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. The admissions in issue 1. The impugned parts of the statement of Constable Allen are paragraphs 7 and 14: 7 Constable MICALLEF-SCHEFFER then returned outside. Constable MICALLEF-SCHEFFER said: "Who was cutting their hair in the bathroom" LATU said: "me" I said: "But I thought she was in the bathroom?" LATU said: "Yeah I was cutting my hair while I was talking with her." Constable MICALLEF-SCHEFFER said: "When did you shave your head" LATU said: "When I got home tonight" Constable MICALLEFF-SCHEFFER said: "So you come home and saw that your missus had been jumped and you decide to shave your head?" LATU said: "Yeah" I said: "Where were you tonight?" LATU said: "In the city with mates" Constable MICALLEF-SCHEFFER said: "which mates? You understand were [sic] going to need to speak with them to check what your [sic] saying is true" LATU said: "Yeah, yeah" Constable MICALLEF-SCHEFFER returned inside the unit. And later: 14 Upon exiting the unit I handed these clothes to LATU. LATU said: "These aren't mine, these are girls". I said: these were the only clothes in that bedroom, where's your stuff?" LATU said: "She put it all in a bag in the lounge room" I said: "why" LATU said: "We were having an argument" Constable SCHEFFER [sic] said: "When was this" LATU said: "Yesterday" 1. The impugned parts of Micallef-Scheffer's statement are paragraphs 20, 27 and 28: 20 I walked back outside with Constable ALLEN and LATU. I said: "Whose hair is that in the bathroom?" LATU said: "Mine". I said: "When did you shave your head?" LATU said: "When I got home tonight". I said: "So you came home and saw your Missus had been jumped and decided to shave your head?" LATU said: "Yeah" Constable ALLEN said: "Where were you tonight?" LATU said: "I was out with mates in the city". I said: "Which mates? You understand we're going to need to speak with them to check what you're saying is true" LATU said: "Yeah, yeah". … 27 The night was very cold and LATU requested some warmer clothing from inside the house. Constable ALLEN offered to get LATU some warm clothing from inside the apartment. Constable ALLEN entered the apartment and came back out about five minutes later. He handed LATU a pair of tracksuit pants and a hooded jacket. LATU said: "These aren't mine, these are a girls". Constable Allen said: "There was only girl clothes in the bedroom. Where's all your stuff?" LATU said: "She put it all in a bag in the lounge room" Constable ALLEN said: "Why?" LATU said: "We were having an argument" I said: "When was this?" LATU said: "Yesterday" 28 LATU detailed the location of all his clothing. It had all been put in a large bag in the middle of the lounge room. Constable ALLEN went to get LATU some warmer clothing from within the bag. I said: "Ok so where were you tonight again?" LATU said: "I was out with a mate at Auburn" I said: "Where was your Missus when this was happening?" LATU said: "I dropped her home before then and drove out to Auburn. I thought she stayed home". Principles 1. Section 281 of the Criminal Procedure Act 1986 (NSW) provides as follows: 281 Admissions by suspects (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) … (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. In Lin v R; Lv v R [2017] NSWCCA 148 at [60], Garling J (Hoeben CJ at CL and Bellew J agreeing) quoted with approval the decision of Howie J in R v Sharp (2003) 143 A Crim R 344; [2003] NSWSC 1117 on the policy considerations of s 281 (at [17]): "[17] The policy behind the legislation is, as I have stated, obvious. It is an attempt to limit the opportunities both for a police officer to fabricate the making of an admission by a suspect, and for an accused person to challenge evidence of the making of an admission at a trial of a criminal offence. However, Parliament could have gone further in that endeavour, had it wished to do so. It could have required that any admission, allegedly made by a suspect, be inadmissible unless electronically recorded. If the legislation had been to that effect, it would have been irrelevant whether the admission occurred in questioning or otherwise. But it did not do so, and there is nothing in the Second Reading Speech to indicate that its purpose was other than to regulate police questioning. It is, in my view, inappropriate for the courts to interpret the legislation to bring about that result, however desirable it may be. There can be no doubt about the meaning of the word "questioning" and there is no occasion to give it any other meaning than it generally possesses." 1. In effect, that position, and the legislation, recognises that there may be dynamic situations where admissions are made at an early time after arrival of police where there is no clarity as to what has happened, but police questions may be considered "official questioning". So long as there is a reasonable excuse for not recording the admissions then or shortly after, evidence of those admissions can be received. Evidence taken on the voir dire 1. The Crown tendered the Statements of both officers as well as their relevant notebook entries and the ERISP. The notebook entries were completed shortly after the events – within an hour or so. The statements were commenced the following night but completed and signed later. 2. The accused participated in an ERISP on 7 August 2016 commencing at 8.24am. That interview was conducted by Detective Senior Constable Dack and Detective Senior Sergeant Houldin. The Crown conceded that in no part of that ERISP were the admissions made to Allen and Micallef-Scheffer revisited or put to the accused for him to reject or accept that they were made by him. 3. Both Allen and Micallef-Scheffer gave oral evidence and were vigorously cross-examined. Detective Senior Sergeant Houldin also gave evidence and was cross-examined. I accept that each officer gave a truthful, considered account of their recollections. 