Supreme Court New South Wales Medium Neutral Citation: R v Cliff (No 2) [2018] NSWSC 226 Hearing dates: 6 February 2018 Date of orders: 06 February 2018 Decision date: 06 February 2018 Jurisdiction: Common Law Before: Campbell J Decision: I will not permit the statement in paragraph 4 of Ex VD B which I have identified in these reasons to be led before the jury Catchwords: CRIMINAL LAW – "official questioning" - consciousness of guilt - unusual circumstances - unfair prejudicial effect outweighs probative value Legislation Cited: Civil Procedure Act 1986 (NSW), s 281 Evidence Act 1995 (Cth), ss 90, 137, 138, 139, 192 Cases Cited: Donohoe v R [2017] NSWCCA 174; R v Sharp [2003] NSWSC 1117; 143 A Crim R 344 Texts Cited: Nil Category: Procedural and other rulings Parties: Regina (Crown) Bryce Cliff (Accused) Representation: Counsel: M Pincott (Crown) E Wilson SC (Accused) Solicitor: M McFarlane (Office Director of Public Prosecutions) (Crown) A Van der Velde (Matouk Joyner Lawyers) (Accused) File Number(s): 2016/175505 EX TEMPORE Judgment (REVISED) 1. I am required to rule in advance of the taking of evidence in the trial on the admissibility of a passage of evidence the prosecution wish to lead. The evidence will be sought to be elicited from a Mr Kenneth Astrup who at the time these events occurred in June 2016 was a Senior Constable of police and had a role in the police investigation into the death of James Cleghorn. It fell to him to conduct the accused to the Wagga Wagga Rural Referral Hospital, after he was arrested, to have his complaints of injuries checked by a doctor. While Mr Cliff was at the hospital he was medically examined and underwent x‑rays. Contentious evidence 1. The passage containing the evidence sought to be led is to be found in a second statement of Mr Astrup made on 20 July 2016 and admitted on the voir dire as Ex VD B. It is necessary to set it out in full. At paragraph 4, page 2 of the statement Mr Astrup recounts a conversation he said occurred at the hospital between him and the accused. The dialogue commenced with the accused making a complaint about the delay at the hospital, even though, such a delay is perhaps not unusual to those who have been required to attend a public hospital emergency department for treatment. In any event after an exchange about that matter Mr Astrup continued. What I am about to recount extends slightly beyond the passage the prosecution seek to tender but it is necessary to add a little extra to put it in context. Mr Astrup said, the accused became agitated and said: "So tell me again why I am here and not that other cunt." I interpolate it is necessary for me to recount it as said acknowledging that the language used was not that normally used between people in polite company. I continue the quote: "I said, "Like I said, it's just being investigated." He said and with an increase in volume, "Yes but it's fucked, your investigation is fucked, you cops are fuck heads." I said, "It's just being investigated, that's all." He said, "Your investigation is a joke, you're a joke too." I said, "It's a joke is it? A 16 year old boy is dead, how the fuck is that a joke." The accused paused, looked at me and said, "What did you just say?" I said, "You heard me." He said, "You serious?" I said, "Yes, I'm sorry, he's dead." The accused put his face into his hands and started crying. After about 20‑30 seconds the accused said, "Why didn't you tell me earlier, you would have known." I said, "Because it's not my place to tell you, I shouldn't have told you but you really pissed me off when you kept saying, "It's a joke." He said, "It's not a joke." I said, "No it's not." He sobbed for about 10 to 15 seconds and then sat up straight in the chair slightly shaking his head and with clenched teeth said, "I'll fucking kill him, I'll kill that cunt, I'm not going down for this, no I'll kill his dog, I'll kill his dog in front of him and then I'll kill him." I said, "Just calm yourself Bryce." The Crown rely upon that passage and especially the concluding exchange as an implied admission in the nature of evidence which portrays a consciousness of guilt. Other relevant facts 1. To make clear what I mean in the circumstances of the case it is necessary to also relate that at the point of his arrest or soon thereafter the accused was questioned by Detective Senior Constable Scott McFarland, the officer in charge of the police investigation. That questioning was the subject of a video recording in the field. After Detective McFarland informed the accused that he was then under arrest for a robbery, the detail of which is unnecessary to go into now, administered what is referred to as a 'caution' and then proceeded to ask questions about the events which occurred earlier that evening. 2. I emphasise this because it is quite clear from the account given by the accused that although he was not then informed of the demise of the deceased he gave an account of an exchange of violence involving him and the deceased and a person who may be taken to be the deceased's downstairs neighbour, a Mr Wade Garland, who it is expected will give evidence in the Crown case. Mr Garland may be taken to be the man with the dog referred to by the accused. 3. The accused has pleaded not guilty to the murder of the deceased but has pleaded guilty to manslaughter and it has been made clear that there is no issue in the trial that his voluntary act caused the death of the deceased nor is there any dispute about the nature of that act, involving, as it did, the infliction of multiple stab wounds, perhaps as many as thirty. I am told the forensic evidence will be that one stab wound to the left side of the chest was fatal. 