Supreme Court New South Wales Medium Neutral Citation: R v Hunter (No 6) [2014] NSWSC 1149 Hearing dates: 3 July 2014 Decision date: 04 July 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: (1) The whole of the first passage pertaining to the conversation in the police vehicle is excluded. (2) None of the second passage pertaining to the conversation at the police station is excluded. (3) None of the third passage pertaining to the conversation at the gaol is excluded, except for the final statement of Detective Sergeant Lowe and the words alleged to have been said by the accused, "He hit me and you're going to charge me?" Catchwords: CRIMINAL LAW - EVIDENCE - admissibility - Criminal Procedure Act 1986 (NSW) s 281 - whether admissions were made "in the course of official questioning" Legislation Cited: Criminal Procedure Act 1986 (NSW), s 281 Cases Cited: Bryant v R [2011] NSWCCA 26 Kelly v The Queen [2004] HCA 12; 218 CLR 216 R v Horton (1998) 45 NSWLR 426 R v Naa [2009] NSWSC 851 Category: Interlocutory applications Parties: Regina Paul Andrew Hunter Representation: Counsel: M Cinque (Crown) D Carroll (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Shiranica Danieli Lawyers (Accused) File Number(s): 2011/397367 Judgment 1Objection has been taken by defence counsel to the reception into evidence of a number of admissions alleged to have been made by the accused to police officers. The objection is founded on s 281 of the Criminal Procedure Act 1986 (NSW). 2The admissions are alleged to have been made on three occasions: when the accused spoke to Detective Senior Constable Burton and Detective Mackie whilst travelling in a police vehicle on 21 June 2011; when the accused spoke to Detective Sergeant Evans and Detective Senior Constable Hind-Spiteri at Mt Druitt Police Station on 21 June 2011; and, finally, when the accused allegedly spoke to Detective Sergeant Lowe and Detective Hind-Spiteri when he was in a room attached to a gaol on 20 October 2011. 3Defence counsel tendered a number of statements of police, with some annexures, on the voir dire. Neither party called oral evidence or sought to cross-examine the makers of those written statements. 4It is convenient to set out extracts from those exhibits on the voir dire. There is a degree of repetition between the statement of Detective Hind-Spiteri and the statements of Detective Evans and Detective Lowe, making it unnecessary to extract any portion of the two latter statements. Of course, my determinations will relate to evidence of the alleged admissions from any source. 5Shorn of material not pressed in the trial by the Crown Prosecutor, the three passages that are subject to an objection are as follows. 6The first passage is at [20] of the statement of Detective Burton of 22 June 2011, which became voir dire exhibit 1: ... Detective MACKIE said, "Paul, we heard you hurt your head. Is your head alright?" He said, "My head, yeah it's ok, why?" Detective MACKIE said, "We heard you went to the Hospital last night and left before being treated." He said, "Yeah, I got hit in the back of the head with a pole. It took ages for them to see me so I couldn't be bothered and left." As he said this, I saw him reach around the back of his head and rub the rear left hand side for about 2 to 3 seconds. ... 7The second passage is at [16] of the statement of Detective Hind-Spiteri of 12 January 2012, which became voir dire exhibit 2: Detective Sergeant EVANS said, "Paul my name is Detective Sergeant EVANS and this is Detective Senior Constable HIND-SPITERI. We are Detectives here at Mt Druitt." Paul HUNTER said, "Yeah." Detective Sergeant EVANS said, "Paul Detective Senior Constable HIND-SPITERI and I are investigating some matters and I want you to understand that you are not obliged to say or do anything and anything you say or do will be recorded and may later be used in evidence at court. Do you understand that?" Paul HUNTER said, "Yeah." Detective Sergeant EVANS said, "Paul I want you to understand that you are under arrest for and [sic] affray which occurred at 9 Livingston Avenue Dharruk. You are not obliged to say or do anything and anything you say or do will be recorded and may later be used in evidence at court. Do you understand that?" Paul HUNTER said, "I was the one who got hit, he hit me." Detective Sergeant EVANS said, "Do you understand what I said?" Paul HUNTER said, "Yeah but he hit me." ... Detective Sergeant EVANS said, "Paul I also want you to understand you are under arrest for the assault, serious assault upon Jason DIXON on 20th June 2011. You are not obliged to say or do anything and anything you say or do will be recorded and may later be used in evidence at court, Do you understand that?" Paul HUNTER said, "Yeah, I was at Mt Druitt Hospital, you do the maths." ... 8This extract of Detective Hind-Spiteri's statement is in almost identical terms to [22] of the statement of Detective Evans completed 22 February 2012, which became voir dire exhibit 3. 9The third passage is from [46] of Detective Hind-Spiteri's statement of 12 January 2012, which became voir dire exhibit 2. About 11am on Thursday the 20 October 2011 Detective Sergeant LOWE and I attended the Metropolitan and Remand Reception Centre at Silverwater. When there I saw Paul HUNTER taken into police custody in the police charge room situated there. After HUNTER spoke to the custody manager I heard Detective Sergeant LOWE say, "Paul HUNTER, I am Detective Sergeant LOWE from the Homicide Squad and this is Detective HIND-SPITERI you are under arrest for the murder of Jason DIXON. You are not obliged to say or do anything but anything you say or do will be recorded and may later be used in evidence. Do you understand that?" HUNTER said, "I'm not saying anything I wasn't even there I was at the hospital." Detective Sergeant LOWE said, "We have information that suggests otherwise. What we propose to do is ask you a number of questions that will be recorded on the DVD system." HUNTER said, "No." Detective Sergeant LOWE said, "Will you sign my notebook refusing to be interviewed." HUNTER said, "No I am not saying or signing nothing." Detective Sergeant LOWE said, "It is just a matter of time before your [sic] charged with murder." HUNTER said, "He hit me and your [sic] going to charge me?" ... 