R v QL

[2017] NSWSC 1253

Supreme Court

New South Wales

Medium Neutral Citation:	R v QL [2017] NSWSC 1253
Hearing dates:	4 September 2017
Date of orders:	04 September 2017
Decision date:	18 September 2017
Jurisdiction:	Common Law
Before:	Hoeben CJ at CL
Decision:	Leave granted to the Crown to rely upon the disputed representations “I stabbed him. We argued and I was mad.”
Catchwords:	EVIDENCE – ss 139 and 138 Evidence Act 1995 – whether improperly obtained evidence – failure to caution the accused – evidence improperly obtained – on balance admissible pursuant to s 138 Evidence Act.
Legislation Cited:	Evidence Act 1995 (NSW) – ss 138, 139 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – s 99
Cases Cited:	IMM v The Queen [2016] HCA 14; 257 CLR 300 Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494
Category:	Procedural and other rulings
Parties:	QL – Accused Regina – Crown
Representation:	Counsel: Mr P Boulten SC – Accused Mr B Hughes SC – Crown   Solicitors: Woods Lawyers – Accused Solicitor for Public Prosecutions – Crown
File Number(s):	2016/02633

JUDGMENT

1. HIS HONOUR:

Factual background

At about 11.45pm on 3 January 2016 QL (the accused) stabbed HLC (the deceased) at premises in Hannans Road, Riverwood. The deceased died three days later from the stab wound.

2. By an indictment presented 4 September 2017 the accused pleaded not guilty to the following count:

On the 6th day of January 2016 at Riverwood in the State of New South Wales did murder the deceased.

3. Before the commencement of the trial, there was a voir dire to determine the admissibility of what the accused said when first spoken to by police at the Hannans Road premises. As a result of that voir dire hearing, I determined that the disputed evidence was admissible and indicated that I would provide reasons for that ruling in due course. This judgment provides those reasons.

4. In a statement, dated 15 January 2016, Inspector Warden said the following:

“4   About 11.57pm on Sunday the 3rd of January 2016 I heard a job broadcast over the Police Radio stating that a person from XX Hannans Road, Riverwood had either been shot or stabbed. The person was still breathing but was unconscious.

5.   Upon hearing that call I directed all staff attending that job to put on their bullet proof vests. I put on my vest and made my way towards that address. I saw CA141 pulled over on the side of Bonds Road Riverwood. Constables Elphege, Watson and Fox were in this vehicle and had their bullet proof vests on as well. We all made out way to the vicinity of XX Hannans Road Riverwood.

6.   … I pulled up about 100 metres west of [the premises]. CA141 stopped behind me. I saw an Asian male waiting on the footpath and he waved towards me as if to indicate that he wanted me to follow him. I believe this male is YL. …

7   I started to approach the male who turned and started to walk in an easterly direction along Hannans Road.

I said – “Did you call the police?”

He said – “Come this way.”

I said – “What’s happened?”

He said – “I don’t know.”

I said – “Is the offender still armed?”

He said – “I don’t know.”

8   The male led us about 50 metres in an easterly direction to XX Hannans Road Riverwood. This house is a single storey rendered brick and tile free standing residential abode. As you face the address from Hannans Road, there is a driveway leading down the left hand side of the house which takes you to the rear of the property. There was a two metre high hedge growing on the property line at the front of the address. There was also a large bush growing outside the doorway which is roughly in the centre of the house as you face it from the street. This bush largely obscured by vision of that doorway from the road.

9   We followed the man up the driveway and into the front door. The house was predominantly in darkness and the Asian male was gesturing for us to follow him. At this time I still did not know if there had been a shooting or a stabbing incident so the police made their way cautiously through the house following the Asian male.    

10   We all passed through the house out the back door which led to a covered carport. To my right was a small patch of lawn and a clothes line. To this point I had not seen any other person, other than the man who was leading us through the house.

11   After coming out the back door and into the covered carport area I followed the Asian man over to the right hand side of a Granny flat that was connected to the house by the carport roofing.

12   The Asian man gestured for us to enter the door which was on the south eastern corner of the Granny flat. He held the door open and I looked inside and saw a combined kitchen/living room. There were two doors coming off this open area on the western side of the room.

