R v Botrus (No 1)

Case •

[2020] NSWSC 1204

•

27 August 2020

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Botrus (No 1) [2020] NSWSC 1204
Hearing dates: 14 August 2020
Date of orders: 27 August 2020
Decision date: 27 August 2020
Jurisdiction:Common Law - Criminal
Before: Walton J
Decision:

The notice of motion dated 7 August 2020 is dismissed.

Catchwords:

CRIMINAL LAW – evidence – admissibility – admissibility of statements made by the accused during police interview – application to exclude the entirety of the Electronically Recorded Interview of a Suspected Person – cautions – requirements of s 139(1)(c) – evidence improperly obtained pursuant to s 138(1)(a) of the Evidence Act – exclusion of improperly obtained evidence – discretionary factors – non-exhaustive matters in s 138(3) – desirability of admitting evidence outweighs undesirability of admitting evidence – application dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:

Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63

Kadir v The Queen; Grech v The Queen (2020) 94 ALJR 168; [2020] HCA 1

Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12

Lee v The Queen (2014) 308 ALR 252; [2014] HCA 20

Parker v Comptroller-General of Customs (2009) 252 ALR 614; [2009] HCA 7

R v Burton [2013] NSWCCA 335

R v Camilleri [2007] NSWCCA 36

R v Dalley (2002) 132 A Crim R 169; [2002] NSWCCA 284

R v Deng [2001] NSWCCA 153

R v Lane (2011) 221 A Crim R 309; [2011] NSWCCA 157

R v Nguyen (2013) 117 SASR 432; [2013] SASCFC 91

Strickland v Commonwealth Director of Public Prosecutions (2018) 361 ALR 23; [2018] HCA 53

Zheng v R (1995) 83 A Crim R 572

Category:Principal judgment
Parties: Regina (Crown)
Fredon Botrus (Defendant)
Representation:

Counsel:
M Clark (Crown)
S Pararajasingham (Defendant)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Sayad Sahinovic Legal (Defendant)
File Number(s): 2019/11627

Judgment

  1. HIS HONOUR: By amended indictment dated 14 August 2020 Fredon Botrus (“the accused”), was charged that, on 11 January 2019, at Sydney in the State of New South Wales, he did murder Alfredo Isho (“the deceased”) contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The accused pleaded not guilty to the offence. The matter is listed for trial to commence on Thursday 27 August 2020.

  2. After some earlier preliminary hearings, the Court listed hearing for pre-trial argument of a notice of motion brought by the accused dated 7 August 2020, supported by an affidavit of Alen Sahinovic. The order sought was that the record of interview conducted with the accused on 11 January 2019 be ruled inadmissible. In substance, the accused made an application to exclude the entirety of the Electronically Recorded Interview of a Suspected Person (“ERISP”) conducted on 11 January 2019 between police and the accused at Fairfield Police Station.

  3. The gravamen of the application was that the ERISP should be excluded because of a failure to caution the accused prior to commencing the questioning in the ERISP. It was submitted by the accused that the failure to do so engaged the “deeming provision” of s 139(1) of the Evidence Act 1995 (NSW) rendering the contents of the ERISP improperly obtained pursuant to s 138(1)(a) and, so engaged, the Court should exercise its discretion to exclude the ERISP under s 138 of the Evidence Act.

  4. Section 138 relevantly provides that such evidence is not to be admitted unless the Crown establishes that the desirability of admitting the ERISP outweighs the undesirability of admitting it, having regard to the non-exhaustive matters in s 138(3).

Factual background

  1. The facts relevant to the application were as follows:

  1. In substance, the accused is charged that he caused the death of the deceased as a result of stabbing him to the upper chest at Bossley Park barbershop on 11 January 2019.

  2. At approximately 2:00pm on the same day, Detective Senior Constable Chris Jansen and Detective Senior Constable Brad Stirton (“the Detectives”) attended at 83 Talowood Crescent (“the premises”), where the accused resided with his family. Other police were already present.

  3. At approximately 2:20pm, the Detectives engaged in a conversation with the accused at the doorway of the premises.

  4. At approximately 3:00pm the accused’s father, Laith Mushi gave the Detectives permission to enter and search the premises.

  5. At approximately 3:50pm, the Detectives conducted an interview with the accused in the backyard of the premises (“the 3:50pm interview”). The accused was provided with a caution on three occasions during the course of that interview. The first two occasions occurred before the accused was arrested:

  1. At page 5 of the 23 pages of transcript annexed to the statement of Detective Senior Constable Chris Jansen, the following exchange between Detective Senior Constable Jansen and the accused occurred:

P.1: OK? You don’t have to say or do anything if you do not want to. Do you understand that?

V.2: Yes, Sir.

P.1: Anything you say or do is being recorded electronically on video and may be used as evidence against you. Do you understand that?

V.2: Yes, Sir.

  1. At page 6, the following exchange occurred:

P.1: OK. Again, I’m going to ask you some questions about the stabbing, OK? You don’t have to say or do anything if you don’t want to but anything you say or do is being recoded.

V.2: Yeah.

P.1: All right? Ah, just as we’re going, you’re 18 years old?

V.2: Yes, Sir.

P.1: Ok. And obviously you can read and write English and speak English fine?

V.2: Yes, Sir.

  1. At pages 12 and 13, the accused was informed that he was arrested and the following exchange occurred:

P.1: Ok. At this stage what I’m going to tell you is that you’re under arrest for a malicious wounding that happened about 12:30 today at Bossley Park.

V.2: See, that’s fucked up, man. But I was asleep at the time. Youse gunna come tell me I was fuckin’ doin’ shit.

P.1: Ok.

V.2: It’s not…

P.1: I’m going to ask you further questions about this, Fredon.

V.2: Yeah.

P.1: You don’t have to say or do anything if you don’t want to. Do you understand that?

V.2: Yeah.

P.1: But anything you say or do will be used, ah, sorry will be recorded and may be used in evidence at court, OK?

V.2: Yeah.

  1. At 4:06pm the questioning concluded.

  2. At some time between 4:06pm and 5:30pm the accused was transported to Fairfield Police Station.

  3. At approximately 5:45pm, whilst in custody, the accused was read aloud his rights under Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) by Sergeant Ryder and was provided with a copy of the form setting out those rights. The rights related to: caution; time in custody; contacting a lawyer, friend, relative, guardian, independent person or consular official; other rights; and the keeping of a record.

