District Court New South Wales Medium Neutral Citation: R v Mobbs & Dogramaci [2013] NSWDC 103 Hearing dates: 15 April 2013 Decision date: 15 April 2013 Before: Berman SC DCJ Decision: The evidence not admitted Catchwords: CRIMINAL LAW - Judgment - Admissibility of statement of accused Legislation Cited: Criminal Procedure Act Category: Interlocutory applications Parties: The Crown Daniel James Mobbs Abdullah Sedat Dogramaci Representation: Mr C Everson - Crown Ms N Mikhaiel - Accused Mobbs Mr A Lucas - Accused Dogramaci Director of Public Prosecutions Legal Aid Commission - Accused Mobbs Tully and Chiper - Accused Dogramaci File Number(s): 2008/70956 Judgment 1HIS HONOUR: This morning when the trial of Abdullah Dogramaci and Daniel Mobbs was to commence I was told that before the jury could be empanelled I needed to resolve a particular legal issue. That issue concerned the admissibility of a statement made by Mr Mobbs to police at Mount Druitt Police Station on 30 October 2008. (Anyone reading this judgment must understand that the year 2008 is not misprint). The statement was made to police by Mr Mobbs, one of the accused in this trial, in the following circumstances. 2Police went to premises which he leased in Blackett. There were, I gather, a fair few people involved in the execution of a search warrant on those premises. That was because police suspected that there was a drug manufacturing operation taking place at the premises. Thus not only police but also forensic chemists and officers of the New South Wales Fire Brigade were present. Mr Mobbs was not home when police and others arrived. He was telephoned and came to the premises. It is important to bear in mind that shortly after his arrival he was spoken to by police and then arrested. He was cautioned that he need not say anything but he was told that he would be taken back to the police station. 3When he went back to the police station, at some stage someone made a decision that Mr Mobbs would not be interviewed as a suspect of a crime but would be interviewed as a potential witness. So the statement which is the subject of this determination is headed "Statement of a Witness". It is on the P190A form which has been around for a long time. 4In that statement it is agreed that Mr Mobbs makes admissions. The Crown wants to tender that against Mr Mobbs in the current trial but Ms Mikhaiel who appears for Mr Mobbs objects, saying that the provisions of s 281 of the Criminal Procedure Act require its rejection. 5It is clear that when Mr Mobbs left Blackett heading to the police station at least one police officer regarded him as being a suspect. That is there was a reasonable suspicion in the mind of the officer who arrested him and that reasonable suspicion seems to have been shared by other officers as well. 6The Crown has tendered some material on this application but what is immediately obvious as being missing is any evidence from the person who made the decision to interview Mr Mobbs as a witness rather than a suspect. There is some hearsay evidence of relevance in the statement of Detective Inspector Iorfino. In paragraph 17 of that statement this appears, I will quote the entirety of that paragraph. "I recall during the day having conversations with Detective Sergeant Gordon in respect of the accused (he means Mr Mobbs). I recall that the accused was not charged with the offence relating to the manufacture of prohibited drugs at Blackett and had provided a statement. From my discussions with Detective Sergeant Gordon the decision to take this course of action on this date was that the requisite knowledge of the accused about the manufacture had not been clearly established at the time he was in custody. It was deemed appropriate that a further review be conducted of the available evidence before preferring the charge against the accused to determine whether he had committed an offence or was a witness relevant to investigation. At the time the accused was in custody on 30 October 2008 it was determined that the accused would be treated as a witness until a review of the evidence was obtained." 7So it seems to be that it was Detective Sergeant Gordon who made the decision to treat Mr Mobbs as a witness rather than a suspect but para 17 which I have just quoted is very informative. It confirms, what is fairly clear from other evidence, that Mr Mobbs remained a suspect even as the statement was taken from him. It may well have been that "the requisite knowledge of the accused about the manufacture had not been clearly established at the time he was in custody" but the need for there to be "a further review...of the available evidence before preferring a charge" shows that he was still a suspect. Further investigations were needed to either confirm the suspicion or allay it. 8It is clear that police had not yet decided whether or not to charge him but is equally clear that they still had a suspicion that he had committed an offence. Paragraph 17 is of great assistance to Mr Mobbs on this application. 9There is no rule that says that every electronically recorded interview has to be followed by an accused being charged. It was of course appropriate for police in Mr Mobbs' case, suspected as he was at all stages of having committed an offence, to be interviewed electronically. If during the course of that electronic interview Mr Mobbs had provided some exculpatory explanation which meant that he was no longer a suspect then the result would have been that he was not charged. 10Section 281 contains a number of criteria which set out the admissions to which the section applies. Of relevance to the present application is the question of whether Mr Mobbs was or could reasonably have been suspected by an investigating official of having committed an offence. 11The Crown conceded that Mr Mobbs could reasonably have been suspected, by an investigating official, of having committed an offence because of the content of some telephone intercepts which concerned calls made before Mr Mobbs' arrest. Thus, said Mr Crown, the issue as to whether the statement was admissible against Mr Mobbs depends on whether there is a reasonable excuse for not electronically recording what Mr Mobbs said. The reasonable excuse said the Crown was that the police who made the decision not to interview Mr Mobbs electronically did not know about the content of the telephone calls. 12But I am prepared to make this decision ignoring the content of the telephone calls. The evidence was that Mr Mobbs rented premises and occupied premises where there was a drug laboratory on those premises. There was a locked door inside the house. There were items consistent with drug manufacture or at least supply in the living areas of the house. In those circumstances Mr Mobbs was clearly a suspect and indeed, as I have tried to make clear, he was suspected of having committed a crime by investigating officials. That means that any admissions made by him needed to be electronically recorded unless a reasonable excuse can be established. That is where the Crown falls down. 13Ms Mikhaiel did tell me earlier that she was prepared to make a submission that a reasonable excuse can only be one of the three identified circumstances referred to in the definition. Notwithstanding that there is some authority suggesting the accuracy of that submission it is a submission I would have rejected, and fairly quickly rejected, had it been necessary to consider it. The word 'includes' is a word which appears throughout legislation in New South Wales and rarely if ever is it construed as meaning 'includes and only includes'. The whole history of s 281 makes it clear that those three circumstances were never meant to cover the field of what might be a reasonable excuse. 14The Crown's claim that the reasonable excuse was provided by the circumstance that investigating police did not know about the telephone calls falls by the wayside when it is realised that those telephone calls have nothing do with the suspicion police actually held on the day Mr Mobbs was arrested. The Crown has not managed to demonstrate a reasonable excuse for failing to electronically record the admission and so that statement will not be admitted in the trial. ********** 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: 12 July 2013