R v George Heleta R v Sailosi Osuji [2014] NSWDC 82 | Case summary

District Court of NSW|2014-06-24

Judgment ON OBJECTION TO THE ADMISSIBILITY OF THE ERISP INTERVIEW OF OCTEVIAN CAMILLE

Introduction 1On 24 June 2014 I refused the application of the accused George Heleta to have ruled inadmissible the whole of the ERISP interview of Octevian Camille. With the consent of the parties, I announced my decision instanter, and said I would deliver my reasons at the earliest opportunity. These are my reasons. 2The two accused, George Heleta and Sailosi Osuji, are both charged with two counts on the Indictment: (1)On 7 April 2012 at Pendle Hill in the State of New South Wales wounded Tary Joseph Sukkar with intent to cause him grievous bodily harm (2)On 7 April 2012 at Pendle Hill in the State of New South Wales fired a firearm in a public place. 3Following arraignment, but before the jury was empanelled, what is known as a Basha Enquiry took place in respect of evidence to be relied on by the Crown in this trial of Mr Octevian Camille and Mr Joe Abousleiman. When the matter had been first called up for trial on 16 June 2014, Mr Camille and Mr Abousleiman had been charged on a separate Indictment with offences arising out of the same incident on 7 April 2012. An application was made by the Crown for adjournment of the trial, which was refused by the List Judge. Following that decision, the office of Director of Public Prosecutions advised that the proceedings against Mr Camille and Mr Abousleiman were to be withdrawn and their charges were subject to a No Bill. Thereafter, they became witnesses relied on by the Crown in this trial relying on ERISP interviews they had undertaken with the police on 8 April 2012. Both men refused to give separate statements to the police. 4Both Mr Camille and Mr Abousleiman gave evidence on the content of their record of interview. Those records of interview contained statements by each of the witnesses which the Crown wish to rely on to prove the elements of each charge against both accused. In short, they outline the circumstances in which Mr Camille attended a party at premises at Arnett Street Pendle Hill with a number of friends; the circumstances in which he was ejected from that party by the father of the young lady whose birthday was being celebrated, Mr Tary Sukkar; his subsequent attendance at Merrylands Police station to make a statement about the actions of Mr Sukkar; his leaving Merrylands Police station in a vehicle driven by Mr Abousleiman, and accompanied by Erastus and Sailosi Osuji, who were brothers who had attended the birthday party. The statements also provided evidence that the vehicle drove to Granville train station where they picked up the accused George Heleta, and then proceeded to Pendle Hill where they parked some distance away from where the party had been held in Arnett Street. In broad terms, the evidence outlined in those statements is then to be relied on by the Crown to establish that either two or three people, not being Mr Camille or Mr Abousleiman (who were in the front seat of the vehicle), left the back seat of the vehicle and walked towards the place where the party had been held. Some gunshots were heard and screaming, and then the persons returned to the vehicle and directed Mr Abousleiman to drive away from the scene. The vehicle was pulled over by police at Auburn with the same five occupants, and a search of the backseat area of the vehicle revealed a firearm situated on the floor of the vehicle, adjacent to where Mr Heleta had previously been seated before he was taken from the vehicle by the police. 5Other evidence is available to establish that Mr Tary Sukkar was outside the premises on Arnett Street, standing in the driveway of an adjoining property, talking to two other women, one of whom was Saba Merhi, when they were approached by two men, one of whom said words to the effect "I told you I would come back" and pointed to Tary Sukkar, at which point the second person discharged a firearm several times, one of which struck Mr Sukkar in the lower leg. 6During the Basha Enquiry both Mr Camille and Mr Abousleiman suffered a lack of recollection of some of the more salient features of their evidence. On numerous occasions, the Crown was granted leave to crossexamine each of the witnesses on parts of their ERISP interviews pursuant to s 38 of the Evidence Act 2005. That was done without objection, but on the basis that there was no finding made by the Court pursuant to s 38(1)(b) that the witness in each case was not making a genuine attempt to answer the questions. Following the grant of leave on each occasion, the Crown cross-examined on what were prior inconsistent statements by each of the witnesses. It is clear that if either witness is called at trial, their evidence will in various aspects be unfavourable to the Crown, and an application will be made by the Crown to cross-examine the witnesses pursuant to s 38. In those circumstances, the Crown's position is that the witnesses are not making a genuine attempt to give evidence and a ruling will be sought pursuant to s 38(1)(b). 