  4. Fairfield Police Station is a designated police station for the purpose of Pt 9 of the LEPRA. Sergeant Ryder is a custody manager appointed by Detective Superintendent Lennon of the Fairfield City Police Area Command for the purposes of the LEPRA.

  5. At approximately 5:50pm the accused verbally acknowledged the rights explained to him, as outlined in the statement of Sergeant Ryder at para 7:

…I said, “Do you understand all of the rights I just explained to you?”

He said, “Yeah.”

I said, “Do you have any questions about any of those rights that you

would like me to explain to you?”

He said, “No.”

  1. Sergeant Ryder then stated that the accused was unable to sign the form at this time due to both of his hands being secured in evidence bags for a forensic procedure to be completed. In addition, on the second page of the annexed form, underneath the entry, “The detained person declined to sign the above acknowledgement. He/she said”, Sergeant Ryder wrote: “Unable due to awaiting forensic procedure. Both hands secured in evidence bags”.

  2. It was agreed by counsel that it logically follows that Sergeant Ryder, therefore, acknowledged the accused’s verbal response by writing “yes” at para 3 of the form entitled “Caution” after it states: “while in police custody, you do not have to say or do anything, but anything you say or do may be used in evidence. Do you understand that?”.

  3. At 6:40pm the accused was escorted to an interview room by Detective Sergeant Brticevic.

  4. At 6:43pm a record of interview between the accused and Detective Senior Constable Jansen and Detective Sergeant Brticevic commenced.

  5. At the commencement of the ERISP, the accused was told:

Q8. O.K. Fred, I’m going to ask you questions in relation to a stabbing of male named Alfredo Isho, a hairdressers located at Bossley Park. In relation to those questions any answers that you give will be recorded on this machine. Do you understand that?

A. Yes, sir.

Q9. And anything you say or do may be used in evidence. Do you understand that?

A. Yes, sir. Could you repeat the name again, please… I didn’t get that.

Q10. O.K. The name is Alfredo Isho.

A. Ah, yeah.

Q11. O.K. Do you know a male by that name?

A. Never heard of him.

  1. At Q 12 to Q 23 the following questions and answers were given:

Q12. Never heard of him. O.K. Um, do you agree that your rights were explained by the custody sergeant, Sergeant Ryder and you were given a copy of them, which is these here?

A. Yes, sir.

Q13. Do you want to exercise any of your rights in that document?

A. No, it’s all right.

Q14. Excellent. And do you agree due to obviously your hand as they are you weren’t able to sign it?

A. Yes, sir.

Q15. And that was noted. O.K. Do you agree prior to the interview starting I told you that the interview would be recorded on three DVDs simultaneously?

A. Yeah.

Q 16. And that I told you that the yellow we keep as a master copy?

A. Yes.

Q17. And that the blue copy we keep for the police?

A. Yeah

Q18. And those two copies have video and audio?

A. (NO AUDIBLE REPLY)

Q19. I just need a verbal answer.

A. Yeah.

Q20. Yeah.

A. Ah, sorry.

Q21. That’s all right. And the white copy is a copy for you to keep but

it’s audio only. Do you understand that?

A. Yes, sir.

Q22. And if required a viewing of the video copies can later be organised?

A. Yes.

Q23. O.K. And in relation to that we’ll be conducting this interview, this machine is recording audio and video. Do you understand that?

A. Yes.

  1. There were three components of the ERISP which were relied upon by the Crown as being demonstrative of the probative value of the ERISP for the purposes of s 138(3)(a). The Crown relied, for that purpose, upon each of the answers given in those components as constituting, inter alia, lies capable of being used as evidence of consciousness of guilt by the accused. That evidence, it was submitted, was significant in a circumstantial case where identity was in issue.

  2. The first component concerned denials by the accused of having known the deceased The relevant parts of the ERISP were (repeating for context Q8):

Q8 O.K. Fred, I’m going to ask you questions in relation to a stabbing of a male named Alfredo Isho, a hairdressers located at Bossley Park

...

A Yes, sir. Could you repeat the name again, please … I didn’t get that.

Q10 O.K. The name is Alfredo Isho.

A Ah, yeah.

Q11 O.K. Do you know a male by that name?

A Never heard of him.

…

Q643 Terrific. And if I go back to Alfredo Isho, I-S-H-O, who lives at Bonnyrigg you don’t know that person?

A No. I’ve never heard of that name?

Q644 O.K. And he was born in ’98 so he’s roughly 20, 20 and a half sort of thing now?

A Never heard of that name, bro’.

Q645 Never heard of that name?

A Never.

  1. The second component concerned the accused’s denial of ever having ridden the motorbike that was located in his garage. The relevant passages of the ERISP are as follows:

Q226 So have you ever ridden a motorbike?

A No. I don’t know how to ride one.

…

Q243 O.K. You’ve touched it?

A Yeah. But not ridden it.

…

Q404 No way?

A. No way. That bike doesn’t even work. Have youse had a look at it?

…

Q564 So that’s your motorcycle?

A It’s not my motorcycle. I haven’t ridden it. I have not ridden that bike I’m telling you. That bike has not been started in God knows. The first time I got that bike it was, um, it was like two months ago. Two or three months ago I got it and bro’ it stopped working straight away. I don’t know, he’s like, the guy told me, I’ve got to go and get a lot of things fixed to it, I don’t know… to register it.

  1. The third component concerned the shifting of the accused’s story as to why he left the house with his father in the afternoon of 11 January 2019. The relevant passages of the ERISP are as follows:

Q170 And that’s what you told your dad?

A Yeah. I didn’t tell my dad that I wanted to go to EB Games, yeah. I just told him I wanted to go to Fairfield to report, that was it.

…

Q539 Please, Fred, please?

A Bro’ alright, listen I’m not going to lie to you anymore like… Listen, I told my dad I wanted to go to Stockland’s today and then but that was before, that was after you came. I told him that I wanted to Stockland’s after you came. ‘Cause I didn’t know what the fuck was happening. I wanted to go suss out. ‘Cause youse told something happened around here close to my house, I wanted to go suss out what’s happening …

  1. At approximately 8:20pm the ERISP concluded.

Relevant Legislation

  1. It is pertinent to extract the following two sections from the Evidence Act relied upon by the accused as the basis for the application:

138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained—

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account—

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note.

The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.

139 Cautioning of persons

(1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—

(a) the person was under arrest for an offence at the time, and

(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and

(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—

(a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and

(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and

(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.

