R v Fazlilar (No 1)

On 7 May 2018, Hasan Fazlilar was arraigned and pleaded not guilty to two counts: that on 13 November 2015, he possessed a pistol without being authorised to do so, contrary to s 7(1) of the Firearms Act 1996 (NSW); and that on 14 November 2015, he murdered Donovan Mileham. His trial commenced that day and continued before a jury of twelve.

On 10 May 2018, the fourth day of the trial, Mr Austin of counsel, who appeared for the accused, made an application to exclude an electronically recorded roadside interview, conducted between Detective Senior Constable Rogers-Falk and the accused, on the basis that the answers therein were improperly obtained and should be excluded under s 138 of the Evidence Act 1995 (NSW).

After listening to the interview and hearing submissions from the Crown Prosecutor and Mr Austin, I declined to exclude the interview and indicated that I would provide my reasons at a later date. These are my reasons for not excluding the interview under s 138 of the Evidence Act.

On 16 November 2015, the body of the deceased was located in room 3109 of the Fraser Suites in Kent Street in Sydney. A parking ticket was located in the room for the Cinema Centre Car Park on Kent Street. It had been issued at 6:04am on 14 November 2015 at the Kent Street entrance to the car park. Subsequent inquiries with that parking station revealed footage of a Toyota Corolla, with registration number “CF64US”, tailgating another vehicle out of the carpark without using a parking ticket to open the boom-gate. It was then ascertained that the car had been rented from Bayswater Car Rental by Georgia Wenborn, who was the girlfriend of the accused at that time.

Just before 4:00pm that same day, 16 November 2015, the vehicle was observed in Redfern. Two police officers approached the vehicle and spoke with the accused and another man, Deha Kelekci. Both men were searched and handcuffed. Detective Senior Constable Rogers-Falk then had a short conversation with the accused which he recorded using a hand-held recording device. It was this conversation that the accused sought to be excluded. After the interview, the accused was released. He was later arrested on 28 November 2015 at which time he participated in an ERISP in which he selectively answered questions and denied any involvement in the murder.

It was agreed that the audio of the 16 November 2015 interview ought to be played on the voir dire. The recording and transcript comprised the evidence on the voir dire.

The transcript reflects that, after the officer explained the caution to the accused, he stated he understood the caution and that he did not “want to talk”. He was then asked by the officer, “do you understand this conversation is being recorded,” to which he replied, “I totally, I totally understand”. The following exchange then took place:

Mr Austin submitted that, when the police officer commented at the start of question 14 that question 12 was a “straightforward question”, he undermined the caution he had given, rendering it meaningless. It was not suggested that there was any difficulty with the police officer asking the accused questions after he had indicated that he did not wish to answer any questions. Nor was it suggested that the accused was not properly cautioned. Rather, the submission was that, from question 14 onwards, the caution became ineffective and “in a sense”, the accused was no longer cautioned because the comment at question 14 was not consistent with the caution he had previously given.

When I raised with Mr Austin the relevance of the fact that, by virtue of the operation of s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), the accused did not in fact have the right to refuse to answer questions as to who the driver of the car was at the relevant time, he submitted that that fact was not relevant to my consideration.

Mr Austin submitted that, but for the comment at question 14, the caution was properly worded and would have persisted; it was up to the accused whether he answered each question or not. It was further submitted that the undermining of that initial caution continued to affect anything that the officer said subsequently because he did not “fix” what he said to him in question 14. The officer should have clarified what he said at question 14. The fact that this was a roadside interview and not an interview at a police station was also relied upon in this context.

I asked Mr Austin to identify where in the transcript there was any suggestion after answer 18 (after which the accused had acknowledged his understanding that he did not have to talk) that the accused was confused as to whether he had the right to refuse to answer any questions. Mr Austin responded as follows:

The Crown submitted that the accused was properly cautioned and s 139 of the Evidence Act was accommodated.

The Crown Prosecutor indicated that he did not rely upon s 14 of LEPRA in resisting the application to exclude the interview. Rather, it was submitted that, from the answer to question 17 onwards, it is clear that the accused understood that he had the right not to answer questions and exercised that right until the officer indicated he did not propose to answer any more questions.

It was submitted that, by the end of question and answer 22, it was “abundantly clear” that the accused fully understood his right and, indeed, had exercised his right when he chose not to answer questions 20-22. When, after question 23, the officer stated that he would stop asking questions, the accused volunteered a flow of answers which the Crown seeks to rely on, culminating at answers 28 and 29, about his knowledge of the car and the whereabouts of the car on Saturday morning.

The Crown noted that it was anticipated that another Crown witness, Elias Dimarellis, would give evidence that he drove the vehicle on the morning of 14 November 2015. It was submitted that the answers given by the accused that he did not know where the vehicle was at that time would be relied upon by the Crown as lies.

Section 138(1) of the Evidence Act provides:

Section 14(1)(a) of LEPRA provides:

It was accepted that the evidence was relevant in the sense that it could rationally affect the jury’s assessment of the probability of the existence of a fact in issue in the proceeding. The Crown proposed to rely upon answers to questions 28 and 29 as lies relevant to the accused’s credibility. The interview was also relevant to what information the accused had been told by police at that time in circumstances where he subsequently participated in an ERISP on 28 November 2015 during which reference was made to this earlier interview.

If the accused can establish that the answers contained in the interview were obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law, then I must exclude the evidence unless the desirability of admitting it outweighs the undesirability of admitting it. The alleged impropriety was of a narrow compass. It was not suggested that the police officer had failed to properly caution the accused at the beginning of the interview. Nor was any complaint made about the fact that, putting to one side the opening words of question 14, the police officer continued to ask questions even after the accused made it clear he would not be answering them.

The application turns on whether the caution was undermined in any way by the officer’s comment at question 14 such as to lead the accused to be confused as to what his rights were. It was not accepted by Mr Austin that the transcript records an understanding on the accused’s part that he was not obliged to answer questions. Despite this, there was no evidence on the voir dire that the accused was in fact confused regarding the scope of the caution. Thus, the question of whether the accused was confused regarding his right to refuse to answer questions can only be assessed based on the accused’s answers as recorded by police.

As I indicated to counsel at the time, I am satisfied that it was not appropriate for the police officer to describe question 12 as “straightforward” before he asked question 14, in circumstances where the accused had indicated he did not wish to answer the question. Had the accused not subsequently gone on to acknowledge a few questions later (in answer 17) that he did not have to answer questions, there might have been some force to the argument that the caution had been undermined by the opening words to question 14. The difficulty for the accused’s argument is that any lingering doubt is removed once it is noted that the accused then went on to decline to answer questions 18-22.

In these circumstances, I indicated to Mr Austin that I was inclined to exclude question and answers 14-18 only. In response, Mr Austin indicated that, if his application to have the entire interview excluded was unsuccessful, he did not want questions 14-18 to be excluded. I acceded to this request.

During the hearing of this application, I drew counsel’s attention to s 14 of LEPRA and the consideration of that provision in R v Barakat; R v Younes (No 2) [2016] NSWSC 1255. Given the joint position of the Crown and the accused that s 14 of LEPRA had no relevance to the fairness of what occurred, I determined this matter solely on the question of whether I was satisfied that there was any impropriety in the interview regarding the caution administered to the accused. I simply note that, despite the caution having been administered to the accused, the police officer in fact had the power to request that the accused answer the questions. If he had exercised that power under s 14 of LEPRA by taking the necessary steps to do so (which he clearly did not), and the accused had refused to answer the questions, he could have been charged with an offence under s 15(1)-(2) of LEPRA.