R v QL

HIS HONOUR:

By an indictment presented 4 September 2017 the accused pleaded not guilty to the following count:

Before the commencement of the trial, there was a voir dire to determine the admissibility of what the accused said when first spoken to by police at the Hannans Road premises. As a result of that voir dire hearing, I determined that the disputed evidence was admissible and indicated that I would provide reasons for that ruling in due course. This judgment provides those reasons.

In a statement, dated 15 January 2016, Inspector Warden said the following:

Objection was taken by the accused to the words “I stabbed him. We argued and I was mad.” It was this evidence which I ruled was admissible.

Relevant oral evidence was given on the voir dire by Inspector Warden as follows:

In cross-examination on the voir dire, it was suggested to Inspector Warden that when he entered the house and granny flat, he would have expected the perpetrator to still be there. Inspector Warden disagreed and said:

The evidence of Inspector Warden continued:

The basis for the accused’s objection to the evidence “I stabbed him. We argued and I was mad” was that the representations were capable of constituting admissions. On the assumption that they were made, the accused submitted that they were made in circumstances that required Inspector Warden to caution her (s 139 Evidence Act 1995 (NSW) (the Act)). Because no caution was given, the accused submitted that those representations were obtained improperly and that the Court should exclude the evidence of them in the exercise of its discretion under s 138 of the Act.

The accused submitted that when Inspector Warden asked “What’s happened?” she was in fact being questioned by police in that Inspector Warden was a police officer and he was empowered to arrest her. The accused submitted that the impugned answers were obtained after Inspector Warden had formed a suspicion, or a belief on reasonable grounds, that she had stabbed the deceased. The accused submitted that those answers, which were obtained prior to the caution but after Inspector Warden had formed the suspicion or belief that she had stabbed the deceased, occurred at a time when he would not have allowed her to leave the premises.

The accused submitted that in those circumstances, the representations/admissions were obtained improperly.

The accused relied upon the following matters to substantiate her submission that at the time the representations were made, but before the caution, Inspector Warden had a suspicion that she was the person who had stabbed the deceased:

The accused submitted that the Court should infer from that evidence that at that time Inspector Warden believed that she had injured the deceased, probably by stabbing him. By that time he had the power to arrest her (s 99 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)). Pursuant to s 139(5) of the Act she was under arrest because she was in his company or alternatively, because if she tried to leave she would have been detained. The accused submitted that Inspector Warden’s continued questioning of her meant that she was in his company for that purpose. Because of his belief concerning her involvement, he intended to continue questioning her on that subject.

The accused submitted that the answers to those questions which were asked after Inspector Warden had formed that suspicion or belief until the time of the caution, were obtained improperly.

The accused submitted that this improperly obtained evidence should not be admitted pursuant to s 138 of the Act, the test being that “the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”. The accused submitted that a proper balancing of the factors outlined in s 138 lead to the conclusion that the desirability of admitting the answers did not outweigh the undesirability of admitting them.

The accused did not accept that the impugned answers had substantial probative value, nor that they had great importance in the proceedings, given the issues to be litigated. Although the accused accepted that the answers assisted in proving that she stabbed the deceased during an argument, she had made admissions to this effect during the course of her electronically recorded statement (ERISP) which would be admitted in the proceedings without objection.

The accused submitted that although the proceedings related to a very serious charge, there would be no dispute at trial that she caused the deceased’s death. She submitted that the issues at trial would focus on whether or not the act causing death was intended to kill or cause grievous bodily harm or indeed any harm at all. The accused submitted that in those circumstances, the importance of the evidence was relatively low and thus its probative value was also low.

The accused submitted that the maintenance of the protection of the right to silence was a fundamental plank of the administration of justice and that there was a strong public policy favouring respect for this right. The accused submitted that s 139 of the Act was a specific legislative provision designed to protect that right and to allow for a prima facie position where evidence concerning admissions should generally be restricted to circumstances where a suspect has been properly cautioned. The accused submitted that any breach of s 139 of the Act was potentially serious. In this case, there was no real impediment to the administration of a caution, other than the pressure of unfolding events. The accused submitted that when all relevant factors were weighed in the balance, the Crown had not demonstrated that the desirability of the admission of the evidence outweighed its non-admission.

Relevant provisions of the Act are:

The burden of satisfying the condition that the evidence had been improperly or unlawfully obtained is on the person seeking its exclusion. If this condition were established, the party seeking to adduce the evidence carried the burden of proving facts relevant to matters in favour of its admission (Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 at [28] per French CJ).

The first issue was whether the accused had made out the requirements of s 139(1). There is no doubt that the questioning was conducted by an investigating official who was empowered to arrest the accused. It is also common ground that before the answers in dispute were given, no caution had been administered to the accused. The question of whether the accused was under arrest for an offence at the time is controversial.