(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if—

(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or

(b) the official would not allow the person to leave if the person wished to do so, or

(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

(6) A person is not treated as being under arrest only because of subsection (5) if—

(a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or

(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

Evidence bearing upon the Application

  1. At the hearing of the notice of motion on 14 August 2020, there was evidence led by the Crown which related to its contention that the first and second components of the evidence constituted lies capable of being used as evidence to demonstrate consciousness of guilt.

  2. As to the first component of evidence, the Crown led the following evidence for the purpose of the notice of motion:

  1. A series of “Wickr” messages alleged to be between the accused under the username “yocatchmee”, and an unknown recipient “judgeby12” was led:

BOTRUS

11:25pm 11/01/2019

Yo khon (Arabic for ‘brother’), theres kalbe (Chaldean for ‘bitch’) at the [hairdresser emoji].

Unknown Recipient

12:39pm

11/01/2019

Haa cuz

They still there??

BOTRUS

12:41pm

11/01/2019

Khonco

it was only the guy that started with my name

Unknown Recipient

12:41pm

11/01/2019

Oh ok bro all good

BOTRUS

12:42pm

11/01/2019

but I went n anked him tho is that bad?

Unknown Recipient

12:42pm

11/01/2019

Did u get him

BOTRUS

12:42pm

11/01/2019

Yeah

Unknown Recipient

12:42pm

11/01/2019

U fuckin sk

Haha

BOTRUS

12:42pm

11/01/2019

Near ecknayy (neck)

hahaha

Sk.

Unknown Recipient

12:42pm

11/01/2019

Biggest SK. Anyone msges u or anything u let me kno.

Ima go cut my hair there right now on purpose

lmao

BOTRUS

12:45pm

11/01/2019

Hahaha nws sk

(Those messages shall hereinafter be referred to as “the Wickr messages).

  1. In oral submissions an issue arose as to the provenance of the Wickr messages. An agreed statement of facts document was placed before the Court as follows:

On 04 August 2020, Detective Senior Constable Liam Spelling signed a statement which contained the following:

4. I am aware that on 11 January 2019 an Apple iPhone was seized from Fredon BOTRUS. This iPhone was assigned the Exhibits Forensic Information and Miscellaneous Property System (EFIMS) barcode X0003400327.At about 3:15pm on 13 January 2019 I accessed exhibit X0003400327. I used the PIN code ‘425800’. I navigated the phone to an application titled ‘Wickr Me’. When accessing this application I could see that the username of the Wickr Me account assigned to this handset was entitled ‘yocatchmee’. I accessed a chat conversation between ‘yocatchmee’ and another user ‘judgeby12’. I observed that there were a number of messages between ‘yocatchmee’ and ‘judgeby12’ in this conversation.

  1. In relation to the second class of evidence, the Crown relied upon the statements of three civilian witnesses: Lauren Bradley; Robert Cool and Jeffrey Saller. I extract below some relevant excerpts from those statements:

  1. From Ms Bradley’s statement of 13 January 2019:

4. I have been living at 1 Teak Close on and off for the past 3 years. I have taken an interest in the people living at the house of 83 Tallowood Crescent, simply because they are very loud people and often wake up my 10 month old child. Other than me shouting at the 18 year old for riding the noisy ‘thumpster’ motor bike around. I have not personally spoken or introduced myself to the people at 83 Tallowood Crescent.

…

12. The 18 year old, the one who I always see on that motor bike. He has dark coloured short hair. He has thin dark coloured facial hair, like a light pubescent beard. He is a thin build and is about 160cm 165cm in height.

13. The motor bike the 18 year old kid always rides is a white coloured dirt motor bike. The pieces of the motor bike that are white is the front bit of the plastic that goes over the front wheel, and the rear bit of veneer plastic that foes over the back tyre. I don’t really see much more of the bike colour when it is being ridden as his legs cover the middle of the bike. I don’t know bikes that well, but I describe it as a small ‘thumpster’ dirt bike. It looks fairly small when the lanky 18 year old kid rides it. He looks too big for the bike. The only reason why I describe it as a ‘thumpster’ motor bike is because when I was younger my friends rode similar motor bikes and they described their bikes as a ‘thumpster’.

14. I have never seen anyone else riding the motor bike. Whenever I have been outside having a cigarette on the steps of my house the 18 year old kid is always riding it. I have never seen anyone else riding the bike when I have seen it being ridden. I have seen the bike being ridden by him over 20 times. Up and down the street, near the park down the end of Teak Close, I can hear it 2-3 streets away. It is really loud. I have not seen, nor do I know of anyone else in our street, or Tallowood Street with another dirt bike. Just this kid with that white bike. He has had the bike about 5 months. The 18 year old has never worn a helmet when I have observed him riding around on the motorbike.

…

18. About 12:20pm that afternoon [Friday the 11th of January 2019], I was on the phone with my mother, Vicki Bradley. I was smoking a cigarette out the front on the house sitting on the steps that are on the Teak Close side of the house. It was close to 30 degrees that afternoon.

19. I heard it before I saw it. I saw the white coloured dirt bike being ridden by the 18 year old. I was surprised to see him wearing a dark coloured full-face motorbike helmet as he has never worn a helmet in the past …

  1. From Mr Cool’s statement of 11 January 2019:

3. I currently reside at 1 Teak Close, Bossley Park. The house is located on the intersection of Tallowood Crescent and Teak Cl. Although the house is 1 Teak Cl, The driveway for my house is facing Tallowood. I live directly opposite 77 Tallowood Crescent.

4. About lunchtime, maybe 12:15pm on Friday the 11th January 2019 I was inside my home. I heard the sound of a motorbike riding along Tallowood Close from the right to left as if looking out my driveway. The bike turned into Teak Close and continued riding down into the reserve at the end of my cul-de-sac. The bike continued through the park and away, out of earshot.

5. I recognised the sound of the motorbike as a small 4-stroke thumpster which belongs to 83 Tallowood close. I see the bike riding all the time up and down our street. The young male who lives in 83 Tallowood, and his friends, ride it regularly through the reserve. I would describe the bike a ‘Thumpster’ style motor cycle. It has small wheels, high handlebars and the rear mudguard is unusually high like a ducktail. The bike has pretty standard white plastic or fairings which are dirty and used. I don’t recall seeing any stickers that would make the bike stand out such as numbers or sponsor logos.

