District Court New South Wales Medium Neutral Citation: R v Tyson Peter EGAN [2017] NSWDC 356 Hearing dates: 27 November 2017 to 7 December 2017 Date of orders: 04 December 2017 Decision date: 04 December 2017 Jurisdiction: Criminal Before: Williams ADCJ Decision: Evidence is admissible. Catchwords: Special Caution-s89A Evidence Act-failure to mention self defence-admissibility-what constitutes "official questioning"-jury direction. Legislation Cited: Evidence Act 1995 s89, s89A LEPRA Act, Criminal Procedure Act Cases Cited: R v Jafary [2016] NSWDC 41 R v Reaiche unrep. NSWDC 20 July 2016 R v Berton unreport. NSWDC 22 February 2017 R v Webber [2004] UKHL 1 R v Beckles [2005] 1 All ER 705 R v Maguire [2008] EWCA Crim 1028 Category: Principal judgment Parties: Regina - Crown Tyson Peter Egan - Accused Representation: Counsel: Ms S Oliver – Crown Mr S Corish – Accused Solicitors: Director of Public Prosecutions Ritchie Lawyers File Number(s): 2015/00296061 Judgment 1. This application relates to the effect to be given to s 89A of the Evidence Act where it is not disputed that; 1. The offence is a serious indictable offence, namely unlawful killing. 2. The accused was given a caution in the terms set out in s 89A (9). 3. The accused was allowed to, and did consult, with a legal practitioner who was present and that consultation occurred in the absence of the investigators. 4. There is other evidence which could be regarded as inculpating the accused, apart from his failure or refusal to mention a fact, which is a reference of course to s 89A(5) and, 5. The accused was both cautioned in the ordinary manner and also given a special caution. 1. The offence under investigation occurred at about 10.30pm on 3 October 2015 when the deceased was punched to the head by the accused, fell back, struck his head on the roadway, suffered a severe fracture of the scull and brain damage and subsequently died on 6 October 2015 at the John Hunter Hospital. 2. There were a number of witnesses to what occurred. They were all, apart from one witness, but including the deceased, a group of young people, male and female, who had been celebrating one of their birthdays. Alcohol and methylamphetamine are factors to be taken into consideration. The police were called. At the scene, as the victim was being placed in an ambulance, police asked the accused what happened. He said an unidentified stranger had punched the deceased and run-off. That version was confirmed by his friend, Mr Wain. No one else in the group allegedly saw what had happened, or that is what they told the police. 3. On the morning of 4 October 2015, both the accused and Mr Wain made detailed witness statements to police confirming their earlier oral accounts. Apparently two unidentified persons informed police that it was the accused who had punched the deceased. Police then obtained a telephone intercept warrant on the accused's phone. 4. On 6 and 7 October 2015 there are a number of recorded conversations between the accused and other persons in which it could be said that the accused encouraged others to maintain their silence or their deception although, towards the end of the intercepts, it seems to be clear that the accused talks of going to the police and telling the truth. 5. A number of witnesses who made written statements to police later made further statements retracting what they had previously said. At 8.15pm on 7 October, the accused attended the police with his father and was given his rights. It was indicated by them to the police that they wanted to get legal advice and they left. 6. On 9 October at 2.30pm Mr Egan was arrested. Again, he was administered his rights and attempts were made to contact his former solicitor. Contact was not made and at 5.35pm he was cautioned and interviewed on camera. He declined to answer questions until he had been legally advised. At 6.15pm whilst being charged, his former solicitor contacted police to advise that he would be attending. The former solicitor arrived at 7.07pm and spoke privately with the accused until 7.21pm. At 7.27 a second electronic record of interview was commenced. 7. So at 7.27 the second record of interview was commenced with his former solicitor being present. At question 8 he was administered the special caution in this way; "Okay so Tyson I'm going to ask you some questions about the death of Kyle Watkins, okay? I just want to, I'll say that you do not have to say or do anything. Anything you say or do may be used in evidence against you. You may harm your defence if you fail or refuse to mention something that you may later seek to rely on in Court, do you understand that?" 1. To which he responded "Yes." At 7.31 the interview was suspected again so that Mr Egan could speak privately with his former solicitor. The interview then recommenced at 7.38. At question 26 and following this dialogue occurred; Q26. Okay, in fairness to you and in the presence of your solicitor, well I'd like to put the allegation to you again, is that okay? A. Yes. Q27. All right. At about 10.25pm on Saturday 3 October 2015, did you punch Kyle Watkins in the vicinity of West High Street and Lyster Street Coffs Harbour which resulted in him falling onto the roadway and hitting his head on the bitumen which ultimately resulted in his death? A. No comment. Q28. Okay, do you wish to answer any questions that we may have in relation to this matter at this point of time? A. No, I don't think so." 1. Question 27 had previously been asked of Mr Egan in the earlier interview and he had indicated in response to that question at that time "No comment" because he wished to get legal advice. It is now apparent from the evidence of other witnesses that an issue of self-defence is raised. There appears to be little doubt that the deceased had been acting violently and bizarrely towards others in the group and towards objects that he encountered. If accepted, there is evidence that the accused was, at all times, trying to calm the deceased down and it was ultimately punched by the deceased at least once and possibly a number of times after which the accused retaliated by himself punching the deceased. 