Supreme Court New South Wales Medium Neutral Citation: R v Pitts (No 1) [2012] NSWSC 1652 Hearing dates: 15 October 2012 Decision date: 15 October 2012 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: Reject the Initial Interview and the ERISP. Catchwords: EVIDENCE - statement of an accused - accused cautioned by police - caution expressed to be subject to unstated conditions, failure to comply with which may result in the commission of an offence - whether statement properly obtained for the purposes of the Evidence Act s 139 - whether to exclude evidence pursuant to the Evidence Act s 138 EVIDENCE - statement of an accused - privilege against self incrimination - accused indicated that he did not want to answer questions - persistent questioning by police - accused made admissions - whether to exclude evidence of admissions CRIMINAL PROCEDURE - power of police pursuant to the Law Enforcement (Powers and Responsibilities) Act s 11 and 12 to request a person's identity - whether privilege against self-incrimination a "reasonable excuse" for the purposes of s 12 Legislation Cited: - Evidence Act 1995 - Law Enforcement (Powers and Responsibilities) Act 2002 Cases Cited: - DPP v Horwood [2009] NSWSC 1447 - R v Plevac (1995) 85 A Crim R 570 Category: Interlocutory applications Parties: Regina Craig Charles Pitts Representation: Counsel: S Herbert (Crown) D Marr (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Richard Cummins Solicitor (Accused) File Number(s): 2011/249365 Publication restriction: None Judgment Background 1The trial of the accused for the murder of John Marceta (the deceased) is due to commence on 16 October 2012. The Crown alleges that, on 2 August 2011, the accused stabbed the deceased with an intention to kill him or cause him grievous bodily harm and that the deceased died as a result of the injuries. The principal issue in the case is whether the Crown can establish beyond reasonable doubt that the accused did not kill the deceased in self-defence or in defence of others, relevantly, his two nieces or his sister, Sharon Le, who were nearby at the time of the stabbing. 2There are relevantly two evidentiary matters which were presented for pre-trial determination: the admissibility of an initial recorded interview (the Initial Interview) and the admissibility of the Electronically Recorded Interview of a Suspected Person (ERISP). Both interviews took place on 2 August 2011, being the date on which the accused stabbed the deceased. 3The accused objected to the Initial Interview on the ground that it was unlawfully obtained within the meaning of s 139(1)(c) of the Evidence Act 1995 since it did not comply with s 139(1)(a). 4The accused objected to the ERISP on the ground that it was obtained in derogation of his privilege against self-incrimination in that although he told people that he did not want to answer questions, the police continued to question him. 5On 15 October 2012, I rejected both the Initial Interview and the ERISP. My reasons for those orders are as follows. The initial interview 6On 2 August 2011, Senior Constable Henderson and Constable Vescio attended the accused's unit at Redfern. Senior Constable Henderson asked the accused for his name, which he gave. The following exchange then ensued: "[Henderson]: Craig, I am just letting you know that you don't have to say or do anything if you don't want to, but anything you say or do will be recorded and that recording can be used in Court. Do you understand that?" [Accused]: Yeah, but will I be going to gaol?" 7A few minutes later, Senior Constable Daye arrived and arrested the accused. The following interchange then occurred: "Q1. My name is Detective Senior Constable Daye. I'm from Redfern Police. Do you understand that? A. Yes. Q2 I want you to know you're under arrest. A Yes. Q3 You're not obliged to say or do anything. Anything you say or do will be recorded and can later be used in evidence in court. Now you understand I'm going to ask you to comply with some conditions? A Yes. Q4 If you fail to comply with some of those conditions you may be committing an offence. I'll let you know what they are. (POLICE RADIO IN BACKGROUND) Everything that we say or do will be recorded on this device. Do you understand that? A (NO AUDIBLE REPLY) Q5 It can later be used as evidence in court. What is your name? A I'm Craig Charles Pitts. Q6 Craig, how old are you? A I'm 28. Q7 What is your date of birth? A (POLICE RADIO IN BACKGROUND) Q8 OK. What happened here today? A I was sittin' with my back to him (POLICE RADIO IN BACKGROUND)... knocking on the door... and they kicked the door in up to my (POLICE RADIO IN BACKGROUND) nieces... I had to defend my family. Q9 How did you defend your family -- A ... Q10 Just wait for a second. A ...The knife was on the ground. I had to go out there and defend myself. They kicked my door in. (POLICE RADIO IN BACKGROUND) ... MS LE ... on to my brother and we've got two kinds... Q11 How do you, who did you, how did you... Picked up a knife? A I had to... myself. Q12 Why, what are they doing? A ... they kicked the door in. MS LE They coming in here bashing us .... Why do you bash us and ...us DETECTIVE SENIOR CONSTABLE DAYE Sush, sush, you. A I don't know, they kicked the door in. There was yelling. Look, about eight months ago I used to sell pot (POLICE RADIO IN BACKGROUND)... I haven't done it since I got raided. Q13 What were they doing when you had, when you ... MS LE ... A They just ... they tried to get the knife to get to me so I handed it to my sister to throw into the kitchen so we, and then we locked the door and rang youse. We're the one that youse. Q14 OK. MS LE We rang youse as soon as we can. We ... ourselves in the house I rang straightaway. Q15 OK. A As soon as I got them out the door and I ... the door shut. Q16 All right, no worries. I'm going to suspend this recording. We'll speak to you later at the police station, all right. A Yeah, righto." [Emphasis added] 8It was ultimately common ground that there were no conditions with which the accused was obliged to comply. In particular, s 11 of the Law Enforcement (Powers and Responsibilities) Act 2002 (the LEPR Act), which empowers a police officer to request a person's identity does not amount to a condition since the accused had a reasonable excuse, within the meaning of s 12 of the LEPR Act, because he had already been arrested before the existence of conditions was mentioned: DPP v Horwood [2009] NSWSC 1447 at [35], per Fullerton J. 9It was also not disputed that the police officer who referred to conditions honestly but mistakenly believed that s 11 of the LEPR Act applied and, accordingly, that there was at least a condition that the accused was obliged to disclose his identity Whether the Initial Interview complied with s 139 10The accused submitted that the police failed to comply with s 139 of the Evidence Act which relevantly provides: "(1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest for an offence at the time, and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and (c) before starting the questioning the investigating official did not caution the person 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." 