13   An Asian male was lying on the floor with his head and upper body cradled by a female Asian. I now know that male to be [the deceased]. The female is QL. I entered the room along with the crew from CA141. [The deceased’s] feet were facing a bedroom door which was open and there was an unmade double bed in that room.

14   [The deceased] was wearing a pair of black Nike shorts and a black tee shirt with blue and white on it. The tee shirt was lifted up and QL was holding a white towel to the chest area of [the deceased]. QL was wearing a blue coloured singlet top and black shorts.

I said – “What's happened here?”

The Accused Said – “It's alright. We had an argument." She lifted the white towel of[f] [the deceased’s] chest and I saw there was a single laceration slightly to the left of the centre of his chest. The cut was about 1.5 cm wide and there was very little blood evident coming from the wound or on the towel.

I Said – “What's happened?”

The Accused Said – “I stabbed him. We argued and I was mad. Is there an Ambulance coming?”

I said – “Yes. It's on the way. At this time you are under arrest for stabbing this male. You do not have to say or do anything you do not want to. Do you understand that?”

The Accused Said – "Yes.”

I Said – “However, anything you do say or do will be used as evidence in court Do you understand?”

The Accused Said – ”Yes. Can you be quiet? My baby is asleep In there.”

She indicated towards a second bedroom.”

5. Objection was taken by the accused to the words “I stabbed him. We argued and I was mad.” It was this evidence which I ruled was admissible.

6. Relevant oral evidence was given on the voir dire by Inspector Warden as follows:

“Q. When you got to the premises you were responding to a radio broadcast?

A. That's correct.

Q. And at that stage what was the state of your knowledge about the scene that you were attending?

A. It was very limited at that stage. The initial VKG job had indicated that somebody had either been stabbed or shot and that the patient was unconscious, but still breathing.

Q. And were you met when you arrived there by someone who later identified themselves as a relation of the accused?

A. We were met by another Asian male. I wasn't aware he was a relative.

Q. But you asked him in effect what had happened?

A. That's correct, yes, I did.

Q. And he said he didn't know?

A. That's right.

Q. Did he lead you to the house and to the granny flat?

A. That's correct.

Q. And when you went into the granny flat I think you have set out in your statement what you saw and what you did?

A. That's correct.

Q. Was there any weapon of any sort apparent to you when you arrived in the granny flat?

A. Not immediately, no.

Q. And you outline in your statement that you made some enquiries of the accused who was seated on the floor?

A. That's correct.” (VDT.5.29-6.11).

7. In cross-examination on the voir dire, it was suggested to Inspector Warden that when he entered the house and granny flat, he would have expected the perpetrator to still be there. Inspector Warden disagreed and said:

“A. … in my experience when a serious crime like this is done the offender generally leaves the scene as quickly as they can, so there would be nothing to indicate that there was a likelihood that the offender would remain on site.” (VDT.7.20)

He did agree that it was possible that the offender was still on the premises.

8. The evidence of Inspector Warden continued:

“Q. And when you looked inside the granny flat you saw the deceased on the floor?

A. Yes, or being cradled by the accused on the floor.

Q. Yes, and so when you saw them in that location you must have concluded that the deceased was in fact the victim of the crime that you had been called to investigate?

A. It seemed likely, yes.

Q. Yes, and quite likely that he had been injured, shot or wounded close to or in the granny flat?

A. I wasn't able to determine that at that stage as there was so little blood.

…

Q. You saw the accused cradling him and asked her, "What's happened here?"

A. Yes.

Q. Did you ask her that because you assumed she would be able to tell you something about what happened to the man?

A. I was hoping she could, yes.

…

Q. You thought she had important information or could have important information; correct?

A. I hoped so, yes.

Q. She told you, "It's all right, we had an argument"?

A. That's correct.

Q. So when she told you that "we had an argument", given what you already knew, that somebody, almost certainly now the man lying on the floor, had been injured either by a gun or a knife, you believed, didn't you, that there was a real likelihood that the accused had done it; right?

A. I still didn't know –

Q. Yes, but – okay, continue?

A. All she's indicated there is that, “It's all right, we had an argument.” It still didn't explain to me what exactly had happened, what her involvement was. I didn't know if she was like the gentleman outside who was simply showing us in. I still didn't know.

