Re Mayhoub (Ruling No 4)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0286

IN THE MATTER of the Director of Public Prosecutions

SAMIR MAYHOUB

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 – 17 July 2020
DATE OF JUDGMENT:	19 May 2021
CASE MAY BE CITED AS:	Re Mayhoub (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2021] VSC 269

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CRIMINAL LAW – Ruling – Admissibility of evidence – Charge of murder – Accused alleged to have stabbed victim in the chest over debt – Whether accused was placed under arrest with caution and rights – Accused found not to have been arrested – Alleged admissions captured on body worn camera footage – Whether statements are admissions – s 90 Evidence Act 2008 applied to exclude admission from being led in evidence – ss 55, 56, 90, 137, 138 Evidence Act 2008.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward with Ms K. Hamill	Office of the Public Prosecutions
For the Accused	Ms R. Shann with Ms F. Fox	Stary Norton Halphen

HIS HONOUR:

Introduction

At the trial of Samir Mayhoub (‘the accused’), the prosecution intends to lead evidence of a conversation that occurred between Detective Senior Constable Dean Hartwell (‘Hartwell’), and the accused, during which it is alleged that Hartwell arrested the accused, administered a caution, and gave him his rights. In addition, it is proposed to adduce evidence of footage from the body worn cameras of Constable Natasha Leigh (‘Leigh’) and Sergeant Stephen Solyom (‘Solyom’) during which the participants made various statements. This ruling addresses the admissibility of pieces of evidence arising from these conversations, as discussed further below.

From 15 to 16 July 2020, a voir dire was conducted and addressed the issue of whether Hartwell arrested the accused and provided him with his rights and a caution. The Court heard evidence from Hartwell, Detective Senior Constable Stuart Briggs (‘Briggs’) Solyom, Detective Leading Senior Constable Stephen Eppingstall (‘Eppingstall’), and the accused on this issue. The evidence was followed by submissions made by both parties.

The prosecution case

On 22 May 2019 at approximately 9.00pm, Bunyamin Oksuz (‘the deceased’) and his friend, Kenan Kaya, went to the accused’s house. It is alleged the purpose of this visit was to discuss a debt of $8,400 owed by the accused for cabinet making work previously performed by the deceased. The prosecution case is that this debt had been outstanding since May 2018 and that the deceased had made numerous non-violent attempts to obtain the money, including sending the accused text messages and attending his house with his wife on 20 May 2019.

When the deceased and Kaya arrived at the accused’s home on 22 May 2019, it is alleged that a verbal altercation occurred on the front porch with the accused, followed by a brief physical altercation amongst the three men within the accused’s home. The accused’s wife then ejected the deceased and Kaya from the house. With a knife then in his possession, the accused went outside onto the porch and an argument with the deceased continued. The accused’s wife became involved, and with the accused‘s children present on the porch, it is alleged that the accused stabbed the deceased once in the chest during the course of these events. The deceased retreated from the porch and collapsed onto the road outside the accused’s house, where he died shortly after.

The foregoing represents a quite brief description of the events that occurred on the porch, and is sufficient to introduce and give context to this ruling. A number of circumstances surrounding these events are clearly in issue between the parties.

The prosecution case is that at about 9.13pm, Hartwell, then a Senior Constable, attended the scene and in the course of a conversation with the accused, arrested him outside the front of his house. During the conversation, it is alleged that the accused told Hartwell words similar to:

They came back to my house, I opened the door and they started punching and they came into my house. I was defending myself with my arm. I got a knife to protect myself. I didn’t want to use it, it was for protection. They kept punching me and I stabbed him. It didn’t go in far.

It is not yet clear how much of the extract quoted above will be led in evidence. However, at the hearing, the prosecution indicated it would no longer seek to lead in evidence the purported statements, ‘I stabbed him. It didn’t go in far’, on the basis that the statements were not recorded. Furthermore, the statements were not put to the accused in a later formal police interview.

The prosecution case is that Hartwell then saw Leigh and asked her to come over and stand with the accused. Leigh was wearing a body worn camera which recorded her approaching and talking to the accused. The footage captures her asking if the accused is okay and him replying that he is, and that she then said to him that, ‘they are working on him’ (a reference to CPR attempts on the deceased) with the accused then saying ‘I know it wasn’t deep’. The prosecution intends to adduce evidence of that footage, excluding the CPR attempts on the deceased. In particular, the accused’s comment, ‘I know it wasn’t deep’, is sought to be led as an admission of deliberateness, namely, that the accused intended to stab the deceased.

The prosecution alleges that following the arrest by Hartwell and the interaction with Leigh, the accused gave an account of events to Solyom. It is alleged that the accused was again told he was under arrest, handcuffed and asked further questions, as captured on Solyom’s body worn camera footage. The recording also captured the accused stating, ‘look you’re going to pay for this’. The prosecution also seeks to use this statement as an admission that the accused intended to physically harm the deceased in the moments before he stabbed him.

Accordingly, the prosecution seeks to lead evidence from Hartwell of the following matters:

(a) That he was one of the first police officers who arrived on the scene;

(b) That he identified the accused and had a conversation with him;

(c) That the accused indicated he had been involved with the male lying on the ground, being a reference to the deceased;

(d) That Hartwell moved the accused into the driveway next to his vehicle;

(e) That Hartwell placed the accused under arrest and gave him his caution and rights;

(f) That the accused responded that he understood the rights and did not want to exercise them;

(g) That at some point during the conversation with the accused, Hartwell left him to attend to something else on the scene; and

(h) That Hartwell asked Leigh to then wait with the accused for a short period of time.

The prosecution seeks to lead evidence from Leigh, including the playing of the body worn camera footage, to the effect that:

(a) She came over and stood next to the accused at the request of Hartwell;

(b) She had a brief exchange with the accused during which she asked how he was;

(c) That the accused asked how the deceased was;

(d) That Leigh told the accused that the emergency service workers were working on him; and

(e) That the accused said, ‘I know it wasn’t deep’’.

Further, the prosecution seeks to lead evidence from Solyom, including the playing of the body worn camera footage, to the effect that:

(a) Hartwell told Solyom , ‘this is the offender’;

(b) Hartwell left the scene and walked away;

(c) Solyom then spoke to the accused and provided a caution without rights;

(d) Later conversation between the two men occurred with screaming occurring in the background and in intense circumstances;

(e) The accused told Solyom that ‘the guy with the beard walked out. The other guy stood there. I said to him, “look, you’re going to pay for this”’;

(f) The accused provided an explanation as to what happened on the porch of the premises;

(g) Solyom provided a standard recitation of the rights of the accused and asked if he wished to exercise any of these rights;

(h) The accused asked to see his wife and children; and

(i) The accused was arrested, handcuffed, given a caution and rights, and sat down.

The defence contentions

The defence concedes that the deceased died as a result of a single stab wound to his chest, caused by a knife held by the accused. However, the defence position is that the accused did not deliberately cause the knife to enter the deceased’s body.

With respect to this ruling, the defence indicated it was in dispute that Hartwell arrested the accused and gave him a caution and his rights. It was indicated that a further issue for determination arises from the circumstances that flowed on from the alleged failure by Hartwell to arrest, caution and give rights to the accused. Relevant to the accused’s arguments is the failure by Leigh to have arrested and given rights and caution to the accused, as well as a failure to provide a proper caution and rights by Solyom.

Further, it is submitted that the operation of s 90 Evidence Act 2008 (‘EA’) becomes a matter for determination, as does the question of alleged statements of the accused, said to constitute admissions, in circumstances where these matters were not raised for explanation in the later record of interview conducted by the informant, Eppingstall.

In respect of the evidence sought to be led from Solyom, the scope of the application is said to relate to the evidence, ‘Solyom BWC “you’ll pay for this? For what? For this. Just go”’. When the asserted representations as set out in the police statement of Solyom are compared to the two relevant passages that appear in the body worn camera transcript at pages 374 and 375, it appears that none of the three passages are accurately reflected in the Defence Outline of Oral Argument. For the purposes of this ruling I will act on the basis that the three statements should be considered compendiously in the application to exclude the evidence.

The relevant evidence

As above, a voir dire was conducted on the issue of whether Hartwell provided the accused with his rights and a caution.

Detective Senior Constable Hartwell

Dean Hartwell, Detective Senior Constable at the Hume Crime Investigation Unit in Broadmeadows, confirmed he had been a Senior Constable at the time of the incident and one of the first police officers on the scene at around 9.13pm.

In his police statement sworn on 29 May 2019, Hartwell states that he had a conversation with the accused following his arrival at the scene. He records the accused as having told him, in effect, that ‘he had been involved with the male lying on the ground gesturing in OKSUZ’s direction’. Hartwell states that he then moved the accused into the driveway next to a vehicle and had a conversation with him, during which he told the accused, ‘You are now under arrest’, and then gave him a standard caution and his rights. He stated that he asked the accused whether he understand those rights, to which the accused replied, ‘yes’. Hartwell states that he asked the accused whether he wished to exercise those rights, to which the accused indicated he did not.

