R v Bullock [2005] NSWSC 825

New South Wales Supreme Court

CITATION : R v Bullock [2005] NSWSC 825

HEARING DATE(S) : 01/08/2005, 02/08/2005

JUDGMENT DATE : 19 August 2005

JUDGMENT OF : Buddin J

DECISION : Ruling on admissibility of evidence.

CATCHWORDS : Admissibility of admissions not tape-recorded originally - admissions subsequently adopted in ERISP - "reasonable excuse" why admissions not tape-recorded - whether unfair to accused to use the evidence - whether probative value outweighed by unfair prejudice

Crimes Act 1900 LEGISLATION CITED : Criminal Procedure Act 1986 Evidence Act 1995

Kelly v R (2004) 205 ALR 274 Nicholls & Coates v The Queen (2004) 213 ALR 1 R v EM [2003] NSWCCA 374 CASES CITED : R v Horton (1998) 45 NSWLR 426 R v Reid [1999] NSWCCA 258 R v Sharp (2003) 143 A Crim R 344 R v Schiavini (1999) 108 A Crim R 161

Regina PARTIES : Ari Hayden Bullock

FILE NUMBER(S) : SC 2005/4469

D Howard SC (Crown) COUNSEL : Ms L Flannery (Accused)

S Kavanagh (Crown) SOLICITORS : Legal Aid Commission (Accused)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BUDDIN J

