Regina v Raad Fajloun

[2007] NSWDC 364

CITATION:	Regina v Raad Fajloun [2007] NSWDC 364
JUDGMENT DATE:	14 November 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Objections overruled. Evidence admitted.
CATCHWORDS:	Criminal law - Trial - Voire dire judgment - Objection to tender of evidence against accused - Unrecorded admissions to police - Improperly obtained evidence
LEGISLATION CITED:	s281 Criminal Procedure Act 1986 ss138, 139 Evidence Act 1995
CASES CITED:	Regina v Bullock [2005] NSWSC 825 Reid [1999] NSWCCA 258
PARTIES:	Regina Raad Fajloun
FILE NUMBER(S):	06/21/0248
COUNSEL:	Ms Herbert for the Crown Dr Webb for Raad Fajloun
SOLICITORS:	Ms Irvin for the NSW DPP Mr Simone for Raad Fajloun

JUDGMENT

1. On 12 November 2005 two general duties police responded “to an alleged domestic” in a house in Guildford West. Two people were inside, a man and a woman. The man was Raad Fajloun, an accused in this case. The woman was the complainant in this case. The complainant had scratches and bruising to her face and walked hunched over holding her midsection.

2. One of the police, Constable Rebecca Rose, started to talk to the accused. She said, “ What’s happened today? ” and he replied, “ Nothing has happened, we just had an argument. ” The conversation between the police officer and the accused went on from there. It included some damaging admissions, especially the last thing which Mr Raad Fajloun is alleged to have said. “ I went to her house, break down door and grab her and bring her here. ” Two of the charges which Mr Fajloun faces in this case are aggravated break and enter and commit serious indictable offence and aggravated kidnapping. Both offences are alleged to have been committed against the complainant in this case.

3. This conversation was not recorded by Constable Rose. Hence Dr Webb, who appears for the accused Raad Fajloun in this trial, has objected to the tender of the conversation into evidence. He takes two points. The first is that it is inadmissible because it was not recorded. He relies on s 281 of the Criminal Procedure Act 1986 . The second is that the evidence was obtained improperly. He relies on ss 138 and 139 of the Evidence Act 1995 . I will deal first with the objection taken under the Evidence Act.

4. Section 138 provides that evidence obtained improperly is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained improperly. Section 139 provides that, for the purposes of s 138, evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if the person was under arrest at the time and the questioning was conducted by an investigating official and before starting the questioning, the official did not caution the person that the person does not have to say anything.

5. It is common ground that there was no caution in this case. The first question is whether the accused in this case was under arrest in accordance with s 139(1)(a) at the time. Section 139(5) provides that a person being under arrest includes a reference to a person who is in the company of an official for the purpose of being questioned, if the official believes there is sufficient evidence to establish that the person has committed an offence that is to be the subject of questioning or the official would not allow the person to leave if the person wished to do so or the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

6. Based upon the evidence given by Constable Rose on voir dire examination and contained at T193, lines 41 and 46, and T197, lines 1 to 15, I am not satisfied that she believed that there was sufficient evidence to establish that Mr Raad Fajloun had committed an offence. There is in my opinion, so far as clause (c) of subs (5) of s 139 is concerned, no evidence that Constable Rose had given Mr Raad Fajloun any reasonable grounds for him to believe that he would not be allowed to leave if he wished to do so. They were, it seems to me so far as he was concerned, just having a conversation.

7. The remaining provision is in clause (b): the question is whether Constable Rose would not allow the person to leave if he had wished to do so. I am satisfied as a result of the evidence contained at T213 that she would not have allowed him to leave. As she said;

“ He wasn’t under arrest by me but I would have asked him just to wait there until my offsider comes back and if things sort of started to get hostile, then I would have called for my partner for advice as to what to do at that point. ”


Hence in my opinion if Mr Raad Fajloun had wished to leave, Constable Rose would have effectively not allowed him to leave because of a stated intention to ask him to wait till she called her offsider.

8. Hence, in my opinion Mr Raad Fajloun was under arrest at the time and s 139(1) provides because he was not warned that the questioning is deemed to have been taken improperly.