Q. There was an important difference between her and the man outside. She said, “We had an argument”; right?

A. Correct.

Q. So, accepting, naturally, of course, that you didn't know exactly what had happened, you at least deduced, did you not, that the finger was now pointing to her as the likely stabber or shooter; correct?

A. At this stage I was still unsure. That's why I tried to clarify with her again, “What's happened?”

Q. Sir, you know that suspicion is something less certain than surety, don't you?

A. Yes.

Q. Did you suspect she might be the person who did it?

A. I still didn't, I still didn't know.

…

Q. You know there is a difference legally between suspicion and knowledge, right?

A. Correct.

Q. So I am pressing you. You suspected her of being the perpetrator, didn't you?

A. I still didn't know. I know you're pushing it. I still didn't know.

…

Q. Then surely you must have suspected that she did it when she told you, "We had an argument"; right?

A. I just didn't know at that stage. I understand what you're saying, but it was so so little knowledge, so much confusion as to what had happened, given how she was sitting cradling him, it just didn't fit.

Q. You said, “I know what you are saying”. What do you think I am saying?

A. You are saying that I was aware that the accused was in my mind suspect for having stabbed or shot the deceased.

Q. She is what a police officer might call a person of interest; right?

A. At that stage I didn't know her role at all. She had just indicated she had had an argument. She was sitting there cradling the deceased on the floor calmly. I still didn't know her role and that's why I questioned her further.

Q. Sir, I suggest to you that you did suspect that she had stabbed or shot him. What do you say about that?

A. I had no idea of her role.

…

Q. And I suggest that you had formed a belief that she was the person of interest who stabbed or shot him?

A. I formed that belief when she indicated to me that she had done it.

Q. That's in answer to the next question?

A. Yes.

…

Q. Okay. So are you able to analyse so precisely your thought processes that you are able to say that in answer to your first question her answer, “We had an argument” did not raise a suspicion and did not raise a belief, but in answer to the next question it did both?

A. Yes.

Q. All right. I suggest that is a reconstruction?

A. No.

…

Q. And you intended to ask more questions of her; right?

A. That's right.

Q. So, for instance, had she stood up after the first answer and made a bee line for the door would you have blocked her passage?

A. Yes.

Q. So you formed the intention that she could not leave after the first answer; is that right?

A. No. If she had made an attempt to flee that would have put a different perspective on it and we would have immediately stopped her trying to flee the scene.

…

Q. Sir, if she had stood up after the first answer, put her husband's head on the floor, then walked towards the door you would have stopped her to ask her the sorts of questions you subsequently asked her I suggest; what do you say about that?

A. If she was trying to leave the scene?

Q. Yes?

A. I would have stopped her trying to leave the scene.

…

Q. … Once you had formed a belief or had the opinion that she had stabbed her husband, you were always going to arrest her; correct?

A. Correct.” (VDT.9.6 – 13.10)

The accused’s submissions

9. The basis for the accused’s objection to the evidence “I stabbed him. We argued and I was mad” was that the representations were capable of constituting admissions. On the assumption that they were made, the accused submitted that they were made in circumstances that required Inspector Warden to caution her (s 139 Evidence Act 1995 (NSW) (the Act)). Because no caution was given, the accused submitted that those representations were obtained improperly and that the Court should exclude the evidence of them in the exercise of its discretion under s 138 of the Act.

10. The accused submitted that when Inspector Warden asked “What’s happened?” she was in fact being questioned by police in that Inspector Warden was a police officer and he was empowered to arrest her. The accused submitted that the impugned answers were obtained after Inspector Warden had formed a suspicion, or a belief on reasonable grounds, that she had stabbed the deceased. The accused submitted that those answers, which were obtained prior to the caution but after Inspector Warden had formed the suspicion or belief that she had stabbed the deceased, occurred at a time when he would not have allowed her to leave the premises.

11. The accused submitted that in those circumstances, the representations/admissions were obtained improperly.

12. The accused relied upon the following matters to substantiate her submission that at the time the representations were made, but before the caution, Inspector Warden had a suspicion that she was the person who had stabbed the deceased:

1. When he entered the granny flat, Inspector Warden knew that there were reports that someone had been shot or stabbed at those premises.

