District Court New South Wales Medium Neutral Citation: R v Youssef [2015] NSWDC 49 Hearing dates: 10 & 11/03/2015 Decision date: 17 March 2015 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Decline discretion available, pursuant to s 90 Evidence Act 1995, to exclude electronic interview. Catchwords: Criminal – Evidence, admissions, admissibility of electronic interview, capacity to fully participate and understand caution to remain silent, improper conduct. Legislation Cited: Evidence Act 1995, ss 85, 90,135, 138, 139. Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) - Part 9, Schedule 2. Cases Cited: R v Deng [2001] NSWCCA 153 R v Taylor [1999] ACTSC 47 R v Shamouil [2006] NSWCCA 112 R v XY [2013] NSWCCA 121 Category: Procedural and other rulings Parties: Director of Public Prosecutions Hamzey Youssef - Accused Representation: Counsel: Mr P Hogan – Crown Ms M Swift – Accused Solicitors: Director of Public Prosecutions Blair Criminal Lawyers – Accused. File Number(s): 2013/288092 Judgment Admissibility of Electronic Interview of 24 September 2013. Introduction 1. The accused, Hamzey Youssef, seeks the exclusion from evidence of the electronically recorded interview conducted with him on 24 September 2013 at the St George Local Area Command situated at Kogarah. The interview was conducted from approximately 7:41 am onwards over a period of about 45 minutes. He had been arrested by police at about 3.30 am, after report of a robbery that occurred within the previous hour. The application to exclude the interview is concerned with a number of matters, each discrete in a legal sense, but requiring in some instances consideration of evidence that is common to the matters advanced. The issues 1. To summarise the situation by reference to the ultimate submissions of counsel for the accused, it is submitted that there has been a breach of s 139(3) Evidence Act 1995 ('the Act') and that consequently there has been an "illegality" or "impropriety" that enlivens the discretion available under s 138 of the Act. Further, in the context of the surrounding circumstances of the conduct of the interview and particularly the demeanour and presentation of the accused, including his capacity to fully participate and understand the caution to remain silent if he wished, the probative value of the contents of the interview is outweighed by the unfair prejudice to the accused of its admission and the interview should thus be excluded pursuant to s 137 of the Act. 2. It is further submitted that, having regard to the terms of s 85 of the Act, the contents of the interview should be excluded, it being specifically submitted that the tiredness of the accused and the possibility of the accused being drug affected were such that, in the circumstances in which relevant admissions were made, the Court could not be satisfied that it is unlikely that the truth of the submissions were adversely affected. This is a matter of which the Crown bears the onus of proof. 3. Further, it is submitted that pursuant to s 90 of the Act, having regard to circumstances in which the caution was purportedly administered, the physical condition and presentation of the accused, the various answers given by the accused and other matters relating to the circumstances in which any relevant admissions were made, it would be unfair to the accused to use the evidence in the proceedings. The voir dire 1. The evidence on the voir dire comprised, the statement and oral evidence of the interviewing officer (Senior Constable Maher), the recording and transcript of the electronic interview, the Custody Management Record, the 'Crown Case' statement of facts. There was no evidence from accused. Ultimately, save for one issue that arose from evidence volunteered by Detective Maher, there was no issue as to the accuracy of the evidence of the police officer contained within his statement. 2. Given the detail of the oral submissions given by counsel for the accused and the response of the prosecutor I do not propose to survey the evidence, but rather deal with the issues that emerged from the submissions. 3. The key statutory provisions to which I was referred were ss 139, 138, 137, 85 and 90 of the Act. I am mindful of the need to have regard to Pt 9 of LEPRA, although ultimately no specific issue was raised in respect of any specific provision of that Act. 4. There is no issue that various representations made by the accused constitute relevant "admissions" in consideration of issues arising in Pt 3.4 Evidence Act 1995. There was no issue that the terms of s 139 arose for consideration, in that there was an obligation for relevant investigating police to caution the accused in accordance with the terms of s 139(1)(c). There was no issue that if there had been a breach of s 139 consideration of s 138 arose. 