In evidence on the voir dire, Hartwell stated that he asked the accused if he had been involved or related to the incident, and that the accused pointed to the male lying on the ground and used similar words to the effect that, ‘I was involved with that’, pointing to the deceased on the ground. Hartwell said he then walked the accused back up into the driveway to get him away from other people and make sure he was secure and had a conversation with the accused, where he placed him under arrest and gave him his caution and rights. Hartwell said, ‘as there was a male lying down and I knew he’d been stabbed and there was an injury, I’ve said, “you’re under arrest”. I’ve then gone through his caution and his rights. He stated he understood his rights and didn’t wish to do anything with those rights at that point in time’. Hartwell gave evidence that there was further conversation where the accused was asked to detail the incident and he explained what had happened. He said this conversation happened at the rear of the car parked in the driveway.

Hartwell stated that, at this point, he did not recall anyone else being present in the immediate vicinity at this time, as he was focused on talking to the accused.

Hartwell gave evidence that at a point during or after the conversation Briggs came over while the accused was in his custody. Hartwell detailed to Briggs what the accused had told him in relation to the incident. He said that when the accused pointed out the male who had forced his way into the house, namely Kaya, Briggs left them and spoke to that male. Hartwell said that when he gave the accused a caution and rights, he could not recall whether Briggs was present, as his focus was on the accused. As to whether Hartwell updated Briggs regarding the accused being in his custody, as mentioned in his police statement, he was challenged as to why such an update was needed if Briggs had also been in the driveway, as shown on the CCTV footage of the three men standing near the car.

Hartwell said that he then arranged for Leigh to come over and take the accused into her custody so that he could locate the knife and make inquiries with the accused’s family. In evidence, Hartwell said that Leigh came over briefly, but left shortly after to assist the paramedics attend to the deceased. Hartwell agreed in cross-examination that he told Leigh that it was important that the accused did not go anywhere at that stage, but that he did not tell her that he had arrested the accused. He agreed that Leigh was probably entitled to know that he had arrested the accused, but there were a lot of things going on at that point in time.

In his police statement, Hartwell states that after Leigh left, he observed the accused attempting to make a phone call to his wife and that he instructed him to hang up. In evidence, Hartwell stated that he told the accused that he could not make the call as he was in custody and seized the phone.

Also in his police statement, Hartwell states that he then saw Solyom and asked him to come over to his location and told him, ’this was the offender’. In evidence, he said that he called Solyom over and informed him that he needed to make other inquiries and that ‘he’s in our custody’. He then went into the house after passing custody of the accused to Solyom. In cross examination, Hartwell agreed that he did not inform Solyom that he had placed the accused under arrest and had not said that in his police statement. Hartwell also agreed that Solyom, who had a body worn camera, then arrested the accused. He agreed that he understood the requirement for admissions to be tape-recorded and that he was familiar with the provisions of the Crimes Act[1] in this regard. He agreed that he did not tell Solyom that he had given a caution and rights before Solyom spoke with the accused.
[1]Crimes Act 1958 (Vic), s 464.

In evidence, Hartwell could not recall if he had spoken to Eppingstall that night. He further stated that he left the scene at approximately 12.30am and made extensive notes back at the police station. He confirmed that he had recorded a note stating that he had arrested the accused and given his caution and rights at approximately 9.15pm and that the accused stated he understood and did not want to exercise his rights.

During his evidence in chief, Hartwell was shown CCTV footage depicting himself and the accused in conversation. Although not containing audio, Hartwell described himself and the accused standing at the end of the motor vehicle, including a stage where Briggs was present. Hartwell identified this as the point when he arrested the accused and gave him his caution and rights, albeit this could not be heard. The CCTV confirmed this point as being 9:15:15pm. A short time later, when Briggs had left, Leigh appears to enter the scene, then standing next to the accused. CCTV vision of these events was tendered reflecting that the events described above occurred between 9:13:02pm and 9:26:07pm.

Hartwell confirmed he had not been wearing a body camera on the night of the incident. However, he identified himself in footage shown from Solyom’s body worn camera, stating, ‘Yes, caution and rights have been given’. The vision was played between 4:50 to 5:41 on the body worn camera footage. It is to be noted that it can be determined from Solyom’s body worn camera footage that this statement by Hartwell occurred after Solyom had cautioned, arrested, and handcuffed the accused.

In cross-examination, Hartwell confirmed that he arrested the accused and provided him with a caution and his rights, within a couple of minutes after arriving on the scene. Further, he confirmed that he did not place the accused in handcuffs or search him at any point, noting he did not consider him a threat. He agreed that at one point he turned his back on the accused in circumstances where he was alone with him. Further, he agreed he allowed him to reach into his trousers and remove something, which turned out to be his telephone. He agreed he did not check to see if the accused was in possession of a knife.

Further, in assessing the level of threat, Hartwell said that the way the accused was speaking to him, and the way that he was speaking to the accused, meant that he was not in any fear or danger from him at that point in time. He agreed that the statement by the accused that he had been involved with the person lying on the ground was the only thing said prior to his arrest of the accused. He knew that there had been a stabbing because he had been informed over the police radio before arriving, and that he knew there had been a weapon involved, and that the scene was potentially dangerous.

Hartwell also gave evidence of arresting the accused in relation to the man he said he had been involved with, who was laying on the ground, noting that he did not inform the accused exactly why he was being arrested. Hartwell asserted that after he had arrested the accused and given him his caution and rights, he proceeded to, ‘tell me the events that occurred’.

Hartwell was also cross-examined about his memory of his interactions with the accused and conceded that he inaccurately recalled a text message shown to him by the accused. However, he maintained his confidence in the accuracy of his memory of the night of the incident.

Further, Hartwell was cross-examined about the notes he made of the events. This included his having corroborated with Briggs on the compiling of the notes, and speaking to him about the incident that had occurred. He said they had spoken about the events in the car on the way back to the police station, as it had been a serious incident. Hartwell denied having spoken to Briggs about issues about the caution and rights he claims he provided to the accused, asserting that as he had administered the caution and rights, he did not need to speak to Briggs about that matter. He could not recall if he had told Briggs about any admissions that were alleged to have been gained from the accused.

Hartwell was asked if he had spoken to Briggs more recently about the events that took place on the night of the incident, for example, in the car on the way to the Court before giving evidence. He replied that he did not recall. He was asked whether he or Briggs discussed their memories of the events that took place or the order in which they occurred, to which he replied that he did not recall discussing the matter with him. Hartwell was then asked to consider the irony in asking the Court to find that he had a good enough memory of the evening to conclude that an arrest occurred and that he had given a caution and rights to the accused, with Hartwell replying that his contemporaneous notes can be relied on, despite them being completed five hours after the incident.

Hartwell also acknowledged in cross-examination that, as an experienced Senior Constable, he was aware that there were admissible admissions and inadmissible admissions, and that one of the criteria for an admission to be admissible is that an accused is given a caution and rights before the admission is made. Hartwell maintained he had given caution and rights on the night, and acknowledged the significance of doing so to the later admissibility of any admissions said to have been made by an accused. Hartwell maintained the accuracy of his notes made back at the police station, but conceded that there was some aspects of his interactions with the accused that he had recorded incorrectly, in particular, his recollection of an SMS message sent by the accused.

Hartwell agreed that in respect of his interactions with the accused, there were departures from the normal way that an arrested person would be treated. He said that all situations were different, and that ‘sometimes you handcuff people and sometimes you don’t, sometimes you search people sometimes you don’t’. He also agreed that having given the accused his caution and rights, he did not confirm the accused’s understanding of what he had said, explained back in his own words. He agreed that he possessed handcuffs on that night and that he could have used them had he chosen to do so. However, he did not believe that the way in which the accused was acting, being in a non-threatening way, necessitated him to be handcuffed. With reference to his training, he agreed that traditionally an arrest requires both words and action and for a violent offence, and normally an accused person is handcuffed when arrested. In such circumstances, it was normal to do an evidence and safety search, if need be. He agreed that his training was that if someone has admitted to stabbing another person, he would always give them an evidence and safety search.

Hartwell maintained that he had given the accused his caution and rights, and that he was not asked by other police officers about whether he had done so, after handing the accused to Solyom. Further, he could not recall informing any other police officers about his arrest of the accused.

In re-examination, Hartwell stated that when the accused informed him he had been involved in the incident with the man lying on the ground, he then placed the accused under arrest because he wanted to secure him and ensure he was in custody to prevent him from going anywhere else.

Detective Senior Constable Briggs

Detective Senior Constable Stuart Briggs was a Senior Constable at the time of the incident, arriving at the scene with Hartwell at about 9.13pm. Briggs said that on his arrival, there did not appear to be aggression in the crowd of people standing around, and the scene was quiet and calm. He was mindful that an offender was still in the area.

Briggs said that he stayed on the road and managed the flow of vehicles and people to make room for the ambulance. He looked over towards Hartwell who was still clearing the area but standing with one particular person, who was a large male of Middle Eastern appearance, approximately 45 years old. In his police statement, he said he walked over to Hartwell to discuss the scene management and Hartwell took a step towards him and told him that the accused had told him that he was responsible for stabbing the male who was lying on the road.

