Supreme Court New South Wales Medium Neutral Citation: R v Kelsall (No 1) [2015] NSWSC 251 Hearing dates: 2 March 2015 Decision date: 04 March 2015 Jurisdiction: Common Law Before: R A Hulme J Decision: Evidence of unrecorded conversation with police inadmissible Catchwords: CRIMINAL LAW – evidence – s 281 Criminal Procedure Act – admissibility of evidence of unrecorded conversation between accused and investigating official – where the investigating official could reasonably have suspected that the accused committed an indictable offence – where no reasonable excuse for not recording the conversation – unrecorded conversation inadmissible Legislation Cited: Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Regina Daniel Jack Kelsall Representation: Counsel: Mr P McGrath SC (Crown) Mr C Watson (Accused) Solicitors: Solicitor for Public Prosecutions Breton Legal Pty Limited File Number(s): 2013/302108 Judgment 1. HIS HONOUR: The accused, Daniel Jack Kelsall, has pleaded not guilty to the two counts on the indictment which allege that on 8 September 2013 at Neutral Bay he indecently assaulted and murdered Morgan Huxley. 2. The Crown case is that the accused followed the deceased from the Oaks Hotel at Neutral Bay to the deceased's nearby home in Watson Street. It is alleged that he entered the deceased's apartment and there, in the deceased's bedroom, committed the two offences. The deceased's flat mate was alerted to sounds coming from his bedroom. She went to investigate and found the deceased on the floor covered in blood. The immediate investigation established that he had died from the effects of multiple stab wounds. 3. The issue with which this judgment is concerned is whether a conversation between the accused and Detective Senior Sergeant Mark Dukes of the Homicide Squad on 26 September 2013 is admissible. It was not recorded. Counsel for the accused objected to the evidence on the basis that it was not recorded (s 281 of the Criminal Procedure Act 1986 (NSW)). (Counsel also relied, unnecessarily, upon the provisions of ss 90, 135, 137, 138 and 139 of the Evidence Act 1995 (NSW).) 4. Section 281 is in the following terms: (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. 1. The Crown tendered on the voir dire statements by Detective Dukes and by the officer who was with him at the time of the conversation, Plain Clothes Senior Constable Iain Adcock. It also tendered the transcript of an interview with the accused on 24 September 2013. 2. In order to understand the Crown's contentions it is necessary to set out what had occurred during the investigation up until the conversation in question occurred. 3. The police investigation commenced almost immediately after the death occurred on 8 September 2013. Detective Dukes was assigned to be the officer in charge from the outset. By the time of the conversation with the accused on 26 September 2013 the police had evidence of the following matters. 4. CCTV footage obtained from the Oaks Hotel and in the vicinity showed that a man was in that area at the time when the deceased entered the hotel. That same man was seen to remain outside, in the general area, for the ensuing 30 minutes or so until the deceased left the Oaks Hotel. The deceased was seen to walk west on the northern footpath of Military Road to the intersection of Watson Street. He was then seen to cross Military Road at the traffic light controlled pedestrian crossing at about 1.36am. The other man was seen to follow the deceased, sometimes running in his direction. Sight was lost of the pair as they proceeded across the pedestrian crossing. 5. Detective Dukes said that he had initially thought that the other man was dressed in chef's clothing so it was thought that he worked in the area and was hastening towards a bus interchange near the intersection of Military Road and Watson Street in order to catch a bus home; or perhaps to get a taxi, or a lift, home. 6. Detective Dukes said that subsequent to this, namely on 24 September 2013, witnesses identified the man in the CCTV footage as the accused and it was established that he lived in the general area. I interpolate, this would have put paid to the catching a bus/taxi/lift home theory. 7. Police immediately located the accused and interviewed him at the North Sydney police station after having cautioned him concerning his right to silence. He gave an account, the essence of which was that he had briefly encountered and spoken to the deceased in a convenience store in Ben Boyd Road opposite the Oaks Hotel. He remained in the area talking to a security guard from the hotel and then walked the route covered by the CCTV footage. However, he said that this was in order for him to return to his place of employment on the other side of Military Road because he had "left the light on". He noticed the deceased proceeding in the same direction until he, the accused, diverted down Cheal Lane towards his workplace. He then went to his home in Spruson Street, Neutral Bay. 8. Detective Dukes accepted in his evidence on the voir dire that it was apparent that the accused might have been the last person to have seen and spoken with the deceased. 9. The accused said some rather odd things in that interview but Detective Dukes was untroubled about them. These included a seemingly fanciful explanation for having followed the deceased up Military Road and crossing at Watson Street; an incredible explanation for running part of the way (it was cold and his mother had told him to go for a jog if he got cold); an unlikely explanation for why it would have taken him longer to walk to his home in Spruson Street (his parents were home and, I infer, might have been asked by police if they knew what time he got home); and a seemingly nonplussed series of responses when asked about a subsequent conversation with a security guard from the Oaks Hotel in which he asked the guard about news of Mr Huxley's murder. In cross-examination, Detective Dukes' attention was drawn to some of these responses but he denied that they caused him to regard the accused as a suspect: "No. I just thought he was strange, to be honest" (2.3.15 at T40.40). 10. The accused rang Detective Dukes during the afternoon of 26 September 2013. He said that when he had spoken to the police on the 24th he "wasn't completely telling the truth". He was asked what he meant and he replied, "Well I wasn't telling the entire truth". Detective Dukes asked if the accused would like to tell the truth and he replied, "Yeah, do you want me to tell you now or in the next few days?" The detective replied, "Now would be fine". An arrangement was made for the accused to be picked up where he was; outside Woolworths at Neutral Bay. I infer that the detective considered talking to the accused was a matter of priority even though in his evidence on the voir dire he characterised his thoughts as being of "curiosity". 