5. With regard to the issues that arise from the evidence concerning s 139, I accept the submissions made by counsel for the accused that in accordance with the decision of the Deng ([2001] NSWCCA 153 at [17)) the section is 'purposive' and is not confined to consideration of language ability. It is concerned with the capacity of an accused person to understand that he has the right to choose remained silent and that what he or she says maybe given evidence at a later time. I also have regard to the observations of Higgins J (as he then was) of the ACT Supreme Court in the decision of R v Taylor to which I was referred ([1999] ACTSC 47 at [19]-[20]). The submissions 1. It is submitted on behalf of the accused that he gave the appearance at the commencement of the interview of extreme tiredness and that the police officer, given his observations of the accused and information given to him in a previous interview of a co-accused that he believed the accused had ingested amphetamines at some earlier stage, was drug affected. Thus, the investigating officer should have known, or did know, that the accused did not understand any caution administered. The evidence of the interview shows that the accused did not hear and/or understand the caution required to be given pursuant to s 139(1)(c) of the Act. 2. The passage in Taylor to which I refer, is said to give some indication of the type of matters that Detective Maher should have been put on notice of in this regard or the wider context in which s 139 obligations arise. As to consideration of s 138 Evidence Act 1995, failure to comply with s 139(1)(c) and (3), is said to constitute the impropriety or illegality that engages s 138 of the Act. 3. The prosecution submitted that the fact of cautions being administered by the Custody Manager and Detective Maher before the interview, as set out in his statement, show that s 139 had been complied with in all respects. As well as what can be seen in the recording of the interview, with regard to Q 5, 6 and 7, there were the answers the accused gave later in the interview to queries about his fitness to proceed and his answers at the end of the interview to the independent officer. It was submitted that the matters raised in Taylor did not apply here, because the officer had no reason to believe that the accused was not able to understand the caution administered. There was in fact no evidence that he was not cautioned before the formal interview. The evidence it is submitted by the Crown was all 'one way' as to whether he understood his rights to remain silent. 4. With regard to s 137, the defence submitted that the probative value of the evidence was slight, but the unfair prejudice arose from the state of the accused, which showed him in a bad light and not in a state to rationally involve himself in the interview. It was submitted that he was clearly under the influence of drugs. 5. The prosecution says in its submissions that the accused was not under the influence of drugs. On the evidence the police officer did not believe so and the accused said he was not. There was nothing in the Custody Management Records to indicate that he was affected by drugs (see Exhibit 4) and in any event there was no evidence of "unfair prejudice". The Crown submitted that in fact the accused on a number of occasions was quite lucid. 6. With regard to s 85 Evidence Act 1995, the defence pointed to the accused's tiredness and his drug affected state, with the police officer on notice of an allegation by a co-accused in an earlier interview that the accused had ingested methylamphetamine sometime earlier (Q 322 – Exhibit 12 - interview of Raja Abokhalil). It was submitted that in these circumstances there were aspects of his presentation which demonstrated the prosecution had not satisfied the subsection. He had difficulty in speaking, difficulty in remembering particular facts (such as his date of birth), wrong answers or need to correct himself and specific or general confusion in answers. If it was found that the accused was drug affected then that established there was a likelihood that the truth of any representations made by him was also impugned. 7. The Crown, by reference to his presentation and his own statements, said there was no positive evidence that he was affected by drugs, that his tiredness was only evident in the early stages of the interview and that the purported untruths and inconsistencies are not because of tiredness, but arose from his endeavour to explain matters that he understood were being put to him by the police and to explain himself out of his situation. 8. With regard to s 90 the defence submitted that the accused did not understand the caution, and fell asleep at key stages of the interview (around Q 8 to 9 in the transcript of the interview and on being asked Q 18). The officers could have done other things having seen him fall asleep, such as discontinuing the interview. Thus the accused was, because of his state, not able to understand his right to silence. His condition was such that he had no choice as to whether he would participate in the interview or not. The Court could draw the inference that he was in a similar state immediately before the interview when explained his rights under Pt 9 LEPRA. It was submitted that the smile of the interviewing officer, recorded being made to the other police office on the video, reflected that the officer was taking advantage of the accused. 