In his police statement, Briggs said that he and Hartwell walked the accused into the driveway of the premises, away from the street and that, ‘within my hearing Senior Constable Hartwell informed Mayhoub that he was under arrest and then informing him of his caution and rights’. Mayhoub was handcuffed.

In his evidence, Briggs added that when he was told the male had been responsible for stabbing the person on the road, he then said, ‘Okay, well we need to arrest him’, and walked over to where the accused was in the driveway. Notably, this evidence did not appear in his police statement. He recalled himself and Hartwell having moved the accused further into the driveway and closer to the house at which point Hartwell informed the accused that he was under arrest and gave the usual caution and rights. He described the accused as being ‘very quiet, very calm’. He recalled the words Hartwell used to the accused as being ‘you are under arrest’ and described in detail the rights and caution that he said were told to the accused.

Briggs stated as they were no longer looking for offenders, he went back out onto the street to check on the victim who had lost consciousness. He noted that he gave a situation update over radio that the offender was in custody, the scene was now safe, and it was safe for the ambulance to attend to the victim.

Briggs gave evidence that he then went back to check on Hartwell and the accused. He noted that Hartwell told him that the deceased and another person attended the accused’s house and forced their way into it, causing an altercation. He stated that the accused then pointed across the road with his left hand at a male standing opposite his house. The accused identified him as one of the men who entered his house. Briggs then went over to the man, being Kaya, and spoke to him. He noted that Kaya gave him a brief rundown of what had happened and he then placed him under arrest for aggravated burglary. He stated that he provided him with his caution and rights, handcuffed him, and walked him to the divisional van.

Having made notes of what had occurred at the scene, Briggs gave evidence that he left the scene around 12.35am, and made further notes back at the police station.

Watching the CCTV footage played during his evidence in chief, Briggs identified himself, Hartwell and the accused at the back of the four-wheel-drive vehicle, and then at the side of the vehicle. He noted vision of him tapping Hartwell on the arm and starting to walk away. From the 13 minute mark to the 15 minute mark of that vision, he said he believed that was where Hartwell placed the accused under arrest, administering the caution and rights.

In cross-examination, Briggs confirmed that when he approached Hartwell and the accused, Hartwell took a step towards him and told him that the accused had just said that he ‘stabbed this guy’. Briggs was unable to recall the exact word used, however, the next thing that happened was that he told Hartwell the accused needed to be arrested. Briggs agreed that he ‘made the call’ on arresting the accused and he was the first person to mention it. On being told what the accused had done, Briggs said that his response was, ‘well, we need to arrest him, um, and that’s it, and we did that’. When pointed out that Hartwell’s account did not include Briggs being the one to suggest the arrest, Briggs said he was not surprised as there was a ‘lot going on’ at that stage.

Briggs confirmed in cross-examination that he heard Hartwell arrest the accused and give him his caution and rights, but that he then left to assist the victim, not waiting to hear whether the accused wished to exercise any of his rights or that he understood them.

When reminded that he was a policeman with seven years’ experience, and that it was not uncommon for someone in the accused’s position when arrested for a violent offence to then become aggressive, Briggs stated that he was comfortable with the accused’s demeanour at the time and did not assess him to be a threat. The accused was not aggressive and was not giving any indicators of violence, and that neither he nor Hartwell put handcuffs on him. Briggs was cross-examined on his notes about this, in which he wrote that Hartwell handcuffed the accused after informing him of his caution and rights. He conceded that the accused had in fact not been handcuffed by Hartwell and he only realised this error the morning before giving evidence, as he recalled the accused gesturing to the man across the road. He noted that he did not inform anyone of the error.

Further, Briggs agreed that he did not make any notes at the scene regarding Hartwell’s arrest of the accused or that the caution and rights had been administered, only doing so when he was back at the police station. He agreed that the only reference to an arrest in his notes made at the scene related to the arrest by Solyom.

Briggs stated that, on the way back to the police station in the car, he believed Hartwell had said something to him about the caution and rights, but that he did not ask Hartwell if they had been given or what the response to them was. Briggs agreed that there was no reference in his notes about being present during the cautioning and the arrest of the accused, however, he said he was definitely present for that as could be seen in the CCTV vision. He agreed that the CCTV vision did not contain any audio recording of the events. He also agreed that his statement in relation to the arrest was different in relation to the handcuffing of the accused and in relation to being present at the arrest.

Briggs agreed that he had discussed the incident with Hartwell the day before he was due to give evidence in this Court. He said that they discussed the fact that Solyom arrested the accused after they had already arrested him. He confirmed that he only raised this fact to Hartwell on the night, but not Solyom as he outranked him and that he had not mentioned it to any other officers. He noted that there may have been confusion on the night regarding the new body-worn cameras and whether the arrest needed to be recorded in order to be deemed a lawful arrest.

Briggs indicated that while he was with the accused, he was comfortable that he did not have a weapon with him, but agreed that police procedure in the circumstances was to check for a weapon. He recalled that Hartwell had told him that the knife was inside the house. He did not search the accused.

In re-examination, Briggs stated that he always believed that Solyom’s re-arresting of the accused would be a contentious topic and that he may have discussed this with Hartwell when driving in to Court to give evidence at the present hearing, and further that they may have discussed that the evidence to be given was about the re-arrest of the accused by Solyom. He said he thought they discussed the Solyom arrest, but that he did not really recall exactly what they did talk about. He confirmed he made a statement six weeks after the night of the incident and that he used his notes to refresh his memory. He agreed there were discrepancies between the statement and his notes, as the latter did not specify that he was present at the time of Hartwell’s arrest of the accused.

Detective Leading Senior Constable Eppingstall

The Informant, Steven James Eppingstall, Detective Leading Senior Constable, Victoria Police Homicide Squad, confirmed his account of events on the night of the incident, after attending the scene with other homicide detectives shortly after 11.00pm. He confirmed that the deceased had died by the time he arrived.

Eppingstall said in his police statement that he was briefed at the scene by Hartwell, who informed him that two people were in custody in relation to the matter, and were already at the Broadmeadows Police Station.

In evidence, Eppingstall said that he was made aware that the accused had been arrested very soon after he arrived at the scene. He said there was a formal briefing conducted by Hartwell, and that he spoke to Solyom and Leigh. He made notes of the briefing, including that Hartwell said he had a conversation with the accused, had asked him if he was involved and that he subsequently arrested the accused and given him his caution and rights. Hartwell had said that the caution and rights were not recorded, but that Solyom had recorded a caution on a body worn camera. Eppingstall asked Solyom if the body worn camera footage would have captured him giving the caution and he said it would have. He was then shown an image from an iPad that had recorded events between the accused and Solyom, but which did not include a moving or audio recording of what was said.

Noting that he could not watch the video at the time, Eppingstall gave evidence that the still image only depicted Solyom appearing to talk to the accused in the driveway. He also noted that he did not watch or listen to Solyom’s body worn camera footage or that of Leigh until well after the night of the incident. As such, he was not aware of the disputed statements and did not put the accused’s comments to police officers at the scene to the accused during the record of interview. During cross-examination, he expressed that he would have asked the accused about these comments if he had been aware of them, as it would have been important to have them clarified.

Further, Eppingstall agreed that the comment, ‘you’re going to pay for this’, could be interpreted as a desire to cause physical harm or refer to contacting the police. He agreed that, had he known of that comment at the time of the record of interview, he could have asked questions to resolve that ambiguity.

He also confirmed that the accused answered every question put to him in the record of interview, even after numerous breaks during which Eppingstall gathered further information from officers at the scene.

With respect to the notes made during the briefing by Hartwell, he confirmed that ‘CNR Hartwell’ referred to the provision of caution and rights. While agreeing that he did not make a specific written note regarding the arrest, he confirmed during re-examination that Hartwell mentioned an arrest during the briefing and that it was not his usual practice to mention this in his notes. He also agreed that the note ‘Sergeant Solyom C on BWC post admission’ refers to possible admissions and that this was indicated by Hartwell during the briefing. He said that it was not really his practice to write down in his notes whether the person was arrested.

Acting Senior Sergeant Solyom

The final witness called by the prosecution was Stephen John Richard Solyom, presently Acting Senior Sergeant of the Road Policing Drug and Alcohol section of Victoria Police. He confirmed that he was a Sergeant of the Hume Tasking Unit on the date of the incident and that he attended the scene.

Solyom gave evidence that after his arrival at the scene, he was flagged down by Hartwell to come over to the front of the accused’s house. He had a conversation with Hartwell who said he thought he had the offender relating to the incident. He then had a conversation with the accused, and placed him under arrest, as he normally would, before questioning him about what had happened. He confirmed that he activated his body worn camera at the time he was about to engage in conversation with the accused, after he had spoken to Hartwell. According to his statement, this was at 9.25pm. He clarified that the body worn camera back captured 30 seconds of footage prior to its activation, but with no sound.

Solyom gave evidence that he had not been informed that the accused had already been placed in custody, arrested or given a caution and rights at the time he arrested the accused and gave him his caution and rights. He clarified that his conversation with Hartwell consisted of him identifying the accused as the offender who stabbed the deceased.