9. I therefore return to s 138 to determine in light of that finding whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

10. The matters which I take into account include the matters referred to in s 138(3). As to those factors I regard the parts of the evidence as highly probative. The evidence is important in the proceedings but not critical. The charges are serious. It is important here to say that I do not regard this as a grave impropriety on the part of Constable Rose. There was at the time just a general conversation between the two of them but Constable Rose was not aware of the serious allegations which were being made against this particular person. She did not believe that he was under arrest and her intention was to call for advice if he decided to move. In my opinion the impropriety was neither deliberate nor reckless, it was more a formal almost technical impropriety.

11. I regard, given its probative value and importance, the desirability of admitting the evidence as outweighing the undesirability of admitting the evidence and I propose to overrule the objection made pursuant to s 138 of the Evidence Act .

12. I now turn to the objection taken under s 281 of the Criminal Procedure Act.

13. So far as s 281(1)(a), which sets out one of the criteria for the applicability of the section, is concerned, I do not think that when the admissions were made Constable Rose suspected Mr Raad Fajloun of committing the offence or an offence. I partly base this upon the fact that she was at the time a probationary constable. However, I do conclude that Mr Raad Fajloun could reasonably have been suspected by an investigating official of having committed an offence. The circumstances were that she was called to the scene of a domestic and was confronted by a man and a woman. The woman was clearly suffering from some injuries, the man admitted to an argument. In my opinion, it could reasonably have been suspected by any investigating official that the man had committed an offence.

14. The answers given by Mr Raad Fajloun were in the course of official questioning by the police officer and hence s 281(1)(b) is satisfied and the questioning relates to an indictable offence.

15. The admissions made by Mr Raad Fajloun are rendered inadmissible by ss 2 in the circumstances set out in that sub section. There was not made available to the court in this case a tape recording which either recorded the admission or recorded an interview about the making of the admissions. It is common ground, so far as a tape recording about the earlier making of the admissions is concerned, that Mr Raad Fajloun declined to be interviewed. That, in my opinion, establishes a reasonable excuse. The inclusive definition of “ reasonable excuse ” includes such a consideration. The definition is contained in s 281(4). I am supported in that view by Smart AJ’s judgment in Reid [1999] NSWCCA 258 at [67].

16. The remaining question is whether there is a reasonable excuse for the failure to record the admission at the time that it was made. The evidence of Constable Rose is that as a general duties car crew at that time she was not given any recording equipment. Nor did she have access in the vehicle to a video camera or a tape recorder. Nor did her partner have any such equipment and, as she said at T187, “ We were never issued with that type of thing ”. When asked by me at T213 whether she was aware that some police have tape recorders like hand held dictaphones so that they can record words said by people, including suspects, she said “Personally I don’t know of anybody. I only know of the issued ones for highway patrol. None of my colleagues, that I’m aware of, ever had one or even having spoken about that sort of, having one”. The question is whether that provides a reasonable excuse for the interview not being recorded.

17. Ms Herbert for the DPP in this case refers me to the unreported decision of Buddin J in the Supreme Court of New South Wales in Regina v Bullock [2005] NSWSC, 825 . At [20] his Honour said “ The ultimate question is of course whether there exists a ‘reasonable excuse’ as to why a tape recording should not be made. ” His Honour referred to authority which suggests that the word “could” introduces a concept of impracticability in order to excuse the lack of a tape recording. His Honour referred to authority that it is appropriate to take into account the conduct of the police in considering this question.

18. In this respect I have regard to the following factors. The police in this case were responding to what was reported as a domestic violence offence, they had no idea that it might involve far more serious crimes. Secondly, they were general duties police. Thirdly, this was an open ended conversation between the police officer and Mr Raad Fajloun at a time when the other officer was interviewing the woman in another room. Although, objectively speaking, Mr Raad Fajloun could reasonably have been suspected of committing an offence, the police officer at the time was waiting to see what the result of the conversation between her partner and the complainant would produce.

19. Those circumstances, in my opinion, amount to a reasonable excuse for the conversation not to be recorded. Hence I overrule Doctor Webb’s objection under s 281 of the Criminal Procedure Act .

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