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Supreme Court 29 October 2019

R v Edwards

[2019] NSWSC 1819

Homicide
EVIDENCE — ADMISSIBILITY TRIAL ON CHARGE OF MURDER OBJECTION ON BASIS OF S 122 LEPRA DOUBT AS TO APPLICABILITY OF S 122 DISCRETION TO ADMIT IN ANY EVENT

Citation: R v Edwards [2019] NSWSC 1819
Court: Supreme Court of New South Wales
Date: 29 October 2019
Judge(s): R A Hulme J

Background

The accused stood charged with the murder of his wife, who was last seen alive in March 2015 in Grafton. Her body was never found. The accused had reported her missing to police and participated in a formal electronically recorded interview in the days following her disappearance.

On 2 April 2015, the accused attended Grafton police station voluntarily, accompanied by his son, saying he wanted to tell police things he had not previously disclosed. A detective recorded the conversation on a handheld device rather than the standard equipment used for formal recorded interviews. At the outset, the detective confirmed the accused had attended voluntarily, was not under arrest, and was not obliged to say anything. The accused acknowledged this and proceeded to speak at length.

During the conversation, the accused made statements the Crown sought to rely upon as part of its circumstantial case, including an account of a physical interaction with his wife on the night she disappeared and a reference to illegal firearms stored in a shed. The accused's counsel objected to the admissibility of the recorded conversation.

  • Whether the detective's failure to administer a formal caution rendered the evidence "improperly obtained" under s 139 of the Evidence Act 1995 (NSW), making it liable for exclusion under s 138.
  • Whether the accused became a "protected suspect" within the meaning of s 110 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) at any point during the conversation, triggering the obligation under s 122 of LEPRA for a custody manager to caution him.
  • Whether, even if there was an impropriety, the court should exercise its discretion under s 138 of the Evidence Act to admit the evidence notwithstanding that impropriety.

Decision

The objection based on s 139 of the Evidence Act was abandoned by the defence during the hearing. Because the accused attended voluntarily, was not under arrest, and the detective did not ask him questions in any meaningful sense, there was no obligation to administer a caution under that provision.

The court then considered whether s 122 of LEPRA applied. That section requires a custody manager to caution a "protected suspect," which is defined in s 110 as a person in the company of a police officer for the purpose of an investigative procedure who has been told they are free to leave and whom the officer believes there is sufficient evidence has committed the offence. Hulme J expressed real doubt about whether the accused met this definition at any point during the conversation, particularly given the voluntary and self-initiated nature of his attendance. The court noted, however, that even assuming s 122 was engaged and there had been an impropriety, that assumption did not determine the outcome.

Turning to the s 138 discretion, the court assessed the relevant factors. The detective's failure to comply with s 122 (if indeed it applied) was found to be, at most, reckless rather than deliberate. The accused had attended of his own volition with his son present, was plainly keen to volunteer information, and the conversation bore all the hallmarks of a person who wanted to be heard. The so-called admission in relation to the physical incident with his wife was also described as somewhat equivocal, and the reference to illegal firearms appeared incidental to the main subject of the conversation. The court placed particular weight on the significance and importance of the evidence in the Crown's circumstantial case, the serious nature of the proceedings, and the circumstances in which the statements were made.

Balancing these considerations, the court exercised its discretion to admit the evidence. The conversation, to the extent relied upon by the Crown, was held to be admissible.

Orders Made

  • The evidence of the conversation between the accused, his son, and Detective King on 2 April 2015, to the extent relied upon by the Crown, was ruled admissible.

Key Takeaways

  • Hulme J expressed genuine doubt about whether s 122 of LEPRA is engaged where a person attends a police station entirely voluntarily to offer unsolicited information, as opposed to being brought in for questioning.
  • Under s 138 of the Evidence Act, even where evidence is assumed to have been improperly obtained, a court retains a discretion to admit it. The seriousness of the proceedings and the significance of the evidence to the Crown case were treated as weighty factors favouring admission.
  • A failure to comply with s 122 of LEPRA (if applicable) does not automatically result in exclusion; it renders the evidence liable for exclusion, with the court then conducting the balancing exercise under s 138(3).
  • The voluntary and self-directed nature of the accused's attendance, including his expressed desire to share information and the presence of a support person, weighed against finding that the evidence should be excluded.
  • Where a breach or contravention appears reckless rather than deliberate, that characterisation is a relevant consideration in the s 138 balancing exercise and tends to favour admission.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 138, 139
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), ss 110, 122

Cases cited: No cases were cited in the judgment.