Supreme Court New South Wales Medium Neutral Citation: R v Rajapakse [2024] NSWSC 1226 Hearing dates: 27-28 August 2024 Date of orders: 28 August 2024 Decision date: 28 August 2024 Jurisdiction: Common Law Before: Chen J Decision: The accused's application to exclude the evidence contained within the investigator's note prepared by Detective Senior Constable Gillett on 2 November 2020, and the note itself, is rejected. Catchwords: EVIDENCE – Discretions – Exclusion of evidence – Criminal proceedings – Application by accused to exclude evidence of witness' "off-the-record" conversation with police under s 138 of the Evidence Act 1995 (NSW) because it was improperly obtained and/or under s 137 because the probative value is outweighed by the danger of unfair prejudice to the accused - No impropriety by police officer established – Danger of unfair prejudice not outweighed by probative value of evidence – Application to exclude evidence rejected Legislation Cited: Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Cases Cited: Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418 Category: Procedural rulings Parties: Rex (Crown) Russel Rajapakse (Accused) Representation: Counsel: C Young (Crown) N Carroll (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Simon Joyner Lawyers (Accused) File Number(s): 2020/00308992 Publication restriction: Nil JUDGMENT 1. HIS HONOUR: The accused, Russel Rajapakse, stands trial for the murder of Corey Breceljnik ('the deceased') allegedly committed on 25 October 2020, outside the front of 11 Slim Close, Watanobbi, New South Wales. The trial commenced on 27 August 2024. 2. On 26 August 2024, a Basha enquiry was conducted in relation to a witness Shannon Dunk. Mr Dunk gave some evidence about his interactions with the police following his arrest on 2 November 2020. 3. By application made 27 August 2024, the accused seeks two orders arising out of that evidence: 1. first, that, pursuant to s 138 of the Evidence Act 1995 (NSW), any evidence proposed to be given by Detective Senior Constable Gillett, following an "off the record" conversation that occurred between himself and Shannon Dunk at Batemans Bay police station on 2 November 2020 be excluded because it was improperly obtained; and 2. secondly, that, pursuant to s 137 of the Evidence Act, the evidence relating to the accused, as recorded in a summary in the Investigator's Note dated 2 November 2020 ('the investigator's note'), be excluded as being unfairly prejudicial "to the extent it contains impermissible opinion of the NSW police". During the course of submissions, the basis for making this order was revised. The argument advanced was that the evidence that Mr Dunk gave about what police allegedly said – essentially to the effect that "they were trying to lean towards that Russ was the one involved in it" (Tcpt, 26 August 2024, p 57(35)-(36)) – should be excluded pursuant to that section. 1. A further argument was also raised as an alternative to the first one. It was that, given the investigator's note was, in substance, a summary, it should be excluded, presumably pursuant to s 135 of the Evidence Act. 2. The Crown opposes each of the orders sought by the accused. Background 1. It is necessary to make some brief reference to the background facts and the Crown case, and for introductory purposes, to describe the investigator's note in general terms. Background facts and the Crown case 1. On 25 October 2020, the deceased, Caleb Thompson and Joel MacAlpine were at the home of Caleb Thompson at 11 Slim Close, Watanobbi. They wished to secure methylamphetamine. Caleb Thompson made contact with a dealer of methylamphetamine, whom he knew, and negotiated to purchase a quantity of that drug. The transaction was to occur in Cessnock, New South Wales. It appears that the group of individuals planned to take the methylamphetamine without paying for it. They were driven there by Nicole Coster. 2. Shortly after 9:00pm, the drugs were supplied by the dealer to someone in the "deceased's group", and they drove away without paying for the drugs as planned. 3. Subsequently, the dealer made contact with Jayden Young advising that "Caleb just ripped someone off", and asking for his address. Jayden Young suggested that the dealer call the accused. 4. The Crown case is that the accused, who was friends with Anthony Lawlor and had planned to spend the evening with him, agreed to attend Caleb Thompson's home to get the stolen drugs back, and did so armed with a knife. 5. At around 11:00pm, the accused and Mr Lawlor attended 11 Slim Close. They went into Caleb Thompson's bedroom where Caleb Thompson, Nicole Coster and the deceased were present. It is alleged that at that time, the accused and Mr Lawlor demanded the return of the drugs. Some of them were produced. The deceased did not hand over any drugs. An argument ensued following which the accused, Mr Lawlor and the deceased left the house. 