R v Sullivan

[2018] ACTSC 291

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Sullivan

Citation:

[2018] ACTSC 291

Hearing Dates:

19 – 24 October 2018

DecisionDate:

24 October 2018

Before:

Elkaim J

Decision:

The record of interview with the accused on 17 November 2017 is not to be admitted into the evidence.

Catchwords:

CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – improperly or illegally obtained evidence – police record of interview

Legislation Cited:

Evidence Act 2011 (ACT) ss 84, 85, 90 and 138

Cases Cited:

R v Ireland (1970) 126 CLR 321

Tofilau v The Queen [2007] HCA 39; 231 CLR 396

Parties:

The Queen (Crown)

Joshua John Sullivan (Accused)

Representation:

Counsel

Ms R Khazma (Crown)

Ms J Campbell (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number:

SCC 43A of 2018

ELKAIM J:

1. After the Crown stated its intention to call Detective Senior Constable Stocks it was indicated on behalf of the accused that objection would be taken to a portion of his evidence. This portion related to a record of interview conducted with the accused at the Alexander Maconochie Centre (AMC) on 17 November 2017 (Exhibit 1 on the voir dire).

1. Section 138 of the Evidence Act 2011 (ACT) was relied upon as the basis for rejecting the evidence. This section allows the exclusion of improperly or illegally obtained evidence.

1. The purpose behind the reliance on the record of interview arises from the accused’s answers to questions 35, 36 and 41. Essentially, these answers are to the effect that the accused was not a member of the Raiders Club Belconnen and had never attended the club. These facts are contrary to Exhibits A and B which suggest that the accused joined the club on 18 August 2017 and then entered the club in the company of Mr Jack Peter. The Crown submitted that the record of interview was a significant piece of evidence because the answers to the questions I have listed above are in direct conflict with the two exhibits.

1. The objection arose from the following questions and answers: 2, 6, 13, 20, 39 and 59. Although question 59 has been redacted I was informed that the answer to the question was “I want to go”.

1. What is evident from these questions is that the accused was making it clear that he wished to exercise his right to remain silent and did not wish to participate in the record of interview. His answers are absolutely plain to this effect.

1. It is perhaps possible to read the answer to question 21 as giving permission but I think this would be something of a stretch especially as it immediately follows question 20 where the answer is “I don’t want to do an interview, I told you”.

1. In my view, the interviewer has persisted in asking questions despite the stated wishes of the accused not to answer questions.

1. I was referred to the decision of the High Court in R v Ireland (1970) 126 CLR 321 (Ireland), in particular to page 333, where it is said that the improper questioning of a suspect by police did not  affect the admissibility or relevance of the subject evidence but did give rise to a judicial discretion to exclude the evidence.

1. The Crown responded that Ireland had been decided before the Evidence Act 2011 (ACT) came into force and that the proper approach was to examine the issue within the Act. I was taken to ss 84, 85 and 90. For these purposes it was submitted that the contents of the record of interview amounted to admissions. For current purposes I assume this to be the case.

1. I agree with the Crown that ss 84 and 85 are of no assistance to the accused. I think the discretion envisaged by s 90 is available to the accused as is the discretion under s 138.

1. The Crown further submitted that the factors listed in s 138(3) operated in favour of its position. I was referred to Tofilau v The Queen [2007] HCA 39; 231 CLR 396, in particular at [358] and [363].

1. The accused submitted that the evidence was of little probative value.  More importantly, not only was there a persistent ignoring of the accused’s stated desire not to participate in the interview, but it was against the background of being detained at the AMC in circumstances where the accused had little choice but to remain with the police.

1. The right to silence is at the very core of the justice system. Ignoring an accused person’s right, especially against his specific wishes, would require very compelling probative evidence to an extent that a denial might affect the Crown’s ability to see that guilty persons are properly convicted. While I think the evidence here could potentially have some probative value, it is not evident at this stage. The Crown, fairly, accepted that the probative value was small although made up one part of the pieces in its circumstantial case.

1. Another significant reason behind the exercise of my discretion is the Crown’s concession that the evidence goes only to the accused’s credit. On the present state of the evidence, however, there is no assertion by the accused that brings his credit into issue on the contents of Exhibits A and B. He has never suggested in the trial that he did not join the club or enter it on 18 August 2017. Were he to give contrary evidence, this situation might change. But at this stage I cannot see any probative value in an attack on his credit relating to the relevant facts.

1. Accordingly, I do not allow the evidence relating to the record of interview. If necessary I will reconsider the question if the accused gives or leads evidence that places his credit in issue.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 24 October 2018