4. Allen and Micallef-Scheffer were met with a confusing, chaotic situation at the unit which was unexpected and not consistent with what they had initially been told. They had been asked to attend an "ambulance job" which meant they were to attend to assist ambulance personnel. They arrived to see Ms Baker on the floor of the lounge room being given CPR by two ambulance officers. It was apparent her face had been severely beaten. Apart from those ambulance officers and the two ambulance officers that arrived with them, the only other person present was the accused who is described by Allen and Micallef-Scheffer as "agitated", dressed in boxer shorts and a t-shirt. 5. It is reasonable to conclude, and senior counsel for the accused conceded, that given the circumstances, the first conversation with the accused was not affected by s 281 in that it did not yet amount to "official questioning" as defined in s 281. In that initial (unimpugned) exchange, the accused said that he had come home from a mate's house in Auburn at about 4am and that Ms Baker had told him that she had been "jumped" down the road somewhere in Liverpool and that she "passed out" 15 minutes ago. It is the later conversations and events that led to s 281 issues arising. (i) Micallef-Scheffer 1. Micallef-Scheffer described Ms Baker's appearance on their arrival as follows: "9 …BAKER was lying on her back with her arms splayed out. Her eyes were closed and she appeared to be unconscious. Her face appeared to be severely bruised. These bruises were purple in colour and appeared very new. One of her eyes was very swollen. I immediately formed the opinion that she had assaulted [sic] to the head very badly. She was wearing dark pants which I believe were tights. She was topless. A paramedic was performing CPR on her. A bra, which I believed to be hers, was lying close to her feet." 1. Micallef-Scheffer was of the view that the version given by the accused did not seem to make sense, and that the accused did not seem concerned about who had attacked his partner. He saw blood on rags in the main bathroom but did not locate any large amount of blood within the apartment. 2. A little while later, one of the paramedics told Micaleff-Scheffer that Ms Baker was in a very bad state and may not survive and that she had suffered a cardiac arrest due to trauma. 3. Micallef-Scheffer then rang his mobile supervisor, whose role was responsibility for oversighting jobs on that shift and to attend to anything major such as co-ordinating services or constructing a crime scene. He said to the senior officer, "Mate, this woman has been beaten really bad to the head. This looks like it could be a murder and there might be a secondary crime scene as well". 4. In his evidence, Micallef-Scheffer explained that "secondary crime scene" was a reference to the potential location where Ms Baker was attacked. He said that he was proceeding on the assumption that the account he had received from the accused was truthful. He said that at that stage he had no evidence to suspect and no reason in his mind to suspect that the accused was involved. He did however include in his statement that he had looked at the accused's hands and saw there was no blood or bruising on them. 5. Micallef-Scheffer said that he thought there was "more to the story", but maintained that he did not consider the accused to be a suspect at this stage. A reference to there being AVOs in place between Ms Baker and the accused did not lead him to suspect the accused of the attack because it was not a "no-contact" AVO. He said that AVOs are very common, particularly in Liverpool and he could not read too much into the fact that there was an AVO in existence. 6. Micallef-Scheffer said that a later discussion with the accused in which the accused asserted, "I was out with a mate in Auburn" caused him disquiet because that seemed a change in his story given that he had earlier told Micallef-Scheffer that he was "out with mates in the city". Micallef-Scheffer said that at that point he started to suspect that the accused had lied to him. Prior to this, he thought that the accused was just not forthcoming, but at this point he formed the belief that the accused was in fact lying, and his suspicion only then began to focus upon the accused – i.e. at and after the events set out in [28] of Micallef-Scheffer's statement. 7. Micallef-Scheffer confirmed that he knew that if a person was a suspect, then there was a requirement that the person be cautioned and anything they say recorded and that the suspect should be taken to the station for interview. He said that he was of the view that if the accused was a suspect, it would be "the very first thing I would do". In terms of availability of recording equipment, he said that they "almost always have one in the car" but he was not sure whether one was available on the night. He also noted that the recording devices sometimes have technical issues. 8. He said that for all of the time in the apartment, he considered himself to be obtaining very general information, including information regarding crimes that may have been committed on the street and potential other crimes given the accused said Ms Baker had been "jumped down the road". He was considering how to zero in on the location of the secondary crime scene, given what he had been told. In his statement, he recorded that he had provided photocopies of his and Allen's notebook entries (which include notes of the impugned admissions) before finishing his shift shortly after 7am and that he requested that they be given to the officers who would be conducting the ERISP. 