R v George Heleta R v Sailosi Osuji [2014] NSWDC 82

District Court New South Wales

Medium Neutral Citation: R v George Heleta R v Sailosi Osuji [2014] NSWDC 82 Hearing dates: 24 June 2014 Decision date: 27 June 2014 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Application to have ERISP interview of witness ruled inadmissible refused. Catchwords: Whether evidence improperly obtained; Police questioning of suspects; voluntariness of evidence Legislation Cited: Evidence Act 2005 Cases Cited: Graham v R (1998) 195 CLR 606 R v Clarke (1997) 97 A Crim R 414 R v Plevac (1995) 84 A Crim R 570 R v Powell [2010] NSWDC 84 R v Pritchard [1991] 1VR 84 Swaffield v R (1998) 192 CLR 159 Van der Meer v R (1988) 82 ALR 10 Texts Cited: Impermissible Questions asked in Records of Interview and by Prosecutors in Cross-Examination by Paul Townsend and Lester Fernandez Category: Interlocutory applications Parties: Director of Public Prosecutions (Crown) George Heleta (Accused) Sailosi Osuji (Accused) Representation: P Hogan - (Crown) Z Khan (Accused Heleta) D Hawkins (Accused Osuji) File Number(s): 12/109691 12/109735 Publication restriction: Nil