Samir Mayhoub

The accused, Samir Mayhoub, gave evidence on these applications. He repeatedly stated that Hartwell did not place him under arrest or provide him with his caution and rights. He emphasised that he had only been arrested once in his life, being the time he was handcuffed by Solyom.

In cross-examination, the accused viewed the CCTV footage and recalled being approached by Hartwell and Briggs, who moved him further into the driveway. He agreed that he gave an account of what had occurred to Hartwell. The accused also noted that he had been approached by Leigh and then another officer, being Solyom, who gave him a caution and handcuffed him.

The accused disputed that Hartwell arrested him and noted he would remember if he had done so, as it was a matter unusual to him. He could not recall whether Hartwell asked him for his side of the story or whether he volunteered that information. When put to him that he was demonstrating the thrusting of a knife in the CCTV footage, he stated that he could not remember.

Further, the accused noted that he had asked to speak to his wife but was not allowed. He stated that had Hartwell told him of his right to communicate with a friend or relative as part of the caution, he would have called his wife.

The accused stated that he was unsure if Hartwell asked whether he had a knife on him. He noted that, at the time, it was his belief that the knife was inside the house. He rejected the proposition that he told Hartwell that he stabbed the deceased, but conceded that he told a police officer that a knife had gone into the deceased’s body a little bit before he was handcuffed.

The defence submissions

The defence objects to the evidence of the accused’s alleged statements to Hartwell, noting that they were not made on tape or later put to the accused on tape for explanation. It is submitted that such utterances are inadmissible in an indictable proceeding unless the prosecution satisfies the Court on the balance of probabilities that the circumstances are exceptional and justify the reception of the evidence.[2]
[2]Crimes Act 1958 (Vic) ss 464H(1)(2).

Referring to a number of authorities, the defence contended that exceptional circumstances means ‘truly exceptional’,[3] requiring something more than ‘good reasons’ for admitting the evidence.[4] It is submitted that the evidence of Hartwell did not meet this threshold, as there was nothing about the circumstances of his conversation with the accused which were ‘exceptional’. Rather, it is submitted that his lack of contemporaneous note taking and demonstrable errors in some of what he said the accused told him highlight the policy reasons behind s 464H(2) Crimes Act 1958 (‘CA’).
[3]Director of Public Prosecutions v Tran [2019] VSC 823 per Bell J at [21].
[4]Director of Public Prosecutions (Vic) v Donnelly [2006] VSC 423 per Hollingworth J at [30].

As noted above, the prosecution conceded that these statements would not be led in evidence. I have referred to this issue for completeness and as part of the context in which the remaining issues for determination are considered.

Issue of arrest and provision of caution and rights by Hartwell

The defence submit that it is only the word of Hartwell and Briggs to the effect that a caution and rights were given and an arrest executed. Further, it is noted that the CCTV footage relied on by the prosecution as supporting the evidence of Hartwell and Briggs, in the absence of audio content, does no more than show both officers and the accused standing and talking at a particular point in time.

Relying on further written submissions, the defence argue that the evidence of both police officers should be rejected for a number of reasons. Firstly, reference was made to a number of undisputed facts as being inconsistent with a formal arrest by Hartwell having occurred. It is contended that it would be contrary to procedure for Hartwell to arrest the accused for a violent offence and not handcuff him, provide him with a reason for the arrest or search him. It was also noted that Hartwell let the accused move around freely and reach into his back pocket, that he turned his back on the accused and did not inform either Leigh or Solyom that he had arrested him. Further, it is submitted that it is improbable that Briggs did not wait to assist in the completion of the arrest of an allegedly violent offender before leaving to assist the injured man.

Additionally, it is submitted that it is improbable that the accused was given his rights and told Hartwell he understood them and did not want to exercise them when only ten minutes later, when Solyom gave him his rights, the accused stated that he did not understand what this meant. It is also contended that it is improbable that, on Hartwell’s account, the accused declined to exercise his right to contact a relative and then asked to see or speak to his wife, and then later, when Solyom gave his rights, he asked the same thing.

Next, it is contended that the evidence of Hartwell and Briggs should be rejected as they each provided inconsistent accounts of the purported arrest. It is observed that Hartwell did not take notes at the scene and that in his statement he said that Briggs was not present during the arrest. The defence noted that his account involved him arresting the accused and telling Briggs that he had the offender in his custody. It is noted that Briggs made notes at the scene, which did not include a reference to him or Hartwell having been engaged in an arrest or caution or rights, but then doing so in relation to the arrest by Solyom. This is despite Briggs’ evidence that, at the scene, he had concerns that some complexity might arise from there having been two arrests. As such, the defence submits that it is quite baffling in those circumstances that he did not make note of Hartwell’s purported arrest.

The defence point to the notes Briggs made back at the police station, which record that he was told by Hartwell that he had arrested and cautioned the accused, but in his statement made six weeks later he said that he witnessed the arrest by Hartwell, and that the accused was placed in handcuffs. It is also noted that neither the notes nor police statement mention that it was Briggs’ idea and suggestion to arrest the accused, which he stated when giving evidence in this Court.

The defence also submits that aspects of Hartwell and Briggs’ evidence to this Court were disingenuous. Specifically, it was contended that Hartwell’s evidence should be rejected that he did not recall discussing what happened on the night of the incident before coming to Court. The defence pointed to Briggs’ evidence that he had discussed the fact of the arrest with Hartwell in the hours before the latter gave evidence.

Further, it is submitted that Hartwell’s credit as a witness is also affected by the reasons he gave for not handcuffing the accused. The defence argued that not handcuffing the accused was contrary to normal practice, in circumstances where there was a weapon which had yet to be located and that this failure points away from a formal arrest having taken place. Additionally, it was noted that Hartwell and Briggs’ roles at the scene were to move people away from a place where there was a reportable weapon. Moreover, it was submitted that the reasons Hartwell gave to explain his lack of handcuffing did not make sense, again telling against his credibility or reliability as a witness on this topic. Finally, the defence pointed to the difference between Hartwell’s statement, in which he said he reported the arrest to Briggs, and the evidence he gave before this Court, where he stated that Briggs was present during the arrest.

In submitting that aspects of Briggs’ evidence were disingenuous, the defence pointed to his answers regarding Solyom’s arrest of the accused. It is noted that Briggs suggested some oddity in the behaviour of Solyom, namely that he had been told there had already been an arrest and nonetheless decided to adopt a second arrest procedure. The defence contended that Briggs could not provide details on how Solyom was told that an arrest had already been effected, in comparison to Solyom himself who roundly rejected that he was informed of such matters. It was submitted that Solyom presented as a witness whose word can be taken on face value. Additionally, the defence highlighted how Brigg’s notes at the scene only referred to Solyom’s arrest and not that the arrest by Hartwell was his idea.

It was submitted that Hartwell and Briggs had a reason to say that there was an arrest, caution and rights. Both confirmed in evidence that they knew, at the time, the legal significance to admissibility of those matters having occurred prior to any conversation with Hartwell. It is argued that after his conversation with the accused, Hartwell realised his error and changed his account to his superiors to include that an arrest, caution and rights had taken place. Similarly, it was put to Briggs that, prior to making his notes at the station, he changed his account of events to back up his colleague and partner.

In contrast, the defence submits that the accused’s evidence on this topic should be preferred and accepted. It is pointed out that the accused emphatically denied being arrested and given his caution and rights by Hartwell. He gave evidence that he had never been arrested in his life prior to the arrest by Solyom and that that event therefore stood out to him and was memorable. Further, it was noted that his evidence is consistent with the undisputed facts identified above. Unlike Hartwell and Briggs, it is contended that the accused has not provided an inconsistent account on this topic at any stage. It is submitted that it was never put to the accused in his record of interview that he had been given a caution and rights or was arrested by Hartwell.

Ultimately, relying on the above submissions, the defence contend that this Court should conclude, on the balance of probabilities, that Hartwell did not arrest the accused or provide him with his caution and rights.

The defence also submits that the Court should find that the accused spoke to police in circumstances at odds with his ability to understand the need to clarify what he meant by his statements so that they could not be used at trial in the manner they are now sought to be used. It was noted that the accused gave unchallenged evidence that he was in shock at the scene, and reported this to the informant as well as his desire to assist in the emergency response. The defence also pointed to the body worn camera footage of Leigh and Solyom as capturing the highly distressing medical emergency and the accused’s response.

It was noted that the accused had been attacked in his home in front of his screaming children, as had his wife, and was suffering from injuries including from blows to his head. Counsel pointed to Dr Marr’s examination of him at 5.00am the next day, which specified that he suffered injuries including a fractured nose or nasal passage, bruising on the side of the nose and marks on the neck. The accused reported in the record of interview that he had a headache and Dr Marr opined that it was a result of blunt trauma force having occurred.

Evidence from Constable Leigh’s body worn camera

The defence also object to the prosecution adducing footage from Leigh’s body worn camera, which captured the accused stating, ‘I know it wasn’t that deep’. It is submitted that this representation is not capable of amounting to a representation of deliberateness and does not satisfy the definition of an ‘admission’ in the EA.