4. In that context, the evidence of the interview with Detective McFarland may be admissible as an implied admission because it's quite clear that the account in summary terms then given is that while the accused was talking to the deceased, Mr Garland violently intervened in that discussion by coming upstairs into the apartment and assaulting them both with what I am to believe was a dog chain. The accused also made reference to someone, it is not entirely clear, obtaining a knife. But as I have said, the tenor of the account he then gave, is that he and the deceased were victims of an attack initiated by Mr Garland. It may be taken for present purposes that that account is false. Nature of the objection and issue 1. I return to the evidence of Mr Astrup. Mr Wilson of Senior Counsel who appears for the accused, objects to the admission of the evidence. He says that the alleged implied admission is evidence which is excluded by the provisions of s 281 of the Civil Procedure Act 1986 (NSW) ("Civil Procedure Act") which must be read in conjunction with relevant provisions of the Evidence Act 1995 (Cth) ("Evidence Act"), including ss 90, 137 and possibly 138 and 139. 2. There is no doubt that the conversation between Mr Astrup and the accused was not recorded, and although one could perhaps conjure an explanation for that which may be reasonable to satisfy the provisions of s 281(2) of the Civil Procedure Act, no explanation has been given for the failure to attempt to obtain an acknowledgement of the contents of the conversation soon after. However, the real issue in relation to the matter concerns whether the purported or putative admission was made in the course of official questioning. The exclusionary rule 1. "Official questioning" is a defined term in s 281(4) of the Civil Procedure Act: "Official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. The learned Crown Prosecutor, Mr Pincott of Counsel, argues that the exchange between Mr Astrup and the accused did not occur in the course of "official questioning", notwithstanding the circumstance that Mr Astrup was a police officer discharging his duties, restraining the accused at hospital to prevent any possibility of an escape. 1. I have been taken by learned counsel on both sides of the record, to a number of leading cases. I will not analyse them all but it is quite clear that the interpretation afforded in s 281 of the Civil Procedure Act recognises that not every interaction of a police officer and a person of interest, or a suspect, in the course of what might broadly be called a criminal investigation, qualifies as "official questioning". 2. One needs to bear in mind, of course, when deciding whether a particular conversation falls within the legal meaning of "official questioning", the legislative purpose of a provision primarily enacted to ensure compliance with proper police standards in the conduct of criminal investigations, and in particular the mischief sought to be addressed by the enactment of legislation like s 281 and its predecessors which is the abolition of the previously notorious, so-called "police verbal." With those things in mind, I have derived the greatest assistance from the decision of Howie J in R v Sharp [2003] NSWSC 1117; 143 A Crim R 344, at [21]. His Honour said: "I wish to emphasise that, in my opinion, the court is required to make an objective assessment of the circumstances surrounding the making of the alleged admission in determining both whether it was made during official questioning and whether there is a reasonable excuse in failing to electronically record it. If my view of official questioning is correct, it would follow that, if the police officer did not foresee that a response might be given to the statement or question made to the suspect but ought to have done so, the conversation would amount to "official questioning". To that extent the conduct of the police officer is subject to the court's review so far as the admissibility of any admission allegedly made by the accused is concerned." His Honour also said (at [24]): "...the intention of the police officer cannot take the conversation outside the scope of the provision if otherwise it falls within the meaning of "official questioning"." And further (at [25]): "It has to be accepted as a matter of common sense, that not all conversations with suspected persons will amount to "official questioning" and it is impracticable to require that police officers be in a position to record any statement made to them by a suspect howsoever it might occur. On the other-hand clearly the courts should be vigilant to ensure that admissions are not induced from suspects under the colour of "innocent" or casual conversations. But that is not the present case." Decision on admissibility 1. Looking at all the circumstances of the exchange between the former Senior Constable Astrup and the accused, to form my own conclusion objectively about whether what occurred comes within the statutory description of "official questioning", I have come to the conclusion that it does not. There are a number of factors that have led me to this view. The first is that notwithstanding the fact that the accused was clearly under arrest and Mr Astrup was discharging his duties as a police officer, his role was then not that of an investigator. His role was more as a guard, as I have said, to deprive the accused of any opportunity for escape and to exert lawful custody over him. Moreover, it seems to me that the material part of what was said by the applicant was not elicited from him in response to any words on the part of Mr Astrup which could fall within the ordinary meaning of questioning. 2. It is true that what he said, which I will return to in a moment, was in the form of a question: he said, "It's a joke is it? A 16 year old boy is dead, how the fuck is that a joke?" But I accept the submission on behalf of the Crown that that was in the nature of a rhetorical statement or a rhetorical question, one not in fact seeking to elicit any response from the accused, and indeed a question which clearly in the circumstances required no answer, for it answered itself. 