Citation: R v QL [2017] NSWSC 1253
Court: Supreme Court of New South Wales
Date: 18 September 2017
Judge(s): Hoeben CJ at CL
Background
The accused faced trial for murder following the death of the deceased at residential premises. Before trial commenced, a voir dire was held to determine whether statements made by the accused to police at the scene were admissible. The disputed statements were made when the accused was first spoken to by a senior officer upon his arrival at the premises.
The officer had observed the accused cradling the deceased's head in her lap when he entered the granny flat. He asked "What's happened?" and the accused made remarks that included the words "I stabbed him. We argued and I was mad." No caution had been administered to the accused before those words were spoken.
The accused objected to the admission of those statements on the basis that they were capable of constituting admissions and had been obtained improperly, given the absence of the required caution under the Evidence Act 1995 (NSW).
Legal Issues
- Whether the accused was "under arrest" within the expanded meaning of section 139(5) of the Evidence Act 1995 (NSW) at the time the statements were made, such that a caution was required
- Whether, if the statements were improperly obtained under section 139, the court should nonetheless admit them in the exercise of its discretion under section 138 of the Act
- Whether the probative value of the statements, balanced against the nature and gravity of the impropriety, justified admission
Decision
Issue 1: Whether section 139 applied (the caution requirement)
The court first considered whether the officer had formed a belief or suspicion on reasonable grounds that the accused had committed an offence before questioning her. Hoeben CJ at CL accepted the officer's evidence that, at the time he asked "What happened?", he regarded the accused's involvement as only one of a number of competing possibilities. The sight of the accused caring for the deceased was inconsistent with what the officer would ordinarily expect of a perpetrator, and the accused's first answer "we had an argument" did not crystallise any suspicion (at [22]-[24]).
However, the court found that section 139(5)(b) was satisfied. The officer accepted in cross-examination that he would have prevented the accused from leaving the premises had she attempted to do so. That concession was sufficient to bring the provisions of section 139(1) into play, making the uncautioned statements improperly obtained (at [25]).
Issue 2: The section 138 balancing exercise
Having found impropriety, the court applied the balancing test in section 138: whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way it was. The court found the probative value of the statements to be high. Taken at their highest, in accordance with the approach in IMM v The Queen [2016] HCA 14, the statements constituted an admission that the accused stabbed the deceased while angry during an argument. Given that only the accused and the deceased were present, and the deceased could not give evidence, this admission was of considerable importance to the Crown case on intent (at [30]).
The court rejected the accused's submission that the admission added little given similar concessions in the accused's electronically recorded interview. The accused did not accept in that interview that she had used the words attributed to her by the officer, nor that she had been "mad" in a causal sense (at [31]).
Issue 3: Nature and gravity of the impropriety
The court characterised the breach as towards the bottom of the spectrum of seriousness. The officer had sparse knowledge at the time of questioning and no clear view that the accused was a perpetrator. There was nothing deliberate or reckless in the failure to caution. The technical nature of the impropriety, weighed against the high probative value and the seriousness of the murder charge (particularly the direct relevance of the statements to the intent element), led the court to conclude that the desirability of admission outweighed the undesirability (at [34]-[37]).
Orders Made
- Leave granted to the Crown to rely upon the disputed representations "I stabbed him. We argued and I was mad."
Key Takeaways
- The expanded definition of "under arrest" in section 139(5)(b) of the Evidence Act 1995 (NSW) is satisfied where an investigating official would have prevented the accused from leaving, even if the official had not yet formed a belief or suspicion sufficient to ground an arrest under section 139(5)(a) (at [25]).
- A finding of impropriety under section 139 does not automatically lead to exclusion. The section 138 balancing exercise requires the court to weigh the probative value of the evidence, the seriousness of the offence, and the nature and gravity of the impropriety against the undesirability of admitting improperly obtained evidence (at [27]-[37]).
- Where the officer's failure to caution was neither deliberate nor reckless, and arose from rapidly unfolding circumstances with sparse knowledge of the accused's involvement, the court treated the breach as sitting at the lower end of the seriousness spectrum (at [34]-[36]).
- Probative value is assessed by taking the evidence at its highest, following IMM v The Queen [2016] HCA 14. Statements admissible in principle from other sources (such as an electronically recorded interview) do not necessarily reduce the probative value of the impugned evidence if the two accounts differ in material respects (at [30]-[31]).
- Evidence that goes directly to the intent element of a murder charge carries substantial weight in the section 138 balancing exercise, particularly where only the accused survived the incident and no alternative account of the circumstances is available (at [32]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) – ss 138, 139
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – s 99
Cases
- IMM v The Queen [2016] HCA 14; 257 CLR 300
- Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494