7The Crown indicated that some dialogue had taken place between the parties for the purpose of identifying parts of each of the ERISP interview of Mr Camille and Mr Abousleiman which should be excised by consent. That process identified various parts of the respective records of interview which the Crown wished to rely upon, but were objected to by Counsel for both accused. For that purpose the Court was asked to rule on the disputed parts of the records of interview on 20 June 2014, after the trial had commenced. The Court undertook that task on the afternoon of 20 June 2014 in respect of the record of interview of Mr Abousleiman. Upon completion, the Crown undertook to have prepared a redacted version of the DVD of the ERISP interview of Mr Abousleiman and a transcript of the redacted interview. 8Before that process commenced, Mr Khan, Counsel for Mr Heleta, informed the Court that an objection was taken to the whole of the ERISP interview of Mr Camille on the basis that that interview was conducted improperly by police officers from start to finish. The gravamen of that submission was that the police had already interviewed Mr Abousleiman, and whilst interviewing Mr Camille, they employed tactics that involved a cross-examination of Mr Camille, and when they were not satisfied with answers given by him, adopted what had been told to them by Mr Abousleiman. In Counsel's submission, the resulting record of interview became "fruit from the poison tree", was highly prejudicial to Mr Heleta and therefore the Court should exercise its discretion pursuant to either s 137 or 138 of the Evidence Act to exclude the whole of Mr Camille's ERISP interview from the evidence. 9The Court then proceeded to rule on the various objections to the record of interview of Mr Abousleiman. Some of the material in that record of interview was objected to on the same basis that Mr Khan objected to the whole of the record of interview of Mr Camille, and for that reason, it was provisionally allowed to stand, subject to the Court's subsequent ruling in respect of the Camille record of interview. 10On 24 June 2014 Counsel for the accused Mr Heleta made an application for the Court to exercise its discretion to exclude the whole of the record of interview of Mr Octevian Camille, relying on s 137 and 138 of the Evidence Act 2005. The application was supported by Ms Hawkins, Counsel for accused Sailosi Osoji. In addition to the ERISP interview of Mr Camille, which became exhibit E on the Voir Dire, Counsel tendered two further documents in support of the application. They were first, the Custody Management Tecord of Octevian Camille (exhibit F), which demonstrated that he arrived at Merrylands Police station at 1.50am on 8 April 2012, that it was the first time that he had been arrested and placed in police custody, and that at various times between 6.15am on 8 April 2012 and 7.35pm on 8 April 2012 he remained in the dock at the Merrylands Police station. 11Exhibit E demonstrates on its face that the interview commenced at 9.30am on 8 April 2012 and concluded at 10.53am that day. Therefore, Mr Camille, who must have been a suspect for the police in their investigations into the shooting of Mr Sukkar, had been in custody for 7 hours and 40 minutes prior to the commencement of the interview and for a little over 9 hours by the time it concluded. 12Also tendered was an extract from the New South Wales Police Force Code of Practice for Crime (Custody, Rights, Investigation, Management and Evidence) (exhibit G). On page 74 under the heading "Admissibility of interview evidence" that document stated: "Do not behave in a manner which could be regarded as being violent, unfair, oppressive, inhuman, degrading or improper towards the suspect. Be fair at all times." 13Page 75 provided the following under the heading "Types of Questions": "Generally avoid questions which suggest an answer (leading questions) and those which can be answered by a yes or no (closed questions). Your most important form of question should be the open question, one which encourages the suspect to answer (eg. What did you do after you left the shop?, what happened then?, what can you tell me about that?). These should be the feature of your interview. These generally start with either "What", "Where", "When", "Who", "Why", or "How"."

The Legislation "137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused." "138 Discretion to exclude improperly or illegally obtained evidence [Cth Act only]/Exclusion of improperly or illegally obtained evidence [NSW and Vic Acts only] (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless 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. (2) Without limiting subsection (1), evidence of an admission thet was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act of omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence; and (b) the importance of the evidence in the proceedings; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceedings; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."

