R v Russell [2018] NSWSC 343

Citation: R v Russell [2018] NSWSC 343
Court: Supreme Court of New South Wales
Date: 14 March 2018
Judge(s): Rothman J

Background

The accused was charged with the murder of a man who died from a single stab wound to the back on 8 January 2016. An eyewitness to the stabbing was available, and the accused was said to have been extremely intoxicated at the time. The central issue at trial was not whether the accused inflicted the wound, but whether his state of inebriation prevented him from forming the intent required for a conviction of murder.

The day before the jury trial was to commence, Rothman J conducted a voir dire (a pre-trial hearing on admissibility) to rule on several categories of evidence the Crown sought to adduce. The accused is an Aboriginal man, which engaged specific procedural requirements for vulnerable persons under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and its regulations.

The contested evidence included verbal admissions made at various points after arrest, results and recordings from a forensic swab procedure, a recorded interview conducted in a holding room, and statements from two witnesses about things the accused had allegedly said months before the incident.

Legal Issues

Whether the results of a forensic swab taken without proper authority under the Crimes (Forensic Procedures) Act 2000 were admissible, given the accused was likely an "incapable person" at the time.
Whether admissions made at the arrest scene were admissible under s 137 of the Evidence Act 1995.
Whether admissions made in the corridor at Wollongong Police Station, before and after the forensic procedure, were admissible, where Part 9 LEPRA procedures for a vulnerable person had not been followed.
Whether the statement made by the accused during the forensic swab itself was admissible.
Whether a recorded informal interview conducted before the accused's LEPRA rights were administered was admissible.
Whether prior statements by two Crown witnesses, Tanya Dunn and William Cooley, about the accused's alleged pre-offence threats were admissible.

Decision

Issue 1: The forensic swab results

The court found that the accused was more likely than not an "incapable person" within the meaning of the Forensic Procedures Act, because he was too intoxicated to understand the nature and effect of the procedure or to meaningfully consent (at [44]-[45]). This meant a Senior Police Officer had no authority to order the procedure, and an order from a Magistrate or authorised officer was required instead (at [45]-[47]). The breach of the Act engaged s 82, which presumptively excludes improperly obtained forensic evidence.

Applying the balancing test in s 82(4), the court admitted the swab results. The procedural failure was not deliberate or reckless, the evidence was urgently required to avoid contamination, and its admission confirmed the presence of the deceased's blood on the accused's hands without causing unfair prejudice (at [49]-[51]).

Issue 2: Admissions made at the arrest scene

The court admitted statements the accused made to police at the scene of the arrest. Those statements were unsolicited, made before any investigation had commenced, and were not obtained in contravention of any law or improperly. The court found no basis under s 137 of the Evidence Act to exclude them as unfairly prejudicial (at [60]-[61]).

Issue 3: Corridor admissions at the police station

The court distinguished between statements made on the way to the interview room and those made on the return journey. Statements made while being escorted to the interview room were admitted for similar reasons to the arrest-scene admissions (at [62]).

Statements made after the swab procedure on the return journey were excluded. By that point, the investigative process had commenced and the Part 9 LEPRA protections for the accused as a vulnerable person had not been followed. The court found that had those procedures been observed, it was unlikely the accused would have made any comment, as the Aboriginal Legal Service's standard advice was to remain silent (at [53], [63]). Admitting those statements would, in the court's view, leave "a gaping hole in the need to comply with the legislative procedures" (at [63]).

Issue 4: The statement made during the forensic swab

The court admitted the spontaneous statement made by the accused while the swab was being taken. The recording of it could not be fabricated, and it resulted from the accused's own belligerence rather than police questioning or any formal investigative process (at [64]).

Issue 5: The informal recorded interview (Ex D)

The court found there had been a deliberate circumvention of Part 9 procedures for the accused as a vulnerable person at the time of this interview. However, this issue was ultimately resolved between the Crown and the defence by consent, making further ruling unnecessary (at [65]-[66]).

Issue 6: Prior statements by Tanya Dunn and William Cooley

The court admitted the evidence of Tanya Dunn, finding that her alleged motive to be untruthful was a matter of reliability for the jury, not a question of admissibility for the judge (at [68]). The court deferred ruling on the evidence of William Cooley, which was said to carry potentially racist content and posed a risk of unfair prejudice. Further context was required before any ruling could be made (at [69]).

Orders Made

The forensic procedure and its results are admissible.
The statements made by the accused at the scene of the arrest are admissible.
The statements made by the accused at the police station before and during the forensic procedure are admissible.
The statements made by the accused at the police station on the return from the interview room are inadmissible.
The ERISP of the accused dated 8 January 2018 is no longer subject to objection and is admitted by consent.
The evidence of Tanya Dunn is admissible; the ruling on the evidence of William Cooley must await further context.
The parties have leave to raise any particular aspect of the foregoing material not dealt with in these more general rulings.

Key Takeaways

Where a detainee is too intoxicated to understand the nature and effect of a forensic procedure, they are an "incapable person" under the Crimes (Forensic Procedures) Act 2000, and a Senior Police Officer's authority to order a non-intimate forensic procedure without consent is displaced. A Magistrate's order is required instead (at [44]-[45]).
Under s 82(4) of the Forensic Procedures Act, a court may still admit improperly obtained forensic evidence if the desirability of admitting it outweighs the undesirability of the procedural breach. The absence of deliberate or reckless non-compliance, combined with the urgency of preserving perishable evidence, weighed in favour of admission in this case (at [49]-[51]).
A custody manager who defers Part 9 LEPRA procedures until a detainee is sober enough to understand them acts appropriately. Merely conveying information to a person incapable of processing and acting on it does not satisfy the Part 9 requirements (at [39]-[40]).
Unsolicited admissions made before an investigation commences occupy a different position from admissions made once an investigation is underway. The Supreme Court drew a clear line: once investigative processes have begun and LEPRA vulnerable-person procedures have not been followed, the balance under s 138 of the Evidence Act shifts against admission (at [60]-[63]).
Potential unreliability of a Crown witness, including a possible motive to be untruthful, ordinarily goes to the weight the jury assigns to that evidence, not to its admissibility (at [68]).

Legislation and Cases Referenced

Legislation
- Crimes (Forensic Procedures) Act 2000 ss 3, 17, 18, 20, 24, 26, 32, 38, 82
- Evidence Act 1995, ss 84, 85, 86, 137, 138
- Law Enforcement (Powers and Responsibilities) Act 2002, pt 9

Cases
- Driscoll v the Queen (1977) 137 CLR 517; [1977] HCA 43