2. On entering the granny flat and seeing the deceased, he believed that the reports related to the deceased, who was then injured and bleeding.

3. When he asked the accused “What’s happened here?” she replied “We had an argument”.

13. The accused submitted that the Court should infer from that evidence that at that time Inspector Warden believed that she had injured the deceased, probably by stabbing him. By that time he had the power to arrest her (s 99 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)). Pursuant to s 139(5) of the Act she was under arrest because she was in his company or alternatively, because if she tried to leave she would have been detained. The accused submitted that Inspector Warden’s continued questioning of her meant that she was in his company for that purpose. Because of his belief concerning her involvement, he intended to continue questioning her on that subject.

14. The accused submitted that the answers to those questions which were asked after Inspector Warden had formed that suspicion or belief until the time of the caution, were obtained improperly.

15. The accused submitted that this improperly obtained evidence should not be admitted pursuant to s 138 of the Act, the test being 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”. The accused submitted that a proper balancing of the factors outlined in s 138 lead to the conclusion that the desirability of admitting the answers did not outweigh the undesirability of admitting them.

16. The accused did not accept that the impugned answers had substantial probative value, nor that they had great importance in the proceedings, given the issues to be litigated. Although the accused accepted that the answers assisted in proving that she stabbed the deceased during an argument, she had made admissions to this effect during the course of her electronically recorded statement (ERISP) which would be admitted in the proceedings without objection.

17. The accused submitted that although the proceedings related to a very serious charge, there would be no dispute at trial that she caused the deceased’s death. She submitted that the issues at trial would focus on whether or not the act causing death was intended to kill or cause grievous bodily harm or indeed any harm at all. The accused submitted that in those circumstances, the importance of the evidence was relatively low and thus its probative value was also low.

18. The accused submitted that the maintenance of the protection of the right to silence was a fundamental plank of the administration of justice and that there was a strong public policy favouring respect for this right. The accused submitted that s 139 of the Act was a specific legislative provision designed to protect that right and to allow for a prima facie position where evidence concerning admissions should generally be restricted to circumstances where a suspect has been properly cautioned. The accused submitted that any breach of s 139 of the Act was potentially serious. In this case, there was no real impediment to the administration of a caution, other than the pressure of unfolding events. The accused submitted that when all relevant factors were weighed in the balance, the Crown had not demonstrated that the desirability of the admission of the evidence outweighed its non-admission.

Consideration

19. Relevant provisions of the Act are:

“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.

…

(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.”

“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.

…

(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.”

20. The burden of satisfying the condition that the evidence had been improperly or unlawfully obtained is on the person seeking its exclusion. If this condition were established, the party seeking to adduce the evidence carried the burden of proving facts relevant to matters in favour of its admission (Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 at [28] per French CJ).

21. The first issue was whether the accused had made out the requirements of s 139(1). There is no doubt that the questioning was conducted by an investigating official who was empowered to arrest the accused. It is also common ground that before the answers in dispute were given, no caution had been administered to the accused. The question of whether the accused was under arrest for an offence at the time is controversial.

22. Subsection 139(5) expands the concept of being “under arrest”. Relevant to this matter are subsections (5)(a) and (5)(b). In relation to s 139(5)(a), I accept the evidence of Inspector Warden that at the time when he asked “What happened?” for the second time, he had not formed a belief or suspicion that there was sufficient evidence to establish that the accused had committed an offence which was going to be the subject of the questioning. I am of the opinion that Inspector Warden regarded that as a possibility only and that it was one of a number of competing possibilities.

23. I accept the evidence of Inspector Warden that when he arrived at the granny flat, the only information he had was that somebody had been either shot or stabbed. The sight which confronted him of the accused cradling the head of the deceased in her lap was not what he would have expected had the accused been responsible for the deceased’s condition. I accept Inspector Warden’s evidence that normally in crimes of violence the perpetrator, rather than staying to explain himself or herself, tends to leave the premises as quickly as he or she can. As Inspector Warden put it:

“A. I just didn’t know at that stage. I understand what you’re saying but it was so little knowledge, so much confusion as to what had happened, given how she was sitting cradling him, it just didn’t fit.” (VDT.11.10)

24. I also accept Inspector Warden when he said that the answer to his first question about what happened – “we had an argument” – did not so add to his knowledge as to cause him to form the necessary belief or suspicion and at that point in time, he regarded the accused’s involvement as being, at most, only a possibility.

