R v Ahola (No 3)
[2013] NSWSC 700
•08 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: R v Ahola (No 3) [2013] NSWSC 700 Hearing dates: 3, 7 May 2013 Decision date: 08 May 2013 Jurisdiction: Common Law Before: Button J Decision: (1) The evidence of Senior Constable Quick, with the exception of the two questions and answers, is admissible.
(2) The evidence of anything alleged to have been said by the accused at the scene and heard by Senior Constable McLean or Senior Constable Schmidt that was not put to the accused in the ERISP is inadmissible.
(3) Questions and answers 310 to 321 of the ERISP, and the evidence from Senior Constable Schmidt and Senior Constable McLean underpinning them, are admissible.
(4) Questions and answers 337 to 349 are inadmissible.
(5) Questions and answers 325 to 336, and the evidence underpinning them, are excluded in the exercise of my discretion.
Catchwords: EVIDENCE LAW - application to lead evidence of unrecorded admissions made to police - parts of admissions adopted by accused in subsequent ERISP - whether accused intoxicated when making admissions - whether reasonable not to record admissions at the time of making - whether reasonable not to put admissions to accused in ERISP - whether unfair to put parts only of unrecorded conversation - evidence partly excluded Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995Cases Cited: R v Egribas (Latham J, 14 May 2010, unreported) Category: Procedural and other rulings Parties: Regina
Jouni Risto AholaRepresentation: Counsel:
P Cattini (Regina)
G Scragg (defendant)
Solicitors:
Solicitor for Public Prosecutions (Regina)
Legal Aid NSW (defendant)
File Number(s): 2011/333607
Judgment
The Crown proposes to lead evidence in this murder trial of a number of things alleged to have been said by the accused at the scene of the crime to three police officers on the evening of 18 October 2011 and early in the morning of 19 October 2011. That would be achieved by oral evidence from the three police officers and also the tender of a portion of the ERISP of the accused. Although the things said by the accused were exculpatory on their face, the Crown alleges that they are inconsistent with each other, or with things said by the accused in the ERISP, or with other evidence in the trial. The Crown does not dispute that the things said should be approached on the basis that they are to be classified as admissions.
Objection has been taken by defence counsel on three bases: s 281 of the Criminal Procedure Act 1986, s 85 of the Evidence Act 1995, and s 90 of the Evidence Act. The foundation of the objection pursuant to s 281 is that the admissions were not electronically recorded at the time they were made, and nothing has occurred that would cause them to become admissible. The objection under s 85 is founded on the state of sobriety of the accused at the time the admissions were made. The objection under s 90 has two facets. The first is the sobriety of the accused. The second is the proposition that, if some of the admissions are admissible pursuant to s 281, it would nevertheless be unfair to use them in the trial because of the behaviour of the police.
Evidentiary background
The following is a brief conspectus of the matters that are relevant to the issues on the voir dire and that are established by the evidence led on the voir dire and in the trial so far. It is convenient to discuss them chronologically. All references are to 18 October 2011 unless otherwise stated.
At about lunchtime on that day, the accused may well have consumed a quantity of rum.
At about 3 pm, the accused and the deceased purchased some ham, some tobacco products, and some rum at the IGA store in Malua Bay. Although there is not at this stage evidence specifically demonstrating that those two persons were the purchasers, I understand that that position is not disputed between the parties.
At 8 pm, the accused purchased some wine at the same store. Silent CCTV footage of that event has been played in the trial. He returned to the home that he was sharing with the deceased on foot. At about 8:55 pm, he was observed travelling near and towards those premises.
At what appears on the evidence so far to be 9:12 pm, the accused telephoned the Queensland Police switchboard, and was seeking to speak to a particular police officer. He referred throughout that call to a woman in the background. A recording of that telephone call has been played in the trial. It is the case for both parties that the deceased was alive at that time.
