New South Wales Supreme Court CITATION : R v Bradleigh Geoffrey John Walsh [2003] NSWSC 1115 HEARING DATE(S) : 17/11/03,18/11/03,20/11/03, 21/11/03, 24/11/03, 25/11/03, 26/11/03, 27/11/03, 28/11/03 JUDGMENT DATE : 3 December 2003 JURISDICTION: Criminal Division JUDGMENT OF : Howie J at 1 DECISION : Evidence admitted in part. CATCHWORDS : Evidence - Admissibility of evidence - whether offcial questioning - whether the accused should have been cautioned - whether unfair to admit the evidence Evidence Act 1995 - s 139, s 90, s 137, s 137 LEGISLATION CITED : Criminal Procedure Act 1986 - s 281 Crimes Act 1900- Pt 10A PARTIES : Regina v Bradleigh Geoffrey John Walsh FILE NUMBER(S) : SC 70210/03 COUNSEL : Crown: B. C. Newport, QC Accused: R. P. Greenhill, SC SOLICITORS : Crown: S E O'Connor Accused: Bell & Partners IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION HOWIE J Wednesday 3 DECEMBER 2003 70210/03 R v Bradleigh Geoffrey John WALSH Admissibilty of Evidence 1 HIS HONOUR: The accused stands trial before a jury on a charge of murder. On his arraignment he pleaded not guilty to murder but guilty to manslaughter on the basis of excessive self-defence. The Crown did not accept the plea. The issue, therefore, is whether the Crown can satisfy the jury that the accused was not acting in self-defence when he killed the deceased by a blow or blows to the head. 2 The Crown sought to adduce evidence of conversations between the accused and a police officer, Detective Hall, during which the accused is alleged to have made statements that are admissions for the purposes of the Evidence Act and s 281 of the Criminal Procedure Act. Those statements, although allegedly made at a police station in an interview room equipped with recording facilities, were not recorded electronically. Objection was taken on the basis that the conversation was rendered inadmissible by s 281. 3 I was also asked to reject the statements on the basis of a failure to give the accused a caution as provided by s 139 of the Evidence Act and the exercise of discretion under s 90 and by reason of s 137 of that Act. 4 I have ruled that some of the evidence should be rejected but have allowed the Crown to adduce parts of it. These are the reasons for those rulings. 5 The accused had been initially arrested on 26 March 2002 but released shortly thereafter without being charged over the death of the deceased. While in custody of the police he was processed under Part 10A of the Crimes Act and duly informed as to his right to refuse to answer police questions. He had the services of a solicitor and, on his advice, exercised that right. 6 The accused was re-arrested on 14 May 2002. Once more he was dealt with under Part 10A and once more made aware of his rights and privileges while in custody. At about 11.40am the accused was in an interview room when Detective Hall told him that his solicitor was on holidays for four weeks and the Detective had been unable to contact him. The following conversation then took place: Hall: As you know we would like to interview you about the death of David Sutton Accused: Are you going to charge me? Hall: Yes, you will be charged with his murder. Accused: I didn't kill him. He left my flat at 4am one morning. He was killed after that. Hall: Hang on. Accused: I didn't do it. He left my flat at 4am in the morning and I haven't seen him since. Have you spoken to the Rebels and Commoncheros. He was dealing for them. He left his car at their clubhouse as security because he owed them money. They probably killed him. You would know what they're like. Hall: I know what they're like. Anyway I'll give you a run down of the evidence we have obtained so that you will be in a position to tell your solicitor. Accused: I didn't kill him. There is no evidence. 7 The Detective then commenced to give the accused a summary of evidence that the police had gathered and at times the accused commented on what he was being told. I do not believe that there are any admissions (in the extended meaning of that term) made by the accused during this part of the interview. At one stage in the conversation the accused became emotional and Detective Hall asked him if he was all right. The following is what then occurred, according to the Detective's statement: Accused: I'm all right. If I was to say hypothetically (THE DEFENDANT PLACED HIS HAND OVER THE ERISP MICROPHONE ATTACHED TO THE TOP OF THE INTERVIEW TABLE) Hall: You can see its not on. Accused: If I was to say just hypothetically, that he knocked me out cold on the lounge room floor and he grabbed Kathy and pulled her into the bedroom and tried to rape her and she hit him over the head with a ballpein hammer. What would you say about that? Hall: Is that just hypothetical or is it what really happened? Accused: I'm just saying hypothetically at the moment. What would happen to me if I said that? Hall: Well, if that's what you want to say, it would have to be recorded on tape and we'd take it from there. I can't comment on what would happen in a hypothetical situation, all I'm saying is that you have an opportunity to present your side of the case. I can't tell you what to say. Accused: I know that, but I am just saying what would happen to me? Hall: Are you saying that Kathy killed David Sutton? Accused: Just hypothetically. Hall: The thing we want to know is the location of the rest of the body. Did you bury the rest of it? Accused: No, it's in the river. Hall: Did you take the body to your grandmother's property? Accused: Maybe. Hall: Before we go any further do you want to wait and speak to you solicitor? Accused: I'm just talking hypothetically, you can't use this, because its not on tape, it would be called a police verbal. Hall: Alright then, hypothetically we would really like to know where the rest of the body is so we can bring some closure for Sutton's family 8 The conversation then continued with the accused answering a number of questions as to the conduct of him and his co-accused, Kathy Sharp, after the killing and about the disposal of the body. At one stage the Detective asked the accused whether he wanted to be "formally interviewed electronically" about what he had said but the accused replied that he wanted to speak to Ms Sharp before he did anything. The conversation ceased with the accused being allowed to speak to his co-accused on a mobile phone in the presence of the Detective. According to Detective Hall, he overheard the accused say: "We're fucked Kathy, they've got heaps on us. Fuck plan A, I think we'll go to plan B, we're fucked Kathy". 