3. Those circumstances to my mind are critical and the matter falls, I think, within the same category discussed by Howie J in Sharp, and also by Fullerton J in Donohoe v R [ 2017] NSWCCA 174, Hoeben CJ at CL and Garling J agreeing. Discretionary exclusion 1. However, that is not the end of the question of admissibility. As I have implied, Mr Wilson argued that even were I satisfied that the proposed evidence was not excluded by s 281 of the Civil Procedure Act, I should exclude it either under the provisions of s 137 of the Evidence Act, or in the exercise of my discretion under s 90 of the Evidence Act. Quite clearly, s 90 of the Evidence Act may be applicable in the present circumstances. The only relevance of the evidence is as an admission in the way I have explained. Section 90 of the Evidence Act provides the following: In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if; a) the evidence is adduced by the prosecution, and b) having regard to the circumstances in which the admission was made, it would be unfair to the defendant to use the evidence. 1. Section 90 unlike s 137 confers a discretion, and the touchstone of the exercise of the discretion does not depend upon an evaluative comparison of probative significance and unfair prejudice, but rather looks to the circumstances to decide whether it is unfair to a defendant to use the evidence. Given that a discretionary decision is called for I bear in mind the provisions of s 192 of the Evidence Act in terms of the significant matters which come to mind when exercising the discretion. Decision 1. The most significant issue in the case on the information, I presently have available, will be whether the Crown can prove to the jury's actual satisfaction beyond reasonable doubt that when the accused stabbed the deceased the accused had the actual, specific intent of inflicting really serious physical injury upon the deceased. 2. In those circumstances it seems to me that it would be unfair to admit this evidence for a number of reasons. The admission was elicited in very unusual circumstances. That is to say, although the accused was, on the evidence I have heard so far, acting in an agitated and perhaps belligerent manner, the experienced police officer in whose custody he was had descended into the same degree of agitation in making what I have referred to as the rhetorical statement. That was inappropriate. It was inappropriate because it was not his role in any way to interrogate or question the accused about the events subject to the charge. The accused at that time had no knowledge that the deceased had died, and that information came to him, as I think his response indicates, as a 'bolt from the blue'. It was poor practice on the part of Mr Astrup, with respect, to engage in that outburst given that that was a matter, doubtless that, had to be handled with some care and sensitivity by the investigating detectives who would have had a legitimate interest in putting that information to the accused in their own way. Indeed, Mr Astrup himself as an experienced police officer did not initially think it important to bring it to the attention of his superiors and did not include these details in his first statement, Ex VD A of 16 June 2016. 3. Moreover, in circumstances where intention is the primary issue in the case, to allow evidence in these unusual circumstances to go in that the accused expressed an intention to kill not only Mr Garland but also his dog must be highly prejudicial. It leaves it well open to the jury to reason in an impermissible and illogical way. They may emotively think that if a man, on the very night, or within some hours, of the deceased being killed, threatens to kill a person and his dog, he is the very type of person who might take it into his head to kill or seriously injure Mr Cleghorn and, as it turns out, for no particularly good reason. 4. Now, I have borne in mind that it may well be that some direction can be fashioned explaining to the jury that it would be impermissible for them to reason in that fashion. But I asked counsel in the course of argument to suggest to me what I would say to dispel that type of emotive response and with respect neither was able to suggest something to me that would be apt for that purpose. In the hours I have taken to consider the case I have done no better. 5. I also bear in mind that the Crown will have available to it, presumably, the content of the interview with Detective Senior Constable McFarland which is to the same effect. I think little is detracted from whatever weight the jury might think that evidence deserves by the absence of a later, broadly similar statement. The evidence of Mr Astrup in that sense is purely cumulative. No party has an obligation to call cumulative evidence, and the fact that such evidence may be called does not necessarily increase the weight of the evidence upon which it is accumulated. 6. That leads me to the final point. It seems to me that this particular evidence in the circumstances in which it fell out is not of any significant weight of itself even in conjunction with other relevant evidence. 7. For the reasons I have stated I think it would be unfair in the circumstances of this case to the accused to allow that evidence to be given. 8. From the way I have expressed myself I think it also follows that on analysis I am of the view that the unfair prejudicial effect of the evidence outweighs its probative value, and in any event had I not come to the conclusion I should exclude it on the basis of my discretion, I would have been required to exclude it under the provisions of s 137 of the Evidence Act. 9. My ruling is that I will not permit the statement in paragraph 4 of Ex VD B which I have identified in these reasons to be led before the jury. ********** 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: 28 February 2018