At about 10:30 pm, a telephone call was received at Batemans Bay Police Station. At 10:38 pm, the following radio message was recorded: the informant "thinks his girlfriend is dead blood everywhere and she is on the bathroom floor." Senior Constable Schmidt and Senior Constable McLean left Batemans Bay Police Station at about that time and arrived 7 or 10 minutes later at the premises in Malua Bay. They left the police station in a great hurry and travelled at high speed with flashing lights and sirens activated.
At that time, general duties police such as Senior Constable Schmidt and Senior Constable McLean serving at Batemans Bay Police Station were not equipped with handheld audio recorders (to which I shall subsequently refer in this judgment as "handhelds"), although at least some detectives did have them. Furthermore, at least some highway patrol cars were fitted with in-car audio and video recorders, and some police trucks stationed at that location were fitted with audio and video recorders used to record allegations of domestic violence.
When they arrived, Senior Constables Schmidt and McLean met the accused, who exited from the premises. No other person was seen to be present. The accused had a wine cask in one hand and a wine glass in the other. The accused was observed to have "what appeared to be dried blood across the top of both of his hands over his knuckles as well as what appeared to be blood splatter on his feet", according to the statement of Senior Constable McLean that became exhibit 7 on the voir dire.
Senior Constable McLean asked the accused a number of questions directed towards establishing what had happened that evening, as did Senior Constable Schmidt. At a reasonably early stage, police noted a large pool of blood in the combined kitchen/living room of the premises. The body of the deceased was located in the bathroom. There was a very substantial amount of blood in that bathroom.
At about 10:52 pm an ambulance arrived. Shortly thereafter, when asked to stop drinking, the accused said "I operate better when I'm drinking".
Whilst at the scene, the accused also said a number of things to Senior Constable Quick. That officer had been tasked merely with protecting the crime scene and guarding the accused. During the course of that interaction, Senior Constable Quick asked the accused merely two questions, and one of them went only to the age of the deceased.
More than one police officer expressed the opinion in the witness box that the accused was moderately affected by alcohol when they interacted with him at the scene.
The accused was subsequently arrested. From 5:26 am until about 7:05 am on 19 October 2011, the accused engaged in an ERISP with detectives. A transcript of that interview was tendered on the voir dire, but neither party sought to play the video of it. The accused expressed himself to be happy to assist, and answered every question asked of him. At questions 299 to 349, he was asked about things that may have been heard by Senior Constable Schmidt to have been said at the scene.
A number of aspects of those questions are noteworthy. The first is that the questions put to the accused did not replicate with precision the things that Senior Constable Schmidt states in his statement were the words used by the accused. And I apprehend that the statement of Senior Constable Schmidt provides a detailed account of the evidence he is expected to give at the trial.
Questions 310 to 321 can be generally, but not completely, married up with paragraph 20 of Senior Constable Schmidt's statement and part of paragraph 21. Questions 322 to 336 are founded on various comments said to have been made by the accused at various stages to Senior Constable Schmidt at the scene, and are reflected in the statement of Senior Constable Schmidt generally at paragraphs 49, 58, 60 and 63. It can be seen from an examination of the statement of Senior Constable Schmidt that by no means all of the things allegedly said by the accused at the scene and at that stage to Senior Constable Schmidt were put to the accused in the ERISP.
It is also noteworthy that questions 337 to 349, at least on my reading of voir dire exhibit 8, the statement of Senior Constable Schmidt, cannot be derived from that statement. In other words, the things put to the accused at that stage in the ERISP as things allegedly said by the accused at the scene in the hearing of Senior Constable Schmidt, cannot be located in the proposed evidence-in-chief of Senior Constable Schmidt.
Although not with precision or formality, in answering those questions, and by that I mean all of the questions directed towards things said by the accused at the scene contained in the ERISP, the accused generally agreed that he had said the things that the questioner put to him as having been said by him at the scene.
The following day, the accused was charged with the murder of the deceased.
At the post mortem, the deceased was found to have a blood alcohol reading of .328 g/100mL. In his opening, the Crown Prosecutor suggested to the jury that at the time in question the accused may have had a similar blood alcohol reading.