6. At the same time, My wife was in the driveway, about to go out and draw some money. The bike went past whilst she was still in the driveway.

7. I could identify the sound of the motorcycle easily because we live in a quiet street and the bike is ridden most days. The sound of its exhaust breaks any silence and always wakes the kids. We have not called police previously to report driving complaint, but I know one of my neighbours has.

8. My wife was gone for about half an hour or so. Whilst she was gone we had a mobile dog groomer parked at the front of our house on Tallowood Cres, I was standing out on the driveway when I heard the motorbike approaching again through Teak reserve. I was standing basically at the entrance of my garage, facing Tallowood Crescent. I saw the thumpster cut across the grassed corner of my block from Teak Cl into Tallowood Cres. I am rarely out the front of my house when this bike goes past, so I made a point of staring at the rider to let him know I was watching. The rider turned his head to look at me as he rode past. We made solid eye contact as he rode past, even to the point of him look back over his right shoulder as he rode by.

  1. From Mr Saller’s statement of 15 January 2019:

1. I own and run by own dog grooming business called ‘All Doggie Styles’. I perform work in Bossley Park and surrounding local suburbs.

2. A regular customer at 1 Teak Close Bossley Park, called a to make a booking to have her dog’s hair cut and washed a few days prior to the booking date.

3. About 5-10 minutes after I started work on their dog [on 11 January 2019]. I saw the man on that thumpster motor bike ride into Tallowood Road. He drove up to a double story house and into the drive way. I didn’t really take notice of what he did after that. I remember seeing his helmet and seeing the bike ride into the driveway of 83 Tallowood Crescent. I saw this happen through my dog grooming trailer open back door. I remember talking to the customer’s daughter who was asking my questions.

Submissions

Accused’s submissions

  1. Counsel for the accused, Mr Sam Pararajasingham, made the following submissions on the motion:

  1. The terms of s 139(1)(c) are clear and ought not be construed narrowly. The subsection is a direction that an accused must be informed about the privilege against self-incrimination, a fundamental right in the criminal justice system. The caution is meant to convey to an arrested person that he/she has the right to choose to speak or to remain silent; it is meant to ensure that the person is aware that if he/she speaks, what he/she says may be given in evidence.

  2. The Crown conceded that the accused was not read his full rights prior to the commencement of the ERISP, which amounted to non-compliance with s 139(1)(c).

  3. Although the accused was told that the interview would be recorded and could be used as evidence, this did not alert the accused in any way to a caution as it omitted his right to silence, and hence amounted to a breach of s 139(1)(c).

  4. In addition, the shorthand enquiry as to whether the accused “wanted to exercise any of those rights” in reference to the exercise undertaken by Sergeant Ryder almost an hour earlier, cannot satisfy the specific obligation in s 139(1)(c).

  5. The breach of s 139(1) was not merely a technical breach. It operates as a deeming provision for s 138, in that the Court’s satisfaction of a breach of s 139(1) satisfies the first arm of s 138 that the evidence was obtained improperly.

  6. In addition, the breach shifts the onus to the party seeking the admission of the evidence, rather than the party seeking its exclusion. As such, the evidence is prima facie inadmissible unless the Crown discharges the onus and satisfies the second arm of s 138, namely, that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

  7. Parliament purposefully drafted the section in this way to foster public policy considerations, including the protection of an accused from the many powers at the disposal of police authority.

  8. In conducting the balancing exercise, the Court is to have regard to the non-exhaustive considerations set out in s 138(3).

  9. The primary considerations put by the Crown to satisfy the balancing exercise of s 138 was the probative value of the evidence, the importance of the evidence, and the nature of the offence under s 138(3)(a)-(c).

  10. The obverse is true of the proposition that the greater the probative value of an item of evidence, the greater the public interest in its admission.

  11. The probative value of the ERISP is minimal. At no point did the accused make any admissions to the alleged conduct. A great deal of the questioning traversed topics canvassed earlier with the accused, although in considerably more detail.

  12. The Crown relies on the making of three lies in the ERISP that they say are capable of being used as evidence of lies demonstrating consciousness of guilt by the accused.

  13. The first alleged lie from the ERISP which the Crown relies upon is the contention by the accused that he did not know the deceased.

  14. The accused submitted that the Crown had contended that, if it is accepted that the Wickr messages found on the phone seized from the accused where, in fact, sent by the accused, this amounts to an admission of the charged offending. Hence, if the accused committed the offending against the deceased, it follows that he had to have been lying when he asserted in the ERISP that he did not know the deceased.

  15. As it is a matter of dispute at trial that the accused sent the Wickr messages, to rely on it as proof of a lie is a circular argument. To make out the lie requires that the accused committed the offence; therefore, it is incapable of being relied upon as a lie because it presumes that he sent the message and what inevitably follows from that is that it was an admission.

  16. When it was raised with counsel for the accused that the fact of the accused’s knowledge of the accused, if proven, might demonstrate a resolution of a fact in issue in the proceedings separate to that of a lie establishing consciousness of guilt, it was submitted that the Court must resolve this issue on the motion based on the evidence before it, notwithstanding that the evidence may be utilised in a different context at trial proper.

  17. The second alleged lie put by the Crown was in relation to the accused’s denial of riding the motorbike which was in the garage.

  18. It was accepted that this class of evidence was capable of establishing a lie indicating consciousness of guilt. However, the transcript from the earlier interviews divulges the accused making similar denials as to riding the motorbike which would be open for the Crown to rely on. This limits the importance of the excerpts from the ERISP.

  19. The third alleged lie relied upon was effectively an admitted lie. The accused firstly gave an account of a conversation that he had with his father after the allegations were said to have occurred. The accused said that he asked his father to take him to Fairfield Police Station to report on bail with no mention that he intended to go to EB Games as well and then by the end, the accused’s position was that rather than asking his father to take him to report, he had in fact asked his father to take him to Stockland’s so he might “suss out” the stabbing incident.

  20. Two issues were said to arise with respect to the third component of the evidence. Firstly, the suggestion of unrelated criminality to a jury, which arises from the evidence of reporting for bail, raises the spectre of s 137. Hence, there is difficulty in the Crown relying on it for that basis. Secondly, even if it is able to be relied up on to amount to a lie, then at its highest, it is a lie that could be used to discredit the accused but not as proof of consciousness of guilt due to it being post allegation of conduct which is not capable of establishing the accused’s guilt.

