Citation: R v Fazlilar (No 1) [2018] NSWSC 642
Court: Supreme Court of New South Wales
Date: 1 June 2018
Judge(s): N Adams J
Background
The accused stood trial on two counts: possession of an unregistered pistol on 13 November 2015 and the murder of a man whose body was found at a Sydney hotel the following day. Police investigating the death traced a rental vehicle to the accused's girlfriend and, on 16 November 2015, located the vehicle in Redfern. Officers stopped the accused, searched and handcuffed him, and a detective conducted a brief roadside interview using a hand-held recording device. The accused was subsequently released, then arrested about two weeks later.
During the trial, the accused applied on the fourth day of proceedings to have the roadside interview excluded. The application proceeded by way of a voir dire (a hearing conducted in the absence of the jury to determine admissibility), with the audio recording and transcript as the only evidence.
The Crown sought to rely on parts of the interview, particularly answers about the accused's knowledge of the vehicle's whereabouts on the Saturday morning, treating those answers as lies relevant to his credibility.
Legal Issues
- Whether the police officer's conduct during the roadside interview amounted to an impropriety that rendered the evidence liable to exclusion under s 138 of the Evidence Act 1995 (NSW).
- Specifically, whether a comment by the officer describing one of his questions as "straightforward" undermined the earlier caution given to the accused, effectively nullifying it.
- Whether, if there was impropriety, the desirability of admitting the evidence outweighed the undesirability of doing so.
Decision
Issue 1: Was the caution undermined by the officer's comment?
Adams J accepted that it was not appropriate for the officer to describe question 12 as "straightforward" in the circumstances, given the accused had already indicated he did not wish to answer questions (at [21]). However, the court found this comment did not undermine the caution so as to create a relevant impropriety. The accused's subsequent conduct within the interview itself made clear he understood he was not obliged to answer: he expressly acknowledged this at answer 17, and then declined to answer questions 18 through 22 (at [21]).
Issue 2: Was there evidence of actual confusion?
No evidence was placed before the court on the voir dire to show the accused was in fact confused about the scope of the caution or his right to remain silent (at [20]). The court assessed the accused's understanding from the recorded answers themselves. Those answers demonstrated a clear and continuing understanding of his right not to respond (at [21]).
Issue 3: Selective exclusion of portions of the interview
The court indicated it was inclined to exclude only questions and answers 14 to 18 from the interview. The accused's counsel, however, indicated that if the application for total exclusion failed, those portions should remain in. The court acceded to that position (at [22]).
Issue 4: The LEPRA question
Adams J drew attention to s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which empowers police to require a person to state who was driving a vehicle at a relevant time. Because both the Crown and the accused agreed that s 14 had no bearing on the fairness of the interview, the court resolved the application purely on the question of impropriety regarding the caution, without relying on LEPRA (at [23]).
Orders Made
- The accused's application to have his interview with police on 16 November 2015 excluded is refused.
Key Takeaways
- A police officer's isolated, inappropriate comment during a roadside interview does not automatically undermine a caution where the accused's own conduct within the interview demonstrates a clear and ongoing understanding of the right to silence (at [21]).
- No impropriety was established under s 138 of the Evidence Act 1995 (NSW) in the absence of any evidence that the accused was actually confused about the scope of the caution given (at [20]).
- Where an accused declines to answer a series of questions after a disputed comment, that conduct can itself dispel any inference that the caution had been rendered ineffective (at [21]).
- Under s 14 of LEPRA, police have the power to require a person to identify who was driving a vehicle at a particular time, even where a caution has been administered. Refusal to answer a lawfully directed question under that provision can attract criminal liability under s 15(1)-(2) of LEPRA (at [23]).
- In dismissing the application, the Supreme Court assessed the accused's understanding of his rights from the recorded interview itself, noting there was no other evidence on the voir dire that could establish confusion (at [20]-[21]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 138, 139
- Firearms Act 1996 (NSW), s 7
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 14, 15
Cases
- R v Barakat; R v Younes (No 2) [2016] NSWSC 1255