Supreme Court New South Wales Medium Neutral Citation: R v Smith [2020] NSWSC 1577 Hearing dates: 9 November 2020 Date of orders: 10 November 2020 Decision date: 10 November 2020 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: The Crown's applications are refused Catchwords: CRIMINAL PROCEDURE – evidence – where Crown application to lead evidence of an alleged admission – where conversation not recorded – where police offices not wearing body cameras – where Crown bears onus of establishing reasonable excuse for lack of recording – where onus not discharged – where application for admission into evidence rejected – whether Court should refuse to admit evidence of an alleged admission as being unfair to the accused – whether circumstances in which representation given make it unlikely to be a fabrication or highly probable that it is reliable Legislation Cited: Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Regina (Crown) Justin Shawn John Smith (Accused) Representation: Counsel: B Campbell (Crown) J Watts (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Accused) File Number(s): 2019/4224 Publication restriction: Nil Judgment 1. HIS HONOUR: Justin Smith is on trial for the murder of Luke Freeman who was stabbed by Mr Smith on 5 January 2019 and who died the following day in John Hunter Hospital from complications related to his wounds. A series of evidentiary issues have arisen for determination before the trial proceeds further. These are dealt with in what follows. Criminal Procedure Act 1986, s 281 1. That section is as follows: 281 Admission by suspects (1) This section applies to an admission-- (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless-- (a) there is available to the court-- (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3)… 1. The Crown wishes to lead evidence from Senior Constable William Amos of a conversation with Mr Smith at the time of his initial apprehension and arrest. The Crown contends that words spoken by Mr Smith amount to an admission that is admissible despite the fact that the conversation was not recorded. The Crown maintains that there was a reasonable excuse for the fact that a tape recording of the conversation was not made. (The Crown ultimately disavowed and discarded an earlier submission that the so-called admission was not made in the course of official questioning). 2. Senior Constable Amos gave evidence in the absence of the jury that after having placed handcuffs on Mr Smith, he had the following conversation with him: Amos: "Where's the knife?" Smith: "What Knife? I don't know what you're talking about." Amos: "If you want to play those games go right ahead." Smith: "I don't know what you're talking about." Amos: "My name is senior constable Amos from Grafton Police. I suspect that you have been involved in a stabbing incident up the road. You are under arrest. Do you understand?" Smith: "I don't know what you're talking about." 1. The Crown bears the onus of establishing that there was a reasonable excuse for the fact that a tape recording of the conversation was not made. The Crown contends that Senior Constable Amos and his partner Constable Paul Travis were instructed over the police radio that a triple 000 call had been received advising that a stabbing had occurred and they were tasked with going to the location in order to apprehend any suspected person in the area. In the events that occurred, they drove to the location and arrested Mr Smith. 2. Senior Constable Amos gave the following evidence: "3. On Friday 4 January 2019, I was rostered to work in full police uniform from 6pm until 6am the following morning. I was assigned a fully marked police caged vehicle, along with Constable Paul. 4. About 3.50am on Saturday 5 January 2019, Constable Paul and I received a message via police radio that a stabbing incident had occurred at 7 Gardenia Way, South Grafton. Constable Paul and I were travelling to the location when police radio broadcast an update advising that the alleged offender was named Justin Smith and was last seen leaving the location on foot." 1. Although the two officers were in full uniform, they were not wearing body video cameras. The Crown contended that this was because they "were not available", meaning, as I understand it, that they did not have that equipment with them in their vehicle or on their person at the time that they apprehended Mr Smith. That was the only submission made by the Crown in support of the proposition that there was a reasonable excuse for failure to record the conversation with Mr Smith. 2. It was conceded by the Crown that the applicable protocols required the officers to wear the cameras in the course of their duties. There was no evidence to suggest that there was any reason why the officers were not wearing this equipment at the time, beyond the inference that they simply chose not to do so. 3. I am not satisfied that the Crown has established that there was a reasonable excuse for their failure to do so or, in particular, to record the conversation said to contain the admission. I make no further comment about whether the words upon which the Crown seeks to rely amount to an admission in any event. 