2. The Crown seeks a direction in regard to the fact that the accused did not, at any time, raise self-defence as an issue with the police. That is opposed by the defence. It is argued that because there was a refusal to be interviewed, there was in fact no relevant official questioning. 3. The authority for this proposition is R v Jafary [2016] NSWDC 41, which was substantially followed in R v Reaiche (unreported) New South Wales District Court of 20 July 2016. Another case of R v Berton (unreported) New South Wales District Court of 22 February 2017 has also been referred to by counsel, but the factual basis for her Honour's decision in that case makes that case really not relevant to the present matter and her Honour was not asked to consider the issues that arose in Jafary and Reaiche. 4. In Jafary, his Honour said at paras 11 and 12; "One must wonder if an inference was to be drawn, what inference could be drawn from the fact that a person is cautioned and told that they in fact have the right to remain silent if they wish. Then the person notes the caution without any particular proposition to comment upon. There could be no relevant matter in the context of the particular questions asked that the accused could not reasonably have been expected to mention in the circumstances existing at the time that may be relied upon in his defence in the proceedings. In my view the terms of section 89A are not engaged because in the context to what questions asked,"-- I think that might be an error-- "in the context of the questions asked, it could not be seen to be official questioning such as to reasonably illicit an answer within the knowledge of the accused that he could reasonably give at the relevant time." 1. His Honour then referred to and extracted in paras 14, 15 and 16, a number of parts of the second reading speech by the then Attorney General. His Honour went on to say at para 17; "The relevant inference adverse to the accused is to be seen in the light that the defendant having the opportunity in answer to official questioning to make a particular representation that would disclose a fact or not by the exercise of silence that could reasonably be expected to be within the suspects knowledge at the time of the relevant questioning." 1. At para 18; "In my view having regard to the terms of the section there was no relevant official questioning here in respect of which the accused silence which was a refusal to be interviewed could operate to engage the relevant provision. A refusal to be interviewed consistent with a suspect's right not to be interviewed usually allows no opportunity to mention a fact or facts that may be relied upon at a later time. It follows that I cannot see in this matter either by consideration of the expression of official questioning or of what might be reasonable to draw from the accused's unwillingness to be interviewed, having been told that he did not have to participate in an interview, any matter that would constitute an unfavourable inference." 1. As far as I can tell from that matter, all that had happened there was that the special caution had been given and that was the end of the matter. 2. In the case of Reaiche, His Honour set out in full s89A section, and again, it was a situation where the accused was asked if he wanted to participate in an interview, the special caution was given, there was a declination to participate in the interview and nothing further happened. 3. His Honour in Reaiche referred to the earlier decision of Jafary. At p 13 of the Reaiche judgment, his Honour said, "Section 89A does not, in my view abrogate the right to silence," and in the following paragraph; "No mention is later made in the context of the special caution. If any particular containing or identifying any detail, whether it be the date, location or circumstances which may at least take the accused's mind to the allegation and which, in turn, may then to the conclusion that the accused would or could mention a fact that he could reasonably be expected to mention at the time." 1. His Honour then said "With respect, I do not necessarily adopt the terms that Judge Norrish adopted that is "relevant official questioning." In the circumstances I do not think it is necessary to give a particular or specific further description for that which is defined under the Act. But applying common sense and interpretation to the circumstances, it seems to me that there should be at least some stimulus which - identifies with some particular clarity the allegation that was being put, and as I say, that can be differentiated from mere assertion of rights and of obligations". 