R v Saifoloi Afele

[2007] NSWDC 346

CITATION:	R v Saifoloi Afele [2007] NSWDC 346
JUDGMENT DATE:	12 November 2007
EX TEMPORE JUDGMENT DATE:	10 July 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Application to exclude evidence: 281 Criminal Procedure Act 1982 is granted
CATCHWORDS:	Criminal Law - Special Hearing - application to exclude admission evidence - failure to record.
LEGISLATION CITED:	s.281 Criminal Procedure Act 1982
PARTIES:	Regina Saifoloi Afele
FILE NUMBER(S):	06/21/1080
COUNSEL:	P Johnson - Accused
SOLICITORS:	Mr R. Howle Office of the DPP, Parramatta

JUDGMENT

Application to exclude evidence: 281 Criminal Procedure Act 1986.

HIS HONOUR:

1. Saifoloi Afele has been charged that on 16 December 2005 at St Marys, he robbed Chiro Zadourian of property namely a wallet containing a sum of cash in circumstances of aggravation, namely, that at the time of the robbery he maliciously inflicted actual bodily harm upon Chiro Zadourian. No plea was entered by him, this is a special hearing and a plea of not guilty was entered on his behalf.

2. Mr Johnson, who appears for the defence, has objected to certain admissions said to have been made by the accused in the course of a search being made by police officers at St Marys Rail Station. Police had arrived at that station in the very early hours of the morning on 16 December 2005. They attended the taxi rank located at Station Street, St Marys. They saw a man who was obviously a victim of some foul play lying on the footpath outside a taxi rank adjacent to Station Street St Marys. He was about sixty years of age, Caucasian, thin build with greying hair. That man was wearing a grey coloured shirt and socks. His face was covered with what they assumed was blood. He had presented to them as unconscious and there was a large rubber penis lying on the ground next to him.

3. Sitting nearby on a pine log about, it is said, one metre behind this gentleman, was the accused. Senior Constable Walker approached the accused and said to him “What’s happened?” and the accused said “Three males assaulted him, they ran off” and pointed in an easterly direction. When Senior Constable Walker asked “What were they wearing?” and the accused is reported to have said “They were all wearing black shorts and black shirts”. The accused stated that there were five males who assaulted the victim.

4. Another constable present at the scene, Constable Green, then approached the accused and said “Do you have any identification on you?” The accused placed his hands in his shorts pockets and moved various items around. He did not pull any items out from his pocket and he was reported to have said “I don’t have anything”.

5. Constable Green noticed a black square item, which he believed to be a wallet in the accused’s right shorts pocket. Constable Green’s response to seeing that item was to say this -

“My name is Constable Green from St Marys Police Station. I believe you have an involvement in this offence and I am going to search you. I must warn you that failure to comply with my request may constitute an offence”. Constable Green then asked this question, “Have you got anything in your pocket that I should know about?” The accused’s answer was “No”.

It is important to bear that question in mind forwhat subsequently follows.

6. Constable Green then said, "Place everything you've got on the ground". The accused then placed his left hand in his shorts pocket, took hold of a $50 note, a $20 note and various coin currencies and pulled this from his pocket. The accused place those items on the ground. He then also pulled out a packet of cigarettes from his pocket and placed it on the ground.

7. He was then arrested by Constable Jack for assault and cautioned that he did not have to say anything and that everything that he did say would be recorded and could later be used in evidence and then said “I must warn you that failure to comply with my request may constitute another offence” and the accused said “Yes”.

8. He was taken to the rear of the caged vehicle, transported to Penrith Police Station, introduced to the custody manager and left. As events turned out, he was not interviewed on that night but was interviewed at a subsequent time and none of the conversation that I have just referred to in the course of the search was recorded in the interview. I have not seen the interview but I take counsel’s word for that. It seems to be agreed between the parties.

9. Mr Johnson relies on s 281 of the Criminal (Procedure) Act 1986 to invite me to come to a view that this material ought to be excluded but that section is headed “Admissions by Suspects 281(1)”. This section applies to an admission:-

(a) that was made by an accused person who at the time when the admission was made was, or could reasonably have been suspected by an investigating officer of having committed an offence, and

(b) that was made in the course of official questioning, and

(c) that relates to an indictable offence other than an indictable offence that can be dealt with summarily without the consent of the accused person.

(2) Evidence of an admission to which this section applies is not admissible unless

(a) there is available to the court:-
(i) a tape recording made by an investigating official of the interview in the course of which the admission was made or -

(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in sub-paragraph (i) could not be made, a tape recording of an interview with the person who made the admission being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or
(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.

There are some other bits there. Official questioning is defined in

ss (4) to mean “questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.”

10. The parties agree that what came from the mouth of the accused could constitute an admission. It was certainly made by the accused and was made at a time when he was or reasonably could have been suspected by an investigating official to have committed an offence. So much is clear from the demand made for the search. “I believe you have an involvement in this offence”.

11. There is an issue as to whether it was made in the course of official questioning and to that I will return and (c) that it relates to an indictable offence. The offence before me is, of course, indictable. This is not an offence, as I understand it, that can be dealt with summarily without the consent of the accused. It (the admission) was certainly made during the course of an official search warrant.

12. If I come back to the way in which that began, it began with “Have you anything in your pockets I should know about?” The initial answer was “No” but there is no reason to think that that was the accused’s final word in response to the question.

13. When the wallet was removed, it must only have been moments between the initial question being asked and the presentation of the wallet. So viewed, his answer is a response or a further response to the question. That is to say it is an explanation of what was in his pocket and why it is that the police would not be unduly concerned about it. Even if I be wrong on that, it seems to me that official questioning and a search warrant are items where one can be overlapping the other. The crown does not disagree with that proposition but claims that something may be volunteered as distinct from a response to questioning and claims that this would be that.

14. When I think back, and I stand again to be corrected, but when I think back upon the policies that were driving this particular piece of legislation, it must be remembered that they were dealing with the issue of verballing accused persons. Very frequently one of the devices used by police officers in the course of ‘verballing’ suspects was to have them voluntarily and spontaneously make an admission that was later to be contested. It was for that reason that the issue, following a series of cases starting with Driscoll and perhaps the Royal Commission into police conduct that sponsored this particular section to guarantee to accused persons that whatever they said in the course of official questioning, whether it be spontaneous volunteering or whether it be in response to a directed question, would need to be recorded. For that reason, I hold that the evidence is evidence to which s 281 applies and in those circumstances, there falls an onus upon the crown to avail itself of one or more of the exceptions that seem to me to apply.

15. The crown concedes that he cannot do so. In those circumstances, ss (2) applies, the evidence is not admissible.