R v Edwards

1. [1]

   HIS HONOUR: Mr John Edwards is to be tried on a charge that he murdered his wife, Ms Sharon Edwards, on or about 14 March 2015 at Grafton.

2. [2]

   This judgment concerns the accused's objection as to the admissibility of a conversation he had with a police officer on 2 April 2015.

3. [3]

   The accused was the last known person to see his wife alive on the evening of Saturday 14 March 2015. His case is that he saw her at the home where she was living in Riverdale Court, Grafton, but that he then went to the home where he was living in Lawrence, about 30 km north-east of Grafton, towards Maclean. Ms Edwards was never seen again. The Crown case is that she is deceased, although her body has not been found.

4. [4]

   The accused reported to Grafton police on Monday 16 March 2015 that his wife was missing. He gave an account of last seeing her on the Saturday evening. He was advised to return the following day which he did. That afternoon he took part in an electronically recorded interview in which he provided a detailed account. He described an argument with Ms Edwards at her home on the Saturday evening but nothing more.

5. [5]

   Police inquiries continued. Crime scene warrants were issued and both Ms Edwards’ home and the accused's home were subjected to detailed searching and examination. By 31 March 2015, police formed the view that Ms Edwards was deceased.

6. [6]

   On 1 April 2015, the accused and his three sons attended Grafton police station to participate in a media appeal.

7. [7]

   The accused went to Grafton police station with his son, Zac Edwards, on the evening of 2 April 2015, saying he wanted to talk to police. Detective Troy King recorded a conversation with him on a handheld recording device; that is, not the usual equipment for recording an "ERISP". [1] He confirmed with the accused at the outset that he had attended voluntarily; that he was not under arrest; and that he did not have to say anything. The accused acknowledged these things, but said that after speaking with his son he wanted to talk. He said, "I haven't quite told you everything that happened on, on Saturday night", a reference to the night his wife "went missing".

8. [8]

   Thereafter, he said some things that the Crown relies upon as part of its circumstantial case.

9. [9]

   The Crown tendered a transcript of the conversation, marked to highlight the parts the Crown relied upon. Detective King was called to give evidence on the voir dire.

10. [10]

    As initially framed, the objection was that there had been a failure by police to caution the accused prior to "questioning", and so according to s 139 of the Evidence Act 1995 (NSW), the evidence is deemed to have been "obtained improperly" and is liable for exclusion pursuant to s 138. However, given the conversation proceeded on the basis that the accused was not under arrest, there was no basis for him being arrested (at least at the outset), that he wanted to volunteer information, and the detective did not ask questions, it was unsurprising that this basis for the objection was abandoned.

11. [11]

    Counsel turned to reliance upon s 122 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), which provides:

12. [12]

    Counsel contended that the accused became "a protected suspect" as early as his "answer" to "Q 15" (as it is called in the transcript), when it is contended that he made an admission to having assaulted Ms Edwards. It was submitted that the accused's status as a "protected suspect" was even clearer in his "answer" to "Q19", when he made an admission in relation to having had illegal firearms secreted in a shed.

13. [13]

    References to questions and answers in the preceding paragraph are in quotation marks because, as will be seen from the extract below, the terms are inapt.

14. [14]

    A "protected suspect" is defined in s 110 of LEPRA: [2]

15. [15]

    It is necessary to set out the relevant parts of the conversation:

16. [16]

    The conversation continued until at "Q 45" Detective King placed the accused under arrest for possession of illegal firearms and, at "Q 46", cautioned him:

17. [17]

    In his evidence on the voir dire, Detective King said that he had been involved in the initial investigation, but that by 2 April 2015 his focus was upon his duties as a rural crime investigator. He was on duty on that day at the Grafton Police Station, having resumed work after four days absence. He said that he had been checking emails and COPS entries when another officer spoke to him and told him that the accused and his son Zac were in the foyer. Detective King said he had no expectation or suspicion as to what the accused wanted to talk about. If the accused had wanted to leave the police station at any time during the conversation, he would not have prevented him doing so, “not up until he made admissions of an offence, no, he was free to go”. [3] He said there was nothing in the course of the conversation that caused him to form a belief that there was sufficient evidence to establish that the accused had committed an offence relating to the disappearance of Sharon Edwards. [4]

18. [18]

    In cross-examination, he agreed that he knew that the accused had been a person of interest in relation to the investigation “almost from the outset”. [5] He agreed that in relation to the accused’s account of grabbing Ms Edwards’ iPad and her hitting the ground ("Q 15") – that it constituted an assault. In response to a question as to whether he understood that to be an admission to the offence of assault, he said, “It certainly was taken that way by me”.