9. With regard to s 90 the Crown pointed out that he was cautioned "repeatedly" and when one looks at Q 20 - 25, the officers interviewing did all they could to ask if he wanted to continue. Both objectively and having regard to the surrounding circumstances, it was not unfair to rely upon the contents of the interview. Nothing about the circumstances of the interview affected the integrity of it. It had ceased to be unfair at the time that the accused had agreed to continue. It is submitted that when one looks at the interview in its entirety the accused understood what was happening and there was nothing said or done by the accused to make his admissions unreliable. 10. In reply learned counsel for the accused referred to the video being the best evidence, the police officer had not acted reasonably in the context of the matters averted to in Taylor, here there were obvious "flags" that should have been acted upon, also referring to Deng at [17]. Consideration 1. With regard to the practicalities of s 139 Evidence Act 1995, I accept the analysis of Higgins J in Taylor, and, of course, the observations in Deng as to the purpose and need for wider consideration of the situation to ensure that the caution to remain silent is understood. However, the evidence here establishes that the accused was relevantly cautioned at least twice before the interview commenced, allowing for the real possibility that the accused was in a similar tired condition at the time of the earlier interview, and had understanding throughout the interview of his entitlement to remain silent. 2. I do not accept the evidence of the police officer that the accused said words to the effect that he was anxious to get on with the interview before it started, given the officer's prepared statement does not refer to that matter. That assertion has all the hallmarks of recent invention. But I have taken this matter into account in considering other matters in the assessment of the officer's credibility relevant to the application and nothing turns upon it given other evidence, particularly the recording of the interview. As counsel herself said, the electronic recording itself was the key evidence. Having viewed the interview, and observed the tiredness of the accused which is self evident at the beginning, I am also satisfied that the accused indicated early in the interview that he understood the caution that had been administered having regard to the particular questions that were asked and answers given at Q 5-7, as per the transcript of the interview. I am mindful that the accused stated, after being asked question 18, "I just feel asleep in there … ". However, he was also asked by the police officers questions about whether he was ready to continue, whether he wanted a break or some refreshment, all of which he declined. He said that he did not want to have a sleep when asked if he wanted to do that (Q 20) – the answer is "Yes, yeah, no, no". But he clearly said he did not want to sleep. He then said … "I'm all right … I'll be all right … thank you … I'll just stay". 3. I also have regard to, Q 308 and 312 and his direct answers to them, questions asked of him by the independent officer. I have come to the view, despite his tiredness, the accused at relevant times indicated that he understood that he did not have to answer questions, participated in the interview with that knowledge and willingly. I conclude that there was no breach of s 139 of the Act and, thus, s 138 is not engaged. 4. With regard to the objection pursuant to s 137, bearing in mind for this section the Court is not required to assess the reliability of the admissions (see XY [2013] NSWCCA 121 and Shamouil [2006] NSWCCA 112, at [60]-[68]), in my view the probative value of the evidence is at face value considerable, having regard to what I understand to be the nature of the Crown case and the characteristics of the circumstantial evidence case that the accused's admissions bring into dispute. These matters were summarised in the course of submissions, with the Crown also pointing out some other matters relating to CCTV footage of a person the Crown says is the accused from the previous day. 5. On the other hand no relevant unfair prejudice was identified that could not be dealt with by direction or could not be met by appropriate editing of the recording, such as reliance upon the sound rather than the images, or simply tender of the transcript, assuming that its contents could be agreed upon. It would appear to me, in any event, that the appearance of the accused is something that would be relevant for argument on the behalf of the accused in assessing the weight to be given to the representations made by the accused and, if need be, to address the issue that the Crown would seek to argue that the accused told "deliberate lies" as evidence of consciousness of guilt. I would not exclude the evidence of the interview pursuant to s 137 Evidence Act. 6. With regard to s 85 and s 90, there are a number of issues that are common. I accept that the accused started out appearing very tired. I accept that on two occasions during the formal preliminary questions the accused gave the appearance of having some difficulty staying awake and on other occasions seemed to have some difficulty responding to or concentrating on particular questions. For example, in one of the preliminary questions, he was asked his birth date and initially said, "23", which is in fact the number of an address he gives (Q 28). But I also note that he corrected himself quickly. 