Submissions made on behalf of the Accused George Heleta 14Mr Khan provided a comprehensive written outline of submissions on behalf of the accused. He also helpfully provided a document, being a paper presented at the Legal Aid Commission Criminal Law Conference 2006 entitled "Impermissible Questions asked in Records of Interview and by Prosecutors in Cross-Examination" by Paul Townsend and Lester Fernandez. That paper set out propositions derived from R v Plevac (1995) 84 A Crim R 570 at 579-581 in respect of questioning suspects by Police. The propositions are as follows: (1)Police may, in the course of investigation, interrogate a suspect who is willing to answer their questions, and that interrogation may include putting to the suspect the facts as the police know, or believe, or suspect them to be, in order to ascertain what, if anything, the suspect will say about them: Grills (1910) 11 CLR 400; O'Neill (1987-88) 48 SASR 51 at 56. (2)Such questioning must be fair and must not amount to "intimidation, persistent importunity or sustained or undue insistence or pressure": McDermott (1948) 76 CLR 501 at 511; Lee (1950) 82 CLR 133 at 144; Van der Meer (1988) 82 ALR 10 at 36-37, but questioning is not to be regarded as unfair merely because it is persistent: Regina v Lawrence Thomas Taylor (CCA, unreported 18 April 1995). (3)Police should not persist with such an interrogation after the suspect has indicated that he or she does not wish to answer further questions: Ireland (1971-72) 126 CLR 321 at 331-332; although merely because a suspect says he does not wish to answer, or will not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise admissible. (4)The answers given by the suspect are admissible in evidence (and hence, so are the questions) if they are relevant; but not otherwise: Grills (supra at 413, 419); Taylor (supra at p.9). (5)An answer (and the question to which it is given) is relevant if it is an admission, or is capable of being regarded as an admission, of guilt or of a fact relevant to the proof of guilt: Regina v Robert Ernest Astill (CCA, unreported 17 July 1992 at pp. 8-13). (6)If an answer is not unequivocally an admission but is capable of being regarded as such, it is a question for the jury whether it is such. Subject to the exercise of the judge's discretion, the question and answer are admissible but it is necessary that the jury be clearly and fully directed that is is a question for them as to whether the answer does or does not amount to a relevant admission: Astill (supra at p. 11-15). (7)An answer which is not capable of being regarded as an admission is on the face of it irrelevant and therefore inadmissible: Grills (supra at p. 413); Taylor (supra at p.9). (8)However, answers of that sort may yet be admissible if they form part of an interrogation in the course of which some answers do amount to admissions or are capable of being so regarded, where the question and answers which do not themselves contain admissions are relevant to set the other questions and answers in context, and/or to show that there was no impropriety on the part of the police in the conduct of their interrogation: Taylor (supra at pp.9-10); Barca (1975) 133 CLR 82 at 107; Grills (supra at pp.418-419); Regina v Helen Margaret Towers (CCA, unreported 7 June 1993 at pp.10-11). (9)In such circumstances, the trial judge must always carefully consider whether questions and answers which are not capable of amounting to relevant admissions should be excluded because they are prejudicial: Grills (supra at pp.419-420); Ireland (supra at p.332); Taylor (supra); Astill (supra). (10)Where the questions and answers under consideration, although having in themselves no probative value but forming part of an interview and prima facie admissible as part of the context of that interview, do no more than place before the jury, in a hearsay form, assertions of fact which have already been established by other evidence or which clearly will be established by other evidence intended to be led by the Crown, their prejudicial effect will be minimal and would not ordinarily justify their exclusion: Taylor (supra at p.10). (11)Where, however, a question is asked, which contains a hearsay assertion of matter which the Crown is not in a position to prove, or which is inadmissible in evidence, and where the answer is not capable of amounting to an admission of the matter asserted by the questioner, there may be, depending on the nature of the matter stated and its relevance to the issues in the trial, very great prejudice, which may lead to the exclusion of the evidence, even if that means (because, in the context, the inadmissible material is inextricably interwoven with the admissible) that the Crown is deprived of some probative and admissible evidence: Ireland (supra at p.332); Grills (supra at p. 419); but cf. Harriman (supra at pp.603-604). 