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Supreme Court 10 November 2020

R v Smith

[2020] NSWSC 1577

Homicide
CRIMINAL PROCEDURE EVIDENCE WHERE CONVERSATION NOT RECORDED WHERE ONUS NOT DISCHARGED

Citation: R v Smith [2020] NSWSC 1577
Court: Supreme Court of New South Wales
Date: 10 November 2020
Judge: Harrison J

Background

The accused stood trial for the murder of a man stabbed on 5 January 2019, who died the following day from his wounds. Several evidentiary disputes arose before the trial could continue, requiring the court to rule on the admissibility of three separate pieces of evidence.

The first concerned an alleged admission made to police at the time of arrest. The second concerned words the accused spoke to his mother at the police station shortly after being taken into custody. The third concerned statements made by the deceased in hospital after the stabbing.

  • Whether an unrecorded oral admission made to police at arrest was admissible under s 281 of the Criminal Procedure Act 1986 (NSW), where the Crown asserted a "reasonable excuse" for the absence of a recording.
  • Whether the accused's words to his mother at the police station should be excluded under s 90 of the Evidence Act 1995 (NSW) as unfair to the accused.
  • Whether statements made by the deceased in hospital were admissible under s 65 of the Evidence Act 1995 (NSW) as representations made in circumstances making fabrication unlikely or reliability highly probable.

Decision

The arrest-time conversation (s 281, Criminal Procedure Act)

Senior Constable Amos gave evidence that, after handcuffing the accused, he had a brief exchange in which the accused repeatedly denied knowing anything about a stabbing. The Crown sought to lead this as an admission. Because the conversation was not recorded, the Crown needed to establish a "reasonable excuse" under s 281(2). The Crown's sole explanation was that body cameras were "not available," meaning the officers simply did not have the equipment with them. The Crown conceded that applicable protocols required officers to wear body cameras while on duty.

Harrison J was not satisfied this constituted a reasonable excuse. There was no evidence explaining why the officers lacked the cameras, beyond an inference that they chose not to wear them. The application to tender this evidence was rejected.

The conversation with the accused's mother (ss 90 and 137, Evidence Act)

Senior Constable Vary overheard the accused tell his mother, in the charge room, that "everything was fine until they got in my face." The Crown sought to rely on these words as an admission. Harrison J found it would be unfair to admit this evidence. The accused had received no legal advice at the time, his mother was not a lawyer, and the exchange was plainly one of maternal concern rather than any kind of formal or recorded questioning. His Honour considered the accused would have had no appreciation that he was making any admission, let alone one that might be given in evidence at trial. The application was rejected under s 90.

The deceased's hospital statements (s 65, Evidence Act)

The Crown sought to lead evidence of statements made by the deceased in hospital, including an assertion that he had "done nothing wrong." To be admissible under s 65(2), the circumstances of the representation must make it unlikely to be a fabrication or highly probable that it is reliable. Harrison J found that the statement was tellingly self-serving, given the escalating tension between the deceased and the accused in the hours before the stabbing, and the apparent interpersonal rivalry involved. His Honour could not be satisfied that fabrication was unlikely, nor that reliability was highly probable. This application was also rejected.

Orders Made

• The Crown's application to lead the evidence of Mr Freeman's statement "I done nothing wrong" is rejected.

Key Takeaways

  • Under s 281 of the Criminal Procedure Act 1986 (NSW), the prosecution bears the onus of establishing a reasonable excuse for failing to record an admission made in the course of official questioning. A bare assertion that body cameras were unavailable, without any explanation for their absence, does not discharge that onus.
  • Where police officers are required by applicable protocols to wear body cameras on duty, the unexplained failure to do so will not ordinarily constitute a "reasonable excuse" for an unrecorded admission.
  • Section 90 of the Evidence Act 1995 (NSW) permits a court to exclude an admission where, having regard to the circumstances in which it was made, admission would be unfair to the accused. Spontaneous words spoken to a concerned family member, in the absence of legal advice and without any understanding that the exchange might constitute evidence, may satisfy that standard.
  • For a deceased person's out-of-court representation to be admissible under s 65(2) of the Evidence Act 1995 (NSW), the court must be affirmatively satisfied either that fabrication is unlikely or that reliability is highly probable. A self-serving assertion made in a context of interpersonal conflict may not meet either limb.
  • All three evidentiary applications by the Crown were rejected, illustrating how closely pre-trial admissibility rulings can turn on the specific factual circumstances surrounding each representation.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 281 (admissions by suspects)
- Evidence Act 1995 (NSW), s 65 (exception to hearsay rule for civil and criminal proceedings where maker is unavailable), s 90 (discretion to exclude admissions), s 137 (exclusion of prejudicial evidence in criminal proceedings)

Cases cited: None stated in the judgment.