Citation: R v DLW (No. 3) [2020] NSWDC 283
Court: District Court of New South Wales
Date: 1 June 2020
Judge(s): Abadee DJC
Background
The accused faced serious charges involving sexual assaults on a child under the age of 10, with the alleged conduct occurring in 2009 or 2010 on the Central Coast of New South Wales. Following a police investigation commenced in 2016, officers obtained an arrest warrant from the Wyong Local Court in May 2017. Queensland police arrested the accused at Mount Morgan and lodged him at the Rockhampton watch house.
Two NSW detectives travelled to Rockhampton on 6 June 2017 to extradite the accused. During their interaction with him at the watch house, the accused allegedly said that he "was not in Budgewoi in 2009" and "did not know" the complainant. The officers did not administer a caution, did not record the conversation contemporaneously in their notebooks, and did not later give the accused the opportunity to confirm or deny those statements during a formal electronically recorded interview.
The Crown applied for a ruling that these alleged admissions were admissible as evidence at trial. The accused opposed admission, raising several grounds directed at how the statements were obtained and whether statutory requirements for cautions had been triggered.
Legal Issues
- Whether the alleged admissions were made "in the course of official questioning" under s 281 of the Criminal Procedure Act 1986 (NSW), such that the absence of an electronically recorded interview was a breach of that provision
- Whether the accused was under arrest "for an offence" at the time the statements were made, so as to engage the caution requirements under s 139 of the Evidence Act 1995 (NSW)
- Whether the admissions were improperly obtained, and if so, whether the desirability of admitting the evidence outweighed the undesirability of doing so under s 138 of the Evidence Act 1995 (NSW)
- Whether the court retained a residual discretion under s 90 of the Evidence Act 1995 (NSW) to exclude the admissions on grounds of unfairness
Decision
Section 281 and official questioning: The court found that the conversation at the Rockhampton watch house did not constitute "official questioning" within the meaning of s 281 of the Criminal Procedure Act 1986 (NSW). The officers were not at the watch house to interview the accused about the substance of the allegations; they were there to inform him of the extradition application and seek his consent. The statements attributed to the accused were volunteered, not elicited by questioning directed at the offences.
Section 139 and the caution requirement: The court considered whether the accused was under arrest "for an offence" at the relevant time. It found that the accused was detained on the arrest warrant and that this was sufficient to engage, at least in principle, the caution obligation under s 139. On this basis, the court was prepared to accept that the failure to administer a caution may have resulted in the admissions being improperly obtained.
Section 138 balancing exercise: Despite finding a degree of impropriety in the failure to caution and record the conversation, the court concluded that the Crown had discharged its onus of establishing that the desirability of admitting the evidence outweighed the undesirability. The impropriety was not deliberate or reckless. There was no trickery, deception, or deliberate circumvention of any statutory protection. The core complaint was limited to the failure to make a contemporaneous record and afford the accused an opportunity to adopt the statements.
Probative value and s 90: The court found the statements probative, noting their potential relevance to consciousness of guilt and credibility, particularly in a case turning substantially on the evidence of the complainant. The court declined to exercise the s 90 discretion to exclude the admissions on unfairness grounds, and found that the balancing exercise under s 138 was resolved in favour of admission. The alleged statements were ruled admissible.
Orders Made
• The alleged statements are admissible
• Evidence on the voir dire is to be evidence in the proceeding, subject to a possible qualification regarding the ERISP interview of 7 June 2017
Key Takeaways
- The District Court confirmed that not every conversation between police and an arrested person at a watch house amounts to "official questioning" under s 281 of the Criminal Procedure Act 1986 (NSW); the purpose and character of the exchange are determinative.
- Where police attend to facilitate extradition rather than to investigate the substance of alleged offences, statements spontaneously made by an accused during that process may fall outside the formal interview regime, even if the accused is in custody.
- Under s 138 of the Evidence Act 1995 (NSW), the absence of deliberate or reckless impropriety is a significant factor weighing in favour of admission, even where some procedural failure is established.
- A failure to make a contemporaneous record of an accused's statements and to offer the accused the opportunity to adopt them during a subsequent formal interview was found to constitute relatively low-level impropriety that did not warrant exclusion in this case.
- The probative value of alleged admissions going to consciousness of guilt or credibility can weigh significantly in the s 138 balancing exercise, particularly in cases that turn on the testimony of a single witness.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), ss 90, 137, 138, 139, 165
Cases:
- Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550
- Kadir v The Queen; Grech v The Queen [2020] HCA 1
- Kelly v The Queen (2004) 218 CLR 216
- Nicholls v The Queen (2005) 219 CLR 196
- R v Dalley (2002) 132 A Crim R 169
- R v Em [2003] NSWCCA 374
- R v Esposito (1998) 45 NSWLR 442
- R v Horton (1998) 45 NSWLR 426
- R v Naa (2009) 76 NSWLR 271
- R v Qaumi & Ors (No. 48) [2016] NSWSC 1008