R v Rossi-Murray; R v Byrnes (No 3)

[2019] NSWSC 481

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rossi-Murray; R v Byrnes (No 3) [2019] NSWSC 481
Hearing dates:	15 – 18, 22 – 26, 29 – 31 October 2018
Date of orders:	31 October 2018
Decision date:	02 May 2019
Jurisdiction:	Common Law - Criminal
Before:	Rothman J
Decision:	(1)   In the ERISP of the accused Rossi-Murray, the questions and answers to which are positive are admissible.  (2)   In the ERISP of the accused Rossi-Murray, the questions and answers in which the answers consist of words to the effect of ‘I will not answer that’; ‘I will not answer that on legal advice’; ‘I can’t remember that’ and ‘I don’t know’ are inadmissible.
Catchwords:	CRIME – ADMISSION – s 90 of Act – person of Aboriginal descent – refusal to answer couched in non-confrontational terms – ERISP rejected
Legislation Cited:	Evidence Act 1995 (NSW), ss 55, 56, 90, 137 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 122
Category:	Procedural and other rulings
Parties:	Regina (Crown) Barmah Rossi-Murray (Accused) Bradley James Byrnes (Accused)
Representation:	Counsel: P Barrett (Crown) A Webb (Accused Rossi-Murray) H White (Accused Byrnes)   Solicitors: Office of the Director of Public Prosecutions (Crown) Blair Criminal Lawyers (Accused Rossi-Murray) PW & Associates (Accused Byrnes)
File Number(s):	2016/00205098; 2016/00212466

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application on the voir dire relating to the admissibility of the evidence adduced in the course of an ERISP, being an electronically recorded interview of a suspected person, of the accused Barmah Rossi-Murray that was recorded on the 6 July 2016. The accused, Mr Rossi-Murray, is of aboriginal descent and as a consequence, pursuant to the terms of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (hereinafter “the Act”) is a protected person within the meaning of that Act.

2. It is unnecessary to recite the sections of the Act that give rise to certain duties on the police and rights on the protected person, because they are well known to those appearing in court at the moment. However I will refer, in particular, to s 122 of the Act, which requires that as soon as practicable after a person is detained at a Police Station, or after a person is suspected of being a protected suspect, a custody manager must do a number of things. These include, orally and in writing, causing the person to be warned and not to say or do anything, because it will be recorded. Secondly, the Custody Manager must give the person a summary of the provisions of this Part in the form prescribed by the regulations.

3. The Regulations in cl 20 thereof, provide that the form of summary of Pt 9 of the Act for the purposes of s 122(1)(b) of the Act is Form 31, in the case of a detained person, and Form 32, in the case of a protected suspect.

4. Form 31 and Form 32 are attached to the regulations.

5. The evidence before the Court, in Exhibit B on the voir dire, includes a form provided to the accused Rossi-Murray. It is in the form of Form 31. Frankly, at this point in time, I have not examined whether Mr Rossi-Murray was entitled to a Form 31 or a Form 32. I do not think it matters.

6. The terms of the prescribed form need only substantial compliance. It seems to me, on the face of it, he was warned and given a summary of what essentially were his rights under the Act and nothing flows from that.

7. The possible exception to that is that the Form was also provided to the support person, being a person that, in the case of an accused of aboriginal descent or of suspected Aboriginal descent, is a person required to support the participation of the interviewed person in an interview in the Police Station.

8. The evidence in that respect was given by Ms Stefana Morisio when the voir dire with which we are now dealing was first raised. Ms Morisio seems to have been unfamiliar with the process and took the view that she ought not interrupt the questioning, in relation to the matters with which she was concerned and that were being asked.

9. In the course of the evidence of Ms Morisio, she described the accused as “timid”. That description is not an unusual one in relation to the demeanour of Aboriginal persons when questioned by authorities. Steps are often taken in relation to overcome such cultural issues in court proceedings. Indeed, some of the aspects of Pt 9 of the Act, in relation to protected persons, are based upon the proposition that many persons of Aboriginal descent, for cultural reasons, will not assert to the contrary to persons in authority.