Submissions of the Crown Prosecutor on the voir dire
Dealing first with s 85 and s 90, to the extent that both were founded on intoxication, the Crown Prosecutor submitted that, although the accused may well have been intoxicated, with regard to his level of functioning there is nothing to suggest that it was markedly impaired. One could infer on the evidence before me that the accused was, at the time, an experienced drinker. It was submitted that although his blood alcohol may well have been high, there is nothing to suggest that he was so intoxicated as to render the admissions unreliable, or to render their use in the trial unfair.
With regard to s 281, the position of the Crown Prosecutor was a little more complicated. He submitted that Senior Constable Schmidt and Senior Constable McLean were investigating officials for the purposes of the legislation. He also accepted that they were engaged in official questioning. He also conceded effectively that, whether or not the officers actually themselves suspected the accused of having committed an offence, from the time accused appeared alone from the home with blood on his hands and feet, he "could reasonably have been suspected" of having committed an offence, when one bears in the mind the information the police received before they left the police station and also by radio transmission on their way to Malua Bay. Accordingly, the Crown Prosecutor accepted that all of those particular components that lead to the operation of s 281 were fulfilled.
However, he submitted that Senior Constable Schmidt and Senior Constable McLean had a reasonable excuse for not electronically recording any admissions at the scene. That was said to be founded upon two bases. First, the simple fact was that handhelds were unavailable to general duties officers at Batemans Bay Police Station in October 2011. The second basis was that Senior Constable McLean and Senior Constable Schmidt left the police station in a great hurry because they were well aware that someone was dead or dying at Malua Bay. There was no time, he submitted, to enquire about handhelds or other means of electronic recording before they left. In short the Crown Prosecutor submitted that there was a reasonable excuse as to why there was no tape recording made of the admissions when they were made.
He submitted that the things put to the accused in the ERISP as to what Senior Constable Schmidt had heard him say were quite acceptable approximations of what Senior Constable Schmidt states in his statement the accused said. And he submitted that, as a matter of practical commonsense, the accused had indeed adopted those admissions in sufficiently specific terms in the ERISP.
In short, the Crown Prosecutor submitted that s 281 had been complied with with regard to the things alleged to have been said by the accused and heard by Senior Constable Schmidt and put to the accused in the ERISP.
He submitted that the evidence of Senior Constable Quick was in a different category. He submitted that in truth Senior Constable Quick was not engaging in official questioning of the accused. Rather, the accused was off his own bat, if I may use that phrase, choosing to say things to Senior Constable Quick without questioning or prompting. So much is clear, he submitted, from the statement of Senior Constable Quick, and also the oral evidence of that officer. He submitted that during the course of that interaction only two questions were asked of the accused by Senior Constable Quick, and one of them could really have nothing to do with the investigation. The fallback position of the Crown Prosecutor was that, if I were to find that those two portions of the interaction did constitute official questioning, then he would be content to have those two questions and answers excised.
Other than the evidence of Senior Constable Quick and the parts of the evidence of Senior Constable Schmidt that were put to the accused in the ERISP and adopted, the Crown Prosecutor did not seek strongly to resist the proposition that all other alleged admissions said to have been made at the scene were inadmissible. That was on the basis that it could not be demonstrated that there was a reasonable excuse for the failure of the detectives to enquire of the accused during the ERISP in which he freely engaged whether he adopted those alleged oral admissions. In particular, it was made clear by the Crown Prosecutor in oral submissions that he did not seek to persuade me that any interaction between the accused and Senior Constable Schmidt or Senior Constable McLean did not constitute official questioning, analogously with his argument with regard to the evidence of Senior Constable Quick.
As for the submission by defence counsel (to which I shall turn in a moment) that it would be unfair to use "bits and pieces" of the things heard by Senior Constable Schmidt and that were put to the accused in the ERISP, he effectively accepted in discussion that, with regard to the matters that were put in the ERISP, it could be that "one could infer that those were the good bits from the police point of view".
