Citation: R v Rossi-Murray; R v Byrnes (No 3) [2019] NSWSC 481
Court: Supreme Court of New South Wales
Date: 2 May 2019
Judge(s): Rothman J
Background
The accused, a man of Aboriginal descent, was charged with serious criminal offences. Police conducted an electronically recorded interview of a suspected person (ERISP) with him on 6 July 2016. Because of his Aboriginal descent, the accused was a "protected person" under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), attracting specific procedural rights including the provision of a prescribed information form and a support person.
During the ERISP, the accused repeatedly declined to answer questions. His responses took non-confrontational forms such as "I can't answer that," "I don't know," and "I can't remember that." A support person was present but was unfamiliar with her role and did not intervene in the questioning. The accused's demeanour was described as timid, with crossed arms and visible discomfort throughout the interview.
The prosecution applied to tender the ERISP in evidence. The accused challenged the admissibility of his refusal-style answers on a voir dire (a preliminary hearing conducted by the judge in the absence of the jury to determine admissibility). The court was asked to rule on which parts of the interview, if any, could go before the jury.
Legal Issues
- Whether the prescribed form requirements under s 122 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) had been substantially complied with.
- Whether the questions and answers from the ERISP were relevant and therefore prima facie admissible under ss 55 and 56 of the Evidence Act 1995 (NSW).
- Whether the court should exercise its discretion under s 90 of the Evidence Act 1995 (NSW) to exclude evidence of the accused's refusal-style answers as admissions.
- Whether the evidence should be excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that the danger of unfair prejudice outweighed probative value.
Decision
Issue 1: Compliance with prescribed form requirements
The court held that substantial compliance with the prescribed form is sufficient under the Act, and no issue arose from providing the accused with Form 31 (at [5]-[6]). Rothman J declined to determine definitively whether Form 31 or Form 32 was the correct form, finding that nothing turned on the distinction in the circumstances (at [5]).
Issue 2: Conduct of the interviewing officers
The court made clear that the investigating officers and custody manager acted appropriately throughout the ERISP (at [10]). The detectives were entitled to persist with their questioning to an appropriate level and were not required to accept the first answer given by the accused (at [23]).
Issue 3: Admissibility of refusal-style answers under s 90
The court found that when the accused said "I can't remember" or "I don't know," he was in effect avoiding answering questions in accordance with legal advice (at [30]). Admitting those answers as potential evidence of lies or consciousness of guilt would invite the jury to ignore the accused's right to silence, and would produce very little probative value while creating a real risk of unfair prejudice (at [32]). Rothman J exercised the discretion under s 90 of the Evidence Act to exclude all such answers, giving particular weight to the cultural context facing persons of Aboriginal descent and the accused's observed demeanour during the interview (at [34]).
Issue 4: Positive answers
Where the accused gave substantive, positive answers during the ERISP, those answers are admissible regardless of whether they are true, that being a matter for the Crown to address at trial (at [33]).
Orders Made
- The questions and answers in the ERISP of the accused Rossi-Murray in which the answers are positive are admissible.
- The questions and answers in the ERISP in which the answers consist of words to the effect of "I will not answer that," "I will not answer that on legal advice," "I can't remember that," and "I don't know" are inadmissible.
Key Takeaways
- Under s 90 of the Evidence Act 1995 (NSW), a court may exclude evidence of an admission where, having regard to the circumstances in which it was made, it would be unfair to the accused to use it. This includes refusal-style answers that effectively assert a right to silence on legal advice.
- Admitting non-confrontational refusals to answer, of the kind commonly given by Aboriginal accused persons when questioned by authorities, as potential evidence of lies or consciousness of guilt risks inviting the jury to reason improperly against the exercise of the right to silence (at [32]-[34]).
- The Supreme Court confirmed that the cultural tendency of many Aboriginal persons not to assert contrary views to those in authority is a recognised and relevant consideration when assessing fairness under s 90, and may be corroborated by the accused's observed demeanour during an interview (at [9], [34]).
- Substantial compliance with prescribed form requirements under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) is sufficient, and minor technical questions about which prescribed form was used will not necessarily affect admissibility (at [5]-[6]).
- Positive answers given in an ERISP remain admissible notwithstanding that other parts of the interview are excluded, with the truth or falsity of those answers remaining a jury question (at [33]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 90, 137
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 122
Cases
- Not stated