9. In cross-examination, Micallef-Scheffer confirmed that he looked at the accused's hands, but did not agree that he suspected that the accused may have been the assailant. He conceded it was a "possibility", but because there was no evidence that the accused was the person that had committed the offence, and he, initially at least, accepted what the accused had told him, he did not consider the accused to be a suspect. (ii) Allen 1. Allen described the scene on arrival at 4.37am as follows: "5. Upon entering unit 14 I observed two paramedics conducting CPR on a female that I now know to be Rhonda BAKER. BAKER was laying on the floor with her arms flayed out BAKER appeared to have facial injuries as there was blood coming from her nose and mouth area. Her eyes were closed and bruising could be seen on her face with one of her eyes extremely swollen. BAKER was positioned within the living/kitchen area of the home near the entrance to the hallway. BAKER was topless and wearing black pants paramedics continued to conduct CPR…." 1. Allen described the accused as appearing "distressed and sweating", wearing boxer trunks, no shoes and a dark t-shirt. Allen took the accused outside the unit with Micallef-Scheffer where the conversation took place as recounted in [14] of Allen's statement set out in paragraph 9 of this judgment. 2. Allen gave evidence that he asked to see the accused's hands because he "wanted to make sure there was no blood or bruising on them that would assist him in understanding what had happened", because at that stage Allen had no idea what had happened. He said that he did not suspect the accused as being responsible for the injuries to Ms Baker at that stage. 3. He considered the accused's behaviour later became strange. In paragraph 6 of his statement, he describes this as follows: LATU began to ask to go inside the unit, I advised him he couldn't go inside and he needed to give the Ambulance some room. LATU became argumentative towards me saying "why are you kicking me out of my own house, why are you treating me like a criminal" I advised LATU he needed to calm down as paramedics are working on her. LATU became erratic asing for clothes and a cigarette from inside, he didn't appear to be too worried about BAKER he just continued to ask to have a cigarette and grab clothing. He continued to say I was treating him like a criminal and he hasn't done anything wrong. At this time The Ambulance supervisor attended where he told LATU that her condition is serious. I then advised LATU that it's a crime scene and I cannot let him inside. 1. In cross-examination, Allen conceded that there was a point where he suspected it could have been the accused who was responsible for Ms Baker "being on the floor". He said this was "When his character changed, when his character towards what was actually happening changed". Allen said that this change occurred in the behaviour described in paragraphs 6 to 8 of his statement, which occurred over a period of about 5 minutes. (iii) Sergeant Houldin 1. Detective Sergeant Houldin confirmed that he did not see the copies of the notebook entries of Allen and Micallef-Scheffer until after the ERISP with the accused was completed and he returned to his desk. He confirmed that if he knew of the versions given by the accused to those officers, he "absolutely" would have taken those versions into the interview and given the accused an opportunity to acknowledge or reject the admissions that were said to have been made. There was no reason offered as to why he could not have conducted a further short interview with the accused once he found the material on his desk just after the interview. Submissions 1. The Crown prosecutor drew my attention to R v Taouk [2005] NSWCCA 155 at [54]: 54 It was pointed out by counsel for the appellant that the word "could" in the expression "could reasonably have been suspected" in s 281(1)(a) was different from the word "ought" in the corresponding part of s 424A of the Crimes Act, a predecessor of s 281, and it was submitted that the expression "could reasonably have been suspected of having committed an offence" was wider than the expression "ought reasonably to have been suspected of having committed an offence". Counsel for the appellant referred to an unreported judgment of Bell J in R v Crowther-Wilkinson NSWSC 70096/01 8 May 2002, in which her Honour said at par 31 with reference to s 424A of the Crimes Act and the then s 108 of the Criminal Procedure Act, which was in the same terms as the present s 281:- "It may be that the class of persons who "could reasonably have been suspected by an investigating official of having committed an offence" is broader than the class of persons who "ought reasonably to have been suspected by an investigating official of having committed an offence". 1. He submitted that Allen's concession that he had begun to suspect the accused around the time the accused's behaviour changed, does not infect the questioning conducted by Micallef-Scheffer after that, because Micallef-Scheffer was not party to that view, or that observation, because he was busy doing other things. On the contrary, it was submitted, Micallef-Scheffer's position as evidenced by paragraph 9 of his statement was that he accepted what the accused was telling him, and was asserting to his supervisor, Senior Constable Azzi, that assistance was needed because there may be a secondary crime scene to be secured. 2. The Crown prosecutor submitted that the first four questions of paragraph 20 of Micallef-Scheffer's statement were not objectionable because Allen did not ask those questions. In further exchange with the Bench, the Crown Prosecutor conceded that those four questions probably were impugned, because of the cynicism contained in Micallef-Scheffer's questions, and that the exchange occurred after Allen had formed the suspicion about the accused and Allen was present during the exchange. 