counsel could not point to any unfairness in the circumstances in which the representations were made beyond the s 138 argument already rejected. No separate basis for unfairness was established, and the s 90 application was accordingly dismissed.

Orders Made

  • The application by the accused David Younes to exclude evidence of questioning conducted pursuant to s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) was refused.

Key Takeaways

  • Section 14(1)(c) of LEPRA confers a clear statutory power on police to require a vehicle owner to identify the driver and passengers of their vehicle where the officer reasonably suspects the vehicle was used in an indictable offence. The Supreme Court found the provision unambiguous, making resort to the Second Reading Speech unnecessary (though its content was consistent with that construction).

  • A statutory obligation to answer police questions under LEPRA s 14 displaces the general requirement to administer a caution before questioning. Because the accused was compelled by law to respond, the absence of a right-to-silence caution did not render the questioning improper.

  • Under s 138 of the Evidence Act, the onus lies on the accused to establish impropriety or illegality on the balance of probabilities before any onus shifts to the Crown to justify admission. Here the accused could not discharge that initial burden.

  • Exclusion under s 90 of the Evidence Act requires something beyond the same conduct relied on for the s 138 argument. The court found no independent basis of unfairness in the circumstances surrounding the making of the representations.

  • The practical stakes were expressly flagged: the Crown's position was that exclusion of this evidence would have been fatal to the prosecution of the accessory charge, illustrating the centrality that evidence obtained under statutory identity-demand powers can have in serious criminal proceedings.

Legislation and Cases Referenced

Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 11, 14(1)(c), 17(1)
- Evidence Act 1995 (NSW), ss 90, 137, 138
- Crimes Act 1900 (NSW), ss 316, 349(1)
- Interpretation Act 1987 (NSW), s 34
- Australian Crime Commission Act 2002 (Cth)

Cases
- Director of Public Prosecutions (NSW) v Horwood (2009) 78 NSWLR 32; [2009] NSWSC 1447
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Abuquta, Haytham [2011] NSWDC 12
- R v Cornwell (2003) 57 NSWLR 82; [2003] NSWSC 97
- R v Coulstock (1998) 99 A Crim R 143
- R v Dalley [2002] NSWCCA 284
- R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1
- Robinson v Woolworths Limited (2005) 64 NSWLR 612; [2005] NSWCCA 426
- X7 v Australian Crime Commission & Another [2013] HCA 29