Reported Decision: 208 A Crim R 333 New South Wales Court of Criminal Appeal CITATION: Doklu v R [2010] NSWCCA 309 HEARING DATE(S): 2 September 2010 JUDGMENT DATE: 16 December 2010 JUDGMENT OF: Macfarlan JA at 1; Simpson J at 83; Hall J at 89 DECISION: (1) Grant leave under rule 4 Criminal Appeal Rules to rely upon Ground 4 in the Notice of Appeal; and (2) Dismiss the appeal. CATCHWORDS: CRIMINAL LAW - conviction appeal - whether evidence of admissions by appellant that he attempted to kill his wife wrongly admitted - Criminal Procedure Act s 281 - whether at the time when an admission was made the appellant was or could reasonably have been suspected by police officers of having committed an offence - whether reasonable excuse that tape recording not made - Evidence Act s 85 - whether admission made in circumstances where truth of admission unlikely to be adversely affected - Evidence Act s 90 - whether trial judge exercised discretion wrongly by admitting evidence - whether any relevant unfairness - relevance of appellant's physical condition - whether appellant capable of understanding questioning - CRIMINAL LAW - conviction appeal - Jury Act - majority verdict - whether trial judge's direction that majority verdict possible in some circumstances undermined effect of Black v R direction concerning need for jury to try its utmost to reach unanimous verdict - advisability of mentioning possibility of majority verdict before necessary to do so Bankruptcy Act 1924 (Cth) Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Rules Criminal Procedure Act 1986 Evidence Act 1995 Jury Act 1977 CATEGORY: Principal judgment Black v R [1993] HCA 71; (1993) 179 CLR 44 Em v R [2007] HCA 46; (2007) 232 CLR 67 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Hanna v R [2008] NSWCCA 173; (2008) 73 NSWLR 390 CASES CITED : Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1965 – 1966) 115 CLR 266 R v Keenan Mundine [2008] NSWCCA 55 R v Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 RJS v Regina [2007] NSWCCA 241; (2007) 173 A Crim R 100 TEXTS CITED: Criminal Trials Courts Bench Book, Judicial Commission of New South Wales PARTIES: Mehmet Doklu (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2007/8731 P David (Appellant) COUNSEL: J A Girdham (Respondent) Legal Aid Commission (Appellant) SOLICITORS: Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/8731 LOWER COURT JUDICIAL OFFICER: Payne DCJ LOWER COURT DATE OF DECISION: 23 September 2009 IN THE COURT OF CRIMINAL APPEAL 2007/8731005 MACFARLAN JA SIMPSON J HALL J 16 DECEMBER 2010 Mehmet DOKLU v R Judgment 1 MACFARLAN JA: At the conclusion of a trial in September 2008 a jury, by a majority verdict, found the appellant guilty of attempting on 26 August 2006 "to administer a poison namely, Chlorpyrifos, to Semra Doklu [his wife] with intent to murder the said Semra Doklu" (s 29 Crimes Act 1900) and of assaulting Semra Doklu on the same date "thereby occasioning to her actual bodily harm" (s 59(1) Crimes Act). Following his conviction the appellant was sentenced to total terms of imprisonment to commence on 30 July 2008 and to expire on 29 July 2019, with a non-parole period of 7 years and 6 months. 2 The appellant appealed against his conviction on a number of grounds. First, the appellant contended that the trial judge wrongly admitted into evidence, evidence from three witnesses of statements that the appellant made admitting his guilt. The evidence was given by a police officer, by a neighbour of the appellant and by a doctor who treated the appellant. Secondly, the appellant contended that his conviction should be quashed as a result of the content of directions given by the trial judge to the jury concerning its entitlement to bring in a majority verdict. 3 For the reasons that appear below, I do not consider that either of these bases of challenge is well-founded. Accordingly, my view is that the appeal should be dismissed. The Crown case 4 The Crown case at the trial was essentially as follows. 5 The appellant and his wife had been married for many years but prior to 26 August 2006 had agreed to separate. In the early hours of 26 August 2006 the appellant told his wife that he wanted to have sexual intercourse with her. After she refused him, the appellant attacked her, pouring a chemical on her head and face area, saying that he was going to kill her and himself. During the struggle that ensued, the appellant's wife managed to get hold of a kitchen knife and stab him a number of times. When she ran outside, the appellant followed her. His wife then went back into the house, locked the door and telephoned a friend who called the police. 6 Whilst his wife was waiting for the police to come, she saw a small bottle near where the struggle had occurred. It was marked "Poison". Later analysis revealed that the chemical in the bottle, of which more was found on the appellant's wife, was an insecticide called Chlorpyrifos. Medical evidence given at the trial indicated that ingestion of in the order of half a mouthful of this liquid would probably be lethal for a person of 70 kilograms. When the police arrived, they arrested the appellant's wife in connection with the stabbing by her of the appellant. 7 What occurred after the police arrived is sufficiently described when the grounds of the appellant's appeal are considered below. Ground of Appeal 1: The trial judge erred in admitting the alleged admission to Senior Constable Warren and [Senior] Constable Macarthur 8 Following a voir dire and a ruling that the evidence was admissible, Senior Constable Warren gave evidence before the jury to the following effect. 9 At about 3.30am on 26 August 2006 he and Senior Constable Lauren Macarthur were called to attend at premises at Sefton, New South Wales. On arrival he "saw Senior Constable Barakat standing over a male person [whom he later found out to be the appellant] who was lying in the gutter" (Appeal Book p 685). Constable Warren saw that the appellant "had a large amount of blood on his shirt" and, on lifting up the shirt, saw that he had a number of "incision type wounds to his abdomen" (p 685 – 686). He said that he "could smell a substance in the air which was irritating [his] eyes and making [him] cough" (p 686). He obtained a pressure pad and applied pressure to the wounds. He said that the appellant "appeared agitated and upset" and "was rolling around and speaking quickly" (p 686). He saw two other police officers escort from the house a female person (in fact the appellant's wife) who was screaming and crying. At about this time ambulance officers arrived and commenced treatment of the appellant's wounds. 