R v AKB (No. 1)

The accused is charged with murdering his wife on 18 October 2016. The Crown case is that the accused set fire to the premises where the accused and his family lived, with the origin of the fire being in the bedroom where the deceased slept. The Crown case is that, when the deceased realised there was a fire in her room and tried to escape through the bedroom door into the corridor of the house, the accused actively prevented her from doing so by pushing her back into the room and by shutting the door to prevent her escape.

The Crown seeks leave to adduce evidence of what was said by the accused to Senior Constable Saleem Totakil who arrived at the burning premises about ten minutes after a triple-0 call was made to report that the premises were on fire.

The relevant evidence is in a statement by Senior Constable Totakil on 21 October 2016. It relevantly says this:

Senior counsel for the accused objected to the admissibility of paragraphs 11 and 17 of the statement in reliance on s 281 of the Criminal Procedure Act 1986 (NSW). That section relevantly provides:

Senior Constable Totakil gave evidence on the voir dire. In the course of so doing he gave this evidence:

In cross-examination Senior Constable Totakil said he did not have a tape recorder with him, that he does not carry a tape recorder and that it is not normal procedure to have a tape recorder available to take recordings of things people say. He did not ask other police officers whether they had a tape recorder. He recorded the accused’s version in his notebook but he did not ask him to sign it or adopt it in any way.

He said that the accused was free to leave when they were at the secne because he was not under arrest. He said he supplied his notebook confirming the accused’s account to one of the detectives when he returned to Merrylands Police Station. He agreed that he cautioned the accused on three occasions. The first was before he asked him what happened, the second was at the instruction of his supervising officer and the third was when he was arrested at Merrylands Police Station.

He said he did not caution anyone else at the fire. He denied that when he cautioned him for the first or second times that he considered him a suspect.

In answer to questions from me, Senior Constable Totakil said that if he had been speaking to a neighbour he would not have cautioned them because they were not a resident of the place on fire. He cautioned him because he was a resident and he was inside the house as well. He did not have any prior knowledge of the accused or his family and he was not told anything on the way to the fire about them.

It was accepted by the Crown that the statements contained in paragraphs 11 and 17 were admissions by reason of the definition contained in the dictionary to the Evidence Act 1995 (NSW) and as a result of what was said in Horton v R (1998) 45 NSWLR 426 at 439.

The Crown submitted that the meaning of the phrase “could reasonably have been suspected” was made clear in Regina v Taouk [2005] NSWCCA 155; 154 A Crim R 69 and that suspicion is something more than mere idle wondering or mere surmise. The Crown submitted that simply because the police officer cautioned the accused, it did not follow automatically that he gave the caution because he suspected the accused had been involved in setting the fire. The Crown submitted that the factors the Court would look at were: why the police officer questioned the accused and, what one would expect a reasonable police officer to do to find out more about how the fire happened. The Crown submitted that there would be a real concern that there might be somebody else in the premises. In that way it was important for the protection of the community that the police officer get further information. The Crown accepted that as time went on there might be more reason for a reasonable suspicion.

Senior counsel for the accused submitted that both parts of s 281(1)(a) were established; that is, that the accused person was actually suspected by the police officer, alternatively, that he could reasonably have been suspected by the police officer. Senior Counsel submitted that there was sufficient evidence to point to a reasonable suspicion because the accused was a resident of the house and there was woman inside. The police officer was not asking the questions to satisfy his own curiosity. Rather, he was asking it for a purpose because he thought at a future time the information might be of use. The result must be, it was submitted, that the officer had a slight opinion but without sufficient evidence at that stage.

Senior counsel submitted that it could inferred that the police officer went on to ask the accused about his sons and in doing so was trying to establish some information that might assist him, not in putting the fire out or finding the woman inside, but whether the accused may have had some involvement in the fire. Senior counsel submitted that the threshold to trigger s 281 was a very low one.

In R v Taouk Hall J said:

In Taouk a police officer, Constable Munro, gave evidence of a conversation he said he had had with the appellant on the morning of the day the victim was shot. Constable Munro’s evidence was that he was on duty as a station officer at Burwood Police Station. A male person whom he subsequently came to know as the appellant came into the police station. Constable Munro’s evidence was :

Justice James, with whom Hislop J agreed, said:

In the first place, I accept Senior Constable Totakil’s evidence that he did not in fact suspect the accused of having committed any offence. I do not find it at all improbable that he would have issued a caution to the accused in the absence of a suspicion, since the accused was an obviously relevant person for further enquiry. It was his house that was on fire, the accused had been inside the house and he said that his wife was still inside the house. It is almost inconceivable that the accused would not have been interviewed at a later time.