10This extract of Detective Hind-Spiteri's statement is in almost identical terms to [6] of the statement of Detective Lowe of 12 January 2012, which became voir dire exhibit 6. 11Section 281 of the Criminal Procedure Act is as follows: 281 Admissions by suspects (1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section: investigating official means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. reasonable excuse includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. tape recording includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording. 12It is convenient to deal with each extracted passage in turn, and to deal with each question and answer within each passage seriatim as necessary. The first passage 13The statement of Detective Burton of 22 June 2011 (which became voir dire exhibit 1) establishes that the alleged conversation occurred in a motor vehicle sometime after 4:30 PM on 21 June 2011. Previous to that, a number of events had occurred. Detective Burton had commenced duties at 7 AM, and soon after had attended a briefing with regard to the assault (as it was at that stage) on the deceased. From about 9:45 AM Detective Burton and Detective Mackie patrolled a number of locations. Over the course of that patrol, they encountered Mr Wade Hunter and Mr Gary Hunter, and arrested the latter pursuant to an outstanding warrant. 14Detective Burton, along with other police, also undertook a search at an address in Hebersham in connection with the matter. Detective Burton and Detective Mackie later attended 4 Toricelli Avenue, Whalan, where Mr Wade Hunter and the accused were present. Detective Burton observed that the accused appeared to be under the effects of an intoxicating substance. The accused was placed under arrest, and escorted by Detective Burton and Detective Mackie to the Mt Druitt Police Station. The conversation recorded in the first passage took place en route to the Police Station. 15Subsequent to the conversation that is the subject of objection, in a passage that is not pressed by the Crown Prosecutor in the trial but is relied upon by the Crown on the voir dire, the following exchange occurred: Detective MACKIE said, "Are you alright now?" [The accused] said, "Yeah, you know me, I'm not going to say anything. If you decided to charge me, I'll take it to court." [Senior Constable BURTON] said, "No, just checking you're alright." 16With regard to the first passage, defence counsel submitted that the enquiries about the head injury of the accused were "official questioning". He submitted that I would not accept that they were mere enquiries checking on the health and welfare of the accused. He submitted that the other preconditions for application of the section had been made out. He submitted that there was no evidence upon which the Crown had established a reasonable excuse for not recording the alleged admission in the motor vehicle, pursuant to s 281(2)(b). Accordingly, he submitted, the second enquiry envisaged by s 281(2)(a)(ii) does not arise. 17The Crown Prosecutor submitted that, looked at as a whole and in context, the police were doing nothing more than checking the health of the accused, whom they had arrested and were taking to a police station. In particular, she submitted, the exchange must be seen in the context of the previous observations of the seeming intoxication of the accused, and in light of the fact that the police made it clear very shortly after the exchange that is the subject of objection, that that was indeed the nature of their enquiry of the accused. 18Turning to my determination with regard to the first passage, I consider that it has been established on the balance of probabilities that the exchange in question occurred in the course of official questioning. Whilst I accept that the police were checking the mental state and any head injury of the accused, I am also satisfied, in light of the investigative context to which I have referred, that the police were asking questions "in connection with the investigation of the commission ... of an offence". In particular, the specificity of the question with regard to the attendance of the accused at the hospital leads me to the view that the police were asking questions as part of their investigation into the background of the assault on the deceased, and not solely as a result of their concern for the welfare of the accused. 19The fact that the second exchange began with, as a matter of grammar, a statement as opposed to a question, on the part of the police officer, to my mind is not determinative. I am satisfied on the balance of probabilities that that statement was designed to elicit a response, as indeed it did on the Crown case. 20No reasonable excuse has been posited for not recording the passage that is the subject of the objection. It follows that the legislation commands exclusion of the evidence. 21In short, the pressed portions of the exchange between the accused and the police in the police vehicle on 21 June 2011 will not be admitted in the trial. 22I have also considered whether the act of rubbing his head, said to have been undertaken by the accused, should be excluded pursuant to the section, despite the fact that it is not an alleged oral admission. 23R v Horton (1998) 45 NSWLR 426 establishes that a seemingly exculpatory statement can be excluded as an admission, if it is capable of being relied upon as being a lie. It also establishes that conduct able to be characterised as an admission was captured by the predecessor of s 281: at 437-8. That is consistent with the definition of an admission and the definition of a representation contained in the Dictionary to the Evidence Act 1995 (NSW). 