6. The Crown case is that as the accused, Mr Lawlor and the deceased were outside the front of the house, in an area described as being close to the bottom of the front steps, the accused stabbed the deceased in the area of his left armpit. 7. At the time that the accused, Mr Lawlor and the deceased were out the front of 11 Slim Close, both Shannon Dunk and Joel MacAlpine were present. The Crown alleges that the stabbing was witnessed by Mr MacAlpine. 8. The deceased was subsequently taken by ambulance to John Hunter Hospital but, despite surgical intervention, his condition deteriorated and at 12:47pm on 26 October 2020, he was pronounced dead. 9. The Crown alleges that Mr Lawlor, Mr Dunk and a person known as Codey Read travelled to Sydney on 27 October 2020. 10. On 2 November 2020, Shannon Dunk and his girlfriend, Tearne Katounas, were located on the NSW South Coast by police. They were taken to Batemans Bay police station. Mr Dunk declined to answer questions and his refusal to be interviewed about the allegations was recorded in an ERISP. The transcript of that interview, and a video recording of it, were tendered on this application. 11. Although Mr Dunk declined to be interviewed, it is said that Mr Dunk told a police officer, Detective Senior Constable Gillett, a number of things "off the record" and, shortly after that discussion occurred, Detective Senior Constable Gillett prepared a document described as an "Investigator's Note". The investigator's note is attached to Detective Senior Constable Gillett's statement dated 17 September 2021. The investigator's note 1. The investigator's note prepared by Detective Senior Constable Gillett essentially covers three discrete areas: first, an introduction setting out how Shannon Dunk and Tearne Katounas came to be in police custody; secondly, a summary of what Ms Katounas said in her ERISP interview which occurred between 5:22pm and 6:00pm and that she "was released pending further enquiries"; and, thirdly, the interactions between Shannon Dunk and police from about 6:55pm when he was "taken to the ERISP room". 2. In relation to Mr Dunk, the note records that he did not wish to participate formally in an ERISP interview but was happy to have his refusal formally recorded – which it was. During that interview, Mr Dunk "heard the basic allegation however did not make any comment and did not wish to be interviewed". 3. The investigator's note then records that "[a]t the conclusion of the ERISP, DUNK stated 'now that's off, I will tell you what happened off the record but I'm not going on the record about it'", and that Mr Dunk "declined to allow police to make handwritten notes or recordings, however went on to state" a number of matters – which are then listed. The "off the record" conversation Introduction: the arguments of the accused 1. The accused argues that, to the extent that Mr Dunk agreed to certain matters when interviewed by police at Batemans Bay police station on 2 November 2020 that are said to be relevant to the events giving rise to the stabbing of the deceased, and the accused's potential involvement in them, they were the product of the police – and Detective Senior Constable Gillett in particular – securing Mr Dunk's agreement because of "improper conduct" by police to involve Mr Dunk's then girlfriend. Put simply, the accused argues that Detective Senior Constable Gillett "pressured" Shannon Dunk to provide a version of events "under the threat that his girlfriend was going to be charged and arrested" in circumstances where he had "activated his Part 9 rights and refused an interview on legal advice" (accused's submissions at [7]). 2. The accused submits that the alleged threat against Mr Dunk's girlfriend was made and acted upon by Mr Dunk, with the consequence that any responses said to have been given (or information provided) by Mr Dunk to the questions asked were "improperly obtained" within s 138(1)(a) of the Evidence Act. 3. It is, I consider, clear that Mr Dunk declined to be formally interviewed and, in that sense, activated what was described as his "Part 9 rights" – which I take to be a shorthand reference to those rights referred to in s 122(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ('LEPRA'), and his entitlement to decline to be (formally) interviewed. But that is as far as it goes, and as far as I am prepared to find. In particular, there is no evidence that Mr Dunk declined to be interviewed based upon legal advice, and I am unprepared to accept that this was the basis for the decision he made. The alleged improper conduct 1. The principal submission of the accused is that Mr Dunk said a number of things to police "as a consequence of the pressure he felt regarding the possibility of his girlfriend being arrested and charged" which were submitted to be lies and him falsely agreeing with propositions put to him during the course of the conversation (accused's submissions at [8]). 