10 Constable Warren gave the following evidence as to what then occurred. "After a few minutes of being treated by ambulance officers I spoke with [the appellant] further. I said, 'What happened here?'. He said, 'I wanted to give her poison and then I was going to take poison but I took poison first. I know I'm going to die. She got up and stabbed me. We quarrelled. We went to the bedroom. I said, 'Stab me please'. She wouldn't stab me.' I said to call the ambulance. I said, 'What are her injuries?'. He said, 'We were all over the ground'. I said, 'Did she drink any poison?'. He said, 'I don't remember'. I said, 'Did you try and get your wife to drink poison?'. He said, 'Yes'. I said, 'You're under arrest for assault. You are not to say or do anything unless you want to but anything you say or do will be recorded and may be used in evidence, do you understand that?' [The appellant] said, 'Yes'. [The appellant] was placed on a stretcher and taken from the scene in an ambulance. Other police went with him in the ambulance to the hospital" (p 686). 11 Constable Macarthur gave evidence of attending at the premises with Constable Warren and of a conversation, to the same effect as that to which Constable Warren deposed, occurring between the appellant and Constable Warren. She told the jury that she recorded the conversation in her notebook as it occurred. Section 281 Criminal Procedure Act 1986 12 At the trial and on appeal, counsel for the appellant contended that this evidence of an admission made by the appellant should not have been admitted by reason of the provisions of s 281 Criminal Procedure Act 1986 ("CPA"). 13 The terms of s 281 CPA so far as are presently relevant are as follows: "(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. … (4) In this section: … official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. …". 14 It was common ground that Constables Warren and Macarthur was each an "investigating official" for the purposes of s 281(1) (see subsection (4)) and that Constable Warren's questioning was "official questioning" for the purposes of the section, as its purpose was the investigation of a possible offence by the appellant's wife in stabbing the appellant. 15 In her ruling dated 4 September 2008 the trial judge took the view that the effect of evidence that Constable Warren gave on the voir dire was that it was only after the appellant responded "Yes" to the question "Did you try to get your wife to drink poison?" that the officer formed a suspicion that the appellant had committed an offence by attempting to administer poison to his wife. In a supplementary judgment of 15 September 2008 her Honour specifically adverted to the objective aspect of s 281(1)(a) ("could reasonably have been suspected"). As to that aspect, she concluded that "there was nothing that had occurred which could provide a basis for the officers to reasonably suspect that the accused had committed an offence" before the incriminating answer was given by the appellant (p 249). In reaching this conclusion she had particular regard to the fact that Constable Warren had given evidence on the voir dire that when he first approached the appellant, he regarded the appellant as having been the victim of a stabbing incident and to the fact that the notes in Constable Macarthur's notebook were headed "Stabbing" (p 248). 16 In case she was wrong in these conclusions her Honour went on to consider whether there was nevertheless a reasonable excuse for a tape recording of the alleged admission not having been made, with the consequence that s 281(2) did not in any event render the evidence inadmissible. 17 Counsel for the appellant accepted at the voir dire hearing that as there was no tape recording device available at the scene of the incident, there was a reasonable excuse for the admission not being recorded at that time. He however contended that there was no reasonable excuse for the absence of a tape recording of the type referred to in s 281(2)(a)(ii). 18 Relevant to this submission was evidence that Detective Sergeant Paul Stamoulis gave of a conversation that he had with the appellant upon the following day, that is, 27 August 2006, in the hospital room in which the appellant was then located. A statement of Detective Stamoulis that was tendered on the voir dire contained evidence that her Honour summarised as follows: "Paragraph 11: 'I said, 'You are not obliged to say or do anything unless you wish to do so as anything you say or do will be recorded and may be used as evidence. Do you understand that?'. Paragraph 12: 'The accused said, 'Yes'.' Paragraph 13: 'Constable Wahhab had a video recorder for the purpose of conducting a record of interview with the accused. I said to the accused, 'Do you wish to ring a solicitor for legal advice?.' Paragraph 14: 'The accused did not comment'. Paragraph 15: 'I said to the accused, 'We are going to ask you some questions in relation to the poisoning of your wife with the intention of murdering her on 26 August 2006. You do not have to say or do anything if you do not want to, do you understand that?'.' Paragraph 16: 'The accused said, 'Yes'.' Paragraph 17: 'I said, 'We will record what you say or do. We can use this recording in court. Do you understand that?'. The accused said, 'Yep'.' Paragraph 19: 'I said, 'The interview will be recorded by Constable Wahhab with this video camera, do you understand that?' The accused said, 'Yes but no interview for me'. I said, 'Can I come back tomorrow or the next day to interview you with regards to this matter? and the accused said, 'I call my lawyer first'" (pp 212 – 213). 19 Her Honour held that there was a reasonable excuse for the purposes of s 281(2)(a)(ii) because "the police were unable to put the admissions to the [appellant] because he did not wish to engage in an electronically recorded interview" (p 214). Her Honour rejected the submission made by counsel for the appellant that there was no reasonable excuse for that purpose because the alleged admissions were not specifically brought by Detective Stamoulis to the appellant's attention. Her Honour relied upon the following passage from the judgment of Howie J in R v Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505: "35 In my view the trial judge was entitled to find that the Crown had made out a reasonable excuse in a situation where the appellant declined to be interviewed at all in relation to the matter in respect of which earlier admissions had allegedly been made. In the present case, it was significant that the appellant was accompanied by a solicitor and that immediately after the constable