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Supreme Court 4 April 2023

R v Musa (No 3)

[2023] NSWSC 328

Homicide
MURDER TRIAL OBJECTIONS ON VOIR DIRE CONCEDED DENIAL OF LEPRA RIGHTS WHETHER OPPRESSIVE CONDUCT BY POLICE SEGMENTARY APPROACH ADOPTED

Citation: R v Musa (No 3) [2023] NSWSC 328
Court: Supreme Court of New South Wales
Date: 4 April 2023
Judge: Button J

Background

The accused was charged with murder arising from an incident on 27 June 2020, in which she drove an SUV into the deceased in a residential car park, causing his death. Shortly after the collision, she called emergency services. A Highway Patrol officer arrived, arrested her at the scene, and conducted an on-site interaction recorded on body worn video (BWV). The accused was then taken to hospital for a hand injury before being brought to Auburn Police Station later that night.

At around 2:18 AM, detectives conducted a recorded interview that ran until 4:05 AM. Before the jury was empanelled, the defence objected to the admission of various portions of both the BWV and the recorded interview, prompting a voir dire (a preliminary hearing conducted in the absence of the jury to determine admissibility).

The Crown conceded two statutory failures: the arresting officer had given an incomplete caution that did not comply with section 139 of the Evidence Act 1995 (NSW), and neither the custody manager nor the interviewing detectives had provided the accused with written notification of her rights in custody as required by sections 122 and 123 of LEPRA. The central question for the voir dire was whether, despite those conceded breaches, the evidence should be admitted or excluded.

  • Whether the BWV recordings and recorded interview admissions should be excluded under section 138 of the Evidence Act as unlawfully obtained evidence, having regard to the conceded LEPRA and caution breaches.
  • Whether particular passages should be excluded under section 84 on the basis of oppressive, inhuman, or degrading conduct by police.
  • Whether section 85 applied because the circumstances raised doubt about the reliability of the admissions.
  • Whether the court should exercise its unfairness discretion under section 90 to exclude particular admissions.
  • Whether sections 135 or 137 (the probative/prejudicial balancing provisions) warranted exclusion of any portions.
  • Whether certain passages were irrelevant and therefore inadmissible under section 55.

Decision

Button J delivered fourteen separate rulings, adopting a segmentary approach that assessed each challenged passage individually rather than applying a single global determination. The judge explained the reasoning behind each ruling in detail, accompanied by a tabular conspectus provided to the parties at the time of the rulings in November 2022.

On the section 138 balancing exercise for the conceded statutory breaches, Button J was satisfied that the recorded interview as a whole should be admitted. The reasoning turned on the seriousness of the murder charge, the high probative value of the interview for the accused's state of mind at the time of the collision, the fact that the contraventions appeared to result from oversight rather than deliberate or reckless disregard for the law, and the availability of oral explanations of rights even where written notice was absent. The judge accepted that compliance would not have been difficult, but found that the contraventions did not reach the level of gravity required to justify wholesale exclusion.

On the BWV, Button J would generally have admitted the relevant portions but excluded a specific segment (lines 4 to 10 of the transcript) under the section 90 unfairness discretion. The decisive factor was the officer's instruction to the accused to "keep, keep talking," delivered seconds before the objected-to admissions. In the context of everything else, including the incomplete caution, the accused's recent collision and injury, her unfamiliarity with the criminal justice system, and the chaotic scene, the judge found that instruction constituted at least an inappropriate encouragement and, at most, an inappropriate demand that the accused continue speaking to police.

On the recorded interview passages challenged individually, the judge found that, absent sufficiently compelling additional factors beyond the LEPRA breaches alone, the passages should generally be admitted. The interview showed detectives putting propositions to the accused in a manner that allowed her to agree or disagree, and the accused was found to have answered freely. Leading questions during a police interview were noted not to be inherently prohibited. Sections relating to oppression, unfairness, and reliability did not produce exclusion across the bulk of the challenged interview, though specific portions were excluded where other factors brought one or more of those provisions into play.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under the section 138 balancing exercise, courts weigh the gravity of a statutory contravention against factors including the seriousness of the alleged offence, the probative value of the evidence, and whether the breach was deliberate, reckless, or merely inadvertent. Here, LEPRA breaches characterised as oversight did not, on their own, warrant exclusion of a lengthy recorded interview in a murder trial.

  • A partial or incomplete statutory caution is treated as less grave than a complete failure to caution, and that distinction is relevant to the weight given to the contravention in the section 138 analysis.

  • The section 90 unfairness discretion can be enlivened by a seemingly minor piece of police conduct, such as an instruction to "keep talking," when that conduct is assessed cumulatively with other circumstances affecting the accused at the time, even where no single factor would independently justify exclusion.

  • Button J confirmed the legitimacy of a segmentary approach to admissibility determinations, assessing each challenged passage separately under the applicable provisions rather than applying a uniform ruling across the entire body of evidence.

  • Accused persons with a non-English speaking background may qualify as "vulnerable persons" under the LEPRA Regulation, which attracts additional custodial obligations, but a failure to meet those obligations does not automatically produce exclusion if the section 138 balancing exercise otherwise favours admission.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW): ss 55, 84, 85, 90, 135, 137, 138, 139
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW): ss 122, 123
- Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW): ss 28, 29

Cases:
- Habib v Nationwide News Pty Ltd [2010] NSWCA 34; (2010) 76 NSWLR 299
- R v Sumpton [2014] NSWSC 1432