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Supreme Court 10 July 2018

R v AKB (No. 2)

[2018] NSWSC 1075

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

Citation: R v AKB (No. 2) [2018] NSWSC 1075
Court: Supreme Court of New South Wales
Date: 10 July 2018
Judge: Davies J

Background

The accused was charged with the murder of his wife, who died in a fire. Police had conducted two electronically recorded interviews (ERISPs) with the accused, conducted through a Farsi interpreter.

At the conclusion of the second ERISP, the formal custody manager questions were asked and that officer then left the room. The two detectives who had conducted the interview returned to the interview room with the recording stopped, and informed the accused he would be charged with murder. In doing so, they made an allegation that had not been raised in either recorded interview: that an argument between the accused and his wife before the fire may have caused scratches on the accused.

In response, the accused said there were other people involved who needed to bear responsibility, and that he wanted to provide another interview. He declined the detectives' offer of a further interview at that time, stating he was cold and did not want to talk. The Crown sought to lead evidence of this exchange. The accused objected, relying on s 281 of the Criminal Procedure Act 1986 (NSW).

  • Whether the accused's statements were made "in the course of official questioning" within the meaning of s 281 of the Criminal Procedure Act 1986 (NSW)
  • If so, whether there was a reasonable excuse for the absence of a tape recording of the admission, satisfying the requirements of s 281(2)
  • Whether the evidence of the admissions should be excluded

Decision

The central question was whether the exchange after the ERISP recording stopped constituted "official questioning." The Crown argued the accused's statements were volunteered because no question was formally put to him; the detectives simply informed him of the charge and the basis for it. The defence argued that raising a new allegation (the link between the argument and the scratches) that had not featured in either interview was, in substance, an invitation to respond.

Davies J accepted that Detective Hodges' statement was not subjectively designed to elicit a response, and could not make that finding on the balance of probabilities. However, his Honour concluded that making a new allegation in that context was, viewed objectively, likely to produce a response from the accused. On that basis, the accused's statements were made in the course of official questioning, and s 281 applied.

The inquiry then turned to whether a reasonable excuse existed under s 281(2). The accused's immediate refusal to participate in a further interview provided a reasonable excuse at that time, satisfying the definition under s 281(4)(b). However, the detectives made no subsequent attempt to arrange another interview with the accused. Detective Hodges explained she assumed the accused would seek legal advice and that his lawyers would contact police if he wished to speak again. Davies J found this assumption insufficient. Nothing prevented police from arranging a further interview, and if the accused had then declined to confirm his statements, that would likely have constituted a reasonable excuse. In the absence of any such attempt, no reasonable excuse was established under s 281(2)(a)(ii).

Davies J accordingly ruled the evidence inadmissible and excluded the relevant portions of both Detective Hodges' statement and the interpreter's statement.

Orders Made

  • The portion of Detective Sergeant Hodges' statement (paragraph 33) from the words "The interpreter gave [AKB]'s response" to the end of that paragraph was rejected.
  • The whole of paragraph 8 of the interpreter Anita Hemmati's statement of 6 December 2016 was rejected.

Key Takeaways

  • Under s 281 of the Criminal Procedure Act 1986 (NSW), the phrase "in the course of official questioning" is not limited to formal question-and-answer exchanges. Where police make a new allegation to a suspect after a recorded interview ends, that statement can constitute official questioning if it is objectively likely to produce a response, even if not subjectively designed to do so.
  • The High Court's reasoning in Kelly v The Queen (2004) 218 CLR 216 was applied: the expression "in the course of official questioning" marks out a period running from when questioning commenced to when it ceased, and does not extend to purely voluntary statements made after questioning has definitively ended.
  • A suspect's refusal to participate in a further interview at the time of being charged can constitute a "reasonable excuse" for failing to tape-record an admission under s 281(4)(b). However, that excuse does not permanently relieve investigators of the obligation to attempt a subsequent recorded interview.
  • Where nothing prevented investigators from arranging a later interview to confirm or deny unrecorded admissions, a failure to make any such attempt will not satisfy the reasonable excuse requirement in s 281(2)(a)(ii).
  • Investigators' assumptions that a suspect will be advised by lawyers and will initiate contact if willing to speak again are not a sufficient basis for concluding that a tape recording could not reasonably have been made.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW) s 281
- Criminal Law (Detention and Interrogation) Act 1995 (Tas) s 8
- Evidence Act 1995 (NSW) (hearsay rule and opinion rule)

Cases
- Kelly v The Queen (2004) 218 CLR 216
- Bryant v R [2011] NSWCCA 26
- R v Hunter (No. 6) [2014] NSWSC 1149
- R v Marlow and Kelly (2001) 129 A Crim R 51