Submissions of defence counsel on the voir dire
Dealing first with s 85 and s 90 to the extent that they were founded on intoxication, defence counsel submitted that one could infer that the accused was an experienced but not necessarily heavy drinker. He submitted that one could safely infer that the blood alcohol of the accused at the time of the discussions at the scene approximated that of the deceased. He emphasised the police expressions of opinion that the accused was moderately intoxicated at the time of the discussions. He did not strongly point to any other evidence (such as the appearance, movements and actions of the accused on the CCTV at 8 pm, or the voice of the accused on the telephone at 9:12 pm) in support of the finding that the functioning of the accused was markedly impaired when he interacted with police after 10:30 pm. But he maintained the proposition that the evidence should be excluded pursuant to those sections.
As for s 281, he submitted that in truth there was no reasonable excuse for the failure to electronically record the admissions at the first stage, that is, at the scene. He emphasised that it would have taken Senior Constable Schmidt and Senior Constable McLean no more than 10 seconds to request a handheld from a detective, or, at the least, at a later stage to request by radio that a handheld be brought by other police the short distance from Batemans Bay to the scene. Even accepting the urgency attached to the attendance of the two senior constables at the premises, he submitted that there was no reasonable excuse for the failure to record the admissions there. Accordingly, he submitted that all of the evidence of the admissions at the scene, including those that were put to the accused in the ERISP, should be excluded if those admissions had occurred in the course of official questioning. That was because, unless a reasonable excuse was established at the first stage, namely at the scene, the structure of the section does not call for consideration of whether a subsequent ERISP had been conducted.
If I were against him with regard to that broad submission, he submitted that the things put to the accused in the ERISP were not accurate, or sufficiently accurate, reflections of what Senior Constable Schmidt would say the accused had said. Nor, he submitted, had the accused adopted those propositions with sufficient clarity and specificity.
As for the evidence of Senior Constable Quick, he submitted that it does fall within the section, because in truth the interaction between Senior Constable Quick and the accused was official questioning as defined. He emphasised that the accused was asked at least two questions during that encounter, at least one of which is important in the trial.
Finally, he called in aid s 90 again, this time founded on the proposition that it must be unfair for the police to pick and choose the alleged oral admissions that will be put to an accused in an ERISP, depending upon whether they are seen to assist the case against the accused or not. He also submitted that it would be a bizarre result if I were to admit those portions of what Senior Constable Schmidt alleges the accused said that were put to the accused in the ERISP, thereby forcing the accused, in order to place the complete picture before the jury, to abandon his objection to other material that was clearly inadmissible pursuant to s 281.
Determination
It is convenient to deal first with the question of intoxication founding exclusion pursuant to s 85 or s 90.
I accept that the accused was intoxicated by alcohol to some degree when he spoke to the police at the scene. However, I am satisfied on all the evidence before me that the accused was an experienced drinker and, at least on occasion, drank heavily. There is nothing in the appearance of the accused on the CCTV at 8 pm, or in the evidence of the young man who served him in the shop, or in the voice of the accused in the telephone call at 9:12 pm, or in the things said by the accused at the scene, or his behaviour at that place and time, that leads me to conclude that he was badly impaired by alcohol. It is noteworthy that he himself is alleged to have described himself as operating better when drinking as opposed to not drinking. I have no doubt that the jury will be in a good position from their own experience of life, either by way of their own direct experience of alcohol or the observation of others when affected, to assess the level of functioning of the accused.
For the purposes of s 85, I do not consider that the reliability of the things said by the accused is affected or was affected by any factor enumerated in s 85(3)(a) or (b). It follows that the evidence will not be excluded pursuant to s 85.
Nor will the evidence be excluded pursuant to s 90 on this basis as a matter of discretion. I do not consider that, having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use the evidence of them.
Turning to s 281, there is no need for me to review the markedly negative aspects of the criminal justice system that led Parliament to enact the original predecessor of the section almost 18 years ago. It suffices to say that Parliament determined to create a rigorous regime of exclusion of alleged oral admissions unless certain preconditions were fulfilled.
