R v Edwards

[2019] NSWSC 1819

Supreme Court

New South Wales

Medium Neutral Citation:	R v Edwards [2019] NSWSC 1819
Hearing dates:	28 October 2019
Decision date:	29 October 2019
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Evidence of conversation with police on 2 April 2015 admissible
Catchwords:	EVIDENCE — admissibility – trial on charge of murder – transcript of conversation between accused and police – Objection on basis of s 122 LEPRA – whether statements improperly obtained and liable to be excluded pursuant to s 138 Evidence Act – doubt as to applicability of s 122 – discretion to admit in any event
Legislation Cited:	Evidence Act 1995 (NSW), ss 138, 139 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 110, 122
Category:	Procedural and other rulings
Parties:	Regina John Wallace Edwards
Representation:	Counsel: Ms K Ratcliffe (Crown) Mr P O’Connor (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) James Fuggle Rummery (Accused)
File Number(s):	2017/184174

Judgment

1. HIS HONOUR: Mr John Edwards is to be tried on a charge that he murdered his wife, Ms Sharon Edwards, on or about 14 March 2015 at Grafton.

2. This judgment concerns the accused's objection as to the admissibility of a conversation he had with a police officer on 2 April 2015.

Factual background

3. The accused was the last known person to see his wife alive on the evening of Saturday 14 March 2015. His case is that he saw her at the home where she was living in Riverdale Court, Grafton, but that he then went to the home where he was living in Lawrence, about 30 km north-east of Grafton, towards Maclean. Ms Edwards was never seen again. The Crown case is that she is deceased, although her body has not been found.

4. The accused reported to Grafton police on Monday 16 March 2015 that his wife was missing. He gave an account of last seeing her on the Saturday evening. He was advised to return the following day which he did. That afternoon he took part in an electronically recorded interview in which he provided a detailed account. He described an argument with Ms Edwards at her home on the Saturday evening but nothing more.

5. Police inquiries continued. Crime scene warrants were issued and both Ms Edwards’ home and the accused's home were subjected to detailed searching and examination. By 31 March 2015, police formed the view that Ms Edwards was deceased.

6. On 1 April 2015, the accused and his three sons attended Grafton police station to participate in a media appeal.

7. The accused went to Grafton police station with his son, Zac Edwards, on the evening of 2 April 2015, saying he wanted to talk to police. Detective Troy King recorded a conversation with him on a handheld recording device; that is, not the usual equipment for recording an "ERISP". [1] He confirmed with the accused at the outset that he had attended voluntarily; that he was not under arrest; and that he did not have to say anything. The accused acknowledged these things, but said that after speaking with his son he wanted to talk. He said, "I haven't quite told you everything that happened on, on Saturday night", a reference to the night his wife "went missing".

   1. Electronically Recorded Interview with a Suspected Person.

8. Thereafter, he said some things that the Crown relies upon as part of its circumstantial case.

Submissions

9. The Crown tendered a transcript of the conversation, marked to highlight the parts the Crown relied upon. Detective King was called to give evidence on the voir dire.

10. As initially framed, the objection was that there had been a failure by police to caution the accused prior to "questioning", and so according to s 139 of the Evidence Act 1995 (NSW), the evidence is deemed to have been "obtained improperly" and is liable for exclusion pursuant to s 138. However, given the conversation proceeded on the basis that the accused was not under arrest, there was no basis for him being arrested (at least at the outset), that he wanted to volunteer information, and the detective did not ask questions, it was unsurprising that this basis for the objection was abandoned.

11. Counsel turned to reliance upon s 122 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), which provides:

122 Custody manager to caution, and give summary of Part to, person under arrest or protected suspect (cf Crimes Act 1900, s 356M)

(1) As soon as practicable after a person who is detained under this Part (a detained person) comes into custody at a police station or other place of detention or after a person becomes a protected suspect, the custody manager for the person must orally and in writing:

(a) 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, and

(b) give the person a summary of the provisions of this Part in the form prescribed by the regulations.

(2) The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer.

