R v Dean

Citation: [2019] NSWDC 711
Court: District Court of New South Wales
Date: 19 November 2019
Judge(s): Abadee DCJ

Background

The accused faced two counts on an indictment: possession of a firearm with intent to murder, and the alternative of possessing a firearm with intent to intimidate. He pleaded not guilty to the first count and guilty to the second, leaving the central trial issue as whether his specific intention was to murder or merely to intimidate his former wife.

The alleged offending occurred on 12 July 2015. Police intercepted the accused driving a vehicle in which a rifle was found. He was arrested and recorded a blood alcohol reading of 0.257. He was later interviewed by detectives in an Electronically Recorded Interview of a Suspected Person (ERISP) conducted in the early hours of 13 July 2015, and again on 18 January 2016.

Before trial, the accused brought a notice of motion seeking to exclude several categories of Crown evidence, including parts of both ERISP interviews, evidence of an Apprehended Violence Order (AVO) made against him, and statements he made to a police officer at the scene of his arrest.

Legal Issues

• Whether the accused's intoxication at the time of the ERISPs rendered that evidence inadmissible or unreliable
• Whether the Crown could rely on false statements in the ERISPs as evidence of consciousness of guilt, consistent with the principles in Edwards v R
• Whether evidence of the AVO against the accused was admissible and relevant to his state of mind
• Whether statements made to Constable Wong at the arrest scene were admissible under sections 85, 86, 90, 137, and 138 of the Evidence Act 1995 (NSW)

Decision

Issue 1: Intoxication and the ERISP interviews

Abadee DCJ found that the accused presented in a generally alert fashion during the ERISP conducted at 2:38am. He was able to recall specific details, including his mobile number and the circumstances of key events (at [16]). The court was satisfied that the accused's intoxication did not materially impair his ability to comprehend questions or answer them reliably, and rejected that ground of objection to the ERISP evidence (at [17]-[18]).

Issue 2: Consciousness of guilt and the Edwards direction

The accused argued that the impugned statements in the ERISPs served no legitimate forensic purpose because he had already admitted, through an agreed statement of facts, that those statements were erroneous. The court rejected that submission. It found the Crown was entitled to establish that the accused made the false statements deliberately, in a manner materially relevant to his state of mind regarding possession of the firearm (at [30]). Whether the statements were deliberate lies told to conceal guilt was a matter for the jury, and the accused would be protected by an Edwards direction and, if he gave evidence, a Zoneff direction (at [31]). The objections to the ERISP evidence on this basis were dismissed (at [30]-[31]).

Issue 3: The Apprehended Violence Order

The court admitted evidence of the AVO made against the accused on 1 April 2015, approximately three months before the alleged offending. The court found the AVO was relevant to the accused's state of mind toward his former wife, who was the protected person (at [39]). The court noted the jury would readily understand that an AVO may be made without a contest and does not, by itself, establish a tendency to violence (at [41]). The parties were invited to supplement the agreed facts in a manner consistent with how the AVO was obtained (at [42]).

Issue 4: Statements to Constable Wong

This was the most contested aspect of the application. Constable Wong attended the arrest scene at approximately 9pm, after the accused had already been handcuffed. Without administering a caution, he put a series of loaded questions to the accused, based on information received from the former wife. The accused made statements in reply that were recorded in Constable Wong's police notebook but were not acknowledged in writing by the accused.

On section 86(2), the court found the written record was inadmissible due to the absence of any written acknowledgement by the accused (at [61]).

On section 85, the court accepted the accused had demonstrated the admissions were made in connection with an investigation into a possible offence, triggering the provision. However, it found the Crown had discharged the burden under section 85(2), noting that while intoxication and some unfairness were present, the circumstances were not sufficient to exclude the evidence on that basis (at [60]).

On section 138, the court found the admissions were improperly obtained. Constable Wong had questioned the accused without caution while he was in a vulnerable intoxicated state, in circumstances where police were aware the accused should not be formally questioned until sober (at [76]). Despite this finding, the court balanced the considerations in section 138(3) and concluded that the desirability of admitting the evidence outweighed the undesirability of how it was obtained. The statements were found to be highly probative of the accused's contemporaneous state of mind, no equally cogent untainted evidence of intent was available, and the impropriety, while grave, was assessed as inadvertent rather than deliberate (at [79]-[87]). The evidence was admitted.

On section 137, the court found that the probative value of the accused's verbal statements regarding his intent was not outweighed by the danger of unfair prejudice (at [72]).

Orders Made

• The trial of the accused is to proceed on the whole of the indictment as presented, notwithstanding the guilty plea to the alternative charge.
• The notice of motion is otherwise dismissed.

Key Takeaways

• The District Court confirmed that intoxication at the time of an ERISP does not automatically render the interview evidence unreliable or inadmissible; the court must assess the accused's actual capacity during the interview by reference to the full video and transcript (at [16]-[17]).

• Where an accused has admitted through agreed facts that statements in a police interview were erroneous, the Crown may still rely on those statements as evidence of consciousness of guilt, provided an Edwards direction is given and the three conditions (deliberateness, falsity, and relevance to guilt) remain issues for the jury (at [30]-[31]).

• A finding that evidence was improperly obtained under section 138 of the Evidence Act does not automatically result in exclusion; the court must weigh the probative value of the evidence against the seriousness of the impropriety and other statutory considerations, and admission remains available where that balance favours it (at [79]-[88]).

• Under section 86(2), a written record of admissions made to police is inadmissible where the accused has not provided written acknowledgement that it is a true record of what they said (at [61]).

• Evidence of an AVO against an accused involving the same alleged victim can be relevant to the accused's state of mind without constituting tendency evidence, particularly where the jury is directed that an AVO does not, in isolation, establish any violent propensity (at [39]-[41]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 33B(1)(a)
- Evidence Act 1995 (NSW)

Cases
- Edwards v R (1993) 178 CLR 193
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Dalley (2002) 132 A Crim R 169
- R v Esposito (1998) 105 A Crim R 27
- R v GK (2001) 53 NSWLR 317
- R v Howard (2005) 156 A Crim R 343
- R v Moffatt (2000) 112 A Crim R 201
- R v Naa (2009) 76 NSWLR 271
- R v Ostojic (1978) 18 SASR 188
- R v Parker (1990) 19 NSWLR 177
- R v Plevac (1995) 84 A Crim R 570
- R v Shamouil [2006] NSWCCA 112
- R v Swaffield (1998) 192 CLR 159
- R v Taylor (NSWCCA, 18 April 1995)
- Zoneff v The Queen (2000) 200 CLR 234