FRIDAY 19 AUGUST 2005

2005/469 – REGINA v ARI HAYDEN BULLOCK

JUDGMENT – Application to exclude evidence 1 HIS HONOUR: Before the jury was empanelled, objection was taken on behalf of the accused to parts of a conversation which he had with a Constable Monaghan. Subject to one matter I overruled the objection. These are my reasons for so ruling. 2 In order to put the material to which objection is taken into context, it will be necessary to refer to some background material. The accused is charged with the murder of Tapua Taria at Lakemba on 11 July 2004. Upon being arraigned he pleaded not guilty to that charge but guilty of manslaughter. I have been informed that the sole issue in the trial will be whether the Crown can prove that he was not acting under provocation at the time when he caused the death of Mr Taria. 3 The material before me indicates that the accused was drinking in the Lakemba Hotel in the early hours of the morning on which the fatal incident occurred. At some time after 2 am the deceased, who had also been drinking in the hotel, attacked the accused and occasioned to him significant facial injuries. It seems that the attack upon the accused was entirely unwarranted and unprovoked. It clearly angered the accused who shortly thereafter left the hotel. From there he went to his father's house which was nearby, where he obtained two knives. He then returned to the vicinity of the hotel where he attacked and killed the deceased. 4 It is convenient to now make reference to the evidence of Constable Monaghan who responded to a call to attend the scene. The following material emerges from his statement which was placed before me on the voir dire: About 3.05 am on Sunday 11th July, 2004 I was at Campsie Police Station when I heard a priority 2 radio broadcast which indicated that 2 males and a female were fighting on Haldon Street, Lakemba in the vicinity of the Lakemba Hotel. Constable Syed and I responded to the broadcast along with a number of other police. En route to Haldon Street, Lakemba I heard another message which indicated one of the males was armed with a knife. About 3.10 am Constable Syed and I arrived at Haldon Street. As we drove south along Haldon Street I noticed a group of males standing near the entrance of the Lakemba Hotel, they were pointing along the footpath in a southerly direction. About 50 metres south from this location and on the western footpath opposite the Dominos pizza store I observed 4 people, 3 males and 1 female. As I got close I parked the police vehicle adjacent to the eastern curb about 20 metres short of the group. At this time I noticed the victim was lying on his side on the footpath and appeared motionless, a male and female were kneeling around him. The other male who I now know to be the accused, Ari Bullock was standing between the victim and police. Another police vehicle driven by Constables Tate and Wang had stopped in the rear vicinity. Constables Wang, Tate, Syed and myself approached the group. As we neared the group the accused said, "It was me, I did it." He then placed his hands on his head, I could see that his hands were empty. I said, "Get down on the ground." The accused dropped to his knees and then lay prone on the footpath whilst keeping his hands behind his head. I approached the accused and placed one foot firmly on his back in the vicinity of his shoulder blades. I took out my handcuffs and attached one to his right wrists, I said, "Put your hands behind your back." At the same time I attempted to bring both of the accused's hands together behind his back. I was joined by Constable Murphy who assisted in applying the second handcuff. Once the accused was secured I left him in the custody of Constable Murphy for a moment while I checked on the victim. I spoke to a male who was kneeling over the victim, I instructed him to move back and allow the police to assist. The male did so. I was then able to get a better look at the victim who was lying on his lefthand side. I could see a wound around the throat area and a large amount of blood about his neck and on the footpath. The victim was motionless with his eyes open. Constable Wang had begun to administer first aid by applying pressure to the neck wound . 5 Shortly afterwards Constable Monaghan and another officer placed the deceased in the rear of a caged police vehicle. The constable then proceeded to have the following conversation with the accused: I said "You are under arrest, you don't have to say or do anything unless you wish. Do you understand that?" He said "Yeah". I said "Anything you say or do may be recorded and used in evidence, do you understand that?" He said "Yeah". … The accused said "The knives are over there". I said "What happened"? He said "He attacked me in the pub and I came back and got him, simple as that." I said "What do you mean by that?" He said "I came back and got him, he attacked me for no reason, so I came back and got him for no reason….Die, Fuckin die." I said "The knives, what did they have to do with the matter". He said "Sorry mate, I'm not ready to say anything about the matter." I said "How did the male get the injuries?" He said "I done it to him mate…Can you call my father, Roger Bullock 972508295". I said "Can you tell me how you did it?" He said "Yeah, I had one knife in one hand one in the other hand and I kept repeatedly stabbing him. Mind you I came out with the intention of harming him…I'm in a lot of trouble aren't I?" I said "Possibly." … He said "He deserved it anyway". I said "Where did you get the knives from?" He said "They're just kitchen knives bro, just the sharpest, shiniest things that I could see. I just picked them up and came right down". I said "Where did you get the knives from?" He said "My father's place, just walked into my dad's, picked up the knives, came back to the pub and stabbed the fuck out of him". I said "What relationship is this male to you?" He said "No relationship". I said "How long have you known this male?" He said "I couldn't really tell you off the top of my head, months that's all I can say. I want to lay down now because I think I'm about to pass out". … I said "Can you tell me where the knives that you used to stab this make are now?" He said "They should be on the footpath, one was just a little bit bigger than a steak knife, the other is a meat knife too, only bigger. They're outside the hairdresser's there." I said "Do you know the name of the male?" He said "Actually, no I don't. All I know is his first name starts with a "T"". I said "Where does your father live?" He said "Sproule Street..4/28 Sproule Street, Lakemba 9708295". 6 It is that conversation to which objection is taken. Constable Monaghan recorded the conversation in his notebook as it was taking place. When space in his own notebook ran out, he used a colleague's notebook in order to complete the recording of the interview. 7 Following that conversation the accused was taken to Burwood police station which is the nearest station that has facilities available for charging persons suspected of having committed offences. Responsibility for the accused was placed in the hands of the custody manager who then attended to the necessary formalities. Some time later Constable Monaghan made available to Detective Wood the notebook entries of the conversation which he had conducted at the scene with the accused. 8 In due course Detective Wood interviewed the accused by way of an ERISP. That interview formed part of the Crown case on the voir dire. There was a problem with the audio component of that recording. Accordingly, I listened to the audio recording of the interview and then viewed the video (that is without any sound) separately. In that interview, Detective Wood asked the accused about the conversation which Constable Monaghan had earlier conducted with him. He went through it with him line by line. It can be fairly said that the accused adopted the entirety of the earlier conversation as having been accurately recorded. 9 The adoption process itself is worthy of comment. On some occasions the accused's answers went beyond a mere acceptance of the accuracy of the recording. On other occasions the accused confirmed that events had taken place precisely as he had earlier suggested. For example, his answer to Q 53 was "Yeah, mate, 'cause that's exactly how it was". On still other occasions he furnished additional information. After the adoption process was completed, the interview then continued in relation to other matters. 10 The accused also takes objection to those parts of the ERISP in which he adopted the conversation conducted with him by Constable Monaghan. The objection is based upon s281 of the Criminal Procedure Act 1986 which is in the following terms: (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: