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Supreme Court 13 December 2018

R v Latu (No 2)

[2018] NSWSC 1913

Homicide
EVIDENCE ADMISSIONS MADE TO POLICE ADMISSIONS NOT RECORDED INVESTIGATING OFFICIAL OFFICIAL QUESTIONING REASONABLE SUSPICION

Citation: R v Latu (No 2) [2018] NSWSC 1913
Court: Supreme Court of New South Wales
Date: 13 December 2018
Judge(s): Lonergan J

Background

The accused stood trial for the murder of a woman at a Liverpool apartment in August 2016. First responding police officers arrived at the scene shortly after 4.37am, initially called to assist ambulance personnel. They found the victim on the floor receiving CPR, with severe facial injuries, and the accused as the only other person present.

During the course of their attendance, the officers conducted a series of conversations with the accused in which he gave varying accounts of his whereabouts before the incident. Those accounts were recorded in the officers' notebooks and later in their formal statements, but were not electronically recorded at the time.

A dispute arose mid-trial over whether portions of those conversations constituted admissions made during "official questioning" and, if so, whether the failure to comply with the recording requirements in s 281 of the Criminal Procedure Act 1986 (NSW) rendered them inadmissible.

Legal Issues

  • Whether the conversations between the accused and the first responding officers constituted "official questioning" under s 281 of the Criminal Procedure Act 1986 (NSW), triggering the recording requirements.
  • At what point, if any, the officers held a reasonable suspicion that the accused had committed a criminal offence.
  • Whether there was a reasonable excuse for not electronically recording the admissions at the time they were made.
  • Whether the failure to put the recorded admissions to the accused during the subsequent ERISP interview at the police station defeated any reasonable excuse defence available to the Crown.

Decision

Issue 1: Initial conversation and the onset of "official questioning"

The court accepted that the first exchange between the accused and the officers did not yet amount to "official questioning" under s 281. The situation was chaotic and confusing, with no clarity as to what had occurred, and the officers were attending to assist ambulance personnel rather than to investigate an assailant (at [19]). However, the later conversations were a different matter.

Issue 2: When reasonable suspicion arose

Constable Allen conceded in cross-examination that he formed a reasonably based suspicion that the accused was responsible for the victim's injuries at the point when the accused's behaviour changed, described in paragraph 6 of his statement (at [34], [41]). The court accepted that the test is objective, not subjective, and declined to distinguish between the two officers on that basis. Constable Micallef-Scheffer's own suspicion crystallised later, when the accused gave a different account about his whereabouts in Auburn, which conflicted with his earlier statement about being "out with mates in the city" (at [26], [42]).

Issue 3: Reasonable excuse for not recording at the scene

The court accepted that there was a reasonable excuse for the absence of recording equipment when the officers first entered the unit. They had been deployed to assist ambulance personnel, not to conduct a criminal investigation, and the evolving circumstances made it reasonable to remain at the scene rather than search for a device (at [44]).

Issue 4: Failure to put admissions in the ERISP

Despite the reasonable excuse for non-recording at the scene, the court found no reasonable excuse for the failure at the station. Micallef-Scheffer had taken steps to provide photocopies of the notebook entries to the interviewing officers before finishing his shift. However, Detective Senior Sergeant Houldin did not see those copies until after the ERISP was complete, and no supplementary recorded interview was conducted. Houldin himself confirmed he would "absolutely" have raised the notebook contents in the interview had he known of them (at [35]). No explanation was offered for why a further short ERISP could not have been conducted once the copies were found (at [45]). The admissions therefore failed to satisfy s 281(2)(a)(ii) or (b), and were excluded (at [48]-[49]).

Orders Made

  • The admissions contained in paragraphs 7 and 14 of Constable Allen's statement and paragraphs 20, 27 and 28 of Constable Micallef-Scheffer's statement do not comply with s 281 of the Criminal Procedure Act 1986 (NSW) and cannot be adduced as evidence.

Key Takeaways

  • Under s 281 of the Criminal Procedure Act 1986 (NSW), the objective test for whether a person "could reasonably have been suspected" of an offence is not assessed individually officer by officer. Where one officer has formed a reasonably based suspicion, that will affect the admissibility of subsequent questioning by others present, regardless of those others' subjective state of mind (at [42]-[43]).

  • A reasonable excuse for failing to electronically record admissions at the scene does not, by itself, satisfy s 281 if a later opportunity to put those admissions to the accused in a recorded interview was available and not taken (at [45]-[46]).

  • The court emphasised that it was not critical of the first responding officers' conduct. Their practice of recording the conversations in notebooks and providing copies to the ERISP investigators was described as sensible. The failure lay with the senior interviewing officers' failure to use that material in the recorded interview (at [48]).

  • Section 281 was identified as serving multiple policy objectives: deterring unfair police practices during suspect interviews, discouraging false allegations of police misconduct, and providing courts with reliable accounts of statements made by accused persons (at [47]).

  • Where notebook entries containing admissions are provided to interviewing officers before a formal ERISP, those admissions must be put to the accused in that interview if they are to be relied upon at trial. Failure to do so, without reasonable excuse, will result in exclusion (at [45]-[46], [49]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 424A
- Criminal Procedure Act 1986 (NSW) s 281

Cases
- Lin v R; Lv v R [2017] NSWCCA 148
- R v Sharp (2003) 143 A Crim R 344; [2003] NSWSC 1117
- R v Taouk [2005] NSWCCA 155