25. That does not end the matter. There is also the effect of subsection 139(5)(b) to be considered, i.e. would Inspector Warden have allowed the accused to leave had she wished to do so at that time. When that proposition was put to Inspector Warden he agreed that had the accused attempted to leave the granny flat after her first answer, he would have stopped her. Accordingly, the necessary requirements for the application of s 139(1) have been made out, which in turn, brings into play the provisions of s 138(1).

26. Before leaving s 139(1), it should be noted that an attempt by the accused to leave in the circumstances described by Inspector Warden, would have of itself added an extra ingredient of knowledge to that already possessed by him, i.e. that a person who obviously had some knowledge of what had occurred was now trying to leave the scene of the incident without explanation and without providing that information. In other words, the very act of attempting to leave would add an extra component of knowledge which would give rise to the necessary suspicion in the mind of Inspector Warden and which would cause him to prevent her leaving the scene.

27. It then becomes necessary to carry out the balancing exercise required by s 138 and to determine whether “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”.

28. I have concluded that in carrying out that balancing process, pursuant to s 138, the Crown should be granted leave to adduce the impugned evidence at trial. Of course, it is the Crown that has the onus of establishing that the evidence should be admitted pursuant to s 138.

29. Matters which the Court should take into account (albeit not an exhaustive list) in applying the statutory test are set out in s 138(3). The first of those is the probative value of the evidence.

30. Contrary to the submission of the accused, I am of the opinion that the probative value of the evidence is high. In reaching that conclusion I have, in accordance with the analysis of the majority (French CJ, Kiefel, Bell and Keane JJ) in IMM v The Queen [2016] HCA 14; 257 CLR 300, taken the evidence at its highest. As such, it has the potential to be understood as an admission that the accused stabbed the deceased while angry in the course of an argument. Given that only the accused and deceased were present at the time, and that the deceased will not be able to give a version of events, such an admission, if interpreted in that way, was of great importance to the Crown case.

31. On that issue, I do not accept the submission of the accused that admissions to similar effect were made by her in her ERISP so that the admission of this evidence did not advance the Crown case. While the accused did admit in her interview that she stabbed the deceased, she did not accept that she used the words attributed to her by Inspector Warden, nor did she accept that she was “mad” in the sense of angry and that this played a causal role in the incident.

32. The seriousness of the offence with which the accused has been charged adds to the importance of the disputed evidence. The evidence went directly to the intent element of the offence of murder.

33. In relation to the nature of the impropriety and its gravity, it is clear that ss 138 and 139 of the Act are directed at protecting an accused’s right to silence. That, of course, is a fundamental part of our criminal law and the administration of justice. As indicated above, there has been impropriety as provided for by s 139.

34. That having been said, the breach on this occasion was of a relatively technical kind. It was not a breach of the kind which appears to have been envisaged by the section, i.e. that the accused understood that he or she would not be allowed to leave if they had tried or that the relevant official had formed a view, even before questioning, that the accused would not be allowed to leave the premises should he or she try.

35. In this case, Inspector Warden’s knowledge was sparse. He did not know what part, if any, the accused had played in the wounding of the deceased. All that he knew was that the accused was caring for the deceased and that they had had an argument. Importantly, he did not know that the accused had a direct involvement in the wounding. What was clear was that the accused might well have information about how the wounding took place. If, however, one added to that factual background an attempt by the accused to leave the premises without answering further questions, that would add an additional piece to the puzzle of what happened to the deceased in that the very act of leaving would suggest some direct involvement on the part of the accused in the stabbing.

36. Accordingly, although there was a breach of s 139 so as to activate s 138, in my opinion the breach was towards the bottom of the spectrum of seriousness for an impropriety as envisaged by those sections of the Act. There was nothing deliberate or reckless in the impropriety.

37. Taking all of those matters together, I concluded that the desirability of admitting the evidence outweighs the undesirability of admitting it because of the way in which it was obtained.

**********

Decision last updated: 19 September 2017