4. It follows that the Crown's application to tender the evidence in question is rejected. Evidence Act 1995, ss 90 and 137 1. From 6am on 5 January 2019, Senior Constable Adam Vary was the custody manager at Grafton Police. At approximately 1pm, Mr Smith's mother, Kim Johnson, attended the police station. Senior Constable Vary gave evidence that the following conversation took place between them: Vary: "Hi, you must be mum, thanks for coming in with some clothes." Johnson: "I've brought in a few pairs can I talk to him?" Vary: "Yes come in I don't have the facilities to formally let you have a visit but you can see where he is and talk to him for a minute or two whilst we give him some clothes." 1. Senior Constable Vary then said that he walked into the charge room with Ms Johnson who asked him "What's he done?" The following conversation then took place: Vary: "I don't really know I'm the custody manager my role is to look after him but I think he has stabbed someone twice in the tummy over in South Grafton." Johnson: "He needs to be scheduled again. He did that to himself not long ago." Vary: "Oh he told me his girlfriend stabbed him." 1. Senior Constable Vary said that they then entered the charge room and Ms Johnson stopped in the doorway. Senior Constable Vary opened the cell door and gave Mr Smith a choice of clothing that his mother had brought for him. Mr Smith took some clothing and spoke with his mother. Senior Constable Vary said that he heard the following conversation between them: Johnson: "What have you done now what did you do?" Smith: "I was fine, everything was fine until they got in my face. Everything was fine." Johnson: "But why?" Smith: "They had to get in my face didn't they." 1. Section 90 of the Evidence Act is as follows: 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if— (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence. 1. It is plain from the circumstances that are revealed in Senior Constable Vary's recollection of events recorded above that Mr Smith's mother attended the police station in order to assist him with the provision of clothes. It is clear from other evidence already tendered in this trial that the clothes that were worn by Mr Smith when he was arrested and taken into custody had already been removed by the police in anticipation of being used as evidence. It seems perfectly plain to me that when Mr Smith's mother spoke to him, she had just arrived and was hopeful, if not understandably and obviously anxious, to know from him precisely what had led to his arrest. It was in that particular context that Mr Smith said the words upon which the Crown now wishes to rely as an admission. 2. Mr Smith had not at that stage received the benefit of any legal advice. His mother was not a lawyer as far as I know from the evidence so far. Ms Johnson's inquiry of her son about "what he had done now" is poignantly replete with concern for his welfare. I have no doubt, from the terms of both Ms Johnson's questions and Mr Smith's answers, that he knew and understood that he was communicating with someone concerned for his welfare and who was plainly there to support him. Ms Johnson was not in my estimation asking for a factual recitation or analysis of what had occurred so much as attempting to communicate a sympathetic attitude of concerned resignation at his plight, whatever it may have turned out to be. 3. I consider that Mr Smith would have had absolutely no understanding or appreciation that he was admitting anything when he spoke to his mother, far less that it might be recalled by the attending police officer and later produced in evidence at his trial. To do so in my opinion is definitively unfair. I propose to reject the Crown's application to rely upon this evidence in the trial. It is therefore unnecessary to consider whether the probative value of the evidence is outweighed by the danger of unfair prejudice to Mr Smith. Evidence Act 1995, s 65(2)(b) and (c) 1. Following the arrival of an ambulance at the scene of the stabbing, Ambulance Officer Hyde had a conversation with the deceased, Luke Freeman, which was recorded. Part of the conversation is as follows: "Officer Waddell: Mate, I appreciate you, obviously, you're in a big [sic] of pain there - - - Luke Freeman: Oy, yeah. Officer Waddell: - - - b … doing their thing, mate. From what I can see here, you've got a bit of a wound in your belly - - - Luke Freeman: Yep. Officer Waddell: - - - and one on the side of your ribs, on your left hand side. Luke Freeman: (GROANS) Officer Waddell: Mate, can you tell me what's happened tonight? Luke Freeman: Oh, old mate came and just a