  21. The further considerations put by the Crown to satisfy the balancing exercise of s 138 was the gravity of the impropriety and whether it was deliberate or reckless under s 138(3)(d) and (e).

  22. In this case, the impropriety takes the form of non-compliance with a statutory obligation by law enforcement officers. It is observed that s 138 contemplates improprieties which do not involve the breach of statutory obligations including: the breach of internal police guidelines and instructions; entrapment by police officers; the misstatement of fact in an affidavit in support of a warrant; the offer of an inducement to a witness that he or she not give evidence; and the failure to comply with protocol. Furthermore, the section is not confined to evidence obtained by the improper or illegal conduct of the police: Kadir v The Queen; Grech v The Queen (2020) 94 ALJR 168; [2020] HCA 1 (“Kadir”). It is submitted that, in this case, the non-compliance with a statutory obligation by law enforcement elevates the nature of the gravity.

  23. Relevantly to the content of the obligation, as raised above, the protection conferred in s 139(1) is of fundamental importance. It functions to ensure that an accused is advised prior to any questioning by an investigating official of the existence of an important right. Here, the comments of Kiefel CJ, Bell and Nettle JJ in Strickland v Commonwealth Director of Public Prosecutions (2018) 361 ALR 23; [2018] HCA 53 (“Strickland”) at [101] are apposite:

[101] The common law right to silence is a fundament of the criminal justice system that applies at all stages of the process to all persons suspected of an offence, whether charged or not yet charged, and also at trial” and “condonation” of an unlawful breach of the right “is apt to bring the administration of justice into disrepute.

  1. It was submitted that the failure to provide the caution, in the terms within the subsection, impaired the accused’s ability to exercise that right. That the accused in this case had been advised of that right earlier, in some other context, in no way satisfied the obligation that arose at the point of questioning.

  2. The proposition put by the Crown that this Court would be satisfied that at the time of the interview commenced the accused was aware of his right to silence makes assumptions about the thought processes of the accused and his presence of mind. He had just turned 18 and found himself in a room with two experienced detectives. A document was “flashed” at him, he was asked whether he wanted to exercise any of those rights. He replied in the negative and they continued.

  3. The Crown invited the Court to draw an inference of the accused’s state of mind when he was placed in a different context to that which he was in prior to the ERISP. When the 3:50pm interview with police commenced, the accused was not a suspect in a murder charge. The questioning occurred at his home and his parents were somewhere within the house. He was offered twice, but declined to exercise his right to silence in this context.

  4. In the second context at 5:45pm, when he was cautioned at the police station, there was no suggestion in Sergeant Ryder's statement that particular attention was drawn to the caution when the bundle of rights were provided to him.

  5. These two contexts compared to the impugned transaction where the accused was in a room with two detectives is of material difference. For this reason, the Crown’s argument that the accused was aware that he could decline to answer questions due to what occurred in the two previous contexts is flawed.

  6. Regarding the state of mind of the officers at the relevant time, whilst unclear, it may be put that the police were merely negligent in the execution of their duty. However, that does not attenuate the gravity of the impropriety. Nothing short of strict compliance was required. Indeed, it is important that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends: R v Nguyen (2013) 117 SASR 432; [2013] SASCFC 91 at [41].

The Crown’s submissions

  1. The Crown conceded that the evidence of the ERISP was obtained improperly having regard to the failure to administer a caution pursuant to s 139(1)(c). With regard to s 138(3)(a), (b) and (c) it was submitted that:

  1. Murder, being the most serious in the criminal calendar, favours admission of the evidence.

  2. The probative value/importance of the evidence is significant. In answering the questions asked of him, the accused told a number of lies in the interview. These lies are capable of being used as evidence of a consciousness of guilt on the part of the accused – which, in a circumstantial case where identity is the issue, is significant.

  3. With regard to the third alleged lie, it was agreed that the reference to reporting to bail appears to be prima facie prejudicial. However, this issue could be mitigated through redaction, if the material were to be admitted, by a process of weighing the probative value against the potential for prejudice against the accused.

  4. This alleged lie is capable of being construed as a lie going to consciousness of guilt. The fact that the accused admitted that he wanted to go and have a look at the scene of the crime to see what has happened, prior to being informed of anything by police supports this.

  1. With regard to s 138(3)(d) and (e) it was submitted:

  1. The impropriety was not at all grave, and thus favours admission, for two reasons.

  2. First, the accused was told at the outset of the interview that his answers would be used in evidence.

  3. Secondly, the accused was cautioned on several occasions prior to the ERISP. During the course of the 16 minute conversation with Detective Senior Constable Jansen and Detective Senior Constable Brad Stirton at his home, the accused was cautioned three times and each time chose not to avail himself of the right to silence. Once he had been taken to Fairfield Police Station, he was again made aware of the right to silence by Sergeant Ryder who provided him with a document which contained that right among others.

  4. In other words, by the time the accused sat down for his interview, he was well aware of his right to silence and the terms and effect of the caution. He was well aware that he did not have to say or do anything but that anything he did say or do would be recorded. His responsiveness in the interview was consistent with his responsiveness to the questions asked by Detective Senior Constable Jansen earlier in the afternoon. That is, he chose to speak fulsomely and confidently. It is not the case, for example, that he exercised his right to silence in the afternoon, when the caution was applied, but not during the interview, when it was not, allowing for an inference to be drawn that, had he been given the caution, he would have not participated in the interview.

  5. A clear inference was open to be drawn that the accused understood the caution, without the need for a speculative exercise.

  1. Clearly the failure to administer the full caution at the outset of the interview was merely inadvertent. It was not reckless, let alone, deliberate. As stated above, the officer did inform the accused of the second “half” of the caution, namely, that his answers may be used as evidence and thereby made an attempt. He simply missed informing the accused that he did not have to say or do anything.

  1. At the hearing on 14 August 2020, the Crown stated that they were not pressing the submissions put under the heading “other matters” in their written submissions, that is the accused’s familiarity with the criminal justice system and Detective Senior Constable Jansen. As such, these matters did not bear upon my consideration and will not be referred to.

Consideration

  1. Section 138(1)(a) relevantly provides that evidence that was obtained improperly is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way which the evidence was obtained.

  2. The provision provides for the consideration of exclusion of evidence obtained improperly in these proceedings. A discretion is conferred to admit such evidence should the Court be persuaded that the balance of the competing public interests requires that outcome: Kadir at [12].