11The accused accepted that a caution was given by the arresting police officer, but submitted that the effect of the caution was undone by what followed. The relevant part of the Initial Interview is: "Q3 You're not obliged to say or do anything. Anything you say or do will be recorded and can later be used in evidence in court. Now you understand I'm going to ask you to comply with some conditions? A Yes. Q4 If you fail to comply with some of those conditions you may be committing an offence. I'll let you know what they are. (POLICE RADIO IN BACKGROUND) Everything that we say or do will be recorded on this device. Do you understand that?" 12The accused submitted that the effect of the reference to conditions was to undermine the caution such that it ought be found that there was no compliance with s 139(1)(c) of the Evidence Act. 13The Crown submitted that not only had the caution been given by Senior Constable Henderson, but that another caution had been given by Senior Constable Daye. It submitted that the reference to "conditions", although mistaken, was ineffective to undermine the caution given and did not become enlivened because no conditions were outlined. 14I do not consider that the caution was given in accordance with s 139(1). The reference to compliance with conditions followed immediately thereafter, which tended to give the accused the impression that there was some obligation on him to answer questions put to him and that if he did not answer he may be guilty of an offence. In these circumstances, it was misleading and confusing for the police officer to refer to conditions with which the accused was obliged to comply, when there were no such conditions. The suggestion that failure to comply with conditions is accompanied by a criminal sanction is the antithesis of a caution given in accordance with s 139(1). 15It follows that the Initital Interview is taken to have been obtained improperly by reason of s 139(1)(c). Accordingly, the question arises whether I ought nonetheless admit it in the exercise of my discretion under s 138 of the Evidence Act. Whether the Initial Interview ought be excluded 16The accused submitted that I ought exercise the discretion conferred by s 138 of the Evidence Act to reject the Initial Interview. Section 138 relevantly provides: "(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 17The accused did not contend that any of the matters referred to in s 138(2) applied. He addressed various factors to be taken into account under s 138(3) as follows. 18First, the accused contended that the probative value and importance of the evidence did not warrant its admission. He submitted that there were witnesses who could testify as to what the accused had done. He also submitted that the Initial Interview was of poor quality and that much of what was said was obliterated by the sound of the police radio. 19The Crown relied on the following as an admission: "The knife was on the ground. I had to go out there and defend myself. They kicked my door in." 20It contended that the accused armed himself with a knife before venturing outside the unit which tended to show that he was the aggressor. The Crown submitted that the evidence was of some importance. 21Secondly, the accused submitted that the contravention was grave because, although not intentional, it was at least careless if not reckless and showed a disregard of the rights of the accused. The Crown submitted that since it was not intentional it ought not be regarded as grave. 22It was common ground that there was no difficulty in obtaining the evidence without a contravention. 23I do not consider the probative value or importance of the evidence to weigh heavily in favour of its admission. Although the passage relied upon by the Crown as an admission tends to indicate that the accused was the aggressor, rather than someone who killed another in self defence or in defence of others, its importance in that regard is mitigated by the other self-serving statements contained in the Initial Interview. 24Although the contravention was unintentional, it was nonetheless grave. The privilege against self-incrimination is a fundamental right accorded to an accused. The giving of a caution is an important mechanism for the protection of the right. I consider that the effect of the caution was substantially undermined by the reference to compliance with conditions. The circumstances that there were no applicable conditions and that the condition which was thought to apply, did not in fact apply, makes it worse, not better. I do not consider the fact of a previous caution having been given to make the reference to conditions less egregious. 25For these reasons, I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it, having regard to the way in which it was obtained. Whether the ERISP ought be admitted 26The evidence established that the Initial Interview took place not long after midday on 2 August 2012. Shortly after 4.00 pm the accused was subjected to forensic procedures at Redfern Police Station. Portions of the transcript of the forensic procedures were tendered. The transcript established the following: (1)The accused had a "scratch" on his forehead which had been obtained when he was kicked in the head in the incident that had occurred that morning which led to the death of the deceased. (2)The accused had a deep cut to a finger on his right hand which had been dressed tightly by ambulance officers. The dressing was subsequently removed by the medical practitioner who was present for the forensic procedure and a further dressing applied. 