little … my stomach? Officer Waddell: Who's old mate? Luke Freeman: Well, I don't know his name. Officer Waddell: OK. So what's his beef with you? Luke Freeman: Oh, he's Katrina's friend and - - - Officer Waddell: He's Katrina's friend. Luke Freeman: Yeah … Officer Waddell: And Katrina's your missus? Luke Freeman: Yeah. Officer Waddell: OK. Mate, can you - - - Officer Waddell: - - - describe what he looks like for me? Luke Freeman: No. I can't mate. Officer Waddell: OK. Have you seen him before? Luke Freeman: Nuh. Officer Waddell: No. So you don't know who he is, but he's Katrina's friend? Luke Freeman: Yeah. Officer Waddell: OK. Luke Freeman: … please - - - Officer Waddell: Mate - - - Luke Freeman: - - - un, she, she can't really talk to people. Officer Waddell: Katrina can't? Luke Freeman: No. Officer Waddell: Yep. Luke Freeman: But her brother's out there. Officer Waddell: Yep. OK. So what's happened tonight, mate? Can you remember much? Luke Freeman: No. Officer Waddell: No. Luke Freeman: He just stabbed me in the belly and that's about all really. Officer Waddell: OK. No dramas. Luke Freeman: I done nothing wrong." 1. Section 65 of the Evidence Act is in the following relevant terms: 65 Exception: Criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation-- (a) … (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) … 1. The Crown maintains that either or both of (b) and (c) apply. Mr Freeman was critically wounded and in distress. He was being questioned by a paramedic in what I consider to have been rather curious terms apparently directed more to discovering who might have been responsible for his condition, rather than with the serious injuries he had received. The Crown submits that Mr Freeman's situation as a person suffering what were potentially, and what turned out to be actually, mortal wounds that had been violently inflicted only minutes beforehand were circumstances that made it unlikely that Mr Freeman's statement "I done nothing wrong" was a fabrication and in fact made it highly likely that it was reliable. It is also clear that Mr Freeman was concerned that he was going to die, as the following passage from Mr Maxwell's statement makes clear: "7. The patient told me that his name was Luke but he didn't tell me his surname. He told me that he had been stabbed. I think he said the name of the person that [sic, who] had stabbed him but I was more interested in working on him and I cannot recall the name he was saying. By this time he was needing fluids and it took several efforts to get that going. Luke told me that he had a lot to drink and that combined with his loss of blood was impacting on his condition. Communicating with him was difficult. Luke was asking me if he was going to die and I said to him that at the he was going okay however he had some significant injuries." 1. The circumstances relied upon to support the Crown's contention appear to be limited to the actual stabbing incident itself. However, Mr Smith contends that the "circumstances" referred to in s 65(2)(b) and (c) cannot be so limited. In that respect he draws attention to a number of matters that are said to inform the present inquiry. For example, it is apparent that those who were present at the house where the stabbing occurred had been drinking heavily from sometime the previous afternoon. That included Mr Freeman. There had been some discussion among those present about Mr Smith's feelings for Katrina Marshall, who was apparently in a relationship with Mr Freeman. Mr Smith had known Ms Marshall since school and it became apparent that he aspired to establishing a romantic relationship with her. 2. It is at the centre of the Crown's position on this issue, having regard to Mr Freeman's condition and his concern that he might die, that nothing that he said was likely to be a fabrication. I do not agree. 3. It is apparent from the evidence tendered on this application that some escalating tension was present between Mr Smith and Mr Freeman in the several hours leading up to the stabbing. Far from supporting a conclusion that the circumstances made it unlikely that Mr Freeman's representation was a fabrication or that it was highly probable that it was reliable, I consider that Mr Freeman's unsolicited assertion that "I done nothing wrong", uttered in circumstances in which he should have had no apparently legitimate interest in offering up a comparative assessment of his behaviour and Mr Smith's behaviour, is tellingly self-serving. I am not able to be certain that Mr Freeman's representation was a fabrication but I am not able to be satisfied that it is unlikely that it was. In a similar vein, Mr Freeman's assertion may well have been reliable but I am unable to be satisfied that it is highly probable to have been so. 4. In the circumstances, I reject the Crown's application to lead this evidence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2020