(3) After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given. (Emphasis added)

12. Counsel contended that the accused became "a protected suspect" as early as his "answer" to "Q 15" (as it is called in the transcript), when it is contended that he made an admission to having assaulted Ms Edwards. It was submitted that the accused's status as a "protected suspect" was even clearer in his "answer" to "Q19", when he made an admission in relation to having had illegal firearms secreted in a shed.

13. References to questions and answers in the preceding paragraph are in quotation marks because, as will be seen from the extract below, the terms are inapt.

14. A "protected suspect" is defined in s 110 of LEPRA:[2]

    2. This section, and s 122, are within Part 9 of LEPRA.

110 Definitions (cf Crimes Act 1900, s 355)

(1) In this Part:

…

protected suspect means a person who is in the company of a police officer for the purpose of participating in an investigative procedure in connection with an offence if:

(a) the person has been informed that he or she is entitled to leave at will, and

(b) the police officer believes that there is sufficient evidence that the person has committed the offence.

(2), (3) (Repealed)

(4) For the purposes of this Part, a person ceases to be under arrest for an offence if the person is remanded in respect of the offence.

(5) For the purposes of this Part, a reference to the place where a protected suspect is detained is a reference to the place where the person is participating in the relevant investigative procedure.

The evidence

15. It is necessary to set out the relevant parts of the conversation:

"SENIOR CONSTABLE KING

Q1   All right. I'll just start this. This is a electronic recording of a conversation with John Edwards at the Grafton Police Station, OK. And I want you to understand that you're not under arrest, and you're here of your own free will. Is that the case?

A   Yes, that's the - - -

Q2   And you've come here with Zac - - -

A   Yeah. And .....

Q3   - - - to talk to us.

A   Yeah. I've been just talking to my eldest son. Like, he's been with me too.

Q4   OK. And, and - - -

A   Convince me to come, because it's, it's just - - -

Q5   Yeah. And of course - - -

A   .....

Q6   - - - you know that you don't have to talk to us. You can, you don't have to say anything. You, you understand that, don't you?

A   I understand to you that ---

Zac Edwards

Q7   You want, you want to talk?

A   Sorry?

Q8   You want to say.....

A   Yeah, yeah, I want to talk you.

Detective King

Q9   You've come to us.

A   I've come to you, yes.

Q10   Yeah, OK.

A   Yeah.

Q11   .....

A   I'm just acting crazy, like a lunatic, and, and, and looking guilty.

Q12   OK.

A   OK. Um, on the Tuesday night, just, um you know Sharon and I having, you know, just sitting out by the pool, having a, having a, a drink and a, and a chit chat together, and, um, and we were talking about her friends. What, what she was doing with the, like, the investment property. And straight out of blind. straight out of the blue, Sharon said to me, um, oh, what's her name, Ronda McKenzie didn't d, deserve to die, did she. Just straight out of the blue. And I said, No, no one deserves to die. But she'd also come straight out of the blue the last time I was talking to her too, and I thought, thought it was a, a bit strange. But, but when, oh, I'm going, just going crazy here, I really am going crazy. It's just, it's just, just haven't slept. I really didn't actually nod off at all last night. On, I haven't quite told you everything that happened on, on Saturday night.

Q13   OK.

A   Um, there was, when Sharon came home, you know about the roller door going up and down.

Q14   Yeah.

A   Right. And then she came back. It was round about, well, I know where I was up to in Dances With Wolves. It was when, when they were actually, just, just after they'd skinned the buffalos, and then they found some more buffalos. That's, that's when she rocked up. So

Q15   Yeah.