24In short, I consider that that alleged act of the accused, in rubbing his head during the course of the official questioning, should be excluded pursuant to the section. The second passage 25Turning to the second passage, defence counsel submitted that the questions were "official questioning" as defined in the legislation. He submitted that they were indeed asked "in connection with the investigation of ... an offence". In the alternative, he relied upon what was said by McHugh J in Kelly v The Queen [2004] HCA 12; 218 CLR 216 (in dissent in that case) and in particular the proposition at [106] that one should not create "a fortress out of the dictionary", thereby standing in the way of the undoubted purpose of Parliament in enacting s 281 and its predecessors; namely, putting an end to a number of markedly negative aspects of the criminal justice system. 26The Crown Prosecutor submitted that a question about whether the accused understood that he was under arrest, that the arrest was for a particular offence, and that he enjoyed a right to silence cannot be characterised as "official questioning". If it be the case that an accused person determines to give a response to such a question that is an admission, so be it, she submitted; that does not alter the characterisation of the context in which the accused responded. 27To my mind, although the accused was indeed asked a question by the detective, that process does not constitute "questioning", as a matter of plain English. The detective was complying with the law in informing the accused of his arrest, the offence upon which that arrest was based, and providing the accused with a caution. She made a repeated enquiry as to whether the accused understood those things. To my mind that enquiry, although it does constitute the asking of a repeated question, does not constitute "questioning". That word to my mind connotes something of an ongoing process, albeit it may be an extremely brief process. 28Separately, I am not satisfied that the single repeated question constitutes "official questioning" as defined in the statute. Although in a very broad sense, an enquiry of an arrested person about whether he or she understands that his or her liberty has been curtailed and why, along with his or her right to silence, could be said to be asked "in connection with the investigation of the commission of ... an offence", I do not consider that the phrase is so elastic as to extend to the situation under consideration. Were it otherwise, Bryant v R [2011] NSWCCA 26 would have been differently decided. And so would the well-known decision of Howie J in R v Naa [2009] NSWSC 851, a decision that, although not strictly binding, I accord great weight. 29Thirdly and finally, I am bound by the approach of the majority of the High Court in Kelly v the Queen, in which the identical phrase (albeit in a somewhat different provision) was interpreted narrowly. 30I adopt an identical analysis with regard to the second portion of the second passage. In short, I do not regard the exchange as having occurred "in the course of official questioning". 31In summary I regard the pressed portions of the second passage as not falling within s 281, and therefore admissible. The third passage 32Turning to the third passage, I consider that the first portion of the exchange leading to the alleged admission, namely, "I'm not saying anything I wasn't even there I was at the hospital" is subject to an analysis identical to that provided by me a moment ago. In short, on three bases I do not consider that asking an accused person whether he or she understands his custodial position and right to silence constitutes official questioning. It follows that that exchange is not captured by the section, and is not excluded as a result. 33As for the second part of the third passage, on the Crown case, the accused indicated that he did not wish to engage in a recorded interview; nor did he wish to sign a notebook entry recording that refusal. 34Thereafter, the detective made the statement "It is just a matter of time before your [sic] charged with murder". Although as a matter of formal sentence structure that utterance was a statement, in truth I am satisfied on the balance of probabilities that it was a statement made in the hope that the accused would respond to it. As the authorities make clear, merely because an utterance or other conduct by a police officer is not, strictly speaking, a question does not mean it cannot be part of a "course of official questioning": see Kelly v The Queen [2004] HCA 12; 218 CLR 216 at 234-5. 35As a matter of fact-finding, I characterise that statement of Detective Lowe and the exchanges that preceded it about a recorded interview and a notebook entry as being official questioning, and the alleged response of the accused as occurring in the course of that process. 36Again, the Crown posited no reasonable excuse for the fact that the response of the accused to that official questioning was not electronically recorded. It follows that the words "He hit me and you're going to charge me?" must be excluded pursuant to the section. Conclusion 37In summary then, my determination is as follows: (1)The whole of the first passage pertaining to the conversation in the police vehicle is excluded. (2)None of the second passage pertaining to the conversation at the police station is excluded. (3)None of the third passage pertaining to the conversation at the gaol is excluded, except for the final statement of Detective Sergeant Lowe and the words alleged to have been said by the accused, "He hit me and you're going to charge me?" ********** 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: 21 August 2014