In oral submissions, it was contended that should the Court exercise its general discretion under s 136 EA to limit the prosecution from using the statement for the purpose of establishing mens rea, the issue would be resolved. Additionally, the defence confirmed it would not object to the comment being used as a simple expression of knowledge the accused gained after the event.

For the reasons detailed above, the defence disputes that the accused had been formally arrested, cautioned or given his rights at this point by Senior Constable Hartwell.[5] It is also submitted that at no stage in the body camera footage or later record of interview is it confirmed that Hartwell did so.[6] As such, it is contended that the statement is not admissible pursuant to ss 138 and 139 EA on the basis that it was improperly or unlawfully obtained. Alternatively, in oral submissions, the defence sought the exclusion of the disputed evidence pursuant to s 137 EA, on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.
[5]As required by Crimes Act 1958 s 464C.
[6]As required by Crimes Act 1958 s 464G.

It is submitted, in any event, that pursuant to s 90 EA the Court should exercise its discretion to exclude the statement on the basis that, ‘having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence’.[7] The defence contends that use of this evidence in a trial would be unfair, pointing to the following circumstances of the purported admission:
[7]Evidence Act 2008 s 90.

(a) A highly distressing medical emergency playing out in front of the accused;

(b) The shock of what had just occurred, including two men coming into the accused’s home and assaulting him and his wife in front of their children;

(c) The uncertainty as to the victim’s medical state;

(d) The lack of complete procedural rights being afforded;

(e) The absence of any clarification from Leigh as to whether the accused’s reference to ‘it wasn’t deep’ was an admission of deliberateness; and

(f) The fact that this representation to Leigh was not put to the accused in the record of interview as an admission for him to comment on.

In oral submissions, it was contended that should the comment, ‘I know it wasn’t deep’, be excluded, there would be nothing else relevant in the accused’s interaction with Leigh.

Evidence from Sergeant Solyom’s body worn camera

The defence does not seek to exclude the entirety of Solyom’s body worn camera footage from being led in evidence. Rather, it only seeks exclusion of the statement, ‘look you’re going to pay for this’, as captured in that footage. Firstly, it is submitted that the representation should be excluded pursuant to s 90 EA, on the basis that it would be unfair for it to be used because:

(a) The statement could equally refer to making the deceased pay by calling the police and reporting his and Kaya’s unlawful entry into the accused’s house and assault on him and his wife. It is noted that Mrs Mayhoub’s evidence is that she tried to call the police inside, but her phone was hit out of her hand;

(b) Solyom did not ask whether the statement was a reference to physical harm or to reporting the deceased and Kaya to the police;

(c) The statement was not put to the accused as an admission, or at all, in the record of interview, despite Solyom briefing the informant before the record of interview regarding what the accused had said to him at the scene;

(d) The accused answered every question asked of him in the record of interview and, it is argued, would likely have clarified what he meant by this statement had it been brought to his attention;

(e) The failure to have the accused clarify the statement in the record of interview now compromises his decision making as to whether or not to give evidence at trial;

(f) The conversation between the accused and Solyom occurred during the emergency response graphically depicted on Leigh’s body worn camera footage, just metres from where the accused was standing;

(g) The accused did not know how serious the injury to the deceased was at this stage, as shown at the commencement of the record of interview when he was informed that he had died;

(h) The conversation between the accused and Solyom occurred after the accused and his wife had been assaulted and injured in front of their children. The accused had yet to be examined by a doctor. It is noted that, when a paramedic approached during the conversation, it was Solyom and not the accused who stated that the accused was uninjured. It is further noted that the accused told Solyom that he had been ‘bashed’, but he was still not medically examined until later at the police station;

(i) The deceased’s wife is screaming immediately before and after the accused’s reference to ‘you’re gonna pay’. The screaming appears to interrupt the accused on this topic, such that it prompts Solyom to move him, saying, ‘keep talking to me’ before giving him another (partial) caution;

(j) The shock of the accused can be observed on the bodycam footage;

(k) It is in dispute that the accused had been formally arrested or provided with his rights at this point. Solyom provided him with a caution at the commencement of the bodycam footage, but did not give rights until later when he formally arrested the accused. As above, the defence note that it is not accepted that Hartwell did so at an earlier stage.

The defence submits that the record of interview at the police station occurred in vastly different circumstances than the accused’s conversation with Solyom at the scene, in that he was medically assessed, had exercised his rights to speak with a lawyer, had been told what he was arrested for and that the victim had died. It is contended that the gravity of the accused’s legal situation was only plain at this point.

It is submitted that, at this stage, the accused should have been asked what he meant by the statement, ‘you’re gonna pay’. As this was not done, it is contended that it would be unfair for this statement to now be used by the prosecution as an admission of intention to cause physical harm.

Alternatively, the defence proposes that the statement should be excluded pursuant to s 137 EA, submitting that the ambiguity of it limits its probative value. It is submitted that there is a danger that the statement will be elevated beyond its rational capacity to inform the facts in issue.

Further, it is noted that the body worn camera footage depicts a medical emergency punctuated by the screaming of the deceased’s wife. As such, it is submitted that it has the risk of distracting the jury and engendering an emotional, rather than rational, response to the issues in this case. It is to be noted that, in oral argument, the prosecution proposed to edit the footage to avoid this problem.

It was further submitted that restricting use of this statement through s 136 EA would not cure the issue, as it might do in respect of the comment made on Leigh’s body worn camera footage. It is contended that there would still be a danger that the jury would speculate as to what the comment means, even if the prosecution is not permitted to use it in asserting that the accused had a desire to inflict injury.

Finally, it is submitted that the circumstances of the purported statement to Hartwell, and the utterances caught on the body camera footage of Leigh and Solyom, are such that they can each be excluded without need for the Court to determine whether Hartwell did or did not formally arrest the accused.

Counsel referred to a number of cases including Em v The Queen,[8] DPP v Natale (Ruling),[9] DPP v James[10] and R v Kerr and Lewis[11] on the relationship between s 90 and s 138 EA. It is submitted that the Court should firstly look at s 138 EA, but should also consider that the failure to provide the caution and rights to the accused, prior to the relevant statements being given, as part of the circumstances which are relevant to the unfairness of using such statements in the trial against the accused.
[8][2007] 232 CLR 67.
[9][2018] VSC 339.
[10][2016] VSCA 106.
[11][2015] VSC 64.

The prosecution submissions

The prosecution submits that Hartwell’s evidence that he arrested and gave the accused a caution and rights a short time after arriving at the scene should be accepted. It is noted that both Hartwell and Briggs provided their account of the events without having had the opportunity to review the CCTV vision, which they had not seen before. It was submitted that when they were shown the vision, each identified the same point where the accused had been given his caution and rights. As to the suggestion of collusion, the prosecution noted the concessions by Hartwell and Briggs that there had been some discussion between the two police officers on the night, including in the police car on the way back to the police station. It is noted that any discussion that occurred between the two police officers occurred after Hartwell had told Solyom at the scene that the caution and rights had been administered, that being recorded by the latter’s body worn camera device.

The prosecution submitted that during the recorded conversation Hartwell was having with Solyom, he became distracted by a person running through the scene, and this event is capable of explaining why he did not tell Solyom the accused had been arrested. It was noted that the body worn camera image showed that Hartwell was not present when Solyom cautioned, arrested, gave the accused his rights, and handcuffed him. It was submitted that by referring to the transcript of the body worn camera footage, it can be determined that Hartwell returned to Solyom’s presence at which point he said to Solyom, ‘Yes, the caution and rights have been given’. At this point Solyom responded, ‘Given caution and rights and placed him under arrest’. The prosecution submitted that Hartwell had not seen Solyom administer the caution and rights to the accused, and that his statement to Solyom happened before he had had any opportunity to collude with Briggs.

The prosecution also relied on Hartwell’s briefing to the informant shortly after 11.00pm, telling him that he had arrested the accused, and administered the caution and rights to him. It was also pointed out that this statement by Hartwell occurred well before the possibility of collusion with Briggs in the car on the way back to the police station, and before any notes were taken by both officers later that night.

Whilst acknowledging the concessions by Hartwell and Briggs that there was a degree of misunderstanding between the two men as to how they had expressed some things in their notes and statements, it was submitted that each gave accounts in the witness box of what had occurred, with those accounts backed up by supporting information, as well as the CCTV vision. In submissions, it was conceded that Hartwell’s evidence in relation to discussions he had with Briggs was problematic, and that the Court was entitled to take this into account when assessing Hartwell’s credit.

The prosecution specifically noted the evidence of Briggs, arguing that he expressed a clear memory of what occurred, this being particularly referable to a sense of disquiet that Solyom had re-arrested the accused, and that he was concerned or annoyed about that having happened. It was also argued that when considering the evidence of the accused that the only time he has ever been arrested was by Solyom, that due to the surrounding circumstances of a lot happening in the minutes before that arrest, it was a reasonable reaction by an overstressed accused to have not understood that he had been in fact arrested by Hartwell a few minutes before, and that the caution and his rights had been given.