  3. The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied. The burden then falls upon the party seeking the admission of the evidence to persuade the Court that it should be admitted: Parker v Comptroller-General of Customs (2009) 252 ALR 614; [2009] HCA 7 (“Parker”) at [28] (per French CJ).

  4. Section 138(3) stipulates eight factors which the Court may take into account in determining whether a tendering party has established that the public interest in the admission of the evidence outweighs the public interest in not admitting the evidence: Kadir at [2].

  5. Section 139(1)(c) provides that, for the purposes of s 138(1)(a), evidence of, inter alia, a statement made during questioning is taken to have been obtained improperly if, before starting the questioning, the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

  6. The subsection is directed, as to one of the aspects of the caution formulated under the provision, to informing the accused (who has been arrested: see s 139(1)(a)) that the accused has the right to choose to speak or remain silent. It is meant to ensure that the person is aware that, if the person speaks, what is stated may be given in evidence: R v Deng [2001] NSWCCA 153 at [17]. This is an essential purpose of the provision and one that corresponds to the privilege against self-incrimination: Lee v The Queen (2014) 308 ALR 252; [2014] HCA 20 at [32].

  7. As was observed in Kadir at [13], s 138 of the Evidence Act is not confined to criminal proceedings. The discretion conferred in the case of improperly obtained evidence, involves a weighing exercise between the public interest in all relevant evidence being before the fact finding tribunal and “the undesirability of admitting evidence”, in recognition of a countervailing public interest, “in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally”. In Kadir, the High Court observed (at [13]):

[13] … In a criminal proceeding in which the prosecution seeks to adduce evidence that has been improperly or illegally obtained by the police (or another law enforcement agency), the more focussed public interests identified in Bunning v Cross remain apt.

(See Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22).

  1. The right to silence provided by the caution is a fundamental right. As was observed by the High Court in Strickland at [101], a restriction on the right to silence is pro tanto a denial of liberty, the rule of law and in particular, the principle of legality” such that, inter alia, the condonation of an infraction on the will of Parliament and the right to silence, which is intentional or the result of advertent recklessness or a “grossly negligent abrogation of statutory responsibility” is apt “to bring the administration of justice into disrepute”.

  2. When viewed in this light there may be a ready acceptance of the accused’s submissions that the terms of s 139(1)(c) should not be narrowly or strictly construed and given effect to in accordance with the evident purpose of the provision.

  3. Mr Pararajasingham submitted, correctly in my view, that s 139(1) is directed to a specific relationship between an accused who is under arrest (s 139(1)(a)) at the time of questioning by an investigating official who at the time was empowered to arrest the accused (s 139(1)(b)). The words “before starting the questioning” introduce a temporal element to the obligation reposing upon an investigating official under s 139(1)(c); one the accused contends materialised at the point of questions or just before questioning begins. That submission is consistent with the aforementioned approach to the construction of the provision. However, it is unnecessary to resolve in this matter.

  4. The Crown submitted that the investigating official, for the purposes of s 139(1), in this case was Detective Sergeant Brticevic. There was no dispute as to this contention. In any event, it may be readily accepted that Detective Sergeant Brticevic, who is the Officer in Charge, falls within the definition of “investigating officer” in the Dictionary of the Evidence Act.

  5. It is clear that the investigating officer did not expressly state to the accused before questioning that he did “not have to say or do anything” before questioning. This does not, as was submitted by the Crown, constitute the administration of “half” of the caution under s 139(1)(c) but, represents a failure to expressly administer the caution per se as the terms of the caution in s 139(1)(c) plainly contain two parts.

  6. Counsel for the accused addressed the question as to whether the reminder by the investigating official to the accused that his rights were explained to him by Sergeant Ryder (a copy of which had been provided to him) and a question as to whether he may wish to “exercise” any of those rights would suffice to meet the obligation to caution the accused reposing on the investigating official under s 139(1)(c).

  7. The accused submitted that the exchange would not satisfy the specific obligations under the subsection. As earlier mentioned, the Crown conceded that the caution under s 139(1)(c) had not been administered and that the evidence in the form of the ERISP had been obtained improperly. The Crown contended that a caution received via the operation of Pt 9 of LEPRA was too remote in time from the questioning undertaken under the ERISP (some 50 minutes) and it was “mandatory upon the investigating official who intends to question a person, to administer the caution” as specified in s 139(1)(c).

  8. In my view, the reliance upon the period of time between the reading of the caution by Sergeant Ryder (in the form contemplated by s 134(1)(c)) and the reference to that fact is misplaced.

  9. A temporal question which properly arises in this context under s 139(1)(c) was whether the caution was administered prior to “the start of questioning” by the investigating official.

  10. The reference in questioning as to the “rights” explained by Sergeant Ryder (and the copy of them provided to the accused) and the question as to whether he wished to exercise those “rights” (and the accused’s statement that he did not wish to do so) occurred before the start of questioning at a time closely proximate to the questioning.

  11. It is true that the accused asked that the name of the deceased and was asked, “Do you know a male by that name?” before reference was made to the “rights” explained by Sergeant Ryder but no issue was raised in this respect vis-à-vis the operation of s 139(1)(c) (however, see Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12).

  12. Hence, it may be concluded the reference by the investigating official to “rights” explained by Sergeant Ryder occurred for all relevant purposes before the start of the questioning of the accused and at a time proximate to the questioning.

  13. The real issue in deciding whether the course of conduct of the investigating official in this matter at the outset of the ERISP, activated the provisions of s 138(1)(a) (by virtue of the operation of s 139(1)(c)) was whether the questions asked by the investigating officer concerning the “rights” read by Sergeant Ryder and the accused’s acknowledgment of them was sufficient to meet the requirements of s 139(1)(c), such that it may be inferred the caution was, in substance, given in such a way as to satisfy the requirements of the subsection.

  14. The accused in the present case was, from the time he was first spoken to be police until the commencement of the ERISP advised of his rights (as encompassed in the caution under s 139(1)(c)) on four occasions. This might suggest the requirements of s 139(1)(c) had been met. However, at the time the warning was partially administered at the commencement of the ERISP, the vague reference to “rights”, absent any specific reference to the actual caution read by Sergeant Ryder and, more particularly, the right to silence, would appear to not satisfy, on the aforementioned construction of s 139(1)(c), the requirements of that subsection, namely, an express and particular reference to all elements of the caution including the right to silence.