Considering the basal aspects of the section, I am satisfied that all three police officers fell within the definition of investigating officials. I am also satisfied that, from the moment the accused appeared alone from the house with blood on his knuckles and feet after the police had been made aware that the deceased was in the bathroom with "blood everywhere", the accused could reasonably have been suspected of having committed an offence. I am also satisfied that the things referred to by Senior Constable Schmidt and Senior Constable McLean were said in the course of official questioning as defined in the section (I shall turn to the interaction with Senior Constable Quick in a moment).
Considering s 281(2)(a)(ii), I am satisfied that Senior Constable Schmidt and Senior Constable McLean had a reasonable excuse for not electronically recording the admissions at the scene. I do not place much reliance on the absence of handhelds for uniformed police at Batemans Bay Police Station in October 2011 in coming to that determination. If the authorities, 16 years after the commencement of the statutory regime under consideration, did not sufficiently equip police to comply with it, that is, as Latham J said in R v Egribas (Latham J, 14 May 2010, unreported), hardly a matter that could constitute a reasonable excuse. However, I do accept that there was a great deal of urgency in getting from Batemans Bay to Malua Bay. I consider that it was reasonable for Senior Constable Schmidt and Senior Constable McLean not to tarry at all by seeking a handheld. That combination of factors, namely to some degree the logistical aspects and to a larger degree the urgency of attendance at the scene, leads me to find that there was a reasonable excuse for the failure to record the admissions at the scene.
Turning to the second matter for consideration pursuant to the section, it is common ground that many things alleged to been said at the scene in the hearing of Senior Constable Schmidt and Senior Constable McLean were not put to the accused in the ERISP. I consider that there was no reasonable excuse for the failure at least to seek to have the accused adopt those alleged admissions. Whether notes in a formal or informal form were available from the uniformed police for the use of the detectives at the time of the ERISP is in my opinion of little relevance to this aspect. It would have been quite open to the investigating detectives to enquire of the uniformed officers, even orally, what it was that the accused was alleged to have said at the scene, and then to have put all those propositions to the accused who was, as I have said, then co-operative. Other than some things heard by Senior Constable Schmidt that were indeed put to the accused in the ERISP, that was not done.
It follows that everything allegedly said at the scene by the accused to Senior Constable McLean and Senior Constable Schmidt that was not put to the accused in the ERISP is inadmissible by way of the operation of s 281 of the Criminal Procedure Act, and I am required accordingly to exclude it from evidence.
The evidence of Senior Constable Quick is in a different category. I do not consider that it could be said that he was engaged in official questioning of the accused. Rather, he was listening to what the accused was choosing to say himself. Accordingly s 281 is not engaged in that regard. The exception to that is the two questions and answers that passed between Senior Constable Quick and the accused. Except for those two portions of his evidence, the evidence of what Senior Constable Quick heard the accused say at the scene is admissible.
Turning to the things put to the accused in the ERISP, subject to what I have to say below I consider that, although not word perfect, the questions sufficiently reflect the evidence of Senior Constable Schmidt for the purposes of this section. I also consider that it is sufficiently clear that the accused was adopting the propositions that he had indeed said those words at the scene. It is noteworthy that s 281(2)(a)(ii) requires that, in a subsequent recorded interview, an accused "states that he or she made an admission in those terms". The latter portion of that phrase can be contrasted with a stricter formulation, such as, for example, "with perfect precision".
However, the things put to the accused in the ERISP need to be divided for analysis into three categories. It seems that a degree of confusion crept into the process which is, no doubt, a perfect example of why it is highly desirable for things said by suspects at crime scenes to be recorded electronically.
Questions 310 to 321 sufficiently replicate the contents of the statement of Senior Constable Schmidt, especially at paragraphs 20 and 21 (although it is to be noted that a small portion of those paragraphs was not put to the accused, and in accordance with what I said previously is not admissible).