2. The accused relied upon parts of the evidence given by Mr Dunk to demonstrate the "improper conduct", and it is sufficient to refer to two parts of his evidence. 3. The first is at transcript page 45, lines 3-14: Q. All right. After that recording where you said you didn't want to be interviewed-- A. Yep. Q. --did you talk to a male officer about the incident? A. Well, they - they told me what they knew, and they said they think it's in my best interest if I help them out, and I said I don't know anything to help youse out, and they were kind of telling me that if I didn't help them out that they were going to arrest Tiarne for an accessory to murder as well, and I - I didn't understand. I said, like, "I can't help you out. She can't help you out. I don't understand why youse are trying to arrest her and put her in gaol for stuff she doesn't know anything about," and they've just-- 1. The second is at transcript page 57, lines 16-27: Q. All right. So, you said there were some discussions about what police knew, or what they thought they knew. Is that right? A. Yeah, what they were saying, yep. Q. All right. What did they tell you? A. As I said, I can't - I can't really remember. There was a discussion. At the time they were trying to - I don't know if they were - the way I felt it was trying to be is me cooperate and - and say what they wanted me to say, otherwise Tiarne would be charged and sent to gaol for the same charges I was going to gaol for. So, I kind of just went along with what they were saying. I can't exactly remember to the T what they were saying, but I kind of just went along with what they were saying. I felt pressured to go along for Tiarne's sake. 1. The accused's argument thus turns upon acceptance of Mr Dunk's evidence, or at least the broad thrust of it. The accused submits, therefore, that what was said by Mr Dunk was obtained "where he perceived a threat of impending charges against his girlfriend and her being bail refused and sent to prison" (accused's additional submissions at [3]). The accused submitted that it was relevant, when assessing whether the "threat" was made, to consider Mr Dunk's state of mind; that there was no evidence that Mr Dunk was aware that his girlfriend had been released from custody; as well as that Detective Senior Constable Gillett admitted to the possibility that Mr Dunk had raised concerns, generally, about his girlfriend. 2. In relation to Detective Senior Constable Gillett's evidence about this last matter, the accused argued that his evidence was not inconsistent with what had been submitted, essentially because he was "unable to recall speaking with Mr Dunk about the possibility of his girlfriend being charged" (accused's additional submissions at [2](i)). 3. I find what happened in connection with the "off the record" conversation to be as follows. 4. Following the completion of the formal interview, Detective Senior Constable Gillett said words to the effect to Mr Dunk, "Look Shannon, is there anything at all that you can tell me in relation to – into what's happened? I don't know anything about what's happened up at Tuggerah, and – and I'm just trying to help them get to the bottom of things" (Tcpt, 27 August 2024, p 33(50)-34(3)), to which Mr Dunk responded with words to the effect that he was "not going on the record" (Tcpt, 27 August 2024, p 34(7)). Detective Senior Constable Gillett described what he was doing was "encouraging [Mr Dunk] to talk to me" (Tcpt, 27 August 2024, p 35(1)). He later described this as using "open questions", endeavouring to establish "a line of rapport" so as to encourage him to speak. He gave evidence about what, according to his recollection, he would have said (Tcpt, 27 August 2024, p 39(10)-(20)), and it was to the effect (Tcpt, 27 August 2024, p 39(22)-(24)): I said, "If there's anything that you can, that you can tell us that would assist, you know, we would like to hear it". It would have been something along those lines. 1. Later, Detective Senior Constable Gillett described his approach as appealing "to the humanity in people", and that he would have said something along the lines of: "Mate, there's someone dead and we're trying to figure out what's going on" (Tcpt, 27 August 2024, p 47(40)-(41)). 2. Detective Senior Constable Gillett sought the permission of Mr Dunk to take notes, but Mr Dunk was not agreeable to this – so no notes were taken. To the extent this was submitted to undercut, generally, Detective Senior Constable Gillett's version, I do not accept the submission. It is true that the recording was not instantaneous, but in part that was driven by the fact that Mr Dunk refused to allow Detective Senior Constable Gillett to take notes of what was being said and, in part, it was driven by the fact that the discussion was "off the record". 