R v Sutton (No 3)
[2019] ACTSC 342
•6 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sutton (No 3) |
Citation: | [2019] ACTSC 342 |
Hearing Dates: | 3 December 2019 – 10 December 2019 |
DecisionDate: | 6 December 2019 |
Before: | Elkaim J |
Decision: | The application is refused |
Catchwords: | CRIMINAL LAW – EVIDENCE – Application to Exclude Evidence – Police record of interview – unfairly obtained – discretion to exclude – consciousness of guilt – jury directions |
Legislation Cited: | Crimes Act 1914 (Cth) s 23S |
Parties: | The Queen (Crown) Patrick Sutton (Accused) |
Representation: | Counsel S Naidu (Crown) H Selby (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) H Selby (Accused) | |
File Number: | SCC 120 of 2019 |
ELKAIM J:
At the commencement of the hearing today Counsel for the accused indicated that he wished to make an application to exclude from the Crown’s case, the record of interview (or at least part of it) that had been conducted with his client on 22 March 2019. This was a Friday.
It is to be recalled that the most recent events giving rise to the charges had occurred in the early hours of the previous Saturday, 16 March 2019.
The basis for the application was that the record of interview had been conducted in circumstances which were unfair to the accused. This gave rise to a discretion of the court to exclude the evidence as envisaged by s 23S of the Crimes Act 1914 (Cth).
The reason that the interview was unfair can be summarised as follows:
(a)The accused was a 20-year-old young man with no criminal record. Thus, it should be assumed that he was not familiar with interactions with police or generally with the rights that he had in respect of police interviews.
(b)The police telephoned the accused on 22 March 2019 and told him that serious allegations had been made against him by the complainant.
(c)The police asked the accused to attend Winchester Police Centre to answer questions about the matter.
(d)The accused responded that he would do so but he would prefer to come in on the Monday because he was due to go to work that day and he envisaged that it would be a particularly busy day.
(e)The police officer said that he was required to come in on the same day and failing his attendance he would be arrested. The police officer said that if necessary, he should lie to his work.
The background that I have set out in the previous paragraph is partially conceded by the police but, having regard to my view of the matter, I will assume the facts to be correct.
It is not in dispute that in his penultimate answer in the record of interview the accused stated that he had “just come here a bit unprepared”.
Counsel for the accused said that most of the interview favoured his client but there were two answers that he was particularly concerned about. These were the answers to Questions 314 and 506. The answer to the latter question is somewhat equivocal and I do not see any prejudice arising from it. I also note that Questions and Answers 130 and 131 are to the same effect as 314.
The answer to Question 314 directly contradicts the case that was put to the complainant. It was suggested to the complainant that sexual intercourse had occurred early on 16 March 2019 but not as asserted by the complainant. The answer to Question 314 is a denial of any sex at all.
The Crown said in its opening to the jury that this denial would be advanced as an example of consciousness of guilt on the part of the accused.
The difficulties faced by the accused in this application, which reflect the reasons for its rejection, are as follows:
(a)At the commencement of the interview there are the ‘usual’ questions and information about the right of the accused to contact family or a friend and the right to legal representation. In respect of family the accused was informed at Question 38 that if he wished to get in touch with his mother and leave a message for her (she being at work at the time) then the interview could be suspended until contact had been made. The accused responded that he “would just prefer to get the interview done”.
(b)The jury will receive a direction about accepting the Crown’s submission of consciousness of guilt. The jury will be told the conditions that must apply before the submission can be accepted and they will include a consideration of whether the accused may have given his apparently prejudicial answers for reasons other than consciousness of guilt. This would of course include his fear of incriminating himself.
(c)I was informed that the accused would be giving evidence whether or not the application was allowed. He will therefore have the opportunity to tell the jury why the answers to the above questions were given.
If the assertions made by the accused about the police conduct are correct, and I make no comment about that, then the police may have acted improperly. There was no suggestion that the accused would commit further crimes or flee. There was no reason why he could not have attended the police station on the Monday.
Notwithstanding the asserted police behaviour however, I am not satisfied that the conducting of the interview, bearing in mind all of the preliminary warnings given to the accused, was unfair to an extent that would enliven my discretion to exclude the evidence.
Accordingly, the application is rejected.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 19 August 2020 |
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