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Supreme Court 6 February 2018

R v Cliff (No 2)

[2018] NSWSC 226

Homicide
CRIMINAL LAW “OFFICIAL QUESTIONING” CONSCIOUSNESS OF GUILT UNUSUAL CIRCUMSTANCES

Citation: R v Cliff (No 2) [2018] NSWSC 226
Court: Supreme Court of New South Wales
Date: 6 February 2018
Judge(s): Campbell J

Background

The accused stood trial for the murder of a 16-year-old boy, James Cleghorn, who died from multiple stab wounds. The accused had pleaded not guilty to murder but guilty to manslaughter, and there was no dispute that his voluntary act caused the death or that the act involved the infliction of multiple stab wounds. The central issue at trial concerned the circumstances and intent surrounding the killing.

Following his arrest, the accused was taken by Senior Constable Kenneth Astrup to Wagga Wagga Rural Referral Hospital to have injuries assessed. While there, a heated exchange occurred between the accused and the officer. During that exchange, the accused learned for the first time that the victim had died. He reacted with distress and then made a series of threats to kill another man, a Mr Garland, and his dog.

The prosecution sought to lead evidence of that hospital conversation, particularly the accused's threats, as an implied admission reflecting consciousness of guilt. The defence objected to the admission of that evidence on several grounds, prompting a pre-trial ruling from Campbell J.

  • Whether the hospital conversation between Senior Constable Astrup and the accused constituted "official questioning" under s 281 of the Criminal Procedure Act 1986 (NSW), triggering the requirement for electronic recording
  • Whether the absence of any recording or subsequent written acknowledgement of the conversation affected admissibility
  • Whether the evidence should be excluded under s 137 of the Evidence Act 1995 (Cth) on the basis that its unfair prejudicial effect outweighed its probative value
  • Whether the court's residual discretion under s 90 of the Evidence Act supported exclusion in the circumstances

Decision

Campbell J framed the central question as whether the hospital exchange amounted to "official questioning," defined in s 281(4) of the Criminal Procedure Act as questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. His Honour accepted that not every interaction between a police officer and a suspect in the course of an investigation qualifies. The conversation here arose organically from a dispute about waiting times, not from any structured attempt to elicit information about the offence. Relying on the reasoning in R v Sharp [2003] NSWSC 1117, Campbell J applied an objective test: would a reasonable officer in those circumstances have foreseen that a statement might elicit a response from the suspect? His Honour found the circumstances were unusual enough that the exchange did not clearly fall within the statutory definition, though he treated the question as a close one.

Campbell J then turned to the broader discretionary and mandatory exclusion considerations. Even accepting that the conversation fell outside "official questioning," the evidence carried significant problems. The accused's threats to kill Mr Garland and his dog were made in the immediate emotional aftermath of learning of the victim's death, in circumstances that Campbell J described as highly charged and unusual.

The threats, in context, were more naturally attributable to anger directed at a person the accused apparently believed had provoked the fatal incident, rather than to an acknowledgment of guilt for murder. Nonetheless, Campbell J found that the evidence carried a real risk of impermissible reasoning: a jury might emotively conclude that a person capable of threatening to kill someone and their dog on the same night as the killing was the type of person who would commit murder. Neither counsel was able to propose a jury direction that would adequately dispel that risk, and Campbell J, having reflected independently, reached the same conclusion.

Finally, the judge noted that the prosecution already had the benefit of the accused's recorded interview with the officer in charge, Detective Senior Constable McFarland, which covered substantially the same ground. The Astrup evidence was therefore cumulative and carried little independent probative weight. Campbell J ruled that admitting it would be unfair to the accused, and that, in any event, its unfair prejudicial effect outweighed its probative value under s 137 of the Evidence Act. The evidence was excluded.

Orders Made

The court ruled that the passage contained in paragraph 4 of Exhibit VD B (the statement of Senior Constable Astrup dated 20 July 2016) would not be permitted to be led before the jury.

Key Takeaways

  • The Supreme Court applied an objective test to determine whether a police-suspect interaction constitutes "official questioning" under s 281 of the Criminal Procedure Act 1986 (NSW): the question is whether a reasonable officer ought to have foreseen that a response might be elicited, not whether the officer subjectively intended to question the suspect.

  • Not every conversation between a police officer and a suspect during a criminal investigation qualifies as "official questioning," even where the officer is on duty and the suspect is in custody. The surrounding circumstances, including how the exchange arose, are relevant to the classification.

  • Under s 137 of the Evidence Act 1995 (Cth), a court must exclude prosecution evidence where its unfair prejudicial effect outweighs its probative value. Here, the risk that a jury would reason impermissibly from threatening language to propensity for violence was sufficient to meet that threshold.

  • Where a proposed jury direction cannot adequately address the risk of impermissible reasoning, that practical impossibility supports exclusion rather than admission with a direction.

  • Cumulative evidence that adds little independent weight to evidence already available through other admissible means is a relevant factor in the exercise of the court's discretion to exclude under s 90 of the Evidence Act.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 281 (including the definition of "official questioning" in s 281(4))
- Evidence Act 1995 (Cth), ss 90, 137, 138, 139, 192

Cases
- Donohoe v R [2017] NSWCCA 174
- R v Sharp [2003] NSWSC 1117; 143 A Crim R 344