The questions and answers at that part of the ERISP are a discrete and coherent narrative based on the evidence of Senior Constable Schmidt, which was in turn evidence of what the accused is alleged to have said. In my opinion questions and answers 310 to 321 are admissible, as is the evidence underpinning those questions and answers.
However, questions 337 to 349 and the answers to those questions cannot, on my analysis, be sourced to any paragraph in the statement of Senior Constable Schmidt or indeed of Senior Constable McLean. It is hardly consistent with the aims and structure of s 281 that an accused could be called upon to accept that he made admissions in terms that will not be the subject of evidence by one of the officers who allegedly heard him say them. Quite apart from whether or not that raises unusual and difficult questions of hearsay and other evidentiary considerations, it cannot be the case that s 281 is complied with if an accused has put to him alleged oral admissions that will not be the subject of evidence from the police officers who are said to have heard them. Accordingly, questions and answers 337 to 349 require exclusion pursuant to s 281.
Questions 325 to 336 accurately and precisely reflect bits and pieces of things that Senior Constable Schmidt alleges the accused said at the scene. Accordingly, the procedure adopted complies with s 281 and is not inadmissible pursuant to that section.
However, the final question is whether the evidence should be excluded in my discretion pursuant to s 90. In summary, the result is that the accused has been placed in the following position. Alleged oral admissions said to have been heard by Senior Constable Schmidt were not recorded electronically at the scene. Some, but by no means all of them, were put to him in the ERISP. Those that were not put are not admissible. As the learned Crown Prosecutor accepted, one can infer that a decision was made to put to him only those admissions that reflected most adversely on the accused in the ERISP.
If that evidence is admitted, in order to provide a complete picture of what was said, defence counsel could be forced to lead evidence that the statutory regime renders manifestly inadmissible. Not only that, it could hardly be said that seemingly choosing to put only those alleged oral admissions that reflect most adversely on the accused is consonant with the spirit of the legislation and what it sets out to achieve. It would be remarkable if the statutory regime were to be permitted to operate in that way.
In my opinion, having regard to the circumstances in which those particular admissions were made (and by that I mean both the circumstances at the scene and the circumstances of the ERISP), it would be unfair to use that evidence in the prosecution case, and I exercise my discretion to exclude it.
It follows that, pursuant to the exercise of my discretion by way of s 90, questions and answers 325 to 336 will be excluded
In short, the interaction of the evidence with the two statutes under consideration demonstrates that what the police need to do when investigating a potentially serious offence is to do their best to record electronically interviews at crime scenes with persons who are suspects or could reasonably be suspects. If that is not reasonably practicable, they must, as a fallback position, fairly and completely put to a suspect in a subsequent ERISP all of the relevant material that is alleged to have been said by him or her at the scene. It cannot be the case that legislation such as this can be permitted to operate to allow an incomplete and adverse picture of what the accused said in alleged oral admissions to be placed before the jury by way of putting some but not all of it to an accused in an ERISP, and seeing if he or she will adopt it.
In summary then:
(1) The evidence of Senior Constable Quick, with the exception of the two questions and answers, is admissible.
(2) The evidence of anything alleged to have been said by the accused at the scene and heard by Senior Constable McLean or Senior Constable Schmidt that was not put to the accused in the ERISP is inadmissible.
(3) Questions and answers 310 to 321 of the ERISP, and the evidence from Senior Constable Schmidt and Senior Constable McLean underpinning them, are admissible.
(4) Questions and answers 337 to 349 are inadmissible.
(5) Questions and answers 325 to 336, and the evidence underpinning them, are excluded in the exercise of my discretion.
Finally, the parties have informed me that there could be other objections to the discussions at the scene and the ERISP on other bases, such as s 55 and s 137 of the Evidence Act. I shall leave it to the parties to do their best to resolve those issues between them. But of course if those aspects are unable to be resolved between the parties themselves, they may be placed before me and I will provide a further ruling upon them.
**********
Decision last updated: 24 December 2013
0
0
2