1. Section 89A(9) defines official questioning of a defendant as meaning any; "questions put to the defendant by an investigating official who at the time was performing functions in connection with the investigation of the commission, or possible commission of the serious indictable offence." 1. I would disagree with Jafary in placing any qualifiers on the definition of official questioning, such as the term "relevant." Once police have decided to formerly caution an offender and proceed in accordance with the provisions of the law, for example, under the LEPRA Act, the Evidence Act or the Criminal Procedure Act, in my view, they are then embarked on official questioning. 2. The definition in the legislation does not seek to separate preliminary questioning from any other questioning provided it is official and is, by an investigating officer performing functions in connection with the investigation of a serious indictable offence. In the present case there can be little doubt that this is what was happening. Given the lack of higher court authority, one needs to balance the language of the legislation that has been used with what has been said by the legislating politicians as to what they thought the effect of the legislation was supposed to be. 3. It seems quite clear, particularly after looking at similar United Kingdom legislation referred to in authorities, such R v Webber [2004] UKHL 1, R v Beckles [2005] 1 All ER 705 and R v Maguire [2008] EWCA Crim 1028, that this provision seeks to apply common sense to the interview situation. 4. As was said in Maguire in para 9; "With or without a direction under section 34, the Crown's case was plainly going to be that the defendant's evidence was shown to be untruthful partly by other evidence in the case which contradicted it but also by the way his account had changed." 1. In Paragraph 10; "all that said, section 34," (which I am presuming is the English equivalent) "does no more than seek to apply commonsense. That is clear from the decision of their Lordships in Webber. The question which section 34 direction raises is always whether the omission to refer to something in an interview, which appears later in evidence is or is not an indication that the new material is untruthful. The expression "fact" in that section is to be given a broad construction so as to serve that purpose. In a number of cases, including Webber, the Courts have deprecated any attempt to subject the expression "fact" to over-analysis." 1. In Paragraph 11; 2. "We respectfully add our discouragement to anything which over formalises common sense. We would caution advocates against making submissions which seek such unnecessary formalism from judges in their directions and equally judges against employing it unless it becomes essential." 3. In Beckles, it was held that; "where a solicitor's advice was relied upon by a defendant, the ultimate question for the jury under s 34 remained whether the facts relied on at the trial were facts which the defendant could reasonably have been expected to mention at interview. If they were not, that was the end of the matter. If, however, the jury considered the defendant genuinely relied on the advice, that was not necessarily the end of the matter. It might still not have been reason for him to rely on the advice or the advice might not have been the true explanation for his silence. His reasonableness in not mentioning the facts remained to be determined by the jury. If they concluded that he was acting unreasonably they could draw an adverse inference from the failure to mention the facts." 1. Finally, in Webber, at para 33 the Court said, "Since the object of section 34 is to bring the law back into line with common sense we think it clear that fact, the word fact, should be given a broader not a narrower or pedantic meaning. The word covers any alleged fact which is in issue and is put forward as part of the defence case. If the defendant advances at trial any pure fact or exculpatory explanation or account which, if it were true, he could reasonably have been expected to advance earlier, section 34 is potentially applicable. When directing the jury in this case, the trial judge made repeated reference to fact or matter which is consistent with a reference to something in the caution and in our view, expresses the meaning of the subsection." 1. Section 89A(1) reads as follows; "In a criminal proceeding for a serious indictable offence such unfavourable inferences may be drawn as appear proper from evidence that during official questioning in relation to the offence, the defendant failed or refused to mention a fact: a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and b) that is relied on his or her defence in that proceeding. " 1. The accused, at trial, now relies on the legal concept of self-defence, which of course, is a proposition that the Crown now has to negative beyond reasonable doubt. On the facts now known, self-defence must have been on the accused mind at the time of the offence and certainly thereafter and prior to his interview on 9 October. The fact that a person does not raise that issue in circumstances where that person has denied any involvement in the deceased's death must be a relevant consideration for a jury, despite the fact that, subsequent to the declining to answer any questions, the accused then admitted that he was the person who started the chain of causation leading to the victim's death by punching the deceased. 