R v AKB (No. 1) - [2018] NSWSC 1040

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AKB (No. 1) [2018] NSWSC 1040
Hearing dates: 5 July 2018
Date of orders: 06 July 2018
Decision date: 06 July 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
1. The evidence in paragraph 11 of the statement of Senior Constable Totakil of 21 October is admitted.
2. The evidence in paragraph 17 of the statement of Senior Constable Totakil of 21 October 2016 is rejected.
Catchwords:
CRIMINAL LAW – evidence – admissions – Criminal Procedure Act 1986 (NSW) s 281 - unrecorded statements made to police – whether accused was suspected or could reasonably have been suspected of committing an offence at time of admissions – whether there was a reasonable excuse for failure to make tape recordings of admissions
EVIDENCE – admissions – criminal proceedings – serious indictable offences – whether statutory provision for admissibility complied with - whether admissions liable to be excluded
Legislation Cited: Crimes Act 1900 (NSW) s 424A (repealed)
Criminal Procedure Act 1986 (NSW) s 281
Evidence Act 1995 (NSW)
Cases Cited: Horton v R (1998) 45 NSWLR 426
Queensland Bacon Pty Limited v Rees (1966) 115 CLR 266
R v Crowther-Wilkinson NSWSC 70096/01; unreported 8 May 2002
R v Schiavini (1999) 108 A Crim R 161
Regina v Taouk [2005] NSWCCA 155; (2005) 154 A Crim R 69
Texts Cited: Nil
Category: Principal judgment
Parties: Crown
[AKB] (Accused)
Representation:
Counsel:
C Maxwell QC & R Kotsis (Crown)
C Davenport SC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Oxford Lawyers (Accused)

File Number(s): 2016/311049

JUDGMENT

The accused is charged with murdering his wife on 18 October 2016. The Crown case is that the accused set fire to the premises where the accused and his family lived, with the origin of the fire being in the bedroom where the deceased slept. The Crown case is that, when the deceased realised there was a fire in her room and tried to escape through the bedroom door into the corridor of the house, the accused actively prevented her from doing so by pushing her back into the room and by shutting the door to prevent her escape.
The Crown seeks leave to adduce evidence of what was said by the accused to Senior Constable Saleem Totakil who arrived at the burning premises about ten minutes after a triple-0 call was made to report that the premises were on fire.
The relevant evidence is in a statement by Senior Constable Totakil on 21 October 2016. It relevantly says this:

8. I saw a young male child holding a garden hose spraying water onto the left window which was engulfed in flames. I now know this child as WB. I ran inside the house via the front door. Inside the hallway, the smoke was thick and heavy the whole hallway was covered in smoke, affecting my vision, I could not see through the hallway. I ran about 1 to 2 meters inside the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AKB (No. 1)

Details

AGLC: R v AKB (No. 1) [2018] NSWSC 1040
Case: [2018] NSWSC 1040
Decision Date: 06 July 2018

CaseChat Overview and Summary

The case of R v AKB (No. 1) involved the respondent, AKB, who was charged with various serious indictable offences. The dispute centred around the admissibility of statements made by AKB to the police which were not recorded on tape. The case was heard in the Supreme Court of New South Wales. The respondent argued that the statements should not be admitted as evidence due to the failure of the police to record them, in contravention of section 281 of the Criminal Procedure Act 1986 (NSW). This section mandates that any statement made by an accused person must be recorded if the person is suspected, or could reasonably be suspected, of committing an offence.

The primary legal issues before the court were whether AKB was suspected, or could reasonably have been suspected, of committing an offence at the time the admissions were made and whether there was a reasonable excuse for the failure to record the statements. The court was required to determine if the statutory provision for admissibility was complied with and whether the admissions were liable to be excluded under the Act. The respondent contended that the failure to record the statements was a breach of his rights and that the statements should be excluded under section 138 of the Act.

The court found that AKB was indeed suspected, or could reasonably have been suspected, of committing an offence at the time of the admissions. However, the court also determined that there was a reasonable excuse for the failure to make tape recordings. The respondent had not been informed of his right to silence, which constituted a reasonable excuse under section 281(2)(a) of the Act. The court held that although the statutory provision was not strictly complied with, the admissions were nevertheless admissible due to the reasonable excuse. Consequently, the statements were admitted as evidence in the proceedings. The court did not find it necessary to exclude the admissions under section 138 of the Act.

Orders