19. [19]

    The detective’s attention was drawn to the reference to “illegal firearms” at the end of what appears in the transcript as the answer to “Q19”, and was asked whether he understood that to constitute an admission to the possession of illegal firearms. He responded: [6]

20. [20]

    The detective’s attention was then drawn to the arrest and cautioning that occurred at “Q45” and “Q46” and he was asked whether at that point the information he had “was essentially the same information that you had at question 20 wasn’t it”. Detective King replied, “no it wasn’t”. [7]

21. [21]

    The cross-examination continued: [8]

22. [22]

    Detective King agreed that there was a protocol that, when a volunteer gave information that made clear that they had committed offences for which they can be arrested, the person should be cautioned by the custody manager in accordance with LEPRA. He described it as “a normal custody process that they go through”. The cross-examination continued: [9]

23. [23]

    As indicated earlier, counsel for the accused relied upon his client being within the definition of a “protected suspect” in s 110 of LEPRA, and therefore the provisions of s 122 applied. As indicated by the questioning of Detective King, it was the contention of counsel that as soon as the accused made an admission to an assault in his answer to “Q15”, the provisions of s 122 were engaged. Accordingly, the evidence of the conversation with the accused from at least that point onwards was improperly obtained for the purposes of s 138 of the Evidence Act and should be excluded.

24. [24]

    The Crown submitted that the accused was not a “protected suspect” because, accepting that “an investigative procedure” encompasses questioning by police of a suspect, it did not apply to the accused because he was not being questioned in connection with an offence.

25. [25]

    The Crown submitted that even if the provisions of s 122 did apply because the accused was a “protected suspect”, the discretion in s 138 should be exercised so as to admit the evidence.

Determination

1. [26]

   I have considerable doubt that the LEPRA provisions relied upon by counsel for the accused do apply. The submissions by the Crown appear to have force. However, the matter may be resolved efficiently by addressing the s 138 question. The probative value of the evidence is significant in that on the Crown case, it involved a change in the accused’s version of the events of the night of 14 March 2015 from a minor verbal argument with Ms Edwards, as he conveyed in his previous account to police, to a physical altercation where the deceased fell to the ground. Inconsistencies in thew account by the accused, contended by the Crown to be indicative of lies, is an important aspect of the Crown’s circumstantial case.

2. [27]

   The nature of the offence charged forming the subject matter of the proceeding is clearly one of grave seriousness. As the Crown Prosecutor pointed out, murder is the most serious offence known to the criminal law.

3. [28]

   The gravity of the asserted impropriety or contravention is, in the entire context, of a relatively low order. This is particularly so having regard to the fact that the accused attended the police station of his volition, in the company of a support person (his son), for the purpose of telling police some things that he had not previously told them and that he wanted them to hear. The conversation proceeded with all the indications of the accused being enthusiastic in wishing to convey the additional information that he did.

4. [29]

   The so-called “admission” to an offence of assault in the answer to “Q15” is not entirely clear, notwithstanding what Detective King said about it in his evidence on the voir dire. It is an account that is somewhat equivocal as to whether he described an intended forcible or hostile act directed at his wife. His statement that he grabbed the iPad from her, that it had twisted, and that she had hit the ground is equally open to the interpretation that what occurred to her was entirely accidental.

5. [30]

   In referring to illegal firearms secreted in a shed, the accused’s account in the answers to “Q19” and “Q20”, appear to be an aside that had nothing to do with the principal subject of the accused’s attendance at the police station and conversation with Detective King, namely the disappearance of his wife.

6. [31]

   I am satisfied that the impropriety or contravention was not at all deliberate, but at the most, reckless.

7. [32]

   It does not appear that any other proceeding has been or is likely to be taken in relation to the impropriety or contravention.

8. [33]

   I have had regard to s 138(3)(f) and (h), but they do not appear to be applicable in this case.

9. [34]

   I am satisfied, primarily on the basis of the significance of the evidence, the nature of the proceedings, and the importance of the evidence in the Crown case that the discretion should be exercised to admit the evidence, notwithstanding what I have assumed to have been an impropriety in the police obtaining the evidence.

Ruling

1. [35]

   The evidence of the conversation between the accused and his son and Detective King of 2 April 2015, insofar as it is relied upon by the Crown, is admissible.