A   I don't know what exactly what time it was. Sharon walked upstairs. She was typing a text message. There weren't any, any angry words. I'd already pulled out the, the plug on the, on the Wi-Fi, so she couldn't get on Facebook. But she went for her iPad, and I've grabbed, grabbed it off her, and it's twisted, she's hit the ground. She opened up that, that cut that I did a couple of weeks ago, um, few drops of blood. What else sort ot? What else did I say about that night that happened? Oh, it's god for, clear in mind but, but anyhow, she got up. There's no, there's no shouting. Like, no yelling or screaming, all the doors and windows were open, people, neighbours were up, they wouldn't have heard a thing. It wasn't loud at all. Um, I've said this to my boys so clearly. So clearly. I'm just so, so nervy. Mental blank now, Josh, Zac. That's why I need you here. But anyhow, um, I've said I, you know, was going, was going down the, ah, stairs she told me you know, make sure you put the car in. She was going to bed. Put the car in. I questioned her, just pull me up if I'm not, what I said to you, Zac, because what I told you and Josh was just the straight truth. I'm just nervous in front of this, this machine.

Q16   That machine's not on, it's just this little hand-held here.

A   Oh, sorry.

Q17   Yeah.

A   .....

Q18   It's just this little one here.

A   Yeah.

Q19   It's just recording what you've got to say.

A   But anyhow, what I found out, you know, by just snooping around, like, you know that, ah, she'd had another personal loan that I didn't know about. Um, 40 grand. I said to her, you know, as I was going down the stairs, sorry, this is when, after the key, sorry, I, I took my car out. I, I put her, her car in. OK. I put the, um, I asked her about the, the 40 grand. Um, you know, What's the 40 grand for? She said, To get rid of you. Now, I understood that to be, I was going to get killed. All through our marriage she's always talked about, you know, hit men and, you know, like, you know pop's connection with the racing game and all that sort of thing. So, like, it was just the tone of her voice. Like, I believed it. And, I still remember saying, I still love you. I might, I've left little bits out, Zac? 'Cause I told, I just told you guys, so

Zac Edwards   

I think we should just, just - - -

A   Yeah.

Zac Edwards

- - - tell 'em all you said to me about this afternoon. That's probably more important at the moment.

A   All right. Yeah, but I need to tell about the, the keys. During the search of the property at Neill Street, I was a little bit worried about some, um, illegal firearms that were in the shed. When I'd stripped the walls off, they were hidden in a wall, just with the masonite.

Detective King

Q20   Yeah.

A   Um, il- illegal firearms. I've had, naturally had to take them out. My wife, Sharon, she knew they were in there. Um, I, I told her, actually, where I put them, in case something ever happened to me. And I said, next time they have an amnesty, I'll get rid of them. Um, when we got back into, you know, like, finally went back into Lawrence, the, the house was locked. I - - -

Zac Edwards

Talking about after the search?

A   Yeah, after the searches.

Detective King

Q21   Mmm.

A   Like, I was really panicky during the searches. … " (Emphasis added)

16. The conversation continued until at "Q 45" Detective King placed the accused under arrest for possession of illegal firearms and, at "Q 46", cautioned him:

"Detective King

Q45   Take a breath. So I've got to place you under arrest and caution you that you're under arrest for possession of illegal firearms, because you're not a licensed shooter.

A   Mmm.

Q46   Um, and I want you to understand that you're not obliged to say or do anything unless you wish to do so, but whatever you say or do will be recorded and will later be used in evidence. Do you understand that?

A   Yes.

Q47   OK. Are you - - -

A   Should I have a solicitor?

Q48   A solicitor is a matter for yourself.

A   Yes.

Q49   Um, but bearing in mind that there's, you said a shotgun, and another firearm?

A   Yes, like, a, a, um, it's just a rifle, cut down. Yeah.

Q50   So a sawn-off?

A   Yeah.

Q51   OK. So, one, it's purely a matter for yourself whether you want a solicitor or not, but I would be asking for your assistance to go and retrieve those firearms.

A   Yeah there going to be hard to find. One's going to be easy to find in the dark, and one, um

Zac Edwards

I've got one off him from today in Grafton. It's in the car.

A   I thought I put, Yeah I shoved everything in the back, but I missed one.

Detective King

Q52   Right. So there's another gun somewhere else?

A   Yeah.

Q53   There's only two firearms?

A   No, there's, there's four, actually.

Q54   Four. OK. Are you prepared, and what I need to do with you - - -

A   Yeah, I'll help you find them, but - - -

Q55   Yeah. What I need to do - - -

A   - - - it's going to be hard in the dark.

Q56   Yeah.

A   One's very easy to find.

Zac Edwards

Just let him speak, Dad.

Detective King

Q57   What I need to do is we need to take you to another police officer, who is a, who's a Custody Manager. There's some processes we've got to go through, where they need to speak with you and advise you of certain things, check on your health and wellbeing, and advise you of certain rights, like I just have. OK. They need to do that before I can progress any further on the firearms. Does that make sense?

A   Yeah.

Q58   Yeah.

A   It's going to be hard.

Q59   It's, it's a process we need to go through with people in your situation that are making admissions to offences of possessing - - -

A   Yeah.

Q60   - - - firearms and such, that we need to go through this process first before I can speak to you further. Does that make sense?

A   They haven't, yeah, they haven't been fired in years and years and years. You should be able to - - - "

17. In his evidence on the voir dire, Detective King said that he had been involved in the initial investigation, but that by 2 April 2015 his focus was upon his duties as a rural crime investigator. He was on duty on that day at the Grafton Police Station, having resumed work after four days absence. He said that he had been checking emails and COPS entries when another officer spoke to him and told him that the accused and his son Zac were in the foyer. Detective King said he had no expectation or suspicion as to what the accused wanted to talk about. If the accused had wanted to leave the police station at any time during the conversation, he would not have prevented him doing so, “not up until he made admissions of an offence, no, he was free to go”. [3] He said there was nothing in the course of the conversation that caused him to form a belief that there was sufficient evidence to establish that the accused had committed an offence relating to the disappearance of Sharon Edwards. [4]

    3. Tcpt, 28 October 2019, p 28(48).

    4. Tcpt, 28 October 2019, pp 28-39.

18. In cross-examination, he agreed that he knew that the accused had been a person of interest in relation to the investigation “almost from the outset”. [5] He agreed that in relation to the accused’s account of grabbing Ms Edwards’ iPad and her hitting the ground ("Q 15") – that it constituted an assault. In response to a question as to whether he understood that to be an admission to the offence of assault, he said, “It certainly was taken that way by me”.

    5. Tcpt, 28 October 2019, p 29(46).

19. The detective’s attention was drawn to the reference to “illegal firearms” at the end of what appears in the transcript as the answer to “Q19”, and was asked whether he understood that to constitute an admission to the possession of illegal firearms. He responded: [6]

“A. It certainly changed my opinion on it there, that he’s talking about some illegal firearms and if you look just above that, with Zac Edwards saying, “Tell them all what you said to me this afternoon. That’s probably more important at the moment”. So I was interested to see what else he head to say.”

6. Tcpt, 28 October 2019, p 31(45).

20. The detective’s attention was then drawn to the arrest and cautioning that occurred at “Q45” and “Q46” and he was asked whether at that point the information he had “was essentially the same information that you had at question 20 wasn’t it”. Detective King replied, “no it wasn’t”. [7]

    7. Tcpt, 28 October 2019, p 32(35).

21. The cross-examination continued: [8]

    8. Tcpt, 28 October 2019, pp 32-33.

“Q. Well it was essentially in relation to the offence of the illegal firearms, the same information is that you had at question 20, wasn’t it?

A. No, the information I had at that stage was far more clearer, that there were sawn off rifles, a shotgun, so it was a lot clearer that offences had been committed, that needed to be addressed, and there were certainly some safety issues with those firearms by the way he had scattered them about.

Q. Indeed. But the fact that essentially he was eligible for arrest, and that you had a reasonable belief that he’d committed an offence, that was clear by question 20 wasn’t it?

A. It was certainly clear by question 51.

Q. No, no, but it was also clear by question 20 wasn’t it?

A. Not as clear as it was later in the interview when I had made up my mind to arrest the accused.

Q. Well you knew he’d committed an offence at question 20. After that you were simply eliciting more details, do you agree with that?

A. Certainly after more details as to what the offence was.

Q. And as far as the assault offence is concerned you had enough to arrest him on that at the end of question 15 didn’t you?

A. I’ve got to say I actually contemplated arresting him for that but when his support person said the other comments there to tell him the important things I allowed it to continue.”

22. Detective King agreed that there was a protocol that, when a volunteer gave information that made clear that they had committed offences for which they can be arrested, the person should be cautioned by the custody manager in accordance with LEPRA. He described it as “a normal custody process that they go through”. The cross-examination continued: [9]

“Q. And why didn’t you exercise that process here at question 15 or question 20 when it was obvious that this particular volunteer was going to be at some point arrested?

A. When the support person indicates that there is important information to be given with volunteers coming in I think it’s important that we actually listen to them, and get the full information, so that we can act appropriately, and that’s exactly what I did.”

9. Tcpt, 28 October 2019, p 33(39).

Submissions

23. As indicated earlier, counsel for the accused relied upon his client being within the definition of a “protected suspect” in s 110 of LEPRA, and therefore the provisions of s 122 applied. As indicated by the questioning of Detective King, it was the contention of counsel that as soon as the accused made an admission to an assault in his answer to “Q15”, the provisions of s 122 were engaged. Accordingly, the evidence of the conversation with the accused from at least that point onwards was improperly obtained for the purposes of s 138 of the Evidence Act and should be excluded.

23. The Crown submitted that the accused was not a “protected suspect” because, accepting that “an investigative procedure” encompasses questioning by police of a suspect, it did not apply to the accused because he was not being questioned in connection with an offence.

24. The Crown submitted that even if the provisions of s 122 did apply because the accused was a “protected suspect”, the discretion in s 138 should be exercised so as to admit the evidence.

Determination

26. I have considerable doubt that the LEPRA provisions relied upon by counsel for the accused do apply. The submissions by the Crown appear to have force. However, the matter may be resolved efficiently by addressing the s 138 question. The probative value of the evidence is significant in that on the Crown case, it involved a change in the accused’s version of the events of the night of 14 March 2015 from a minor verbal argument with Ms Edwards, as he conveyed in his previous account to police, to a physical altercation where the deceased fell to the ground. Inconsistencies in thew account by the accused, contended by the Crown to be indicative of lies, is an important aspect of the Crown’s circumstantial case.

27. The nature of the offence charged forming the subject matter of the proceeding is clearly one of grave seriousness. As the Crown Prosecutor pointed out, murder is the most serious offence known to the criminal law.

28. The gravity of the asserted impropriety or contravention is, in the entire context, of a relatively low order. This is particularly so having regard to the fact that the accused attended the police station of his volition, in the company of a support person (his son), for the purpose of telling police some things that he had not previously told them and that he wanted them to hear. The conversation proceeded with all the indications of the accused being enthusiastic in wishing to convey the additional information that he did.

29. The so-called “admission” to an offence of assault in the answer to “Q15” is not entirely clear, notwithstanding what Detective King said about it in his evidence on the voir dire. It is an account that is somewhat equivocal as to whether he described an intended forcible or hostile act directed at his wife. His statement that he grabbed the iPad from her, that it had twisted, and that she had hit the ground is equally open to the interpretation that what occurred to her was entirely accidental.

30. In referring to illegal firearms secreted in a shed, the accused’s account in the answers to “Q19” and “Q20”, appear to be an aside that had nothing to do with the principal subject of the accused’s attendance at the police station and conversation with Detective King, namely the disappearance of his wife.

31. I am satisfied that the impropriety or contravention was not at all deliberate, but at the most, reckless.

32. It does not appear that any other proceeding has been or is likely to be taken in relation to the impropriety or contravention.

33. I have had regard to s 138(3)(f) and (h), but they do not appear to be applicable in this case.

34. I am satisfied, primarily on the basis of the significance of the evidence, the nature of the proceedings, and the importance of the evidence in the Crown case that the discretion should be exercised to admit the evidence, notwithstanding what I have assumed to have been an impropriety in the police obtaining the evidence.

Ruling

35. The evidence of the conversation between the accused and his son and Detective King of 2 April 2015, insofar as it is relied upon by the Crown, is admissible.

**********

Endnotes

Decision last updated: 17 December 2019