Further, that bare information does not seem to me to reach the standard that is spoken of in Queensland Bacon Pty Limited v Rees (1966) 115 CLR 266. There simply was nothing to elevate any reasonable belief beyond mere surmise or mere idle wondering. I note that the police officer’s enquiry commenced in paragraph 11 after the caution with an entirely open question, “What’s happened?” There is nothing in that question which could give rise to a conclusion by the Court that the accused could reasonably have been suspected of committing any offence. In expressing that opinion I take on board what was said by Bell J in an unreported judgment in R v Crowther-Wilkinson NSWSC 70096/01; unreported 8 May 2002 and cited by James J in Taouk at [54]:

In my opinion, nothing that Senior Constable Totakil had seen or been told prior to his conversation with the accused as recorded in paragraph 11 could lead to the conclusion that the accused was or could reasonably have been suspected by the police officer of having committed an offence. I consider that the accused could not reasonably have been suspected by Senior Constable Totakil of having committed an offence at least until after the accused gave his account of events to that officer.

The position with paragraph 17 of the statement appears to me to be different. By the time Inspector Kirby spoke to the accused in Senior Constable Totakil’s presence, Senior Constable Totakil had relayed to his supervising officer, Sergeant Byatt, what the accused had told him in relation to being alerted to the fire and what happened to his wife. After that had been relayed Sergeant Byatt instructed Senior Constable Totakil to stay with the accused and told him not to allow the accused to drink water or wash his hands after Sergeant Byatt had seen him do that already. Further, he also told Senior Constable Totakil to caution him. Despite Senior Constable Totakil informing Sergeant Byatt that he had cautioned him earlier, it appears that he was required to caution him again and did so.

Sergeant Byatt’s evidence was not before me on this application so I do not know what other information he might have had, nor if Sergeant Byatt had formed a suspicion that the accused might have committed an offence. However, even on the basis of the facts as I have stated them, an inference is open that Sergeant Byatt did suspect or could reasonably have suspected that the accused had committed an offence. It appears to me also to be of some significance that it was the police inspector that at that stage questioned the accused.

In my view, that combination of factors lead to the conclusion that it was more than mere surmise on Sergeant Byatt’s part that the accused could reasonably have been suspected by him of having committed an offence. The section does not require it to be the same investigating official who suspects as the official who asks the questions.

Where I have now determined that the evidence in paragraph 17 is an admission that falls within s 281(1)(a), the question arises whether it is otherwise admissible under any of the exceptions in sub-s (2). It is not suggested that the matter falls within sub-paragraph (2)(a)(ii), because it appears to be accepted that the accused’s subsequent ERISPs did not deal with the admission in paragraph 17.

I was first inclined to think that paragraph (2)(b) might be relevant because of the evidence of Senior Constable Totakil that he did not have a tape recorder and it was not usual practice for a police officer to have a tape recorder in circumstances such as obtained in the present case. I do not consider my preliminary view is correct.

The reference in paragraph (b) is not confined to sub-paragraph (a)(i). If it were so confined, no regard would need to be had to what is contained in sub-paragraph (a)(ii). In that way, it would be irrelevant if, at a subsequently recorded interview, there was no reference made to the unrecorded admission.

However, paragraph (b) embraces what is contained in sub-paragraph (a)(ii). In that way, for paragraph (b) to be satisfied, it would have to be established that there was a reasonable excuse as to why the subsequently recorded taped interview did not contain the acknowledgment of the unrecorded admission.

That view seems to be supported by what was said by Studdert J (Spigelman CJ and Adams J agreeing) in R v Schiavini (1999) 108 A Crim R 161 at 168 when the Court there dealt with s 424A of the Crimes Act 1900 (NSW) which was the prior enactment of s 281. Subsection (2) of s 424A was drafted slightly differently. It read:

The difficulty with the present wording arises because it refers to “a tape recording” in (a), whereas the prior wording more clearly refers to “the tape recordings” in (a) and (b). However, there is nothing to suggest that any change was intended by the re-drafting of sub-s(2). The enquiry as to reasonableness is concerned with both the time of the unrecorded interview as well as the time of the subsequently recorded interview. Unless there is a reasonable excuse for the failure to make the tape recordings referred to in both sub-paragraphs (a)(i) and (a)(ii), paragraph (b) is not established.

There was, prima facie, evidence suggesting a reasonable excuse for the absence of a tape recording at the accused’s home. However, no evidence has been offered on the present application going to why the ERISPs did not contain questions about what had been said in the unrecorded interview at the home concerning the accused’s attempts to get his wife out of the house in circumstances where she fell to the ground, and his inability to get back in after removing the children because he would be killed, presumably, by the fire. There was no evidence, for example, that the accused was shown the relevant entries in Senior Constable Totakil’s notebook in the course of the ERISPs, and was asked to adopt the Senior Constable’s written account of his admissions for the benefit of the tape.

Accordingly, the exception contained in paragraph (b) is not established by the Crown.

The result is that evidence may be given of the conversation in paragraph 11 of Senior Constable Totakil’s statement but not the conversation in paragraph 17.