R v Musa (No 3) - [2023] NSWSC 328

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Musa (No 3) [2023] NSWSC 328
Hearing dates: 14 November – 12 December 2022
Decision date: 04 April 2023
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
Various alleged admissions excluded and not excluded pursuant to various provisions of the Evidence Act 1995 (NSW)

Catchwords:
EVIDENCE — admissions — criminal proceedings – murder trial – objections on voir dire – whether evidence from body worn video and subsequent recorded interview should be admitted or excluded – conceded denial of LEPRA rights – whether discretion to admit unlawfully obtained evidence should be exercised – whether oppressive conduct by police – whether circumstances raised unreliability of admissions – whether unfairness discretion regarding admissions should be exercised – probative/prejudicial evaluative judgment discussed – segmentary approach adopted – various portions of body worn video product and recorded interview excluded and admitted

Legislation Cited:
Evidence Act 1995 (NSW) ss 55, 84, 85, 90, 135, 137, 138, 139
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 122, 123
Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) ss 28, 29

Cases Cited:
Habib v Nationwide News Pty Ltd [2010] NSWCA 34; (2010) 76 NSWLR 299
R v Sumpton [2014] NSWSC 1432

Category: Procedural rulings
Parties: Rex (Crown)
Jackline Sabana Musa (Accused)
Representation:
Counsel:
S Hughes with E Blizard (Crown)
M Avenell SC with R Khalilizadeh (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2020/190754
Publication restriction: Nil

JUDGMENT

Introduction

This judgment explains the fourteen separate decisions that I made at the conclusion of a voir dire about admission and exclusion of alleged admissions made by Ms Jackline Sabana Musa (for present purposes, the accused) to police before the empanelment of the jury in her murder trial.
Attached to this judgment is the tabular conspectus of my rulings and their bases, with which I provided the parties at the time of making them.

Background

By way of background, at about 8:30 PM on the evening of 27 June 2020, the accused had been driving an SUV when it forcibly came into contact with Mr Payman Thagipur (the deceased) in the car park of the apartment block in which he resided, thereby causing his death.
Shortly after the collision, she telephoned 000. Emergency services arrived a short time later, including a Highway Patrol officer, Leading Senior Constable Nevill. He arrested and interviewed the accused at the scene, and that interaction was recorded on his body worn video (BWV). A copy of the A/V file became voir dire exhibit D1, and the transcript thereof voir dire exhibit D2.
Thereafter, the accused was taken to hospital for treatment of her injured hand, departing the scene at about 9:15 PM. Later, at about 1:00 AM, she was taken to Auburn Police Station and placed in the care of the custody manager, Sergeant Nicolle. At 2:18 AM, a recorded interview was conducted between Detective Senior Constable Duggan, assisting officer Detective Senior Constable McLaughlin,…

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 Musa (No 3)

Details

AGLC: R v Musa (No 3) [2023] NSWSC 328
Case: [2023] NSWSC 328
Decision Date: 04 April 2023

CaseChat Overview and Summary

The case of R v Musa (No 3) involved a defendant charged with murder, and the court's task was to determine the admissibility of evidence gathered through a body-worn video and a subsequent recorded interview. The Crown's evidence relied heavily on these recordings, which were captured by police officers during their interaction with the defendant. The trial judge conducted a voir dire to determine the admissibility of this evidence, particularly in light of alleged breaches of the defendant's rights under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). The defendant objected to the admission of the evidence, claiming that it was obtained in an oppressive manner and that it was unreliable.

The court had to decide whether the evidence should be admitted despite the acknowledged breaches of LEPRA. Key issues included whether the discretion to admit unlawfully obtained evidence should be exercised, given the circumstances of the case. The court also needed to assess whether the police conduct was oppressive, and if so, whether this rendered the admissions unreliable. Additionally, the court considered whether the fairness of the proceedings warranted the exclusion of the admissions under a discretionary exclusion, and how the probative value of the evidence weighed against any prejudicial effect it might have.

In its reasoning, the court noted that the police had conceded breaches of the defendant's LEPRA rights, but it determined that these breaches did not render the admissions inadmissible. The court found that the oppressive conduct by police did not necessarily undermine the reliability of the admissions. However, the court exercised its discretion to exclude certain portions of the body-worn video and the recorded interview that it deemed oppressive or unreliable. Applying a segmentary approach, the court admitted various portions of the evidence while excluding others that it found to be tainted by the breaches of LEPRA. The court concluded that the probative value of the remaining evidence outweighed any prejudicial effect.

The final orders of the court were to admit certain portions of the body-worn video and the recorded interview while excluding others that were deemed oppressive or unreliable. This decision balanced the need for probative evidence in the case with the principles of fairness and the protection of the defendant's rights.

Orders