gave the caution the solicitor indicated that his client would not make a statement. It was open to the trial judge to find that it was reasonable for the police officer in that situation simply to accept the appellant's refusal to be interviewed or make a statement 'in relation to the matter'. It may have been prudent for the police officer to indicate to the appellant that it was being alleged that he had made admissions to Constable Zimmerman. It may also have been prudent for the solicitor accompanying the appellant to have inquired of the police officer what was being alleged before giving advice to the appellant not to make any statement or participate in an interview. Prudence by a police officer in what is said and done at the time of the request to the accused to be interviewed may ensure that the evidence is admitted despite the differing views of judicial officers as to what is, or is not, reasonable in any given situation. But a lack of prudence does not equate with a lack of reasonableness". 20 Her Honour noted that, unlike the position in Moussa, the appellant did not have a solicitor present when Detective Stamoulis conversed with him. She did not regard that difference as rendering the view taken in Moussa inapplicable to the instant case. 21 On appeal, counsel for the appellant submitted that as soon as the appellant said to Constables Warren and Macarthur "I wanted to give her poison" there was an objective basis for a suspicion that he had committed an offence and s 281(1)(a) was accordingly applicable when, shortly after, Constable Warren asked the appellant whether he had tried to get his wife to drink poison. Counsel submitted that the fact that Constable Warren asked that further question supported this view. 22 I do not accept this submission. In my view her Honour was correct to conclude that the evidence was not rendered inadmissible by s 281. The questioning of the appellant was plainly for the purpose of investigating the circumstances in which he had come to be stabbed. As her Honour pointed out, the heading "Stabbing" in Constable Macarthur's notes tended to support this. Prior to the conversation with the appellant, neither officer concerned knew of any allegation that the appellant had attempted to administer poison to his wife. From the police officers' perspective the appellant was, until the conclusion of the conversation with him, the apparent victim of the incident. Constable Warren gave express evidence to this effect. Her Honour accepted that evidence and I see no basis for interfering with her Honour's conclusion. 23 The appellant's statement that "I wanted to give her poison and then I was going to take poison but I took poison first" did not suggest that he had in fact attempted to give poison to her. It was only when the appellant responded in the affirmative to Constable Warren's last question that there existed a basis for knowledge or suspicion on the part of the police officers that the appellant had committed an offence. Constable Warren thereupon gave an appropriate warning. 24 In Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1965 – 1966) 115 CLR 266 the High Court considered s 95 Bankruptcy Act 1924 (Cth) which referred to an "inference that the creditor knew or had reason to suspect that the debtor was unable to pay his debts as they became due". In relation to this expression Kitto J said the following: "A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes—a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors" (at 303). 25 These observations were approved by the High Court in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 115 where the Court said that "[t]he facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown". 26 The possibility that the appellant might have attempted to administer poison to his wife must have occurred to Constable Warren. Otherwise he would have had no reason to ask the appellant whether he did so. However there was nothing in the evidence before her Honour to suggest that that was, before the appellant answered, anything more than a mere possibility unsupported at that stage by any factual basis for a suspicion that that had occurred. 27 I turn then to the alternative basis upon which the trial judge held that s 281 CPA did not render the evidence of Constables Warren and Macarthur inadmissible, that is, that there was a reasonable excuse for the absence of the tape recording of the type described in s 281(2)(a)(ii) (it having been accepted that there was a reasonable excuse for the absence of a tape recording of the type referred to in s 281(2)(a)(i)). 28 Counsel for the appellant submitted on the appeal that the trial judge was not entitled to find that the appellant's refusal to participate in an interview on 27 August 2006 constituted a reasonable excuse for the absence of a tape recording because the appellant had not been asked whether he would participate in an interview, to use the words appearing in s 281(2)(a)(ii), "about the making and terms of the admission". The request to the appellant was undoubtedly a general one rather than one directed to that specific topic. 29 I do not accept this submission. The subsection does not in terms, nor in my view by inference, require the making of a specific request of that nature. There is in my opinion nothing in the subsection that precluded her Honour from finding that the appellant's refusal of a general request for an interview constituted a relevant "reasonable excuse". As Howie J considered to have been the case in Moussa, it may have been prudent here for Detective Stamoulis to have said to the appellant that he wished to interview him concerning an admission alleged to have been made by the appellant to Constables Warren and Macarthur, in order to foreclose an argument such as was put on behalf of the appellant at the trial and on appeal, but, as Howie J put it, "a lack of prudence does not equate with a lack of reasonableness". 30 Acceptance by the appellant of the request for an interview would in all probability have led to him being asked about the statement he had allegedly made to Constables Warren and Macarthur as it was that statement that had resulted in his arrest. In these circumstances her Honour was entitled to take the view that the refusal of the request was the reason why there was no tape recording of the type referred to in the subsection and to take the view that there was nothing unreasonable about the Crown relying upon the refusal of the request as an excuse for the absence of the tape recording. 