R v Latu (No 2) [2018] NSWSC 1913

Supreme Court New South Wales

Medium Neutral Citation: R v Latu (No 2) [2018] NSWSC 1913 Hearing dates: 14 November 2018 Date of orders: 15 November 2018 Decision date: 13 December 2018 Jurisdiction: Common Law - Criminal Before: Lonergan J Decision: The admissions contained within paragraphs 7 and 14 of the statement of Allen and paragraphs 20, 27 and 28 of the statement of Micallef-Scheffer are admissions that are taken in circumstances that do not comply with s 281 of the Criminal Procedure Act and accordingly that evidence cannot be adduced. Catchwords: EVIDENCE – admissions made to police – admissions not recorded – investigating official – official questioning – reasonable suspicion Legislation Cited: Crimes Act 1900 (NSW) s 424A Criminal Procedure Act 1986 (NSW) s 281 Cases Cited: Lin v R; Lv v R [2017] NSWCCA 148 R v Sharp (2003) 143 A Crim R 344; [2003] NSWSC 1117 R v Taouk [2005] NSWCCA 155 Category: Procedural and other rulings Parties: Regina (Crown) Onitolosi Etuini Atiai Latu (Accused) Representation: Counsel: G Newton (Crown) G Woods QC (Accused)

Solicitors: Director of Public Prosecutions (Crown) Just Defence Lawyers (Accused) File Number(s): 2016/237325

Judgment 1. The accused has been charged with the murder of Rhonda Baker on or about 7 August 2016 at Liverpool and other places in the State of New South Wales. 2. Towards the end of day four of the trial before a jury of twelve, an issue arose regarding the admissibility of certain admissions made by the accused to first responding police who attended the apartment at Bathurst Street, Liverpool at about 4.37am on Sunday 7 August 2016. 3. The admissions in issue were recorded in first person conversation form in the statements of Constable Richard Allen and Constable Blake Micallef-Scheffer. 4. The issue was first raised by Senior Counsel for the accused just prior to the planned calling of those two officers. 5. The Crown opened on the accused having given various accounts as to where he had been in the hours prior to the 000 call he made at 4.32am. The first account he gave to an attending paramedic was that he had been visiting family in Narwee. The second version to officers Allen and Micallef-Scheffer was that he had been with a mate in Auburn. The third version given at a later point in answer to questions asked by Allen and Micallef-Scheffer was that he was with "mates in the city". There was also a fourth version given in the ERISP conducted by Detective Senior Constable Dack and Sergeant Houldin after 8.24am at the Liverpool Police Station. This was to the effect that he was out in Auburn and other places with a number of people, one of whom he named, who was a person he had in fact been with earlier in the night. 6. It is most unfortunate that this issue has arisen late in the proceedings, I have been informed, and I accept, that this matter was the subject of discussions and negotiations between Senior Counsel for the accused and the Crown prior to commencement of the trial. I also accept that the way these discussions were resolved meant that the Crown opened on the four different accounts. 7. No issue was raised at the close of the Crown's opening address regarding the inclusion of those four accounts in the opening. 8. The defence position now is that for an identifiable point during what quickly became questioning by investigating officials, Micallef-Scheffer and Allen, the accused was a suspect or a person who "could reasonably have been suspected of having committed a criminal offence", and the questioning should have been electronically recorded, and if not recorded then should have been put to the accused in the ERISP conducted a few hours later at Liverpool Police Station. To fail to do so amounts to a breach of s 281 of the Criminal Procedure Act and the admissions that were made after the point are not admissible. 9. On 14 and 15 November 2018, I ruled those parts of the statements and the admissions contained within them inadmissible. These are my reasons for that ruling.