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Supreme Court 28 August 2024

R v Rajapakse

[2024] NSWSC 1226

Homicide
EVIDENCE DISCRETIONS EXCLUSION OF EVIDENCE CRIMINAL PROCEEDINGS THE

Citation: R v Rajapakse [2024] NSWSC 1226
Court: Supreme Court of New South Wales
Date: 28 August 2024
Judge: Chen J

Background

The accused stands trial for the murder of a man allegedly stabbed outside a residential address at Watanobbi on 25 October 2020. The Crown case is that the accused attended the deceased's home armed with a knife to recover stolen methylamphetamine and stabbed the deceased in the left armpit area outside the front of the house.

A witness, Shannon Dunk, was arrested on 2 November 2020 and taken to Batemans Bay police station. He declined to participate in a formal recorded interview. After the formal interview process concluded, he told Detective Senior Constable Gillett that he would speak "off the record." Shortly after that conversation, Detective Senior Constable Gillett prepared an "Investigator's Note" summarising what was said.

Before trial, a Basha inquiry was conducted to assess Mr Dunk's anticipated evidence. The accused then applied to exclude the Investigator's Note and any related oral evidence before the jury heard it.

Legal Issues

  • Whether the Investigator's Note was improperly obtained under section 138(1)(a) of the Evidence Act 1995 (NSW), on the basis that Detective Senior Constable Gillett threatened to arrest and charge Mr Dunk's girlfriend to pressure him into speaking
  • Whether Mr Dunk's anticipated evidence about what police said during the off-the-record conversation should be excluded under section 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice to the accused
  • Whether paragraphs in the Investigator's Note not in quotation marks (that is, not verbatim records of the suspect's words) should be excluded as an impermissible summary

Decision

Issue 1: Improper obtaining under section 138

The court rejected the accused's central factual premise: that Detective Senior Constable Gillett threatened to have Mr Dunk's girlfriend arrested and charged in order to pressure him into talking. The detective denied this in cross-examination, and the court accepted that denial (at [37]-[38]). His denial was consistent with the probabilities: he was "simply an interviewer" with limited knowledge of the investigation, had no authority over charging decisions, and no motive for the alleged conduct was suggested (at [39]).

The court also found Mr Dunk's own account unreliable. His claim that he merely repeated back what police put to him was difficult to reconcile with the content of the Investigator's Note, which contained specific details, such as Mr Dunk providing clothing to another person involved, that Detective Senior Constable Gillett had no prior knowledge of and which Mr Dunk himself later confirmed were true (at [40]-[41]). The court concluded the note was not improperly obtained within section 138(1)(a) (at [42]).

Issue 2: Section 137 and anticipated evidence about police opinion

The accused sought to exclude anticipated evidence from Mr Dunk that police indicated during the off-the-record conversation that they considered the accused to be responsible for the stabbing. The court declined to exclude this evidence. The jury would already be aware the accused had been arrested and charged before the conversation occurred. The evidence was also relevant to explaining why Mr Dunk spoke off the record rather than formally, and any risk could be addressed by a jury direction that police opinion is irrelevant to the jury's fact-finding role (at [48]-[49]).

Issue 3: Exclusion of non-verbatim paragraphs

The court rejected the argument that paragraphs of the Investigator's Note not in quotation marks should be excluded as an inadmissible summary. Relying on the Court of Appeal's decision in Gan v Xie [2023] NSWCA 163, Chen J confirmed there is no absolute prohibition on evidence of the substance of a conversation, as opposed to its precise words. That principle applies equally to documentary records of such conversations (at [50]-[52]).

Orders Made

  • The accused's application to exclude the evidence contained within the Investigator's Note prepared by Detective Senior Constable Gillett on 2 November 2020, and the note itself, is rejected.

Key Takeaways

  • No impropriety was established under section 138(1)(a) of the Evidence Act where the court rejected, on the evidence, the factual claim that a police officer threatened adverse consequences for a third party to pressure a witness into speaking off the record (at [37]-[42]).

  • A witness's credibility in claiming they merely "went along with" police suggestions was undermined where the content of the resulting record included specific details that police demonstrably did not possess beforehand and that the witness later confirmed were accurate (at [40]-[41]).

  • Under section 137 of the Evidence Act, anticipated evidence that police expressed a view about a suspect's guilt during a witness conversation did not meet the threshold for exclusion where a jury direction could adequately address any residual risk of unfair prejudice (at [48]-[49]).

  • Following Gan v Xie [2023] NSWCA 163, there is no absolute prohibition on admitting evidence of the substance of a conversation rather than its verbatim terms, and that principle extends to documentary records such as an investigator's note (at [50]-[52]).

  • Where a witness has declined formal recorded interview but then speaks informally to police, the absence of a contemporaneous verbatim record does not, of itself, render the resulting investigator's note improperly obtained or inadmissible (at [33]-[34], [44]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases
- Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418