31 I add that, like the trial judge, I do not regard the fact that the appellant was not here accompanied by a solicitor as a sufficient basis for reaching a different conclusion to that reached in Moussa. Here, as in Moussa, there was nothing misleading in the manner in which the request for an interview was made and the accused (here the appellant) can be taken to have well understood the nature of the request. Section 85 Evidence Act 1995 32 Counsel for the appellant further contended both at the trial and on appeal that s 85 Evidence Act 1995 rendered evidence of the appellant's admission inadmissible. That section is in the following terms: "(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned". 33 By a judgment of 5 September 2008 the trial judge rejected this submission. She attached significance to evidence that one of the ambulance officers who attended at the scene of the incident gave as to the condition of the appellant at about the time that he allegedly made the admission. In particular the ambulance officer said: "At this time [the appellant] was fully conscious and coherent to time, date and place. On examination of his vital signs, they were all within normal limits. While I was treating him, I had a conversation [which the ambulance officer then went on to describe]" (p 220). 34 Her Honour expressed the view that in considering the application of s 85 the Court should focus on the condition of the accused person, the nature of the questions asked of the accused and the responsiveness of the accused. She proceeded to conclude as follows: "Given the evidence in this case and giving weight to what ambulance officer Webster said, the responsive answers to the questions, and the limited number of questions, I am satisfied by the Crown that the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admissions [was] adversely affected" (p 225). 35 On appeal, counsel for the appellant put the following submission: "It is submitted that the circumstances in which the admissions were made make it likely that the truth of them was adversely affected in that the ability of the Appellant to make rational decisions was impaired by reason of his serious injuries and associated treatment. The Appellant was at the time giving irrational responses to police questioning and was making highly emotionally charged statements generally" (Written Submissions [27]). 36 Again I do not accept this submission. The evidence of the relevant ambulance officer, which was accepted by the trial judge, indicated that the appellant was conscious and coherent at the relevant time. The question asked by Constable Warren that led to the relevant admission was a simple one to which the appellant gave a simple answer. There is no reason to think that he did not understand what he was being asked or that the question was in any way unfair or misleading. Whilst the appellant's answers to the police questions preceding that to which the appellant responded with the relevant admission hardly constituted a model of usage of the English language, they did not to my mind (nor to that of the trial judge) indicate that the appellant was not understanding what he was being asked or that the accuracy of his answer to the critical question that followed should be regarded as being in doubt. 37 It was in my view open to the trial judge to conclude, as she did, that, in the words of s 85(2), "the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected". Section 90 Evidence Act 38 Counsel for the appellant also relied upon s 90 Evidence Act. This is in the following terms: "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 a defendant to use the evidence". 39 By a judgment of 5 September 2008 the trial judge declined to exercise her discretion under s 90 to refuse to admit evidence of the admission. Having referred to the decision of the High Court in Em v R [2007] HCA 46; (2007) 232 CLR 67 and the fact that the onus of demonstrating unfairness for the purposes of the section lies upon the accused, her Honour concluded that the appellant had not demonstrated that it would be unfair to use the evidence against him. 40 The principal matter put on behalf of the appellant on appeal was as follows: "Given other irrational and highly emotionally charged statements the Appellant is alleged to have made and the fact that he was suffering serious injury and under the influence of drugs, there is a real danger of confabulation and that the Appellant lacked the capacity to give rational answers and to make rational decisions between speaking and remaining silent, which is such that exclusion under Section 90 is appropriate ( R v Medcalfe [2002] ACTSC 83 at [24])" (Written Submissions [31]). 41 As her Honour implicitly recognised, there was a substantial overlap between the circumstances relevant to the application of s 85 Evidence Act and those applicable to s 90. It was open to the trial judge to conclude that the same circumstances which led to the relevant evidence not being rendered inadmissible by s 85(2) justified her Honour's refusal to exclude the evidence under s 90. In the case of s 85 the onus of establishing admissibility rested upon the Crown whilst under s 90 the onus rested upon the appellant to demonstrate that the evidence should be rejected (see Em at [63] per Gleeson CJ and Heydon J). In the circumstances of this case it was inevitable that her Honour's conclusion that s 85 did not render the evidence inadmissible would lead to the conclusion that the evidence should not be excluded under s 90. In both cases the evidence of ambulance officer Webster as to the appellant's condition and the nature of the questions to and answers of the appellant were of prime significance. In my view no basis has been shown for interfering with her Honour's decision not to exercise her discretion under s 90 to exclude the relevant admission. Ground of Appeal 2: The trial judge erred in admitting the alleged admission heard by William Freeman 42 Mr William Freeman lived near to the home of the appellant and his wife. He gave evidence before the jury that on the morning in question he was woken by a disturbance near his house and that he heard a male voice say "Help me". He then gave the following evidence: "Q. Now some time later did you hear or see anything else happening? A. Actually I sort of thought everything was all right so I just went back to bed and then a short time later I heard sort of like, vehicles pulling up. I got back out of bed and had a look, I noticed it was a police vehicle. I saw the police sort of, looks like they went down, so down the driveway of this house. I heard voices then I heard the male voice that was saying 'Help me' previously. I heard him say 'She should have stabbed me in the heart, I tried to kill her, I've lost me wife, I've lost everything'. Q. Mr Freeman, in relation to those things you've just said you [heard] 'She should have stabbed me in the heart, I've tried to kill her' – sorry what else did you say? A. I heard this male voice saying 'She should have stabbed me in the heart, I've tried to kill her, I lost me wife, I've lost everything'. Q. In relation to the tone or the volume when you heard that voice, could you describe that? A. It was the same voice that was saying 'Help me' prior to that" (p 668). 