9 The first objection to the evidence was the failure to electronically record it. In a separate judgment in respect of the co-accused, I expressed my view that the intention of the legislation is not that every communication between a police officer and a suspect automatically falls within the definition of "official questioning" notwithstanding the apparent width of the meaning to be attributed to the words and the necessity of ensuring that the policy behind the provision is not undermined by tactics being engaged by certain police officers of fabricating evidence of admissions which apparently fall outside the scope of the provision. Further, the operation of the provision has to be applied in a realistic and commonsense way taking into account the particular circumstances in which the conversation occurs and the context in which the question or statement which results in the making of an admission arose. I do not intent to repeat what I said in respect of the term "official questioning" in the judgment in respect of the co-accused. 10 I do not believe that the conversation set out above was official questioning when it commenced. I should point out, what ought to be obvious, that a police officer, who initiates a conversation with a suspect in an interview room without electronically recording it, is running a very considerable risk that the conversation will be rendered inadmissible by operation of s 281. However, I do not believe that the conversation was intended to elicit any response from the accused at its inception and the statements made by the accused were initially unresponsive to what was said to him. Thereafter, the accused was using the conversation for his own purposes. 11 At the outset of the conversation the officer was merely informing the accused of the position insofar as his solicitor's availability was concerned and the difficulty occasioned by his absence. The statement, "As you know we want to interview you about the death of David Sutton" was no more than that, a statement of what the police wanted to do. It did not induce an admission and was not intended to do so. Thereafter the accused began volunteering information. 12 Nor do I believe that the officer was seeking to induce admissions from the accused, by disclosing to him the evidence that was in the police possession, so that the accused could inform his solicitor of the case against him when deciding whether the accused should agree to be interviewed by police. In light of the fact that the solicitor was unavailable for an extended period of time, I see no reason to disbelieve the evidence of the officer about his reasons for taking this course. It was not "official questioning", and in any event did not result in admissions being made by the accused. 13 In the latter part of the conversation the accused clearly wanted to speak to the police officer off the record, in the sense that he did not want what he was saying to be electronically recorded, and hence he placed his hand over the microphone. Just as the section provides that there is a reasonable excuse for the failure to electronically record an admission where a suspect refuses to have the questioning recorded, so there may be a reasonable excuse found for the failure to record where the suspect indicates he or she wishes to say something without it being recorded electronically. 14 Of course a dishonest police officer might well fabricate a conversation containing admissions and assert that the accused wished to speak off the record. But the same risk arises from the recognition by the section that there may be a reasonable excuse for failing to record an admission where the accused refuses to have the questioning electronically recorded. The provision acknowledges that there will be occasions where a suspect may make an admission and yet seeks to ensure himself against it being used by refusing to have what he said electronically recorded. 15 Next it was submitted that the evidence was rendered inadmissible by reason of s 138 and s 139 of the Evidence Act. It was argued that s 139 required that the police officer warn the accused in accordance with the terms of the caution set out in the section and the failure to do so was an impropriety for the purpose of s 138. In my view the conversation was not "questioning" and s 139 did not apply. 16 But even if I were wrong in that finding, I would have admitted the evidence under s 138(1), carrying out the balancing exercise required by that section. It was clear that that accused was well aware of his rights having already been processed under Part 10A and a caution at this stage would have been almost superfluous. Assuming that there was an impropriety, in all the circumstances of this matter, it was of a trivial nature and clearly unintentional or reckless on the part of the police officer. Detective Hall would reasonably have believed that there was no need to further caution the accused either to comply with the law or to ensure that the accused was aware of his rights. The evidence is important for the jury to assess the veracity of the version to be given by the accused as to the circumstances in which the deceased met his death and to an evaluation of whether the Crown has disproved that the accused was acting in self-defence. 17 I was of the view that it was not unfair to admit the evidence as there was nothing done by the police officer at the outset of the conversation to lead the accused into believing that what he said would not be recorded by the police or used against him. The accused believed that what he said at the time could not be utilised by the police because it would be a "verbal", but the police did nothing to induce that belief in him. However, I formed the view that, at the point in the conversation where the passage quoted above finishes, the balance of the conversation should be rejected. The Detective, by agreeing to speak hypothetically, had impliedly suggested that what was said thereafter was on an informal basis and was not to be taken or used as an admission by the accused. In those circumstances to admit what followed in the conversation after that would be unfair to the accused. 18 So far as the conversation with the co-accused on the phone was concerned, the accused could not reasonably have believed that what he said during that conversation would not be used against him. The police, by agreeing to his request to speak to the co-accused, did not imply that it would be treated as a confidential communication or that the accused was free to say whatever he wished without fear of it being used to incriminate him. There is nothing unfair about admitting that evidence against the accused. ************************* Last Modified: 12/15/2003 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.