With respect to Hartwell not having handcuffed the accused, it was submitted that he gave appropriate reasons for not taking that step, including that the accused was not posing a threat to him, that he was holding a towel thus occupying one of his hands, and that Hartwell simply made a judgment call on whether the accused should be handcuffed. It was pointed out that there was no obvious aggression from persons who were standing quietly nearby, and there was nothing that posed a threat to the police officers. The prosecution pointed out that there was nothing in the Victoria Police manual which demanded that an arresting police officer should handcuff a suspect, but rather, this was a matter of the personal discretion of the particular officer. It was submitted that despite the accused being regarded as a violent offender, adequate and valid reasons were given as to why he was not handcuffed or searched once arrested.

With respect to the evidence of the accused, it was acknowledged that he consistently maintained that he had not been arrested by Hartwell, nor given a caution and his rights. Nevertheless it was submitted that his evidence should be rejected in relation to these matters. It was submitted that although the evidence of the accused was that he was not arrested by Hartwell, he could not remember very much else about what he had said to Hartwell. It was argued that the accused was not prepared to make appropriate concessions in relation to his lack of memory as to what Hartwell had said to him in relation to the purported arrest. This, it was argued, pointed to the accused having either a generally poor memory, or that his answers were simply unsatisfactory.

It was submitted that, in all the circumstances, having regard to the evidence as a whole, the Court should be satisfied that Hartwell arrested the accused, and provided an appropriate caution and his rights.

As to the statement made to Leigh that, ‘I know it wasn’t deep’, it was submitted that this statement should be considered in the context of the accused having been arrested and cautioned by Hartwell. However, acknowledging that this is a matter in issue, it was nevertheless submitted that the statement should be considered in the context of the accused engaging with Hartwell for a number of minutes before Leigh came on the scene. It was acknowledged that Leigh was not informed by Hartwell why it was important that the accused was not to go anywhere. Thus there was no suggestion that Leigh knew that the accused was a suspect for the stabbing, such that she had no idea who he was, and why she was being asked to wait with him, and that she was just told what to do.

As to the statement made to Solyom that, ‘Look, you’re going to pay for this’, it was submitted that the statement should be seen in the context of the arrest and caution by Hartwell of the accused, again, a matter remaining in issue. It was pointed out that the statement was made after the accused had been in the presence of both Hartwell and Leigh, and following the short intervention by a paramedic enquiring as to the accused’s condition. The prosecution then pointed to the circumstances that occurred on the balcony, during which the statement was made, as recounted by the accused to Solyom. In the course of argument, it was pointed out that during the events on the balcony, the accused’s wife became both verbally and physically involved in the events taking place. In the face of that involvement, it is argued that the statement has relevance as to whether the prosecution can rebut the defence of self-defence, and argue the accused was not acting in defence of himself, or another, when he stabbed the deceased.

As to an alternative interpretation of the statement made, namely that the accused intended to assert that the deceased would pay by way of police action for the forced entry to his house and assault on the accused, it was submitted that the evidence taken as a whole, tended against that interpretation, which included the accused’s wife intending to make a 000 call while in the house. It was argued that what the accused’s wife may have been intending was not relevant to the accused’s intentions or beliefs. Further, it was pointed out that there is a lack of evidence that a call was actually made to the police at that point.

Counsel addressed s 90 EA, with particular reference to the comment made to Solyom in circumstances where it was submitted by the accused that he had said he had been assaulted; was denied the opportunity to obtain medical attention; that the comments to Leigh and Solyom took place in the midst of a medical emergency and a stressful scene; and, that neither of the impugned comments were probed by Leigh or Solyom, and not being later put to the accused in his record of interview for comment. As to these matters, it was submitted that when viewed as a whole, the accused’s interactions with the police did not suggest he failed to understand the nature and questioning that was occurring; that the questioning was not obviously unfair in its nature when compared to examples in similar previously decided cases referred to; that there was no trickery or deception of the accused; that the accused could understand the use of language; that he was not in a depleted mental or physical condition likely to have affected his answers; that he was not clearly emotionally distressed; and that there was no real risk that he had a reduced understanding of what was being said as a result of any conditions that he may have been suffering from. Accordingly, it was submitted that there was nothing in the nature of the present case to form the basis for an application pursuant to s 90 EA.

It was submitted that Solyom did not deny the accused the receipt of medical attention and that despite having been later shown that he may have suffered a fractured nose, at the time, the accused confirmed that he was not injured when he directly addressed the paramedic. Further, there is nothing to suggest that the accused did not understand, or was confused about the questions that were being put to him by police officers, such that the questioning was unfair. Next, it was acknowledged that there was a medical emergency and distressing events playing out during the impugned conversations, but that it was not unusual or unexpected that there would be such events occurring in an emergency situation such as occurred. It was not disputed that what occurred was unusual and shocking, but it was pointed out that the accused was moved to a location partly restricting his view of what was occurring nearby. It was submitted that it would not have been practically possible to move the accused past the deceased to another location altogether. It was submitted that despite the presence of screaming and distressing circumstances, there is nothing to suggest that the answers of the accused were influenced by what he was seeing, and no suggestion that he was unable to answer police questions or provide an account of himself because of what was happening in the near vicinity. It was submitted that there was nothing to suggest that he was incapable of providing police with answers to questions as a result of what he was seeing, or hearing arising from the surrounding circumstances.

Next, in respect of the impugned statements not being put to the accused in his later record of interview, it was submitted that the simple reason why this was not done was that the informant did not know about the statements having been made. Thus, it was submitted that the informant did not deliberately withhold the opportunity for the accused to clarify the comments attributed to him. Accordingly, it was argued that the fact the matters were not put to the accused does not lead to a suggestion of deliberate unfairness having been occasioned to him. In this context, it was noted that the failure of the informant to clarify the potential ambiguities of these statements in the record of interview is simply a matter that can be the subject of comment to the jury by way of the addresses of counsel, and thus no unfairness has been occasioned to the accused. Furthermore, as these matters can be the subject of addresses, it does not follow that the accused will be obliged to give evidence to explain any ambiguities, this being a matter for forensic decision.

Finally, it was submitted that simply because statements might be regarded as prejudicial to the accused’s defence, this does not lead to the degree of unfairness that should prevent them from being used as part of the prosecution case. It was submitted that it would be fair and appropriate for the statements to be used in the manner proposed by the prosecution, namely that the relevant to the accused man’s credit, and they are relevant to the questions of voluntariness, deliberateness and self-defence.

In respect of the application of s 137 and 138 EA, the prosecution draws upon a number of previous arguments discussed above and submits that an argument pursuant to s 138 only arises if the Court concludes that Hartwell did not arrest, and give the accused’s a caution and rights. On the assumption that the Court concludes that Hartwell did not arrest the accused or give a caution or rights, it is submitted that the effect of s 138(2)(a) and (b) does not arise in respect of the impugned statements made to Leigh and Solyom. It is submitted that despite an adverse finding being made, there are relevant factors which operate to ensure that the evidence should be admitted pursuant to s 138(1) EA. In particular, it is submitted that any breach that may be found have occurred was not substantial, nor deliberate on the part of either Leigh or Solyom. It was submitted that Leigh was not an investigating officer and the statement made to her was not in response to questioning, but rather a spontaneous comment by the accused.

In respect of the statement made to Solyom, it is submitted that in the face of an adverse finding against Hartwell, Solyom received limited information from Hartwell, including no information about whether the accused was arrested or had been given his caution or rights, or why Hartwell believed him to be the offender. It is submitted that in the face of a caution provided by Solyom, and having been asked what happened, the accused volunteered an account of events, which included the impugned words, upon which the accused was then arrested. Thus it was submitted that there was either no breach, or if there was, it was reckless at best. Further, it was submitted that if there is a breach, it was not deliberate and all Solyom was doing was establishing whether there was a basis to arrest the accused.

In respect of the probative value of the evidence, as relevant to the application of s 138(3)(a) and (b) EA, it is submitted that the value of the evidence is high, being contemporaneous and spontaneous representations relevant to issues in dispute, namely whether the actions of the accused were conscious, voluntary and deliberate, and whether the prosecution can disprove self-defence.

Conclusions
Was the accused arrested and provided a caution and rights?

The resolution of this question involves not only an examination of the direct evidence of Hartwell and Briggs, but also a consideration of a number of surrounding circumstances between the accused and the two police officers. Whilst it is clear that Hartwell and Briggs assert that the accused was arrested, there are a number of surrounding circumstances that when objectively examined, in my opinion cast doubt on whether the arrest, and the administering of a caution and rights actually occurred.

It is clear that the disputed events occurring between Hartwell and the accused took place very soon after Hartwell’s arrival at the scene, and in circumstances where the evolving events were dynamic and intense, and where it was clear that a victim was on the ground nearby receiving close attention for a very serious injury. Hartwell had understood before he arrived at the scene that there had been a stabbing, and he quickly became aware when he arrived that he had become involved in a potentially dangerous scene. He was also aware within a very short time of arriving that the weapon alleged to have been used had not been located. Hartwell was not wearing a body camera therefore no interaction between himself and the accused was independently recorded. In these circumstances, Hartwell spoke to the accused and was told by him that he had been ‘involved’ with the male lying on the ground. Hartwell then alleges that he said to the accused that, ‘you are now under arrest’, and gave him a standard caution and rights.