43 Following a voir dire, the trial judge ruled, by a judgment of 8 September 2008, that the Crown was entitled to call this evidence. In that judgment the trial judge dealt with an application made on behalf of the appellant that the evidence of Mr Freeman be excluded pursuant to s 135 or s 137 Evidence Act. Those sections are in the following terms: " 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. … 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant". 44 Her Honour rejected these applications holding that the evidence was highly probative and that admission of the evidence would not result in a danger of unfair prejudice to the appellant. The principal matter upon which counsel for the appellant relied was that there was no reference in the foreshadowed police evidence to the appellant having said "I have tried to kill her", despite the fact that on Mr Freeman's evidence police officers, being those scheduled to give evidence at the trial, were in the immediate vicinity, or were at least nearby. 45 Her Honour dealt with the submission by observing that the police at that time "were extremely busy" and that the situation was "a very chaotic" one. However, in any event the point made on behalf of the appellant was in essence concerned with the reliability of Mr Freeman's evidence (p 229), not with any unfair prejudice that might flow from it. Her Honour referred to the decisions in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 and R v Keenan Mundine [2008] NSWCCA 55 for the proposition that when considering the probative value of evidence in a situation such as that before her Honour, the evidence was to be considered on the assumption that it was accepted. As her Honour said, "[m]atters of reliability will only rarely be relevant to" the assessment of the probative value of the evidence. As her Honour also stated, "evidence is not prejudicial merely because it strengthens the prosecution's case" (p 230). 46 On appeal, counsel for the appellant relied upon s 90 rather than ss 135 and 137 Evidence Act. As in the context of the present case this section (set out at [38] above) raises similar issues to those relevant to the latter two sections and the Crown did not object to the appellant relying upon s 90, it is appropriate to consider the appellant's submission. This course is appropriate only upon the basis, which I consider to be correct and also to be implicit in the appellant's submissions, that the trial judge's reasons for rejecting the application based upon ss 135 and 137 indicate that if the appellant had relied upon s 90 her Honour would equally have rejected that submission and would have done so for substantially the same reasons. 47 Counsel for the appellant put the following in support of the s 90 submission: "34. The alleged admission overheard by Mr Freeman occurred whilst police were at the scene and possibly during police questioning and also at a time when the Appellant was physically and mentally incapacitated and undergoing treatment for serious injuries. Given the circumstances in which the alleged admissions were made […] there was a real danger of casual and irrational talk, as is evident from other statements attributed to the Appellant, which is such that exclusion under Section 90 is appropriate. 35. Unfairness under Section 90 also flows from the fact that at the time that the alleged admissions were heard by Mr Freeman, the Appellant was in the company of police and being questioned by them. It would be unfair to the Appellant for these statements that were overheard in the course of police questioning to be used against the Appellant. It is submitted her Honour erred in not excluding this evidence" (Written Submissions). 48 The submissions contained in the first of these paragraphs are answered by the reasons that the trial judge gave for admitting the evidence of Constables Warren and Macarthur notwithstanding the provisions of s 85 Evidence Act (see [33], [34] [39] above). In considering applications in relation to that evidence her Honour had regard to the evidence as to the appellant's then condition and as to the likelihood of unfair prejudice to the appellant if evidence of statements made by him in the circumstances as they then obtained were admitted. The judge's conclusions are equally applicable to admission of the evidence of Mr Freeman which was simply evidence from a different witness of statements allegedly made in substantially the same circumstances as the admission that the Crown alleged he made to Constables Warren and Macarthur. 49 The appellant's assertion that Mr Freeman's evidence was of statements "that were overheard in the course of police questioning" (see [47] above) is not warranted by the evidence. It is possible that that was the case but the evidence did not indicate that was necessarily so. However, even if it were so, the appellant could not have established a case for exclusion of the evidence under s 90 in circumstances where challenges of the appellant to police evidence of statements made in the course of that questioning had properly been rejected. In other words, if the police evidence of statements made at much the same time as the subject statements was not infected with any defect, there is no reason why the evidence of a non-police witness who heard the subject statements should be rejected simply because (so I am presently assuming) the statements were "overheard in the course of police questioning". Ground of Appeal 3: The learned trial judge erred in admitting the alleged admission to Dr Adusumilli 50 Early on 26 August 2006 Dr Adusumilli was working as a surgical registrar at Westmead Hospital when the appellant was brought to the hospital by ambulance. When the appellant was brought into the Emergency Department, Dr Adusumilli and a number of other doctors ensured that the appellant had adequate blood pressure and was breathing properly. Dr Adusumilli proceeded to take a history from the appellant, recording what the appellant said in notes that were available at the trial. 