3. In respect of the matters set out in sub-s (2)(a)(ii) and whether there was a reasonable excuse not to record the admissions, it was submitted that it was reasonable not to have available a handheld device in the circumstances, given the basis upon which the police officers were asked to attend the scene. 4. I accept that submission. However, the notes made by Allen and Micallef-Scheffer were not passed on to Senior Sergeant Houldin who was identified in the statement of Micallef-Scheffer as the person who would be conducting the ERISP with Senior Constable Dack. It was recognised by those junior officers that photocopies of the notebooks needed to be provided to Houldin, but they were not taken into the interview and were not put to the accused. 5. Senior Counsel for the accused submitted that Allen had a reasonably based suspicion that the accused was the assailant at the time of the events set out in paragraph 6 of his statement. Allen should be considered to be a reasonable "investigating official", who identified a particular point of time where the suspicion arose in his mind. 6. It was submitted that I ought not distinguish between the two investigating officers, because that would be to impose a subjective test and the question of reasonableness is an objective test. Allen in his evidence provided both an indication that it was reasonable for him to have formed the view that he did based on his analysis of the circumstances, and further, that he had in fact formed a suspicion about the accused as early as the events described in paragraph 6 of his statement. Decision 1. I accept the submissions made on behalf of the accused, and the admissions contained in the impugned parts of the statements of Allen and Micallef-Scheffer cannot be led. 2. I accept that there is a reasonable excuse not to have recording equipment available when the officers entered the unit. They had been told that they were required to assist ambulance personnel, not to investigate a possible assailant. I also accept that there is a reasonable excuse because of the evolving circumstances in the unit, the agitation being exhibited by the accused, and the potential need for the officers to assist the ambulance officers, to not leave the unit to try to find a recording device to interview the accused. It was not unreasonable for the officers to stay at the scene, await senior officers, prepare notes of their discussion with the accused once he had been transported by other officers to the station, and to remain guarding the crime scene awaiting relieving police officers. 3. It was also not unreasonable, and, in fact appropriate for photocopies of the extracts from the notebooks to be made available to the interviewing officers at the station once Allen and Micallef-Scheffer had returned to the station and before they finished their shift. However, there is no reasonable excuse for the senior officers who conducted the interview to fail to inquire of Allen and Micallef-Scheffer whether there was any admission or material that needed to be put to the accused or, more importantly, once the photocopy of the extracts from the notebooks were located on the desk of Sergeant Houldin, to conduct a further short ERISP with the accused to specifically deal with the admissions recorded. There was no reason offered as to why that could not have been done. 4. The provision of the photocopies of the notebooks for the interview indicates an awareness on Micallef-Scheffer's part that the material recorded in the notebooks was something of which the senior officers conducting the ERISP should be aware. Micallef-Scheffer took appropriate steps to bring that to the attention of the senior officers. It is understandable, although unfortunate, that the photocopies were not seen on the desk of Sergeant Houldin until after the interview, but they were important, and should have been put to the accused in the ERISP if the admissions contained within them were to be relied upon. 5. The provisions found in s 281 were originally enacted in s 424A of the Crimes Act 1900 (NSW). They were clearly directed towards objectives that included deterrence or prevention of the use of unfair practices by the police during and after interviews with suspects and to deter the making of unfair and false allegations of improper behaviour by police, as well as providing courts with a reliable account of statements made by persons accused of crime whilst in police custody, and to provide an objective means of resolving disputes about the conduct and substance of police interviews. 6. I wish to emphasise that in reaching the view I have, I am in no way querying the propriety or thoroughness of the questioning or conduct of the officers involved in the management of the accused on 7 August 2016. Sensible police practice was followed to record in writing the contents of the conversations with the accused as soon as possible after they occurred. It was simply that back at the station, due to the information not being properly passed on, those parts of the discussions with the accused were not put to him in a recorded session and must be excluded as they do not pass the requirements of s 281(2)(a)(ii) or (b). Orders 1. The admissions contained in paragraphs 7 and 14 of the statement of Constable Allen and paragraphs 20, 27 and 28 of the statement of Senior Constable Micallef-Scheffer are admissions that were made in circumstances that do not comply with s 281 of the Criminal Procedure Act and accordingly evidence of those admissions cannot be adduced by those officers. ********** 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: 26 July 2019