27Some time after the forensic procedures were carried out, the accused was interviewed by police. The interview commenced at 7.35 pm and concluded at 8.02 pm. Subsequently the accused was taken to hospital for treatment. 28The transcript of the ERISP records several occasions on which the accused indicated that he did not want to answer questions. When the police told the accused that they wanted to ask him questions about the stabbing of the deceased in Redfern earlier that day and asked if he understood, the accused said: "Yeah. My lawyer's instructed me not to say nothing." 29Despite this statement, the police continued. A caution was given to which the accused answered: "Yeah. My lawyer said not to do anything." 30When asked whether he wanted to tell the police about the incident, the accused answered in the negative and said, further, "no comment". 31The interrogating police officer then said: "All right. Can I just ask you one question, can I just get your mobile phone number?" 32The accused complied and further questions were asked, notwithstanding the intimation that only one would be. Questions about the mobile phone service then ran straight into questions about relevant events, on part of which the Crown relies as admissions. The following exchange demonstrates what occurred: "Q26 Prepaid. All right. Not a problem. Can you tell me who was in your house today? A I don't know them. Q27 You don't know them? A No. I don't know them by name. Q28 Oh, you don't. How long have you lived there for? A Five years." 33Further questions were asked about the accused's nieces, who were staying with him at the time. Once again, the accused reiterated his lawyer's advice to say nothing and, once again, this was disregarded and the interrogating police officer continued to ask questions. He was then asked about the five people who came to his house. His response and the subsequent questions were: "Q75 O.K. Just getting back to the five people you were talking about before, what time did, what time did they come to your house? A I, I don't know. No comment. Q76 Are you feeling all right? A ... Q77 Craig, I understand you don't want to answer any questions but when police first arrived at your house today you spoke with a Detective Senior Constable ... A Yeah. Q78 Do you agree with that? A Yeah. Q79 O.K. I'm just going to play you something O.K. A Ah hmm." 34The Initial Interview was then played to the accused. At the conclusion he was asked whether he wanted to say anything further or elaborate and he declined to do so. The interrogating police officer then adopted a different approach and the following exchange occurred: "Q88 Mate, what, what's happened today is, you know, it must have been a very terrifying experience for you and your nieces and your sister. I can only imagine how you must've felt. A Very scared is how I felt. Q89 I can imagine. If you were sitting at home in your own house with your family minding your own business -- A Mmm. Q90 [19.46] Yeah, and then what happened? A They kicked my door in." 35The interview continued. Later, the police asked a series of questions which were apparently designed to establish that the accused had answered questions of his own free will. The accused repeated that he had been advised not to answer questions and then said: "...after I said that I wasn't, didn't want to do the interview because of what my lawyer said... they kept trying to get me to talk..." 36The Crown relies on the ERISP because it contains assertions by the accused that he did not know the men who came to his house on 2 August 2011, one of whom he killed. He said in the course of the ERISP that he had never seen them before and could not describe them at all. The Crown case is that the accused did know these men and relies on the lies as amounting to a consciousness of guilt. 37In R v Plevac (1995) 85 A Crim R 570, at 579-581, the Court of Criminal Appeal outlined the principles that apply when questioning a suspect. The first question is whether the suspect is willing to answer questions. If the suspect is willing to answer questions, the questioning must be fair and must not amount to undue insistence or pressure. The Court said: "Police should not persist with such an interrogation after the suspect has indicated that he or she does not wish to answer further questions... although merely because a suspect says he does not wish to answer, or will not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise admissible." 38I do not consider the questioning of the accused to be fair. He declined to answer questions at the outset but then was encouraged to give his mobile phone number, having been told that he would be asked one question. On several occasions he declined to answer questions, said he did not want to answer questions or reiterated his advice, which was not to answer questions, but the police persisted in asking him questions. 39Further, the expression of sympathy for his plight was offered as a way of encouraging him to answer further questions about what had occurred. I have also taken into account that the interview took place on the same day as the incident, in the course of which the accused's head and hand had been injured. These injuries were obvious to police. There was still blood on the accused's hand and a mark on his forehead. The accused's capacity to withstand the various techniques that were adopted by the police to get him to answer questions was evidently diminished. 40Although he was not threatened and the statements made to him do not amount to an inducement, I have come to the conclusion that, in all the circumstances, the accused's answers were not given voluntarily and the questioning of him was not fair. 41I consider that, having regard to the circumstances in which the admission was made, it would be unfair to the accused to use the evidence. Accordingly, I exercise my discretion to refuse to admit the ERISP: s 90 of the Evidence Act. Furthermore, I am not satisfied that the circumstances in which the so-called admission was made were such as to make it unlikely that the truth of the admission was adversely affected. Accordingly, evidence of the admission is not admissible: s 85(2) of the Evidence Act. 42These matters, taken together, lead me to conclude that the ERISP is inadmissible. ********** 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: 10 May 2013