51 Dr Adusumilli gave evidence before the jury in the following terms: "Q. Referring to the notes, commencing at page 1, could you say what notes you made in relation to Mr Doklu? A. Yes they are. Q. The history of presenting complaint that is contained in your notes, what does the history of presenting complaints say? A. It ascertains that I spoke to the patient about what the events were surrounding his injuries, how he tried to have sex with his wife and his wife declined, at which point he tried to force her to drink insecticide. He apparently dragged her into the kitchen at which point she stabbed him. Q. If I can actually refer you to the notes, you said he tried to force her to drink insecticide, do you have any further detail contained in your notes in relation to that? A. No, not in my notes I don't. Sorry, I had written here that apparently he was keeping a bottle that contained insecticide with him. Q. What do your notes actually say in relation to that? A. That he pulled out the bottle and tried to force her to drink the insecticide" (p 594). 52 When asked in cross-examination whether the appellant was in a state of shock, Dr Adusumilli replied "No[,] he was actually quite clear and concise with his histories" (p 597). 53 By a judgment dated 8 September 2008 the trial judge had previously ruled that Dr Adusumilli's evidence should be admitted. In evidence on the voir dire that preceded that ruling Dr Adusumilli said that the appellant was seen by himself and a number of other doctors in the Emergency Department "at which point after resuscitating him we decided that he would need to be taken to theatre" and that he took a history from the appellant before the appellant was taken to the theatre (p 579). In cross-examination Dr Adusumilli explained that what he meant by references in his evidence to "resuscitating" the appellant, was "maintaining adequate breathing and maintaining his blood pressure with IV fluids" (p 583). He said that the appellant was coherent when the history was taken and he rejected the possibility that the notes that he had made in relation to his conversation with the appellant may have incorporated material obtained by him from the appellant's wife, to whom he also spoke that morning. 54 In her judgment, the trial judge first dealt with an application for a direction under s 126B Evidence Act (concerned with the exclusion of evidence of protected confidences) that Dr Adusumilli's evidence not be adduced at the trial. Her Honour rejected that application. That decision is not challenged on appeal. Her Honour also rejected an alternative application made on the basis of s 90 Evidence Act. Having referred to the appellant's counsel's submission that the appellant "could not have been in the best physical state" and to the Crown's submission in response that "the doctor had the opportunity to assess [the appellant's] physical state and his ability to [give] a history", the judge concluded that the appellant had failed to discharge his onus of showing that it was appropriate that the Court should refuse to admit the evidence (p 241). 55 On appeal counsel for the appellant relied first upon the condition of the appellant at the relevant time as giving rise to unfairness to the appellant from admission of the evidence. This submission is in my view answered by the fact that the doctor was a person qualified, and in an excellent position, to assess the physical state of the appellant and his ability to give an account of what had occurred. This was implicitly accepted by the trial judge to be the case (p 241). The doctor concluded that the appellant was "coherent" and did not suggest that the appellant was in a state that would have disabled him from giving a reliable history. 56 The appellant's counsel next relied upon the fact that the note that the doctor made was "not a verbatim or contemporaneous note and was written approximately one hour later" (Written Submissions [38]). At best for the appellant this was a matter that was relevant to the reliability of the doctor's evidence. It did not indicate that there would be any unfairness in the note being admitted into evidence (see the references in [45] above). Nor did the fact (relied upon by the appellant) that the doctor also spoke to the appellant's wife before he wrote his note. Dr Adusumilli firmly rejected the proposition that he may have included information from the appellant's wife in his note concerning his conversation with the appellant. The possibility that some confusion might have occurred was a matter that the appellant was able to rely upon before the jury as going to the reliability of Dr Adusumilli's evidence. It did not suggest that there was any unfairness in admitting the evidence. 57 Counsel for the appellant also contended that the appellant had no choice but to allow himself to be transported to a hospital and to answer questions of medical practitioners. Accepting that this was at least in part correct, the appellant nevertheless did not have any obligation to make any statement, as he allegedly did, about any action he had taken in respect to his wife. 58 The fact that the appellant declined to make a statement to police after being cautioned at the scene of the incident and the following day again declined to be interviewed (matters relied upon by counsel for the appellant), again did not suggest that there would be any unfairness to the appellant in the admission of Dr Adusumilli's evidence. Nor did the fact that no-one cautioned the appellant about making statements to medical practitioners such as Dr Adusumilli suggest that there would be any such unfairness to the appellant in circumstances where there was no suggestion that the appellant was misled in any way. As the Crown put in its Written Submissions "[j]ust as an unguarded incriminating statement to a relative or friend would have been admissible there is no reason why evidence of the admissions to Dr Adusumilli could not be led" ([72]). 59 Counsel for the appellant also complained that the trial judge had in two respects misdirected herself as to the facts. First she said that the trial judge had proceeded upon the basis that the appellant chose "to make admissions to the police" at the scene of the incident when, it was submitted, he had in fact declined to make any statements after being cautioned (Written Submissions [40]). What her Honour said was not however inaccurate as it was clear that she was referring to the appellant's action in responding to the police questions prior to a caution being given. 