15The propositions were described by the Court of Criminal Appeal as "an accurate but not exhaustive statement of relevant principles. The paper also set out the proposition that questions that are inadmissible at trial are, for the very same reasons, inadmissible in a record of interview. The authors referred to R v Pritchard [1991] 1VR 84 at 93 where the Victorian Court of Criminal Appeal said as follows in relation to the manner of questioning in that case: "The harm to him [the applicant] was that by the form of questions the police Officer was able to convey to the viewer of the tape the undisguised ridicule and derision he entertained about the answers of the applicant given in an endeavour to extricate himself from what obviously were real difficulties. The police would not at the trial have been permitted to express their incredulity or total disbelief in the applicant's answers. Why should they be allowed to do so by the form of the questions chosen to be put to the applicant which can be, as they were, so vividly reproduced before the jury at trial?" 16Counsel for Mr Heleta conceded that on its face the evidence of Mr Camille contained in his ERISP interview appeared to have significant probative value, however, the manner in which the evidence was extracted from him, substantially eroded that value. It was submitted that rather than allowing Mr Camille to simply tell his story, he was led throughout the interview with the police putting to him their own case theory and fashioning their questioning so that he adopted either their version of what occurred, or the version of Joe Abousleiman. 17It was submitted that Mr Camille had been badgered and belittled throughout the process and his responses had often been dismissed as untruths (examples given were question and answers 178, 308-311, 317, 504 and 520). 18It was submitted that by putting the version put to them by Mr Abousleiman to Mr Camille, on the basis that Mr Abousleiman's account was the truth, they were exculpatory of both Mr Abousleiman and Mr Camille and therefore raised the possibility that Mr Camille was simply adopting whatever version was put before him. This was part of the police putting their own case theory to Mr Camille and seeking only the answers that fitted their theory. 19It was submitted that the Code of Practice for Crime Handbook extract at page 74 had been breached in that police officers were advised not to conduct interviews in a manner which could in bold be regarded as unfair, degrading or improper. It was submitted that the use of the word "could" highlights the importance of perception in that process. 20Further, Mr Camille had asked at one point if he could just go home and the response from the interviewing officer was framed in terms to suggest that the interview process must be completed, and that he must answer the questions being put to him, and that the same will apply to everyone else that the police would be interviewing. This did not reflect the reality of Mr Camille's rights and took away his choice to exercise his right of silence. 21Whilst not within the definition of a vulnerable person, it was submitted that Mr Camille was someone who had never before been in police custody, had been held for over 7 hours prior to being interviewed, may well have been sleep deprived and who was being exploited by the police officers. 22One aspect of the questioning which was inappropriate was the way in which the interviewing officer referred to Mr Camille as "mate" on occasion. Mr Khan relied on the judgment of Nicholson SC DCJ in R v Powell [2010] NSWDC 84 at [41] in which the use of that term was described as "inappropriate" and was designed to ingratiate the officer with the suspect. 23Otherwise, it was submitted that there was impropriety of the approach of the police who conducted substantial parts of the interview by leading the witness or by cross-examining him. Further, the evidence that the Crown was relying on from Mr Camille was available in any event from Mr Abousleiman. 24In respect of the exercise of the Court's discretion, it was submitted that the evidence was not being sought to be used against Mr Camille himself, but rather as inculpatory evidence against the two accused Heleta and Osuji, and that if the evidence was admitted its "seductive (though illfounded) appeal may encourage an improper use of the evidence". 25It was further submitted that if the ERISP was admitted with numerous portions of the interview edited, then the obvious gaps in the interview may invite unwarranted speculation by the jury. 26It was submitted that the manner in which the evidence had been obtained has tainted all of the evidence, it is all "fruit from the poison tree", it permeates throughout and any attempt to artificially disentangle those portions which are considered untainted, results in obvious gaps and unwarranted speculation. 27Further, it was submitted that the potential for unfair prejudice here was high and far outweighs its probative value and therefore the evidence should be excluded pursuant to s 137 of the Evidence Act. 28Those written submissions were supplemented by oral submissions highlighting what was described as offensive questioning of the suspect, Mr Camille. Counsel referred to the High Court's decision in Van der Meer v R (1988) 82 ALR 10 in submitting that the line was crossed here by examples of the police cross-examining Mr Camille to break down the answers given by him which they regarded as unfavourable in that they did not agree with their own case theory. It was a matter of perception of the way in which the record of interview was conducted which involved its unfairness and that was the mischief giving rise to the risk of misuse to which the jury might put the evidence. 