According to Hartwell, Briggs then came over to himself and the accused, whereupon Hartwell detailed to Briggs what the accused had just told him. Shortly after this, when the accused pointed out Kaya as the person who had earlier arrived with the deceased, Briggs then left and spoke to Kaya, arresting and handcuffing him.

In evidence, Hartwell could not recall whether Briggs was present when he arrested and gave the accused his caution and rights. On the other hand, Briggs states that he was present when Hartwell arrested the accused and informed him of his caution and rights. Significantly, Briggs said in his police statement that he was told by Hartwell that the accused had told him that he had, ‘stabbed the male who was now lying on the road’. In evidence before this Court, Briggs said that on being told that by Hartwell, he then told Hartwell that, ‘okay, well we need to arrest him’. In other words, Briggs asserted that it was in fact his idea to arrest the accused. That fact did not appear in Briggs’ notes of the events, or his police statement, and it appears to have emerged for the first time in oral evidence. Thus, two different versions of the alleged arrest of the accused appear to exist in circumstances where there is no independent recording of the event.

Furthermore, in his police statement, Briggs said that when Hartwell arrested, cautioned, and informed the accused of his rights, he then handcuffed the accused in his presence. In contradiction to this, Hartwell’s evidence is that he did not handcuff the accused at any stage. It is notable that he could have done this as he was in possession of a set of handcuffs. It is un-contradicted that the accused was later arrested and handcuffed by Solyom, being an event which was recorded visually and audibly.

It is notable that CCTV vision from a static location which overlooked the scene shows Hartwell, Briggs and the accused at one point standing together nearby a motor vehicle. However, in my opinion nothing emerging from this vision assists in determining clearly whether or not the accused was arrested, cautioned, and his rights given, as it simply shows the men together at a point in time, being a matter not in dispute.

After Briggs left Hartwell and the accused to attend to Kaya, Hartwell said he called Leigh over. In his police statement, he said that this was for Leigh to ‘stand with Mayhoub’. Leigh said in her statement it was for her to ‘wait with the male’. Briggs made no mention of the involvement of Leigh in his police statement. In evidence, Hartwell said that the role of Leigh was for her to take the accused into her custody so he could make further enquiries about the location of the weapon. Hartwell agreed in cross examination that he told Leigh it was important that the accused did not go anywhere, but significantly in my opinion, he did not inform Leigh that he had placed the accused under arrest and given his caution and rights.

It was submitted for the accused that the evidence of Hartwell and Briggs should be rejected as to the alleged arrest and allied procedural matters as each provided inconsistent accounts of the purported arrest of the accused. It was pointed out that Hartwell did not make notes at the scene, and whilst Briggs did make notes at the scene, those notes did not include a reference to himself or Hartwell having been engaged in an arrest, caution or rights by either of them. Further, in circumstances where Briggs made notes of Solyom’s later arrest of the accused, it was submitted on behalf of the accused that it was of some significance that Briggs wrote notes about one thing and not the other.

In the circumstances of an extremely serious violent event having occurred, with a critically injured person nearby, and a potentially dangerous situation with members of the public in close proximity, it is significant that in the face of an asserted arrest of the accused, when Hartwell maintained he was alone with him, Hartwell did not undertake a number of steps which would normally be expected, such as:

(a) Informing the accused in clear terms the reason why he was being arrested, having only been told by the accused by this point that he had been ‘involved’ with the person on the ground;

(b) Upon an arrest taking place, handcuffing the accused and thereby preventing him from creating further danger or leaving the scene;

(c) Searching the accused for a weapon, knowing that a stabbing was alleged to have occurred and the weapon had not yet been located; and

(d) Informing Leigh that he had arrested the accused when asking her to stand with him.

In my opinion, it is also noteworthy that in the circumstances as Hartwell asserted them, he allowed the accused to place his hand in his back pocket and remove something, and at one point turned his back on him.

In forming a conclusion about whether the accused was arrested, in my opinion, it is significant that following the alleged arrest by Hartwell, he left the accused unrestrained, unsearched, and in an unsecured situation, then asking Leigh to stand with him to make sure the accused did not go anywhere. In my opinion, it is improbable that if Hartwell had arrested the accused, he would not have informed Leigh that he had done so. Whilst asserting that his actions in not restraining the accused could depend on the overall circumstances, Hartwell agreed that by not handcuffing him, he was acting in a way that was not how he would do things normally.

Although Hartwell said he was not afraid of the accused who appeared calm, he then proceeded to leave the accused in an unrestrained condition, and alone, in the company of the junior female police officer Leigh where the potential to attempt to overpower her and leave the scene was obvious. Rather, he handed the accused over to Leigh when the accused was not restrained by handcuffs, and gave her no information to ensure her own safety. In my opinion, had Hartwell arrested the accused as a suspected offender in a violent attack, there was an obvious imperative to restrain him from further violent action, or from departing the scene, and to inform Leigh of the fact that the accused was formally in police custody, and that he had been arrested as suspected of having committed serious violence.

Furthermore, Hartwell saw Solyom and asked him to come over to where he was, and told him ‘this was the offender’. He only said to Solyom that the accused was, ‘in our custody’, but did not reveal that he had formally arrested the accused. As with how events occurred with Leigh’s involvement, this is a further significant factor militating against the accused actually having been arrested by Hartwell. It was a simple and logical step to inform Solyom that he had arrested the accused, this being a significant step carrying legal and operational implications.

It further appears that in circumstances where Solyom then proceeded to arrest the accused and place him in handcuffs, Hartwell failed to inform Solyom that he had already arrested the accused a short time before, which would have made a further arrest unnecessary. These circumstances add a sense of disquiet that an earlier arrest had actually taken place. Solyom’s evidence is that nobody at the scene informed him that the accused had already been arrested. Notably, as with Briggs’s arrest and handcuffing of Kaya, on the arrest of the accused being made by Solyom, his almost immediate step was to place handcuffs on the accused, and ask him to sit down and wait. In all the circumstances, it is inexplicable why Hartwell did not tell Solyom about an arrest having been carried out.

It is nevertheless to be acknowledged that by the time Eppingstall arrived at the scene shortly after 11.00pm, he received a briefing from Hartwell in which it was conveyed to him that Hartwell had an earlier conversation with the accused during which he was told by the accused that he had been involved in the events, and further, that he had arrested the accused and given him his caution and rights. Hartwell told Eppingstall that the caution and rights was not recorded, but that Solyom had recorded the caution on the body worn camera.

As to evidence of note taking, Hartwell did not take notes at the scene, but Briggs did, however, those notes do not refer to the arrest of the accused having taken place. This is surprising given Briggs later commented that he knew that when Solyom arrested the accused, that that might ‘muddy the waters’. It is further notable that Briggs made later notes at the police station in which he stated that he was told by Hartwell that he had arrested and cautioned the accused, but the notes do not reveal whether Briggs was present. Furthermore, when pressed about the topic of the accused’s arrest, Hartwell and Briggs’ evidence is that their discussions did lack a degree of clarity and certainty, it being characterised by vagueness.

The accused gave evidence on this application and I have taken his version of events into account. In short, he steadfastly asserted that he was not arrested by Hartwell, but otherwise on a number of occasions expressed an unclear memory about a number of other things that were said or events that happened. In the circumstances, I did not regard his evidence on the matter of the purported arrest as wholly satisfactory, although for the purposes of resolving the factual issues requiring resolution I have placed some weight on his evidence. I have taken into account that he is likely to have been in a state of shock at the scene and that he appeared at one point to be concerned about assisting the emergency response to the deceased. I also accept that a short time before speaking to Hartwell, Leigh and Solyom, the accused appears likely to have received a number of blows to the head from the deceased and/or Kaya, that he appears to have been assaulted inside his house in front of members of his family, that he had been involved in a dangerous altercation on the front porch of his house in front of his wife and children, and that the subsequent circumstances outside the front of his house in the street were intense and distressing.

Taking into account all of the evidence discussed above, I am satisfied that Hartwell did not convey to either Leigh or Solyom that he had formally arrested the accused. In my opinion, this was particularly surprising, given that an arrest of a violent suspect in all the circumstances was an event of operational and legal significance in the resolution of the police investigation then underway. A combination of the factors which I have discussed above lead me to the conclusion that the accused was not arrested, and that the administering of a caution and his rights is unlikely to have occurred as asserted by Hartwell and Briggs.

Despite the direct evidence provided by the two police officers, there are a series of surrounding circumstances as discussed above that point my decision in the opposite direction. I am further fortified in this conclusion by the fact that the accused volunteered to Leigh the comment that, ‘I know it wasn’t deep’. In my opinion, had the accused been arrested, cautioned, and his rights provided by Hartwell, with the comment that he understood those rights, it is much less likely he would have made this statement to Leigh, as it was one capable of implicating him in an aspect of the crime alleged to have been committed. It is further surprising that in the face of the statement having been made, Leigh did not immediately caution the accused, or at least enquire more of him, on the basis it was a statement which on one view at least, was capable of informing her that the person she was standing beside was in fact a suspect.

What flows from the accused not having been arrested?

