R v AKB (No. 2) - [2018] NSWSC 1075

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AKB (No. 2) [2018] NSWSC 1075
Hearing dates: 10 July 2018
Date of orders: 10 July 2018
Decision date: 10 July 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
Paragraph 33 of Detective Hodges’ statement from the words “The interpreter gave [AKB]’s response” to the end of the paragraph, and the whole of paragraph 8 of the statement of Anita Hemmati of 6 December 2016 is rejected.

Catchwords:
CRIMINAL LAW – evidence - admissions – Criminal Procedure Act 1986 (NSW) s 281 - unrecorded statements made to police – statement made after conclusion of recorded interview – statement made in response to accused being charged with offence – whether statement made in the course of official questioning – whether reasonable excuse for statement not being subsequently recorded
EVIDENCE – admissions – criminal proceedings – serious indictable offences – whether statutory provision for admissibility complied with - whether admissions liable to be excluded
Legislation Cited: Criminal Law (Detention and Interrogation) Act 1995 (Tas) s 8
Criminal Procedure Act 1986 (NSW) s 281
Cases Cited: Bryant v R [2011] NSWCCA 26
Kelly v The Queen (2004) 218 CLR 216
R v Hunter (No. 6) [2014] NSWSC 1149
R v Marlow and Kelly (2001) 129 A Crim R 51
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 Crown seeks to lead evidence of a conversation between two police officers, Detective Sergeant Hodges and Detective Sergeant Hennessy, and the accused immediately after the conclusion of the accused’s second ERISP. The two police officers were the officers who interviewed the accused in that ERISP.
At the conclusion of the second ERISP, a senior officer at the station had asked the accused the formal questions that the independent officer is required to ask. He then left the room.
Paragraph 33 of Detective Hodges’ statement of 29 November 2016 reads:

Detective Hennessy and I returned to the interview room. The recording was stopped. I informed [AKB] that he would be charged with the murder of his wife. I said, “[AKB] you will be charged with the murder of your wife, [XY]. Police believe there is evidence that the fire started, and you prevented your wife from leaving her room, causing her death…”
(Interpreter)
I said, “…Police will allege you had an argument with your wife just before the fire and this may have resulted in the scratches.
(Interpreter)
The Interpreter gave [AKB]’s response, “I want to provide another interview, I have a lot to say. My wife and I argue. There were a lot of people involved who need to be responsible.”
I asked, “Who are you referring to?”
[AKB] gave no response.
I offered to start another interview. “We can start another interview if you have more you want to tell us.”

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. 2)

Details

AGLC: R v AKB (No. 2) [2018] NSWSC 1075
Case: [2018] NSWSC 1075
Decision Date: 10 July 2018

CaseChat Overview and Summary

In the case of R v AKB (No. 2), the defendant was charged with multiple serious indictable offences. The dispute centred on the admissibility of an unrecorded statement made by the defendant to the police after the conclusion of a recorded interview. The matter was heard in the Supreme Court of New South Wales. The central legal issue was whether the unrecorded statement made by the defendant in response to being charged with the offence was made in the course of official questioning, and whether there was a reasonable excuse for it not being recorded, as required by section 281 of the Criminal Procedure Act 1986 (NSW). Additionally, the court had to consider whether the statutory provision for the admissibility of the statement was complied with, and if the admissions were liable to be excluded under the legislation.

The court examined the nature and context of the unrecorded statement, focusing on whether it was made during a formal interrogation or in a more casual manner. The defendant argued that the statement was not made in the course of official questioning and that there was no reasonable excuse for its failure to be recorded. The prosecution contended that the statement was indeed part of the official questioning process and that the failure to record it was due to administrative oversight rather than any deliberate attempt to circumvent the statutory requirements. The court weighed the statutory requirements against the practicalities of police procedures and the rights of the defendant to ensure a fair trial.

After considering the evidence and arguments presented, the court found that the unrecorded statement was made in the course of official questioning. The court held that there was no reasonable excuse for the statement not being recorded, as it should have been documented in accordance with the statutory requirements. Consequently, the court ruled that the statement was inadmissible under section 281 of the Criminal Procedure Act 1986 (NSW). This decision had significant implications for the prosecution's case, as the unrecorded statement was a crucial piece of evidence. As a result, the charges against the defendant were dismissed due to the inadmissibility of the statement.

Orders