  15. Given the concessions by the Crown on this point, I find that the evidence, in the form of the ERISP, was obtained, for the purposes of s 138(1)(a), improperly and is not to be admitted, save for the exercise of the discretion of this Court in accordance with that subsection.

Section 138(3) – Discretionary Considerations

  1. In Parker, French CJ described the discretionary considerations under s 138(3) as a two stage process, as follows (at [28]):

[28] The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two stage process. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained.

  1. I shall approach the discretionary considerations in that fashion under each of the factors under s 138(3) alluded to by the parties, noting that I have earlier described the evidentiary foundation of the Crown’s case for the admission of the ERISP.

Section 138(3)(a) and (b)

  1. It may be generally accepted that evidence of high probative value would tend towards the desirability of admitting the evidence in question for the purposes of s 138(1): R v Camilleri [2007] NSWCCA 36 at [35] per McClellan CJ at CL (with whom Bell and Howie JJ agreed). I accept the submissions of the accused that the obverse of that proposition must also hold correct.

  2. The Dictionary of the Evidence Act defines “probative value” as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. The probative value is, therefore, generally speaking, the degree of the relevance of the evidence: see R v Burton [2013] NSWCCA 335 at [146]-[147] (per Simpson J, with whom R A Hulme J and Barr AJ agreed).

  3. The Crown’s case that the ERISP has a significant probative value hinges, as earlier mentioned, upon the earlier identified three components of the ERISP.

  4. Each component consisted of particular answers to questions said to be lies. It was contended that these lies were relevant not only to the credit of the accused but are also capable of being used by the jury as evidence of consciousness of guilt.

  5. The factual foundation for the establishment of the lie is the ERISP and further evidence led by the Crown (earlier set out in this judgment) or in the third component, an acknowledgment of the lie in ERISP itself.

  6. The classic statement of what is required for a Court to admit a lie on the basis of consciousness of guilt is found in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 (“Edwards”) at 209 (per Deane, Dawson and Gaudron JJ):

But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the list must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the list must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that “if he tells the truth, the truth will convict him”.

  1. Their Honours also made relevant observations at 210-211:

A lie can constitute ad admission against interest only if it is concerned with some circumstances or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they made take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he life would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of “a realization of guilt and a fear of the truth”.

  1. Reference may also be made to the following passage from Edwards (at 209):

It was said that, in satisfying the requirement, the jury must conclude that the accused was guilty before it can use the telling of a lie by him as evidence against him. Since a conclusion of guilt can only be reached if it is proved beyond all reasonable doubt, it was said that the ultimate question must be answered before the jury come to consider the lie and that would renders its consideration unnecessary. By a similar process it might be argued that the requirement that the list must relate to a material issues involves circular reasoning.

  1. Similarly in R v Lane (2011) 221 A Crim R 309; [2011] NSWCCA 157 at [56], Simpson J (with whom Howie AJ agreed) distilled the relevant legal principles as follows:

[56] The principles applicable to evidence of lies told by an accused person as evidencing consciousness of guilt were comprehensively spelled out in Edwards v R [1993] HCA 63 ; 178 CLR 193. They had their origin in R v Lucas (Ruth) [1981] QB 720 as summarised (uncontroversially) by McHugh J in Edwards (although in a dissenting judgment as to their application). They are (I have slightly paraphrased):

(1) the lie must be deliberate;

(2) the lie must relate to a material issue;

(3) the motive for the lie must be a realisation of guilt and a fear of the truth;

(4) the statement said to constitute a lie must clearly be shown to be a lie by admission or by evidence; where evidence of the lie is tendered as corroboration of the evidence of a witness, the evidence showing that the statement is a lie must be from a person other than that witness.

  1. The first component of the ERISP concerns, as earlier mentioned, denials by the accused of having known the deceased. If the Wickr messages relied upon by the Crown are established as messages sent by the accused then this represents an evidentiary basis to establish the accused lied in the relevant passages of the ERISP. Thus, the evidence, if the Wickr messages are admitted, has the potential to demonstrate a consciousness of guilt. The potential probative value is high insofar as it may lead to an inference that the accused knew it was the deceased that was stabbed in the barbershop.

  2. The accused submitted that the admission of the ERISP on that basis involves circular reasoning, as to make out the lie requires that the accused committed the offence and that, therefore, the answers are incapable of establishing a lie showing consciousness of guilt as it presupposes the message was sent, and, at the least, they would constitute an admission of guilt.

  3. The accused’s argument in this regard has some force insofar as it is directed to whether the lie showing consciousness of guilt arising out of the first component of the ERISP may be left to the jury in that form: Zheng v R (1995) 83 A Crim R 572 at 576-577 (per Hunt CJ at CL, with whom Smart and Studdert JJ agreed) (see also R vLane at [14] and [20]). Ultimately, however, it will be a matter for the jury to first determine whether the accused was party to the Wickr messages and then determine whether (having regard to the accused’s denial) what was said in the ERISP was a lie, and then determine whether that lie can be used for the purposes contended by the Crown.

  4. As to the second component of the ERISP, it was, not disputed by counsel for the accused (properly in my view) that the accused’s denials as to the riding of the motorbike, which was in the garage, could be capable, when seen in in the light of the evidence of Ms Bradley, Mr Cool and Mr Saller, of establishing a lie indicating consciousness of guilt.

  5. Rather it was submitted that the probative value of the evidence was diminished as the accused had raised similar denials in the earlier police interviews (which were not objected to be the accused).

  6. There are two difficulties with that submission. First, it is difficult to see why the evidence of “similar” responses in an earlier interview necessarily reduces the probative value of the evidence. Secondly, the earlier recorded interviews principally elicited denials by the accused of knowledge of the motorbike with a minor component concerning the riding of the bike.

  7. As to the third component of the ERISP, during the interview, the accused's story as to why he left the house with his father on the afternoon of 11 January 2019, shifted. He initially said that he asked his father to take him to Fairfield Police Station to report on bail, with no mention to him that he intended to go to EB Games as well. He repeated this later in the transcript of the interview. When confronted with his father's statement, the accused admitted that he had lied earlier in the interview. Rather than asking his father to take him to report, he had, in fact, asked his father to take him to "Stockland's" so that he might "suss out" the stabbing incident.

  8. Whilst the Crown submitted that given the time of the interview the accused had not spoken at any length to the police, the lie, it was contended, was capable of demonstrating consciousness of guilt.