60 The other matter upon which the appellant relied was an alleged error by her Honour in stating that the appellant "would have been lying in a bed in Triage [when he made the alleged admissions] whereas the admissions were made when he was lying in a Resuscitation Room just having been resuscitated" (Written Submissions [41]). The implication in this submission that the appellant had been unconscious immediately before he made the alleged admissions is not supported by the evidence. As indicated in [53] above, in cross-examination on the voir dire, Dr Adusumilli explained his reference to "resuscitating" the appellant. Having denied that what he implied by "resuscitation" was that the appellant had been unconscious, he said that he was referring to "maintaining adequate breathing and maintaining his blood pressure with IV fluids" (p 583). 61 The trial judge did not in my view misdirect herself in any material respect. 62 In these circumstances the challenge to the admission of Dr Adusumilli's evidence fails. Ground of Appeal 4: The trial judge erred in the directions she gave to the jury as to the availability of the majority verdict 63 The jury's verdicts in the present case were majority verdicts. The circumstances in which a jury, as here, of twelve persons may return a majority verdict in a trial of an accused for an offence against the law of New South Wales are specified in s 55F Jury Act 1977 as follows: "(2) A majority verdict may be returned by a jury in criminal proceedings if: (a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and (b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation. (3) In this section: majority verdict means: (a) a verdict agreed to by 11 jurors where the jury consists of 12 persons at the time the verdict is returned, or … ". 64 The majority verdicts in the present case were returned in the following circumstances. 65 In the course of her Summing-Up on Thursday 18 September 2008, the trial judge directed the jury as follows: "As you may know, the law permits me in certain circumstances to accept a verdict which is not the verdict of you all. Those circumstances have not as yet arisen. So that when you retire I must ask you to reach a verdict upon which each one of you is agreed. Should however, the time come where it is possible for me to accept a verdict which is not unanimous I will give you a further direction" (p 19). 66 This direction substantially accorded with the model direction contained in the Criminal Trials Courts Bench Book, Judicial Commission of New South Wales at [8-070]. The fact that it did so is not however conclusive as to its appropriateness (see for example Hanna v R [2008] NSWCCA 173; (2008) 73 NSWLR 390 at [22] – [23]). 67 The jury retired to consider its verdict at 2.35pm on 18 September 2008. Late on Friday 19 September 2008, after the jury had been deliberating for approximately six hours, it returned with a note in the following terms: "Your Honour, the jury has not yet reached a verdict and we believe that we will not reach a unanimous verdict regardless of further discussions. Please advise us what steps we take next" (p 99). 68 Later that afternoon the trial judge further directed the jury as follows: "The circumstances in which I may take a majority verdict have not yet arisen and you should still consider that your verdict or verdicts of guilty or not guilty must be unanimous" (p 99). 69 Her Honour then proceeded to give a direction in accordance with Black v R [1993] HCA 71; (1993) 179 CLR 44 to encourage the jury to reach a unanimous verdict. 70 On Tuesday 23 September 2008 a note was received from the jury advising of its inability to reach a unanimous verdict. At 2.12pm on that day the trial judge examined the jury foreperson in the manner contemplated by s 55F(2)(b) Jury Act. Her Honour then gave further directions to the jury which included the following: "The circumstances have arisen in which I may take a majority verdict. I direct you that should you continue to be unable to reach a unanimous verdict, you may return and I must accept a verdict of eleven of you as the verdict of the jury in this case. However, you should consider that it is preferable that your verdict be unanimous and you should continue to strive to reach a unanimous verdict or verdicts … " (p 113). 71 By that stage the jury had been deliberating for over 13 hours (p 111). At 2.48pm on 23 September 2008 the jury returned majority verdicts of guilty in relation to the offences referred to in [1] above. 72 On appeal, the appellant submitted "that the Black direction given by the trial Judge urging the jury to continue to reach a unanimous decision was undermined by the direction that there would be a time when the jury could in fact resolve upon guilt with a majority verdict: RJS v Regina [2007] NSWCCA 241; [(2007) 173 A Crim R 100]; R v Hanna [2008] NSWCCA 173" (Written Submissions [46]). 73 The plurality judgment in Black v R (which was decided in 1993) set out a form of direction to be given to a jury if it is having difficulty reaching a unanimous verdict (at 51 – 52). As it was not until 2006 that the taking of majority verdicts was, in certain circumstances, permitted in New South Wales, the form of direction did not of course refer to the possibility of it being permissible at some stage for the jury to return a majority verdict. 74 In RJS v R this Court quashed a conviction entered after a majority verdict was returned by a jury. The Court found that the trial judge committed errors in applying s 55F Jury Act by not determining whether a reasonable period of time had elapsed without a unanimous verdict being reached (s 55F(2)(a)) and in not examining one or more of the jurors on oath (s 55F(2)(b)). The Court also found that directions that the trial judge gave after he had received a note from the jury saying that it was unable to reach a unanimous verdict were erroneous because they undermined the effect of the Black direction. The directions in question included the following directions given at 2.15pm on 23 June 2006: "So I am not going to discharge you just yet and I will ask you to retire and further deliberate on the verdict. I certainly will not be keeping you here beyond today, so you need not worry about that. If, in fact, after further discussion you are unable to reach a unanimous verdict, then there is now in New South Wales as of very recently a provision whereby if eleven of you agree then a verdict can be returned. I have not mentioned that to you before because the law provides that that can only happen if the jury have been deliberating for eight hours. We have kept a note of the times and certainly by 2.30 today you will have been deliberating for eight hours. If 2.30 came and you were unable to reach a unanimous decision but eleven of you agreed, then you would be entitled to return a verdict at that time. So with those further matters in mind, members of the jury, can I ask you to retire and further consider your verdict" ([11]). 