11. Detective Dukes and Constable Adcock immediately proceeded the short drive from North Sydney to Neutral Bay. The detective's evidence of what occurred when they arrived was as follows: "I got out of the police vehicle and the accused walked towards me. I said, "How you going mate, come and stand at the back of the car." With the accused and Plain Clothes Senior Constable Adcock we walked and stood at the rear of the police vehicle. I said, "You met Detective Adcock the other day. What's going on?" He said, "Well I haven't been completely truthful." I said, "What do you mean? He said, "Well you know the other day when I said that I hadn't spoken to that guy well I did." I said, "Okay well what happened?" He said, "Well I started talking to him and he was like upset and depressed so I said to him can I cheer you up?" I said, "Okay what happened then?" He said, "Well we went back to his apartment and up to his bedroom on the first floor." I said, "Okay." He said, "I started to give him head and he fell to sleep. I tried to wake him up but I couldn't." I said, "Okay mate I want you to understand that you are not obliged to say or do anything unless you wish to do so but whatever you say or do will be recorded and may be used in evidence. Do you understand that?" He said, "Yes." I said, "What happened after you couldn't wake him up?" He said, "I left, I went down the stairs out the front door and I didn't lock it. I just shut it. I think I am the reason why he was murdered." Whilst the accused said this he began to cry. I said, "What do you mean?" He said, "Well when I was leaving there was a woman coming towards his unit and she saw me coming out and I don't think I locked the door." I said, "Okay so what are you trying to say?" He said, "She saw me coming out and I think that's why he got murdered." I said, "Okay mate you are under arrest do you understand that?" He said, "Yes." I said, "I am going to take you back to North Sydney Police Station where I am going to ask you further questions in relation to this matter. Do you understand that?" He said, "Yeah okay." I conducted a cursory search of the accused including the grey coloured Philips Fox brand shoulder bag. I said, "Jump in the back seat and we will head back to the police station." The accused was seated behind the front passenger's seat and I sat beside him. I said, "How long were you there for?" He said, "Only about 15 to 20 minutes." I said, "What did you do after that?" He said, "I went back to work cause I told you before that I left the light on." I said, "Did you take anything from the unit?" He said, "Yeah just some coins that he had. He had heaps of change lying around." I said, "Anything else?" He said, "No." I said, "What did the female look like?" He said, "I think she had blond hair." I said, "How long was her hair?" He said, "Short." I said, "What else did she look like?" He said, "She was shorter than me." I said, "Why are you telling this now. Why didn't you tell us before?" He said, "I was embarrassed. I don't like people knowing that I am gay." I said, "You know I don't care that you are gay." He said, "Yeah I know." I said, "Mate did you murder Morgan Huxley?" He said, "No. No way." As he said this he shook his head a number of times. Shortly before we returned to the police station the accused said, "I will give you my DNA and fingerprints now if you want them?" I said, "Okay mate we will sort that out when we get back." When we returned to North Sydney Police Station the accused was taken to the Charge room where he was introduced to the custody manager." 1. Later in the evening the accused was invited to participate in an electronically recorded interview but he exercised his right to silence. 2. Detective Dukes maintained that up until he administered the caution in the conversation outside Woolworths he did not suspect the accused had any involvement in the killing of the deceased. The critical question, however, is whether the accused "could reasonably have been suspected" by the detective of having committed the offence. In this respect, the detective had the following evidence: ● the accused had a brief interaction with the deceased in the convenience store opposite the Oaks Hotel; ● the accused lingered in the area of the hotel while the deceased was inside; ● the accused followed, sometimes running, after the deceased after he left hotel; ● the accused was possibly the last person to see the deceased alive; ● the accused gave some very odd (to say the least) explanations in his interview on 24 September 2013; ● the accused told police on 26 September 2013, on the telephone prior to the Woolworths conversation, that his exculpatory account given two days earlier contained lies; and ● the deceased had been stabbed multiple times with what was described by the Crown Prosecutor as a "large knife" (T59.14) and the accused worked as a kitchen hand with obvious access to knives. 1. This body of evidence available to police prior to the conversation on the afternoon of 26 September 2013 should have given rise to a reasonable suspicion that the accused was involved in the killing of the deceased. 2. I do not accept that there was any "reasonable excuse" for not recording the Woolworths conversation in its entirety (i.e. both before and after the suspicion was said to have arisen that prompted the caution). Detective Dukes was based at North Sydney police station for the purposes of this investigation. He did not normally work there but assumed that hand-held recording devices would have been available. He made neither an inquiry as to the availability of a recording device nor any attempt to obtain one. He had a mobile phone but it was an old one which he did not think had a facility to make audio recordings. 3. In any event, there were facilities at North Sydney police station for recording interviews with suspects and it was only a few minutes away. Why the detective could not have waited until he got back to the police station to record a conversation with the accused, who indicated a willingness at that point to speak with police, is inexplicable. His explanation that he did not know what the accused was going to say is unacceptable. And the fact that the detective chose to continue with an unrecorded conversation after having cautioned the accused beggars belief. 4. The conversation between Detective Senior Sergeant Dukes and the accused on 26 September 2013 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: 18 March 2015