The accused submitted that the Court should conclude the accused was not arrested by Hartwell, the consequence being that the impugned statements sought to be led in evidence by the prosecution should be excluded from the jury’s consideration. It is submitted that the failure of Hartwell to arrest and properly caution and give rights to the accused is significant because there are objective signs that the accused believed he was being treated as a witness and remained in that state of belief until he was ultimately arrested by Solyom. I shall return to this aspect below.

Asserted admissions to Leigh and Solyom

The defence submits that the statement made to Leigh, as recorded in her body camera footage, in which the accused said, ‘I know it wasn’t deep’, is not capable of amounting to an admission that could be put before a jury in establishing that the act of stabbing the deceased was deliberate. On the other hand, the prosecution submitted that the statement is an admission by the accused of a clear memory of deliberately penetrating the deceased’s body with the knife where a significant issue in the trial is whether the wound was deliberately inflicted by the accused. It was submitted that the admission can be fairly used to prove the accused had the knife, used the knife, and also had a memory of the extent of the use of the knife. Furthermore, it was submitted that the admission goes to the element of whether the accused had committed a conscious, voluntary and deliberate act.

To be used on the bases put forward, it seems to me that the reasoning would have to be that the accused knew it was not a deep wound as he not only intended that the blade would penetrate the deceased’s body, but that the penetration he did intend to inflict would not be deep.

In my opinion, the phrase used by the accused goes no further than demonstrating that at a point after the penetration of the deceased’s body, he possessed the knowledge that the knife had not penetrated deeply. In my view, the statement says nothing as to the intention that may or may not have existed in the mind of the accused at the point at which the knife penetrated the deceased. The statement simply does not go that far.

There may of course be some circumstances in which a statement of this kind might be regarded as ‘adverse to the person’s interest in the outcome of the proceeding’, but in the circumstances of the evidence in the present case I am not satisfied that this statement is capable of falling into that category. In my opinion, the statement cannot be used by the prosecution as a post-offence admission to assist in establishing what the intention of the accused was at the time the knife penetrated the deceased. In that sense, it is my opinion the statement to Leigh is not probative of the issue the prosecution seek to call the evidence to prove. I agree with the submission advanced on behalf of the accused that the statement to Leigh does not rationally do what the prosecution seeks it to do, and in that sense is intractably neutral.

The statement may nevertheless be used as a piece of evidence demonstrating the accused’s post-incident knowledge or belief that the knife had not penetrated deeply. Compared to the way in which the prosecution seeks to use the statement, the way in which I think it can be used is likely to be less controversial, if at all, given that the accused does not dispute that the knife penetrated the deceased’s body. Had there been a dispute that the knife held by the accused entered the deceased body at all, it would be clear that the statement might be viewed in a completely different way, and may well be regarded as amounting to an admission. However, given the approach taken by the accused in this trial, it is my opinion that the statement does not qualify as admission.

As to the statement made to Solyom as recorded in his body camera footage, where the accused said, ‘look you’re going to pay for this’, the defence have submitted it is not capable of amounting to an admission such that it can be properly placed before the jury as a representation establishing that the act of stabbing the deceased was deliberate. The prosecution submits that the statement is intended to be used as an admission that the accused’s intention was to use violence in retaliation for being assaulted by either or both of the men that had entered his house. The prosecution points to the context of the other events on the balcony, including the accused pointing to his nose, turning the knife around in his hand, and gesturing to the deceased with the knife. Thus, it was submitted that the statement to Solyom was an instance of the accused recounting a statement he made to the deceased.

In my opinion, the recorded statement is capable of amounting to an admission as it can be regarded as adverse to the person’s interest in the outcome of the proceeding. As stated above, the dispute in this trial does not focus on whether the knife entered the deceased’s body at all, but rather as to the circumstances that were relevant to that event occurring, including whether the penetration was accidental or was caused deliberately in self-defence of the accused or others.

The statement is capable of being accepted by a jury as a statement of intention on the part of the accused, and also as a statement supportive of a motive to carry out a retributive or retaliatory attack. As such, it appears relevant to the issues between the parties at trial. At first blush, it may be able to be accepted by the jury as a post offence statement made to a police officer that the accused intended a response, or retribution, against the deceased for the events that had occurred inside his house in front of his family. Further, the evidence is capable of supporting the argument that the accused had been struck on the face during the course of the events inside the house, that he had received an injury, and that he was angry about that having occurred. The above noted, the question also arises as to what the accused meant to convey when he made this statement to Solyom. It is worth observing that it appears from the transcript of the recording that almost as soon as the accused said these words, Solyom arrested him. On one view, it might be said that Solyom took the words to amount to a statement of the accused’s intention that he meant to stab the deceased. However, in response, the defence submits that the meaning of the words is equivocal and that another quite possible explanation is that the deceased would ‘pay a price’ for the events that had occurred, and that the accused intended to report the deceased to the police for unlawfully entering his home and assaulting him.

In my opinion, given the surrounding circumstances of there being an unresolved dispute over the payment of money for work performed, an alleged assault by the deceased on the accused, with the accused pointing to his nose on the porch after having been assaulted, and the physical intervention and actions by the accused’s wife on the porch, the statement made to Solyom is equivocal, and is not necessarily capable of having a logical connection to an intentional stabbing of the deceased.

Furthermore, in my opinion the statement should also be read in the context of a second statement made by the accused to Solyom. After he was arrested and cautioned, the accused added a further relevant piece of information to Solyom. The accused said, ‘He goes, (referring to what the deceased said) “What I’m gonna pay?” I said, “For this”. I said, “Just go”’. Relevantly, and before the stabbing is alleged to have occurred, the accused says he told the deceased to leave. If accepted as having been said, the latter statement appears to have the accused telling the deceased to leave, following which on the prosecution case, the accused deliberately stabbed the deceased. I note that the accused repeated a number of times in the later record of interview that he had said to the deceased and Kaya to leave, and that the CCTV vision appears to show that the two men were generally in the process of leaving when the fatal events took place on the porch of the premises.

The accused submits that this statement, ‘look you’re going pay for this’ should be excluded pursuant to s 90 EA. Section 90 provides that in a criminal proceeding the Court may refuse to admit evidence of an admission if having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.

Counsel for the accused point to a number of matters supporting the argument it would be unfair to use this evidence against the accused. These include:

(a) The equivocal nature of the statement made, as noted above;

(b) That Solyom did not ask more about the comment to determine whether the accused had made a reference to physical harm or to reporting the deceased to the police;

(c) That the accused was not asked to explain the admission in the subsequent record of interview conducted by Eppingstall despite Solyom having briefed him on matters before the interview began;

(d) That the accused answered every question asked of him in the interview and would likely have clarified what he meant by the statement had he been asked about it;

(e) That the failure to ask the accused in the record of interview for clarification of the comment now places an untenable burden on the accused to explain what he meant in front of the jury;

(f) The overall distressing circumstances in which the conversation with Solyom was conducted; the distressing background of the previous events having involved the accused’s wife and children; and the observable shock on the part of the accused as can be seen on the body-cam footage;

(g) The overall circumstances of the failure by Hartwell to have arrested the accused prior to the conversation with Solyom; and

(h) Despite the caution being administered by Solyom, the failure of him to give the accused his rights until the point when he formally arrested him.

It is argued that all of these features should lead to the exclusion of the evidence. It was further submitted that the application of s 90 EA permitted a confluence, or combination, of a number of circumstances to be considered together. So it was submitted that whilst one feature on its own may not make the intended use of the evidence unfair, the combination of a number of circumstances may lead to a conclusion of unfairness.[12] It was also submitted that it was not to the point whether or not Solyom was fair and courteous to the accused, but that the question for determination is whether it is fair to use the statement at trial, and whether there was a forensic disadvantage to the accused in allowing the prosecution to use evidence that becomes unfair in light of the circumstances that existed when the alleged admission was made.[13]
[12]EM v The Queen [2007[ 232 CLR 67.
[13]DPP v Natale (Ruling) [2018] VSC 339.

Further, it is submitted that the statement made to Solyom is ambiguous, thus limiting its probative value, and risking a jury elevating the value of the evidence beyond its rational capacity to inform the facts in issue between the parties.

In my opinion, I should apply s 90 EA to this piece of evidence. As I have said, I am of the opinion that the evidence is capable of amounting to an admission and as such, it is open to apply s 90 EA in relation to the evidence. However, I do regard the statement as being equivocal in its nature in all the known circumstances, and thereby ambiguous. Furthermore, for the reasons I have identified above, I am of the view that the combined effect of all the circumstances in which the admission was made creates unfairness to the accused, such that I should exercise the discretion to exclude. I particularly regard as significant the fact that this piece of evidence was not sought to be clarified by either Solyom or Eppingstall in their conversations with the accused, and accordingly, the accused is placed at a disadvantage.

For these reasons, I am of the opinion that it would be unfair to the accused to use the evidence in the way sought by the prosecution, and it will be excluded from being adduced before the jury.

The application of ss 135, 137 and 138(1) Evidence Act 2008

Given the conclusions I have come to above, it is unnecessary for me to give further consideration to the application of ss 135, 137 and 138 of the Act.

And I so rule.

[2021] VSC 269

19 May 2021