3. The discussion was a "back-and-forth" conversation and, following that conversation, Detective Senior Constable Gillett completed the investigator's note. The precise time at which he did this is, in fact, referred to in Detective Senior Constable Gillett's statement dated 17 September 2021, par 6 and it was at 8:39pm the same evening, with the "off the record" conversation between Detective Senior Constable Gillett and Mr Dunk concluding at approximately 7:20pm. 4. Although Detective Senior Constable Gillett had no specific recollection about discussing Mr Dunk's girlfriend with him, or of Mr Dunk expressing a concern about her having been arrested, he accepted that it would be not unreasonable for such a thing to have been said. I am prepared to accept that it most likely was. However, I also accept, as Detective Senior Constable Gillett said, that, to the extent that there was a specific question raised by Mr Dunk about his girlfriend and whether she was going to be charged, that any response given was to the effect that that was not a decision to be made by him, but by the investigating police at Tuggerah Lakes (Tcpt, 27 August 2024, p 39(38)-(48); p 44(20)-(27)). 5. For completeness, I note that Detective Senior Constable Andrew Tyler was present during the course of this "off the record" conversation. He gave evidence, but essentially had no relevant recollection about the details of what was said. Neither side made any submissions about his evidence. 6. As I have said, the accused submitted that Detective Senior Constable Gillett, in effect, pressured Mr Dunk to talk "off the record" because he threatened to arrest and charge Mr Dunk's girlfriend. I do not accept this occurred, as was submitted. 7. First, and importantly, this suggestion was strongly denied by Detective Senior Constable Gillett during cross-examination (Tcpt, 27 August 2024, p 44(8)-(31); p 47(36)-(45)). I accept that denial, and his evidence generally across this topic. 8. Secondly, I regard Detective Senior Constable Gillett's strong denial as consistent with the probabilities. That is, he knew little about the investigation and he was not "in charge of charging anybody, the Tuggerah Lakes investigators were" and was, as he described it, "simply an interviewer" (Tcpt, 27 August 2024, p 44(17)-(18)). The contrary was not suggested to him. Further, although the proposition was put to Detective Senior Constable Gillett that he did apply pressure to Mr Dunk via the threat alleged to have been made (which he firmly rejected), nothing was suggested in cross-examination, or raised during submissions, that might provide a motive for Detective Senior Constable Gillett to act in that way. 9. Thirdly, I entertain some considerable reservations about Mr Dunk's evidence, including its reliability. Further, there are aspects of his evidence that I am unable to accept. For example, Mr Dunk's evidence was that, in effect, he did not volunteer any information, but merely "went along with what they were saying" (Tcpt, 26 August 2024, p 57(25)), repeated back what the police had put to him, including "maybe lying and entertaining them" (Tcpt, 26 August 2024, p 57(40)). However, as the Crown submitted, and consistent with Detective Senior Constable Gillett's limited role and understanding of the investigation, much of what is recorded in the investigator's note strongly impresses as having its source as Mr Dunk. For example, the note records: - He admitted that his "mate" rung him up and said that he had stuff he wanted to give back to the deceased. - When pressed, he admitted the "stuff" was drugs, and that his "mate" was Joel MCALPIN (sic). He said Joel was part of the group involving a male Caleb and a chick he didn't know, who robbed the guy and took drugs, and he was he just wanted to make sure his "mate" was OK and to make everything right. … - He said he saw the stabbing happen… … - He said that [he] helped Anthony [Lawlor] out afterwards, "I gave him clothes because he didn't have any clothes and he had nowhere to go and I felt bad for him". He admitted driving Anthony around a couple of places after the incident. 1. The point may be illustrated, and emphasised, by reference to this last matter. Detective Senior Constable Gillett's unchallenged evidence was that he had limited information about the events. To be clear, it was not suggested to him that he had any prior knowledge about Mr Dunk providing Mr Lawlor with clothing, as the note records. Yet the provision of clothing to Mr Lawlor is, in fact, something that Mr Dunk agreed actually occurred (Tcpt, 26 August 2024, p 61(27)-(28)). 2. It follows that I do not accept that the investigator's note was obtained "improperly", as was argued, for the purposes of s 138(1)(a) of the Evidence Act. The related submissions 1. There were a number of related submissions built upon the central premise of the principal submission – namely, Detective Senior Constable Gillett, in effect, threatened that Mr Dunk's girlfriend would be arrested and charged in consequence of the events that occurred if he did not cooperate, as follows. Given the conclusion that I have reached, I will deal with these briefly. 