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Supreme Court 6 July 2018

R v AKB (No. 1)

[2018] NSWSC 1040

Homicide
CRIMINAL LAW EVIDENCE ADMISSIONS CRIMINAL PROCEDURE ACT 1986 (NSW) S 281 UNRECORDED STATEMENTS MADE TO POLICE ADMISSIONS

Citation: R v AKB (No. 1) [2018] NSWSC 1040
Court: Supreme Court of New South Wales
Date: 6 July 2018
Judge(s): Davies J

Background

The accused stood charged with murdering his wife on 18 October 2016. The Crown alleged he deliberately set fire to the family home, with the fire originating in his wife's bedroom, and then physically prevented her from escaping by pushing her back into the burning room and shutting the door.

Following a triple-0 call, Senior Constable Totakil arrived at the scene and spoke with the accused both at the property and later near the premises. Those conversations, recorded in the officer's statement, contained accounts the accused gave of attempting to rescue his wife from the fire. The accused had not yet been formally arrested at the time of these conversations.

The Crown sought leave to adduce evidence of two specific conversations from the officer's statement: paragraph 11, in which the accused described his attempts to help his wife and said he could not get back inside, and paragraph 17, a similar account given to Inspector Kirby. The defence objected to both on the basis that s 281 of the Criminal Procedure Act 1986 (NSW) barred their admission.

  • Whether the accused was, or could reasonably have been, suspected of committing an offence at the time the statements were made, so as to engage s 281 of the Criminal Procedure Act 1986 (NSW)
  • Whether the conversations in paragraphs 11 and 17 constituted admissions made "in the course of official questioning" within the meaning of s 281
  • Whether the Crown had established a reasonable excuse for the failure to make a tape recording of the unrecorded interview, so as to satisfy the exception in s 281(2)(b)
  • Whether the subsequent electronically recorded interviews (ERISPs) with the accused satisfied the alternative recording requirement under s 281(2)(a)(ii)

Decision

Davies J found that s 281 was engaged in respect of both conversations. By the time of the conversations at the scene, the accused could reasonably have been suspected of committing an offence. The officer had cautioned the accused before questioning him, and the nature of the circumstances, including the fire originating in the wife's bedroom and the accused's calm demeanour, provided a sufficient basis for reasonable suspicion. The conversations were made during official questioning, and the statements were admissions relating to a serious indictable offence.

On the question of whether a reasonable excuse existed for the absence of a tape recording at the scene, the court accepted there was prima facie evidence of a reasonable excuse given the emergency circumstances at the burning premises. However, s 281(2)(b) requires not only that there be a reasonable excuse for failing to tape-record the original interview, but also that there be a tape recording of a subsequent interview in which the accused states he made the admission in those terms. The Crown's ERISPs did not contain any questions about what the accused had said in the unrecorded conversation at the scene, and no attempt was made during those later interviews to have the accused adopt the officer's written account of his admissions.

Because the Crown failed to establish the second limb of s 281(2)(b), the exception was not made out. The court distinguished between the two conversations: the conversation in paragraph 11 of the officer's statement did not attract the same s 281 difficulties, and evidence of it remained admissible. The conversation in paragraph 17, however, was excluded because s 281's requirements had not been satisfied in respect of it.

Orders Made

• Evidence may be given of the conversation in paragraph 11 of Senior Constable Totakil's statement but not the conversation in paragraph 17.

Key Takeaways

  • Section 281 of the Criminal Procedure Act 1986 (NSW) applies where an accused was, or could reasonably have been, suspected of an offence at the time of questioning, even before a formal arrest has been made.
  • Under s 281(2)(b), establishing a "reasonable excuse" for failing to tape-record an interview is necessary but not sufficient. The Crown must also demonstrate that a subsequent recorded interview addressed the making and terms of the earlier unrecorded admission.
  • Where electronically recorded interviews do not contain questions about what was said in an earlier unrecorded conversation, the s 281(2)(b) exception is not established, and the unrecorded admissions are inadmissible.
  • Davies J confirmed the interpretation in Horton v R (1998) 45 NSWLR 426 that the reasonableness inquiry extends to both the original unrecorded interview and the subsequent recorded interview; both limbs must be satisfied.
  • Not all conversations at a crime scene will be treated equally. The court found the conversation in paragraph 11 admissible while excluding paragraph 17, reflecting that the s 281 analysis turns on the specific circumstances of each exchange.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW) s 281
- Evidence Act 1995 (NSW)
- Crimes Act 1900 (NSW) s 424A (repealed)

Cases:
- Horton v R (1998) 45 NSWLR 426
- Queensland Bacon Pty Limited v Rees (1966) 115 CLR 266
- R v Crowther-Wilkinson NSWSC 70096/01, unreported, 8 May 2002
- R v Schiavini (1999) 108 A Crim R 161
- Regina v Taouk [2005] NSWCCA 155; (2005) 154 A Crim R 69