2. Section 89A does not abolish the s 89 right to silence but it does qualify it in certain circumstances. Those circumstances are surrounded by safeguards that are not required in regard to s 89. In particular, s 89A only applies to 1. a serious indictable offence; 2. persons who are over the age of 18 who are able to understand the effect of the special caution; 3. that that person has private access to a legal practitioner to enable a reasonable opportunity to obtain advice; 4. there must be other evidence of the defendant's guilt; and 5. the caution must be given in the presence of a legal practitioner. 1. As was said in the Judicial Commission's, Special Bulletin 1 of August 2013, "it should be noted that any unfavourable inference arises because of the admission to mention a fact later relied upon and not because the defendant merely remained silent. The general right of silence remains and would be infringed if the defendant were convicted solely upon an inference rising under the provision. Section 89A(5) does not permit that situation. A trial judge would be required to remind a jury of the general right of silence if the jury were instructed on the availability of an adverse inference". 2. The effect that s 89A is to give a defendant a fully protected opportunity to tell investigators, at an early stage of investigation, anything that the defendant intends to rely on in his defence of the charge. 3. This would include things such as an alibi, self-defence, provocation, accident, inadvertence, a claim of right or other entitlement or a denial of possession. In the present case, had the accused raised self-defence when questioned, the Director of Public Prosecutions may well have decided not to proceed with the matter or at least to proceed with it by way of a less serious charge. It seems to me to be clear, having a regard to s 89A(5)(b), that section 89A contemplates the refusal to answer any questions at all as being able to be used as an unfavourable inference against a defendant, provided that it is not the only evidence of guilt that is relied upon by the Crown. 4. If a s 89A unfavourable inference cannot be used in circumstances where, after a special caution is given, the defendant declines, whether or not on legal advice, to answer any questions, there would be no point in having a special caution at all as it would serve no particular purpose. 5. In my view, official questioning is not restricted to questions solely relating to matters of fact surrounding a crime or a suspect. Official questioning involves the lead up to, and the giving of a special caution, and what then follows thereafter. Whether on legal advice or not, a defendant who declines to say anything in answer to an allegation, after being given a special caution, but who then later relies on a fact that could have been stated at the time, may risk an unfavourable inference being drawn against him or her, even, if the facts are not fully explored in the interview. 6. The unfavourable inference in the present case, it seems to me, goes to the accused's state of mind at the time that he struck the victim. That is, it goes to (a), whether in fact, he felt threatened by the deceased's behaviour and (b), whether what he did was, in fact, a reasonable response to that perceived threat, as he saw it. 7. There is a difference between the United Kingdom system and New South Wales s 89A, in that the special caution is now the routine caution administered to all offenders arrested by police in the UK. There is an additional factor operating in the United Kingdom, in that it is routine for offenders to have a lawyer present, by way of a duty solicitor scheme, whenever a suspect is being questioned by the police about any offence. 8. That is not necessarily the case in New South Wales, outside the operation of s 89A. As stated above, s 89A does not abolish the right to silence. Guilt of a charged offence cannot be inferred from exercising the right to silence, even after a special caution has been administered. 9. But, if nothing is said to the investigator about a fact that is later relied on in evidence, s 89A allows a jury to draw an unfavourable inference against an accused, in relation to that particular fact. Of course, an unfavourable inference must be the only inference that can be drawn from the circumstances, and it is an inference that has to be proved beyond a reasonable doubt. The fact that someone later uses evidence not disclosed after a special caution cannot and does not equate to the guilt of that person, but it may go to issues of credibility, reliability and character. 10. In the present case, the evidence of the special caution is, in my view, admissible. Whether in the long run it will substantially affect the case, still remains to be seen as the evidence has not yet concluded. The English Courts have recognised that even if such a caution is given, it does not necessarily mean that the jury should receive the standard s 34 direction in all such cases. 11. As I indicated earlier, in my view, this evidence is admissible. ********** 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 December 2017