R v AKB (No. 2)

The Crown seeks to lead evidence of a conversation between two police officers, Detective Sergeant Hodges and Detective Sergeant Hennessy, and the accused immediately after the conclusion of the accused’s second ERISP. The two police officers were the officers who interviewed the accused in that ERISP.

At the conclusion of the second ERISP, a senior officer at the station had asked the accused the formal questions that the independent officer is required to ask. He then left the room.

Paragraph 33 of Detective Hodges’ statement of 29 November 2016 reads:

The statement of the interpreter, Anita Hemmati, of 6 December 2016 recorded that the interview with the accused finished and the custody manager came into the interview room. He asked some questions which the interpreter interpreted to the accused. Detective Sergeant Hodges and the person the interpreter described as the male detective walked back into the interview room and the custody manager left the room. The interpreter said that the recording of the interview had come to a complete stop. Paragraph 8 then went on to say:

Section 281 provides:

The principal issue to be determined is whether the statements recorded by Detective Sergeant Hodges and the interpreter were made in the course of official questioning.

The Crown submitted that they were not made in the course of official questioning because the interview had come to an end and the statements were not made in response to a question by the investigating officers. The Crown submitted that no question was put to the accused. Rather, it was an explanation of the basis for charging him with murder. It was not in question form and it did not require a response. What the accused said was volunteered.

Senior counsel for the accused submitted that the statement made by the police that he had an argument with his wife before the fire and that that may have resulted in the scratches was not something that had been put in the interview, and in that way amounted to a question. In putting something that had not been earlier raised, that is, the link between the argument and the scratches on the accused, the statement was inviting a response. The accused did not volunteer the information as in Kelly v The Queen (2004) 218 CLR 216 but said what he did in response to what had been put to him.

In Kelly the appellant made an admission to the police some 30-40 minutes after a video recording had ceased and the appellant had left the video interview room. The admission was admitted into evidence at the trial over objection on the basis that the statement was not made in the course of official questioning. The Court of Criminal Appeal of Tasmania dismissed his appeal against his conviction: R v Marlow and Kelly (2001) 129 A Crim R 51.

On the further appeal to the High Court, the joint judgment of Gleeson CJ, Hayne and Heydon JJ said:

Section 8 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) was in similar terms to s 281.

In Bryant v R [2011] NSWCCA 26 an admission was made in slightly different circumstances. Those circumstances are set out at [133] of the judgment as follows:

Justice Howie (with whom McClellan CJ at CL and Simpson J agreed) then said:

If the evidence of the interpreter was to be regarded by itself, that evidence would suggest that the accused volunteered the information recorded in paragraph 8 without any form of prompting. However, on the present application, the Crown relies not only on that evidence but on the evidence of Detective Hodges. The evidence of Detective Hodges discloses a more complete account of how the information came to be volunteered. I note, without disrespect to the interpreter, that her statement was made some six or seven weeks after the event. In my opinion, it is more likely that Detective Hodges’ account of what was said is the correct account. Accordingly, the matter must be considered in the light of what was said by Detective Hodges to the accused before he made the statement now sought to be relied upon.

Whilst I accept that no question as such was put to the accused, and whilst I accept that the statements were made, as Detective Hodges said in her evidence, as a way of giving an explanation to the accused, the significant matter is that an assertion was made to the accused which had not been made in the course of either of his interviews. As Button J said in R v Hunter (No. 6) [2014] NSWSC 1149 at [19], the fact that an exchange began with a statement as opposed to a question is not determinative. I accept that in Hunter Button J was satisfied on the balance of probabilities that the statement made in that case “was designed to elicit a response”. However, I could not find in the present case, on the balance of probabilities, that Detective Hodges’ statement was designed to elicit a response. Nevertheless, making an allegation that had not been previously made in two interviews was, seen objectively, likely to produce a response from the accused, as it did. In that way, I consider that the accused’s statement made was made in the course of official questioning.

In those circumstances, it is necessary to consider s 281(2)(b) to see if there is a reasonable excuse a subsequent tape recording was not made.

I accept the evidence of Detective Hodges that the accused was not prepared to embark on a further interview at that time for the reasons that he gave. In that way, there was a reasonable excuse under paragraph (b) of that definition in s 281(4) for that time.

However, no subsequent attempts were made to undertake a further interview with the accused so that what had been said when he was charged could be dealt with in that interview. The reason Detective Hodges gave in cross-examination for not so doing was that she imagined that the accused would be seeking legal advice and that they would be advising him appropriately. She explained further in re-examination that she assumed that, if he was given legal advice and then wanted to speak to her again, contact would have been made. She said that she did not make any further enquiry of him whether he was prepared to take part in another interview.

In those circumstances I do not consider that there is a reasonable excuse that no further interview was conducted in terms of sub-paragraph (2)(a)(ii). There was nothing to prevent another interview being arranged. If, on that occasion, the accused would not confirm what he had said in the exchange after the second interview, that would likely amount to a reasonable excuse for no subsequent tape recording to have been made.

Accordingly, I reject that part of paragraph 33 of Detective Hodges’ statement from the words “The interpreter gave [AKB]’s response” to the end of the paragraph, and the whole of paragraph 8 of the statement of Anita Hemmati of 6 December 2016.