Judgment ON OBJECTION TO THE ADMISSIBILITY OF THE ERISP INTERVIEW OF OCTEVIAN CAMILLE

Introduction 1On 24 June 2014 I refused the application of the accused George Heleta to have ruled inadmissible the whole of the ERISP interview of Octevian Camille. With the consent of the parties, I announced my decision instanter, and said I would deliver my reasons at the earliest opportunity. These are my reasons. 2The two accused, George Heleta and Sailosi Osuji, are both charged with two counts on the Indictment: (1)On 7 April 2012 at Pendle Hill in the State of New South Wales wounded Tary Joseph Sukkar with intent to cause him grievous bodily harm (2)On 7 April 2012 at Pendle Hill in the State of New South Wales fired a firearm in a public place. 3Following arraignment, but before the jury was empanelled, what is known as a Basha Enquiry took place in respect of evidence to be relied on by the Crown in this trial of Mr Octevian Camille and Mr Joe Abousleiman. When the matter had been first called up for trial on 16 June 2014, Mr Camille and Mr Abousleiman had been charged on a separate Indictment with offences arising out of the same incident on 7 April 2012. An application was made by the Crown for adjournment of the trial, which was refused by the List Judge. Following that decision, the office of Director of Public Prosecutions advised that the proceedings against Mr Camille and Mr Abousleiman were to be withdrawn and their charges were subject to a No Bill. Thereafter, they became witnesses relied on by the Crown in this trial relying on ERISP interviews they had undertaken with the police on 8 April 2012. Both men refused to give separate statements to the police. 4Both Mr Camille and Mr Abousleiman gave evidence on the content of their record of interview. Those records of interview contained statements by each of the witnesses which the Crown wish to rely on to prove the elements of each charge against both accused. In short, they outline the circumstances in which Mr Camille attended a party at premises at Arnett Street Pendle Hill with a number of friends; the circumstances in which he was ejected from that party by the father of the young lady whose birthday was being celebrated, Mr Tary Sukkar; his subsequent attendance at Merrylands Police station to make a statement about the actions of Mr Sukkar; his leaving Merrylands Police station in a vehicle driven by Mr Abousleiman, and accompanied by Erastus and Sailosi Osuji, who were brothers who had attended the birthday party. The statements also provided evidence that the vehicle drove to Granville train station where they picked up the accused George Heleta, and then proceeded to Pendle Hill where they parked some distance away from where the party had been held in Arnett Street. In broad terms, the evidence outlined in those statements is then to be relied on by the Crown to establish that either two or three people, not being Mr Camille or Mr Abousleiman (who were in the front seat of the vehicle), left the back seat of the vehicle and walked towards the place where the party had been held. Some gunshots were heard and screaming, and then the persons returned to the vehicle and directed Mr Abousleiman to drive away from the scene. The vehicle was pulled over by police at Auburn with the same five occupants, and a search of the backseat area of the vehicle revealed a firearm situated on the floor of the vehicle, adjacent to where Mr Heleta had previously been seated before he was taken from the vehicle by the police. 5Other evidence is available to establish that Mr Tary Sukkar was outside the premises on Arnett Street, standing in the driveway of an adjoining property, talking to two other women, one of whom was Saba Merhi, when they were approached by two men, one of whom said words to the effect "I told you I would come back" and pointed to Tary Sukkar, at which point the second person discharged a firearm several times, one of which struck Mr Sukkar in the lower leg. 6During the Basha Enquiry both Mr Camille and Mr Abousleiman suffered a lack of recollection of some of the more salient features of their evidence. On numerous occasions, the Crown was granted leave to crossexamine each of the witnesses on parts of their ERISP interviews pursuant to s 38 of the Evidence Act 2005. That was done without objection, but on the basis that there was no finding made by the Court pursuant to s 38(1)(b) that the witness in each case was not making a genuine attempt to answer the questions. Following the grant of leave on each occasion, the Crown cross-examined on what were prior inconsistent statements by each of the witnesses. It is clear that if either witness is called at trial, their evidence will in various aspects be unfavourable to the Crown, and an application will be made by the Crown to cross-examine the witnesses pursuant to s 38. In those circumstances, the Crown's position is that the witnesses are not making a genuine attempt to give evidence and a ruling will be sought pursuant to s 38(1)(b). 7The Crown indicated that some dialogue had taken place between the parties for the purpose of identifying parts of each of the ERISP interview of Mr Camille and Mr Abousleiman which should be excised by consent. That process identified various parts of the respective records of interview which the Crown wished to rely upon, but were objected to by Counsel for both accused. For that purpose the Court was asked to rule on the disputed parts of the records of interview on 20 June 2014, after the trial had commenced. The Court undertook that task on the afternoon of 20 June 2014 in respect of the record of interview of Mr Abousleiman. Upon completion, the Crown undertook to have prepared a redacted version of the DVD of the ERISP interview of Mr Abousleiman and a transcript of the redacted interview. 8Before that process commenced, Mr Khan, Counsel for Mr Heleta, informed the Court that an objection was taken to the whole of the ERISP interview of Mr Camille on the basis that that interview was conducted improperly by police officers from start to finish. The gravamen of that submission was that the police had already interviewed Mr Abousleiman, and whilst interviewing Mr Camille, they employed tactics that involved a cross-examination of Mr Camille, and when they were not satisfied with answers given by him, adopted what had been told to them by Mr Abousleiman. In Counsel's submission, the resulting record of interview became "fruit from the poison tree", was highly prejudicial to Mr Heleta and therefore the Court should exercise its discretion pursuant to either s 137 or 138 of the Evidence Act to exclude the whole of Mr Camille's ERISP interview from the evidence. 9The Court then proceeded to rule on the various objections to the record of interview of Mr Abousleiman. Some of the material in that record of interview was objected to on the same basis that Mr Khan objected to the whole of the record of interview of Mr Camille, and for that reason, it was provisionally allowed to stand, subject to the Court's subsequent ruling in respect of the Camille record of interview. 10On 24 June 2014 Counsel for the accused Mr Heleta made an application for the Court to exercise its discretion to exclude the whole of the record of interview of Mr Octevian Camille, relying on s 137 and 138 of the Evidence Act 2005. The application was supported by Ms Hawkins, Counsel for accused Sailosi Osoji. In addition to the ERISP interview of Mr Camille, which became exhibit E on the Voir Dire, Counsel tendered two further documents in support of the application. They were first, the Custody Management Tecord of Octevian Camille (exhibit F), which demonstrated that he arrived at Merrylands Police station at 1.50am on 8 April 2012, that it was the first time that he had been arrested and placed in police custody, and that at various times between 6.15am on 8 April 2012 and 7.35pm on 8 April 2012 he remained in the dock at the Merrylands Police station. 11Exhibit E demonstrates on its face that the interview commenced at 9.30am on 8 April 2012 and concluded at 10.53am that day. Therefore, Mr Camille, who must have been a suspect for the police in their investigations into the shooting of Mr Sukkar, had been in custody for 7 hours and 40 minutes prior to the commencement of the interview and for a little over 9 hours by the time it concluded. 12Also tendered was an extract from the New South Wales Police Force Code of Practice for Crime (Custody, Rights, Investigation, Management and Evidence) (exhibit G). On page 74 under the heading "Admissibility of interview evidence" that document stated: "Do not behave in a manner which could be regarded as being violent, unfair, oppressive, inhuman, degrading or improper towards the suspect. Be fair at all times." 13Page 75 provided the following under the heading "Types of Questions": "Generally avoid questions which suggest an answer (leading questions) and those which can be answered by a yes or no (closed questions). Your most important form of question should be the open question, one which encourages the suspect to answer (eg. What did you do after you left the shop?, what happened then?, what can you tell me about that?). These should be the feature of your interview. These generally start with either "What", "Where", "When", "Who", "Why", or "How"."