R v JG (No2) [2009] NSWSC 1055

New South Wales Supreme Court

CITATION : R v JG (No2) [2009] NSWSC 1055

HEARING DATE(S) : 10/08/2009

JUDGMENT DATE : 5 November 2009

JUDGMENT OF : Buddin J

DECISION : Evidence of statement of accused admitted.

CATCHWORDS : CRIMINAL LAW - accused charged by ex-officio indictment with murder of his wife - objection to statement provided to police by accused in nature of a missing person's report - statement not tape-recorded - whether at the time accused "was or could reasonably have been suspected ... of having committed an offence" for purposes of s 281 of the Criminal Procedure Act 1986

LEGISLATION CITED : Criminal Procedure Act 1986

CATEGORY : Procedural and other rulings

Gonzales v R (2007) 178 A Crim R 232 at 248 Hadjigeorgiou v Crime Commission (NSW) (2007) 174 A Crim R 124 Kelly v R (2004) 205 ALR 274 R v Crowther-Wilkinson and Cowie (2003) 138 A Crim R 473 CASES CITED : R v Frangulis [2006] NSWCCA 363 R v Horton (1998) 45 NSWLR 426 R v Rowe (2001) 50 NSWLR 510 R v Taouk (2005) 154 A Crim R 69 R v Villa [2005] NSWCCA 4

PARTIES : Regina JG

FILE NUMBER(S) : SC 2009/779

COUNSEL : P Barrett (Crown) M Buscome (Accused)

SOLICITORS : S Kavanagh (Solicitor for Public Prosecutions) Giddy & Crittenden (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BUDDIN J

5 November 2009

2009/779 – R v JG (No 2)

JUDGMENT – Application to exclude statement of accused of 7 February 2002 1 HIS HONOUR: The accused is charged with having murdered his wife, whom I shall refer to as CG, on or about 12 January 2002. The police first became aware of the matter when the accused attended the Gladesville Police Station on 6 February 2002 and informed them that CG was missing and that he had last seen her on 13 January 2002. By arrangement the accused returned to the police station the following day (7 February 2002) and provided them with a signed statement in which he set out in some detail information concerning the nature of his relationship with CG and the circumstances in which, according to him, she had disappeared. 2 Before the jury was empanelled, objection was taken to the admissibility of the statement upon the basis that there had not been compliance with the terms of s 281 of the Criminal Procedure Act 1986 in that the procedure had not been tape-recorded. It was not contended however that the accused should have been cautioned before making the statement. On 9 September 2009 I overruled the objection. These are my reasons for so ruling. 3 Section 281 is in the following terms: Admissions 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) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section: investigating official means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. reasonable excuse includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. tape recording includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording. 4 I was informed that the Crown case against the accused is an entirely circumstantial one. The evidence reveals that CG has not been seen since about 12 January 2002 other than on an occasion when a complete stranger purported to have done so. That occurred in the wake of media publicity about her disappearance and the man in question is said to have recognised her when they had a short conversation in a shopping centre. On the Crown case, that was a false sighting. 5 The CG's body has never been recovered and nor is there any forensic evidence to link the accused with her disappearance. There is however evidence available from which the Crown will seek to have the tribunal of fact infer that CG was the victim of foul play. It is unnecessary, in the present context, to refer to that evidence in any detail. There is also evidence from which the Crown will seek to have the tribunal of fact infer that the accused had both the motive and the opportunity to kill his wife. The Crown will also, I am informed, be seeking to impugn the version of events given by the accused, both to police and to other persons, as being untruthful. 6 In his statement which is the subject of the present application, the accused provided police with the following information: Shortly after MG (their son) was born, CG sustained some form of anxiety attacks. The doctors didn't identify what exactly it was. Her mental state was highly erratic and it became quite overwhelming at times. She was kind of polarised, and her temperament changed all the time.