10. The issues before the Court in part rely upon that aspect, although not directly. The officers, the custody manager and the investigating officers, who questioned the accused, have done nothing inappropriate or improper. I make it absolutely clear, as I did during the course of the argument, that none of what I am now saying is in any way a criticism of the manner in which they questioned the accused or persisted in the questioning of the accused during the course of that recorded interview.

11. The question I have to deal with is significantly different from that. The question I have to deal with is whether the questions and answers that are sought to be utilized are probative, directly or indirectly, that is, do they directly or indirectly add to the probability of an existence of fact in issue in the proceedings.

12. In that regard, without reciting them, I refer to the provisions of ss 55 and 56 of the Evidence Act 1995 (NSW). Even if they are relevant and, therefore, prima facie admissible in evidence, bearing in mind the terms of ss 55 and 56, the next question that must be dealt with is whether they fall within one or other of the exceptions to admissibility that are contained in the Act.

13. The first of them is s 90 of the Evidence Act, which is in the following terms:

“90    DISCRETION TO EXCLUDE ADMISSIONS

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a)    the evidence is adduced by the prosecution, and

(b)    having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Note: Part 3.11 contains other exclusionary discretions that are applicable to admissions.”

14. The second is s137 of the Act, which is in the following terms:

“137    EXCLUSION OF PREJUDICIAL EVIDENCE IN CRIMINAL PROCEEDINGS

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

15. As is clear from a number of proceedings, when dealing with s 137 of the Evidence Act, the Court must look at the danger of unfair prejudice, that is, the risk of unfair prejudice, bearing in mind that all prejudice is not unfair and the mere fact that evidence hurts the case of an accused does not make it unfair or give rise to a risk or danger of unfair prejudice. Unfair prejudice, in the sense used in s 137 of the Evidence Act, requires a prejudice by the use of evidence in a way not contemplated by the Evidence Act or the principles of law that govern the fairness of trials.

16. If such a risk were to exist, and if such a risk were incapable of being ameliorated or eliminated by appropriate directions of the judge, then the question arises as to whether that unfair prejudice outweighs the probative value of the evidence in question. In some senses the capacity of a judge to give directions, the effect of which is to ameliorate or to eliminate the danger of unfair prejudice may come at the end of that process, but it makes little or no difference. In the case of s 137 of the Evidence Act, if the danger of unfair prejudice does outweigh the probative value, the Court is required to refuse to admit the evidence.

17. Section 90 of the Evidence Act again applies to criminal proceedings and gives the Court a discretion to refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if the evidence is being adduced by the prosecution or sought to be adduced by the prosecution and, having regard to the circumstances in which the admission was made, it would be unfair to a defendant/accused to use the evidence.

18. It has to be said there are some nice questions that arise from the terminology used in s 90 of the Evidence Act. For example, if a person denies the existence of a fact is that an admission in circumstances where evidence is adduced that the denial is a lie? In my view a statement by the accused that is against interest is an admission and includes a statement that the Crown relies upon for the purpose of proving a consciousness of guilt or a lie: see the definition of “admission” in the Evidence Act.

19. I turn then to the terms of the ERISP. Apart from the formal matters about inducements and promises and the like, the substance of the questions asked excited an answer or answers that are in the form of “I can’t answer that”; “I don’t know”; and “I don’t want to answer.” There are a number of examples. It is unnecessary to recite all of them but the terms of Exhibit E on the voir dire are replete with such answers.

20. The detectives, I reiterate, did nothing incorrect in the way in which they dealt with the accused. Indeed, on one view, they were extremely proper and appropriate in the way in which they dealt with him. That can be best disclosed by the following answers which are questions 38 and 39 in which the detective says, and I quote:

“Q. Is there anything that you wish to answer in relation to these allegations?

A. No, not really. I just wish not to answer it.”

21. The detective then says, quite properly in the sense of fairness to the accused:

“Q. Did you murder Mathew Shepherd?

A. I can’t answer that. My lawyer’s advice, I can’t answer, you know, any of your questions really.”

22. Then:

“Q. The other female in the vehicle, Shannon Lock, was she involved in the murder of Mathew Shepherd?

A. I can’t answer that”.

23. It cannot be said by any stretch of the imagination that the detectives were being unfair. They are not required to accept as binding the first answer given by the interviewee and they are entitled to persist to an appropriate level in the questions and answers that have been given or in further questioning.

24. There is no doubt that the accused was given the opportunity to speak to his support person in private before coming into the room and he acknowledges that in the course of the interview. He is asked about mobile phone numbers and he says “I can’t answer that” or “I don’t know”. He is asked at question 19:

“Q. Do you know a person by the name of Matt Shepherd?” [being the name of the deceased].

A. No I don’t. No, but I choose not to answer it any way so.”

25. The demeanour of the accused in the interview does show a person who is, frankly, reluctant. His arms are crossed, his body language is such that he seems uncomfortable, and there are a number of aspects in that regard.

26. I then turn, if I might, to questions and answers 23 and 24 which I raised with the Crown in the course of the arguments. Question 23 is in the following terms, after asking some questions about Matt Shepherd and Shannon Lock, each of whom are significant in the issues before the Court, the witness answers at question 22:

“I don’t know. I can’t answer that”.

27. Question 23 then asks:

“Q. They collected you from, it is alleged that they collected you from an address at Bidwell, the residence of Jasmin Langham” [I interpose, another person significant in these proceedings] “...do you recall that?

A.No I can’t remember that. I choose not to answer it.

Q.Is there a reason why you couldn’t remember, or?

A. I just. No, I’m just choosing not to remember it and, you know, not answer it.”

28. Question 25:

“Q. So is it the case you don’t want to answer that question?

A. Yeah.”

29. Question 26:

“Q. Were you at Schofields on that evening?

A. I honestly, I don’t wish to answer the question.”

30. There are many answers that are in similar form. There are many answers in which the witness says “I can’t remember” and then says “I wish not to answer it” or does not recite the latter aspect, that is, he simply says “I can’t remember”. But the demeanour of the witness, the series of questions both in Exhibit A on the voir dire, which is the unedited version of the transcript, and in Exhibit E, being both the recording and the transcript of the edited version, convinces me that when the witness is saying “I can’t remember that” he is, in effect, avoiding the answer to a question that he has chosen not to answer in accordance with his legal advice.

31. That then leaves the issue of whether that is an unfair prejudice or unfair to the accused if it be an admission. It is not absolutely clear how the Crown seeks to utilise a question and answer to the effect that “Did you murder the deceased? I can’t answer that question because of my legal advice”.

32. On its face, it seems to me to be inviting the jury either to ignore the right of the accused to silence and to refuse to answer questions, or to treat the question (as distinct from the answer) as evidence before them. There is no doubt I will give the jury the usual direction, if not a more complete one, relating to the right of an accused not to answer questions, but it strikes me that that question and answer has no, or very little, probative value and therefore would require very little unfair prejudice to overcome it.

33. There are some questions and answers which are positive. Those questions and answers, it seems to me, are admissible, whether or not they are true, and that is a matter for the Crown to deal with. It does seem to me that the persistence of the detectives overcame some of the reluctance to answer questions, but I reject questions and answers either to the effect of, ‘I will not answer that’ or ‘I will not answer that on legal advice’ or, ‘I can’t remember that’, and including, ‘I don’t know’ and I so rule.

34. I make that ruling because it is clear to me that the witness in answers of that kind is refusing to answer on legal advice and to admit them as, for example, lies, would be most unfair. I exercise my discretion under s 90 of the Act having particular regard to the cultural issue facing persons of Aboriginal descent, corroborated, in this case, by the demeanour of the accused during the interview.

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Decision last updated: 02 May 2019