7. However, his tiredness diminished over time and during the course of the interview he became more engaged as the interview proceeded. His answers and the method of giving them taken together as whole, lead the Court to the conclusion that he was endeavouring to explain himself out of an inculpatory situation having digested and understood aspects of the matter brought to his attention, which as I understand it are constituent parts of the Crown case to inculpate him. An example of this is his explanation as to how he may have come in contact with a replica firearm, which is also a cigarette lighter, that is said on the Crown case to be similar to the weapon used in the alleged armed robbery. 8. I note his answer to Q 279 as showing a nimbleness of mind on his part, with a suggestion that the replica firearm which was found nearby to him on his arrest (subsequently found with his DNA profile on it) could have been discarded by someone from a nearby bakery. But there are other features to be borne in mind. Before the nub of the interview was commenced he was given the opportunity to stop or be refreshed (Q 20 - 25). There is no doubt that if he said he did not want to continue, given his presentation, this issue would not have been debated here as was conceded in submissions. The police were captive to his wishes. He not necessarily to theirs, although he was in custody. I note that half an hour later when asked at Q 292 if he wished to participate in an identification parade he said he was 'too tired' and did not participate. 9. I also note that after Detective Maher had finished asking the questions of the accused where some suggestion of confusion arises (said to reflect matters for consideration under ss 85(2) or 90 – see Q 28 – 147). Constable Perry asked a series of questions (Q 154 – 177) in which she recapped upon the accused's earlier answers. His responses to those questions are not only lucid, but on occasions he either corrects her or adds information to that previously supplied. There was no 'gratuitous congruence' in the course of that part of the interview by the accused. 10. Even in the earlier part of the interview when questioned by Detective Maher, he gave an account about the circumstances of his arrest that reflected, at least from his perspective, a clear memory of what he claimed had happened. He could remember the name of the arresting officer and details of his interaction with him (see Q 135 – 138). 11. When the independent officer came in to speak to him (see Q 300 – 312) he had clearly heightened alertness and gave direct answers not suggestive of any disadvantage or unfairness in the earlier questioning. I have taken into account the reference to the smiling of Detective Maher in the course of the early part of the interview, but could not conclude that it necessarily reflected a deliberate "taking advantage" of the accused. 12. As to the issue of his drug affectedness, I am not satisfied that he was drug affected. It was not the opinion of the police officer that he was, he did not admit to taking drugs, and the assertion by Raja that he had taken drugs was never put to him. In that regard I note Raja's 'admission' that he took drugs, yet his presentation was entirely different from the accused. One might have thought that the use of amphetamines would have heightened the accused's presentation rather than rendering him drowsy. There is no evidence of him at that time taking any particular medication or other prohibited drug that might have caused his drowsiness, although he was using medication of various types according to Custody Management Records. 13. Ultimately, in the context of what I understood the Crown's case to be, the prosecution has satisfied me that in all the circumstances the truth of the representations made by the accused is unlikely to have been affected by the surrounding and particular circumstances of the interview. 14. Further, in the context of the various answers the accused gave to questions and the opportunities the accused had to discontinue the interview and remain silent, I do not consider that I should exercise the discretion available pursuant to s 90 of the Act to exclude the contents of the interview. ********** 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 April 2015