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admissibility complied with - whether admissions liable to be excludedLegislation Cited: Crimes Act 1900 (NSW) s 424A (repealed)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 69Texts Cited: Nil Category: Principal judgment Parties: Crown
[AKB] (Accused)Representation: Counsel:
Solicitors:
C Maxwell QC & R Kotsis (Crown)
C Davenport SC (Accused)
Office of the Director of Public Prosecutions (Crown)
Oxford Lawyers (Accused)
File Number(s): 2016/311049
JUDGMENT
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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.
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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.
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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…
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- AGLC
- R v AKB (No. 1) [2018] NSWSC 1040
- Case
- [2018] NSWSC 1040
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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