75 About half an hour after these directions were given the jury returned a majority verdict of guilty. 76 Spigelman CJ (with whom Simpson and Harrison JJ agreed) said, in opining that the directions undermined the effect of the Black direction, that "[n]o further direction should have been given at this time" ([22]). His Honour went on to say: "In the present case, the course of events should have been to give the Black direction and then, in the absence of the jury, to take submissions from counsel as to when, in the particular circumstances of this case, a reasonable time could be said to have expired" (at [25]). 77 The present case is different from RJS in that here, whilst the trial judge referred to the possibility that at some point of time it might be permissible for the jury to return a majority verdict, she gave the jury no indication as to when that time might arrive. In RJS the jury was told when that point of time would arrive. As the appellant in RJS submitted, the Black direction was undermined because at the same time that the trial judge gave it he "directed the jury that in 15 minutes they could in fact resolve upon guilt with a majority of 11. This invitation to just wait … was compounded by his Honour's statement to the jury that they 'need not worry' because the Court 'will not be keeping you here beyond a day'" (RJS at [21]). 78 In the present case, the Black direction was not in my view undermined because what the trial judge said could not reasonably be regarded as lessening the encouragement given to the jury by the Black direction for it to reach a unanimous verdict. The members of the jury could not reasonably have thought that they need no longer try with the utmost effort to reach a unanimous verdict because they would soon be able to return a majority verdict. For all they knew based upon the trial judge's directions, they might have had to have deliberated for many days more before they were able to return a majority verdict. 79 Accordingly I do not take the view that, in the context in which they occurred, any of the trial judge's references to the possibility of a majority verdict was impermissible. Nevertheless the question remains as to whether it was desirable to make such references. One available view is that many jurors from their general knowledge will be aware of the possibility of majority verdicts being returned and that there is no harm in referring to it. My inclination however is to the contrary, that is, I consider that it is better not to mention the possibility unless there is a reason to do so. By this means issues such as have arisen in this case will be avoided. 80 In conclusion I note that Hanna v R was a case in which, contrary to s 55F(2)(a), the trial judge did not determine that the period of time for which the jury had attempted to reach a unanimous verdict was a reasonable one. The Court did not determine whether it was permissible to refer, in the manner that reference was made in the present case, to the possibility of a majority verdict. 81 The complaint now made about the trial judge's directions was not made at the trial but that is understandable as once the trial judge referred to the possibility of a majority verdict the damage, if there was any damage, was done and was not reasonably capable of correction. Accordingly I would grant leave under rule 4 Criminal Appeal Rules to make the complaint. Orders 82 For the reasons I have given I propose the following orders: (1) Grant leave under rule 4 Criminal Appeal Rules to rely upon Ground 4 in the Notice of Appeal; and (2) Dismiss the appeal. 83 SIMPSON J: I agree with the orders proposed by Macfarlan JA and, subject to one reservation, with his Honour's reasons. 84 That reservation is this. Without further consideration, I would not endorse, as a general proposition, drawn from the judgment of Howie J in R v Moussa [2001] NSWCCA 427; 125 A Crim 505, that it "may have been prudent" for the police officers to have indicated to the appellant that they wished to interview him in particular about the admission said to have been made to Constables Warren and Macarthur. 85 The admissibility, in criminal proceedings, of evidence of admissions made by accused persons has, over the years, occupied a great deal of curial time. It is the subject of several current statutory provisions (for example, s 281 of the Criminal Procedure Act 1986, s 85 and s 90 of the Evidence Act 1995). 86 In this case the police officers wished to interview the appellant generally, not merely with respect to the alleged admission. It was therefore appropriate for them to put their request, as they did, in general terms. It would have been inappropriate to have made such a request with specific reference to the alleged admission, and then, if he assented, to proceed to interview him about other matters. There is a very good argument that, once the appellant had declined, the police officers ought not to press him further. A further request to participate in an interview on the specific subject of the alleged admission (especially given that the appellant was not then legally represented) runs the risk of being construed as unwarranted pressure, resulting in the exclusion, under s 85 or s 90 of the Evidence Act, of anything said thereafter. 87 What I have said above ought not to be taken as meaning that police officers ought never to specify to a suspect that they wished to interview him/her specifically with respect to admissions said to have been made but not electronically recorded. Each case will depend upon its own facts. What I have said is merely a caution against a general proposition that prudence would suggest taking that course. 88 Police officers have a difficult task. As in this case, they sometimes have to make fine judgments about when a person is or could reasonably be suspected of having committed a relevant crime. Here, the police officers acted entirely correctly. Constable Warren cautioned the appellant as soon as he made the admission. Detective Stamoulis invited the appellant to participate in a recorded interview. It was quite proper and correct for him to accept the appellant's refusal. 89 HALL J: I agree with the reasons and orders proposed by Macfarlan JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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