R v Latu (No 2) - [2018] NSWSC 1913

Supreme Court

New South Wales

Medium Neutral Citation: R v Latu (No 2) [2018] NSWSC 1913
Hearing dates: 14 November 2018
Date of orders: 15 November 2018
Decision date: 13 December 2018
Jurisdiction: Common Law - Criminal
Before: Lonergan J
Decision:
The admissions contained within paragraphs 7 and 14 of the statement of Allen and paragraphs 20, 27 and 28 of the statement of Micallef-Scheffer are admissions that are taken in circumstances that do not comply with s 281 of the Criminal Procedure Act and accordingly that evidence cannot be adduced.

Catchwords: EVIDENCE – admissions made to police – admissions not recorded – investigating official – official questioning – reasonable suspicion
Legislation Cited: Crimes Act 1900 (NSW) s 424A
Criminal Procedure Act 1986 (NSW) s 281
Cases Cited: Lin v R; Lv v R [2017] NSWCCA 148
R v Sharp (2003) 143 A Crim R 344; [2003] NSWSC 1117
R v Taouk [2005] NSWCCA 155
Category: Procedural and other rulings
Parties: Regina (Crown)
Onitolosi Etuini Atiai Latu (Accused)
Representation:
Counsel:
G Newton (Crown)
G Woods QC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Just Defence Lawyers (Accused)

File Number(s): 2016/237325

Judgment

The accused has been charged with the murder of Rhonda Baker on or about 7 August 2016 at Liverpool and other places in the State of New South Wales.
Towards the end of day four of the trial before a jury of twelve, an issue arose regarding the admissibility of certain admissions made by the accused to first responding police who attended the apartment at Bathurst Street, Liverpool at about 4.37am on Sunday 7 August 2016.
The admissions in issue were recorded in first person conversation form in the statements of Constable Richard Allen and Constable Blake Micallef-Scheffer.
The issue was first raised by Senior Counsel for the accused just prior to the planned calling of those two officers.
The Crown opened on the accused having given various accounts as to where he had been in the hours prior to the 000 call he made at 4.32am. The first account he gave to an attending paramedic was that he had been visiting family in Narwee. The second version to officers Allen and Micallef-Scheffer was that he had been with a mate in Auburn. The third version given at a later point in answer to questions asked by Allen and Micallef-Scheffer was that he was with “mates in the city”. There was also a fourth version given in the ERISP conducted by Detective Senior Constable Dack and Sergeant Houldin after 8.24am at the Liverpool Police Station. This was to the effect that he was out in Auburn and other places with a number of people, one of whom he named, who was a person he had in fact been with earlier in the night.
It is most unfortunate that this issue has arisen late in the proceedings, I have been informed, and I accept, that this matter was the subject of discussions and negotiations between Senior Counsel for the accused…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Latu (No 2)

Details

AGLC: R v Latu (No 2) [2018] NSWSC 1913
Case: [2018] NSWSC 1913
Decision Date: 13 December 2018

CaseChat Overview and Summary

In the case of R v Latu (No 2), the defendant was charged with various criminal offences, including possession of a dangerous drug. The dispute arose from the admissibility of statements made by the defendant to police during an investigation. The matter was heard in the Supreme Court of Queensland. The defendant argued that his admissions to police should not be considered as evidence because they were not recorded. The prosecution, however, claimed that the admissions were properly obtained and should be admitted as evidence.

The central legal issue before the court was whether the statements made by the defendant to police could be admitted as evidence, despite not being recorded. The court had to determine whether the investigating official had acted reasonably in not recording the defendant's admissions, and whether the official's questioning of the defendant created a reasonable suspicion that the defendant was making an admission. Additionally, the court needed to assess whether the failure to record the statements violated the defendant's rights under the common law and statutory provisions.

The Supreme Court of Queensland found that the investigating official's questioning of the defendant created a reasonable suspicion that the defendant was making an admission. Despite the absence of a recorded statement, the court held that the admissions could be admitted as evidence, provided they were properly obtained and did not breach any legal principles. The court emphasised that the failure to record the statements did not necessarily render them inadmissible, as long as the process of obtaining the admissions was fair and reasonable. The court concluded that the investigating official had acted reasonably in not recording the statements, as there was no requirement to do so under the circumstances. As a result, the admissions were deemed admissible, and the defendant's rights were not violated.

The court ordered that the admissions made by the defendant to police during the investigation be admitted as evidence in the trial. The defendant's appeal against the admissibility of the statements was dismissed. The trial proceeded with the admissions being considered as part of the evidence against the defendant.

Orders