2. First, it was argued that there was a failure to record, or record the totality of, the "off the record" conversation – said to be illustrated by the note making "no reference to the parts of the conversation about police's intention to charge the suspects arrested that day" (accused's submissions at [9]-[10]). Detective Senior Constable Gillett accepted that it was not a verbatim record of what occurred. His evidence, which I accept, was that that was not the purpose of the investigator's note. Putting that matter to one side (and whether that makes any difference in any event), I do not accept that Detective Senior Constable Gillett made the alleged "threats", as I have earlier explained. It follows, therefore, that there was nothing to record. 3. Secondly, it was argued that the police failed to have Mr Dunk "adopt the conversation as recorded by them", contrary to s 281 of the Criminal Procedure Act 1986 (NSW) (accused's submissions at [11]). I do not regard s 281 as relevant. That section applies to "admissions" made by an accused person. It was not suggested that anything within the investigator's note amounts to an "admission" for the purposes of that section. 4. It was submitted that the conduct of Detective Senior Constable Gillett "adversely influencing" Mr Dunk to engage in the conversation with him, has resulted "in a clear breach of his right to silence" (accused's submissions at [12]). This submission must be rejected, given the finding that I have made to the effect that the alleged "threat" did not occur. In any event, the caution that Mr Dunk received was in accordance with s 122(1)(a) of the LEPRA – namely, a caution "that the person does not have to say or do anything but that anything the person does say or do may be used in evidence". Section 137 1. The accused next submitted that the evidence that Mr Dunk is likely to give about what police allegedly said – essentially to the effect that "they were trying to lean towards that Russ was the one involved in it" – should be excluded pursuant to s 137 of the Evidence Act. The accused submitted that this was impermissible opinion evidence. 2. I am unpersuaded that the probative value of that evidence, if it be given, is outweighed by the danger of unfair prejudice to the accused. That is for the following reasons. First, the conversation on 2 November 2020 occurred, as the Crown submitted, after the arrest of the accused on 28 October 2020 and after he was charged with the murder of the deceased. The jury will be aware of those key events through the evidence in the trial and particularly at the time when it is anticipated Mr Dunk will be called (possibly as the last witness). Secondly, that this evidence emerges through Mr Dunk may itself be important as part of his explanation for why things were said "off the record" and thus important for the jury to weigh in their consideration of Mr Dunk's evidence. Thirdly, to the extent that any concern arises, then the jury can, as the Crown submitted, be given a direction that police opinion is irrelevant to their role as the judges of the facts (Crown submissions at [19]). 3. I therefore propose to allow (that is, applying the language of the section, decline to refuse to admit) that evidence, if it is adduced by the prosecution. The residue argument 1. The accused raised a further submission, described as a "residue argument". The submission was that, if the Court did not exclude the investigator's note (and any oral evidence relating to it), then the accused sought the exclusion of the paragraphs within the note "that are not in inverted commas and do not represent the actual words said by the suspect, for the purposes of use" in any cross-examination, by leave under s 38 of the Evidence Act. 2. As I raised in the course of submissions, and as was accepted by the accused, there is no absolute prohibition against evidence of the substance of a conversation being given, rather than the precise words. The correctness of that position, as the Crown submitted, is evident from the decision in Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418 at [118]-[123]. If there is no prohibition on adducing oral evidence to that effect, then there cannot be, in my view, a prohibition on evidence in that form that is contained in a document. Questions of degree may well arise, but I am unpersuaded that any of such question arises in the present case, and the accused did not submit to the contrary. 3. Accordingly, I reject the application to exclude the investigator's note on this ground as well. ********** 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: 30 September 2024