Subsection 139(5) expands the concept of being “under arrest”. Relevant to this matter are subsections (5)(a) and (5)(b). In relation to s 139(5)(a), I accept the evidence of Inspector Warden that at the time when he asked “What happened?” for the second time, he had not formed a belief or suspicion that there was sufficient evidence to establish that the accused had committed an offence which was going to be the subject of the questioning. I am of the opinion that Inspector Warden regarded that as a possibility only and that it was one of a number of competing possibilities.

I accept the evidence of Inspector Warden that when he arrived at the granny flat, the only information he had was that somebody had been either shot or stabbed. The sight which confronted him of the accused cradling the head of the deceased in her lap was not what he would have expected had the accused been responsible for the deceased’s condition. I accept Inspector Warden’s evidence that normally in crimes of violence the perpetrator, rather than staying to explain himself or herself, tends to leave the premises as quickly as he or she can. As Inspector Warden put it:

I also accept Inspector Warden when he said that the answer to his first question about what happened – “we had an argument” – did not so add to his knowledge as to cause him to form the necessary belief or suspicion and at that point in time, he regarded the accused’s involvement as being, at most, only a possibility.

That does not end the matter. There is also the effect of subsection 139(5)(b) to be considered, i.e. would Inspector Warden have allowed the accused to leave had she wished to do so at that time. When that proposition was put to Inspector Warden he agreed that had the accused attempted to leave the granny flat after her first answer, he would have stopped her. Accordingly, the necessary requirements for the application of s 139(1) have been made out, which in turn, brings into play the provisions of s 138(1).

Before leaving s 139(1), it should be noted that an attempt by the accused to leave in the circumstances described by Inspector Warden, would have of itself added an extra ingredient of knowledge to that already possessed by him, i.e. that a person who obviously had some knowledge of what had occurred was now trying to leave the scene of the incident without explanation and without providing that information. In other words, the very act of attempting to leave would add an extra component of knowledge which would give rise to the necessary suspicion in the mind of Inspector Warden and which would cause him to prevent her leaving the scene.

It then becomes necessary to carry out the balancing exercise required by s 138 and to determine whether “the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”.

I have concluded that in carrying out that balancing process, pursuant to s 138, the Crown should be granted leave to adduce the impugned evidence at trial. Of course, it is the Crown that has the onus of establishing that the evidence should be admitted pursuant to s 138.

Matters which the Court should take into account (albeit not an exhaustive list) in applying the statutory test are set out in s 138(3). The first of those is the probative value of the evidence.

Contrary to the submission of the accused, I am of the opinion that the probative value of the evidence is high. In reaching that conclusion I have, in accordance with the analysis of the majority (French CJ, Kiefel, Bell and Keane JJ) in IMM v The Queen [2016] HCA 14; 257 CLR 300, taken the evidence at its highest. As such, it has the potential to be understood as an admission that the accused stabbed the deceased while angry in the course of an argument. Given that only the accused and deceased were present at the time, and that the deceased will not be able to give a version of events, such an admission, if interpreted in that way, was of great importance to the Crown case.

On that issue, I do not accept the submission of the accused that admissions to similar effect were made by her in her ERISP so that the admission of this evidence did not advance the Crown case. While the accused did admit in her interview that she stabbed the deceased, she did not accept that she used the words attributed to her by Inspector Warden, nor did she accept that she was “mad” in the sense of angry and that this played a causal role in the incident.

The seriousness of the offence with which the accused has been charged adds to the importance of the disputed evidence. The evidence went directly to the intent element of the offence of murder.

In relation to the nature of the impropriety and its gravity, it is clear that ss 138 and 139 of the Act are directed at protecting an accused’s right to silence. That, of course, is a fundamental part of our criminal law and the administration of justice. As indicated above, there has been impropriety as provided for by s 139.

That having been said, the breach on this occasion was of a relatively technical kind. It was not a breach of the kind which appears to have been envisaged by the section, i.e. that the accused understood that he or she would not be allowed to leave if they had tried or that the relevant official had formed a view, even before questioning, that the accused would not be allowed to leave the premises should he or she try.

In this case, Inspector Warden’s knowledge was sparse. He did not know what part, if any, the accused had played in the wounding of the deceased. All that he knew was that the accused was caring for the deceased and that they had had an argument. Importantly, he did not know that the accused had a direct involvement in the wounding. What was clear was that the accused might well have information about how the wounding took place. If, however, one added to that factual background an attempt by the accused to leave the premises without answering further questions, that would add an additional piece to the puzzle of what happened to the deceased in that the very act of leaving would suggest some direct involvement on the part of the accused in the stabbing.

Accordingly, although there was a breach of s 139 so as to activate s 138, in my opinion the breach was towards the bottom of the spectrum of seriousness for an impropriety as envisaged by those sections of the Act. There was nothing deliberate or reckless in the impropriety.

Taking all of those matters together, I concluded that the desirability of admitting the evidence outweighs the undesirability of admitting it because of the way in which it was obtained.