R v Smith

1. [1]

   HIS HONOUR: Justin Smith is on trial for the murder of Luke Freeman who was stabbed by Mr Smith on 5 January 2019 and who died the following day in John Hunter Hospital from complications related to his wounds. A series of evidentiary issues have arisen for determination before the trial proceeds further. These are dealt with in what follows.

Criminal Procedure Act 1986, s 281

1. [2]

   That section is as follows:

2. [3]

   The Crown wishes to lead evidence from Senior Constable William Amos of a conversation with Mr Smith at the time of his initial apprehension and arrest. The Crown contends that words spoken by Mr Smith amount to an admission that is admissible despite the fact that the conversation was not recorded. The Crown maintains that there was a reasonable excuse for the fact that a tape recording of the conversation was not made. (The Crown ultimately disavowed and discarded an earlier submission that the so-called admission was not made in the course of official questioning).

3. [4]

   Senior Constable Amos gave evidence in the absence of the jury that after having placed handcuffs on Mr Smith, he had the following conversation with him:

4. [5]

   The Crown bears the onus of establishing that there was a reasonable excuse for the fact that a tape recording of the conversation was not made. The Crown contends that Senior Constable Amos and his partner Constable Paul Travis were instructed over the police radio that a triple 000 call had been received advising that a stabbing had occurred and they were tasked with going to the location in order to apprehend any suspected person in the area. In the events that occurred, they drove to the location and arrested Mr Smith.

5. [6]

   Senior Constable Amos gave the following evidence:

6. [7]

   Although the two officers were in full uniform, they were not wearing body video cameras. The Crown contended that this was because they “were not available”, meaning, as I understand it, that they did not have that equipment with them in their vehicle or on their person at the time that they apprehended Mr Smith. That was the only submission made by the Crown in support of the proposition that there was a reasonable excuse for failure to record the conversation with Mr Smith.

7. [8]

   It was conceded by the Crown that the applicable protocols required the officers to wear the cameras in the course of their duties. There was no evidence to suggest that there was any reason why the officers were not wearing this equipment at the time, beyond the inference that they simply chose not to do so.

8. [9]

   I am not satisfied that the Crown has established that there was a reasonable excuse for their failure to do so or, in particular, to record the conversation said to contain the admission. I make no further comment about whether the words upon which the Crown seeks to rely amount to an admission in any event.

9. [10]

   It follows that the Crown’s application to tender the evidence in question is rejected.

Evidence Act 1995, ss 90 and 137

1. [11]

   From 6am on 5 January 2019, Senior Constable Adam Vary was the custody manager at Grafton Police. At approximately 1pm, Mr Smith’s mother, Kim Johnson, attended the police station. Senior Constable Vary gave evidence that the following conversation took place between them:

2. [12]

   Senior Constable Vary then said that he walked into the charge room with Ms Johnson who asked him “What’s he done?” The following conversation then took place:

3. [13]

   Senior Constable Vary said that they then entered the charge room and Ms Johnson stopped in the doorway. Senior Constable Vary opened the cell door and gave Mr Smith a choice of clothing that his mother had brought for him. Mr Smith took some clothing and spoke with his mother. Senior Constable Vary said that he heard the following conversation between them:

4. [14]

   Section 90 of the Evidence Act is as follows:

5. [15]

   It is plain from the circumstances that are revealed in Senior Constable Vary’s recollection of events recorded above that Mr Smith’s mother attended the police station in order to assist him with the provision of clothes. It is clear from other evidence already tendered in this trial that the clothes that were worn by Mr Smith when he was arrested and taken into custody had already been removed by the police in anticipation of being used as evidence. It seems perfectly plain to me that when Mr Smith’s mother spoke to him, she had just arrived and was hopeful, if not understandably and obviously anxious, to know from him precisely what had led to his arrest. It was in that particular context that Mr Smith said the words upon which the Crown now wishes to rely as an admission.

6. [16]

   Mr Smith had not at that stage received the benefit of any legal advice. His mother was not a lawyer as far as I know from the evidence so far. Ms Johnson’s inquiry of her son about “what he had done now” is poignantly replete with concern for his welfare. I have no doubt, from the terms of both Ms Johnson’s questions and Mr Smith’s answers, that he knew and understood that he was communicating with someone concerned for his welfare and who was plainly there to support him. Ms Johnson was not in my estimation asking for a factual recitation or analysis of what had occurred so much as attempting to communicate a sympathetic attitude of concerned resignation at his plight, whatever it may have turned out to be.

7. [17]

   I consider that Mr Smith would have had absolutely no understanding or appreciation that he was admitting anything when he spoke to his mother, far less that it might be recalled by the attending police officer and later produced in evidence at his trial. To do so in my opinion is definitively unfair. I propose to reject the Crown’s application to rely upon this evidence in the trial. It is therefore unnecessary to consider whether the probative value of the evidence is outweighed by the danger of unfair prejudice to Mr Smith.

Evidence Act 1995, s 65(2)(b) and (c)

1. [18]

   Following the arrival of an ambulance at the scene of the stabbing, Ambulance Officer Hyde had a conversation with the deceased, Luke Freeman, which was recorded. Part of the conversation is as follows:

2. [19]

   Section 65 of the Evidence Act is in the following relevant terms:

3. [20]

   The Crown maintains that either or both of (b) and (c) apply. Mr Freeman was critically wounded and in distress. He was being questioned by a paramedic in what I consider to have been rather curious terms apparently directed more to discovering who might have been responsible for his condition, rather than with the serious injuries he had received. The Crown submits that Mr Freeman’s situation as a person suffering what were potentially, and what turned out to be actually, mortal wounds that had been violently inflicted only minutes beforehand were circumstances that made it unlikely that Mr Freeman’s statement “I done nothing wrong” was a fabrication and in fact made it highly likely that it was reliable. It is also clear that Mr Freeman was concerned that he was going to die, as the following passage from Mr Maxwell’s statement makes clear:

4. [21]

   The circumstances relied upon to support the Crown’s contention appear to be limited to the actual stabbing incident itself. However, Mr Smith contends that the “circumstances” referred to in s 65(2)(b) and (c) cannot be so limited. In that respect he draws attention to a number of matters that are said to inform the present inquiry. For example, it is apparent that those who were present at the house where the stabbing occurred had been drinking heavily from sometime the previous afternoon. That included Mr Freeman. There had been some discussion among those present about Mr Smith’s feelings for Katrina Marshall, who was apparently in a relationship with Mr Freeman. Mr Smith had known Ms Marshall since school and it became apparent that he aspired to establishing a romantic relationship with her.

5. [22]

   It is at the centre of the Crown’s position on this issue, having regard to Mr Freeman’s condition and his concern that he might die, that nothing that he said was likely to be a fabrication. I do not agree.

6. [23]

   It is apparent from the evidence tendered on this application that some escalating tension was present between Mr Smith and Mr Freeman in the several hours leading up to the stabbing. Far from supporting a conclusion that the circumstances made it unlikely that Mr Freeman’s representation was a fabrication or that it was highly probable that it was reliable, I consider that Mr Freeman’s unsolicited assertion that “I done nothing wrong”, uttered in circumstances in which he should have had no apparently legitimate interest in offering up a comparative assessment of his behaviour and Mr Smith’s behaviour, is tellingly self-serving. I am not able to be certain that Mr Freeman’s representation was a fabrication but I am not able to be satisfied that it is unlikely that it was. In a similar vein, Mr Freeman’s assertion may well have been reliable but I am unable to be satisfied that it is highly probable to have been so.

7. [24]

   In the circumstances, I reject the Crown’s application to lead this evidence.