  9. However, the accused raised doubt, correctly in my view, as to how the Crown may establish the lie was made in consciousness of guilt because a question which looms large is whether the “truth” given at the end of the interview (if it is the truth) could establish guilt or consciousness of guilt. The lie in the third component may go to credit but it would appear not a lie demonstrating a consciousness of guilt. Its probative value is diminished accordingly.

  1. I further note that the third component of the ERISP contains a reference to the accused being on bail. I have made allowance in my conclusion for further steps to be taken in that respect.

  2. On a more general level the accused submitted the ERISP has minimal probative value as no admissions were made, the topics were canvassed in other parts of evidence not objected to and the ERISP formed but part of an overall circumstantial case.

  3. It is true that the ERISP does not contain admissions as such and forms part of a circumstantial case for the Crown, but, in my view, the first and second components of the ERISP contain material (when seen in the light of other evidence called for the purposes of the voir dire) which has a relatively high probative value. It is true a part of the second component repeats earlier evidence. Nonetheless, the further evidence is probative because it extends the proof of the Crown’s case as to that alleged lie demonstrating consciousness of guilt.

  4. Both the first and second components of the ERISP are accordingly important.

Section 138(3)(c)

  1. The offence charged is murder. It is the most serious offence in the criminal calendar. This is a factor favouring admission: R v Dalley (2002) 132 A Crim R 169; [2002] NSWCCA 284.

Section 138(3)(d)

  1. The Crown submitted that an inference is open be drawn that the accused has understood the caution, therefore lessening the gravity of it not being administered per s 139(1)(c).

  2. The accused was provided with the caution by Detective Senior Constable Jansen at the 3:50pm interview at the premises on three occasions, twice before his arrest and again after he was informed of his arrest. Upon his arrival at Fairfield police station, the accused was provided a caution by Sergeant Jarvis under Pt 9 of LEPRA approximately an hour before the commencement of the ERISP. His rights were read to him and he was provided with the form.

  3. On each occasion, the accused indicated that he understood the caution and, on each occasion the accused chose to not exercise his right to silence, giving his answers “fulsomely and confidently”.

  4. It was submitted by counsel for the accused that the previous cautions occurred in two very different contexts. The first being at the accused’s home where his parents were at least on the premises and he was not yet a suspect in a murder charge. In the second context he was provided his right to silence by Sergeant Ryder among a series of other rights, and in the accused’s submission, there was no suggestion that any particular attention was drawn to his right to silence.

  5. I am satisfied that, notwithstanding the change of environment and context, by the time the ERISP was conducted at approximately 6:43pm, the accused had been administered a caution on three occasions between approximately 3:50pm and 4:06pm and again at approximately 5:45pm. There is nothing in the material which would suggest the environment or context significantly contributed to the accused’s approach as he adopted a similar style of response during the ERISP absent those factors.

  6. Furthermore, the protection conferred in s 139(1) is of fundamental importance in protecting the accused’s common law right to silence. As the accused acknowledged that he understood his rights and nevertheless declined to exercise his right to silence on four occasions prior, giving answers and accounts in some length, I am satisfied that he was aware and understood this right.

  7. It is also a relevant consideration in this respect that the officer made an attempt to administer the caution at the outset of the interview, setting out part of what was required under 139(1)(c).

Section 138(3)(e)

  1. The Crown submitted that the impropriety was simply a case of inadvertence on the part of the officer. Indeed it was conceded by counsel for the accused that, it may be put that the police were merely negligent in the execution of their duty, which does not attenuate the gravity of the impropriety, which I have dealt with above.

  2. For the following reasons, I am satisfied that the failure to administer the full caution could not be said to have been a deliberate omission by the officer or gross negligence. It was inadvertence on his part.

  3. There was an articulation by the officer of part of what was required by s 139(1)(c), notwithstanding that the caution as required was not administered per my previous finding. The officer made an attempt to administer the caution at the outset of the interview, stating:

Q8. O.K. Fred, I’m going to ask you questions in relation to a stabbing of a male named Alfredo Isho, a hairdressers located at Bossley Park. In relation to those questions any answers that you give will be recorded on this machine. Do you understand that?

A. Yes, sir.

Q9. And anything you say or do may be used in evidence. Do you

understand that?

A. Yes, sir. Could you repeat the name again, please… I didn’t get that.

[Emphasis added.]

  1. He also specifically referred to the rights read by Sergeant Ryder, albeit with insufficient attention to the caution given in that process.

  2. In addition, the accused had been provided with a full caution on the three occasions stated above, including approximately an hour prior by Sergeant Ryder at the Fairfield Police Station.

Other matters

  1. I have taken into account each of the discretionary matters raised by counsel as contained in s 138(3), as set out above. I have also had regard to the other matters, including the accused’s young age (he had been an 18-year-old for less than six months at the time of his arrest) and the fact that he was facing his first charge for a matter of this nature and gravity.

  2. The fact that the accused had only been an adult for approximately six months at the time of him being interviewed as a suspect in a murder charge, may have made him less equipped to deal with the situation, which he was placed in for the first time, than someone older. However, I have also observed that the accused gave answers willingly, choosing not to exercise his right to silence on each occasion that he was cautioned throughout the day and should a cognizance and recognition of the right read to him by Sergeant Ryder.

  3. Counsel for the accused contended that this willingness to provide answers came from a place of fear and panic. Having considered the answers provided in the ERISP and other recorded interviews, I am satisfied that the accused was confident in participating in the ERISP, and notably as confident in his answers as those he gave prior to his arrest, despite his inexperience and young age. The consistency and steadiness in his approach was not commensurate with panic.

Conclusion

  1. Having had regard to the matters under s 138(3) and other relevant matters, I am satisfied in the present case that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

  2. Accordingly, I decline to make the order sought in the Notice of Motion.

  3. An issue arose as to the reference to bail in the third component of the ERISP relied upon by the Crown. No specific application has been made for an exclusion of part of that evidence, but in submissions by the Crown indicated a willingness to accept a process of redaction based upon any prejudice to the accused. I would positively entertain any application in this respect in due course.

Orders

  1. I make the following order:

  1. The notice of motion dated 7 August 2020 is dismissed.

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Amendments

09 March 2021 - Publication restriction removed.

Decision last updated: 09 March 2021

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Bunning v Cross [1978] HCA 22
Bunning v Cross [1978] HCA 22
Bunning v Cross [1978] HCA 22