29The ERISP interview was played to the Court, during which Counsel had the opportunity to stop the DVD at any point so as to highlight the impropriety alleged. The following matters were noted during that process: (1)The ERISP interview itself was conducted over one hour and 23 minutes and comprised 871 questions and answers. It commenced with the standard caution being given to Mr Camille and he agreed that he was not obliged to say or do anything if he did not want to. On two occasions at the end of the interview he indicated to police officers that the interview had been conducted fairly and that his answers had been given of his own free will and that no threat, promise or offer of advantage had been held out to him to take part in the interview. He had no complaint to make about the manner of the interview. The police had issued a second caution to Mr Camille during the course of the interview (Q 51). (2)That on no less than nine occasions the investigating officer used the word "mate" when addressing his questions to Mr Camille. This was part of the ingratiating process referred to by Nicholson SC DCJ in R v Powell and relied on by the accused. (3)Early in the interview (Q 27) the police indicated for the first time to Mr Camille that they had information relating to the incident from Joe Abousleiman (Q 27 where the proposition was put that he worked at the same company that Joe also worked at). (4)In some of the questioning the police officer ingratiated himself to the suspect (Q 98-100 in respect of the incident where he was struck whilst kissing his girlfriend). (5)It was submitted that during the interview the police officer acknowledged that he knew what was and what was not acceptable to ask (Q 170 - "I want you to tell me your side of the story"). However, shortly thereafter, at Q 178, he had badgered the suspect by (Q 178 "Come on Octevian, what do you mean, you don't know?"). (6)Portions of the record of interview were highlighted in respect of the demeanour of the suspect (for eg Q 258-268) as examples where he was fashioning his account to what he believed the police already knew. (7)On other occasions the police officer had said to Mr Camille "that's not true" (Q 288), and the suspect had expressed that "It's too much" or had said "So much pressure on me". This revealed how the interview was being conducted (see for eg. Q 292-311 by telling the suspect that other detectives were speaking to other people in respect of the matter (Q 311). The investigating officer was threatening the suspect. This was intended to create a perception that the police did not accept what he said and had been told a different story by other people so as to manipulate the suspect. (8)By directly telling the suspect that the police officer did not believe him (Q 316 and 317), it was submitted that this was said with derision and the disbelief expressed by the police officer which was highly prejudicial and sets the scene for the rest of the interview. It was further submitted that it influenced the nature and character of the answers that followed and was therefore unfair because if that material was excised from the record of interview, the jury would not know that. It would therefore invite unwarranted speculation by the jury. (9)The suspect had expressed a desire to go home (Q 322) which had been ignored by the police. When he told the police he had been drinking on that night, the tone used in the questioning about that by police was entirely sceptical. This also occurred when the police put to the suspect (Q 345) that "shooting was much louder than screaming". (10)When the suspect told the police that he could not estimate the time that the men were away from the car, it provoked a response "if you don't know you don't know" (Q 371). This was somewhat disingenuous and not appropriate for the police to be conducting the interview that way. Similarly, the police's response "Really?" at Q 404 was an inappropriate response. Similarly, by introducing questions with expressions such as "that's a bit strange" (Q 405) and "I believe that's a possibility" (Q 410) introduced irrelevancies and should not have been flagged to the suspect. (11)Some questions were clearly inappropriate (for example Q 420 "Wouldn't it be the case if someone else has done a shooting they would run back to the car and they will be excited maybe and they will be talking about what just happened?"). (12)On one occasion the suspect asked whether he could ask a question (Q 438) and he was ignored by the police who continued on with their questions. (13)On occasion the police expressed disbelief and derision towards the suspect (Qs 467-477). The account they provided the suspect with was an exculpatory account which he simply adopted. It was submitted that "he would be a fool not to as it puts him in the clear and 'everyone else' (meaning the accused) in". (14)There were examples of persistent questioning (for eg. Q 503 "You saw people leave the car but you don't want to tell me. Is that right?") This type of questioning was inappropriate. Further, the police badgered him to stop saying "I think" in his answers (for eg. Q 520). (15)It was submitted that all responses after Q 467 were in direct reference to what the police had told him in Qs 467 and 468 and he was being asked to adopt an exculpatory version. (16)It was disingenuous for the police to say (at Q 522) "Obviously I think the same thing as you, mate", and "I think it's obvious" (Q 564). (17)When asked for the second time (at Q 582) whether he could go home, the suspect was cut off until he was given an explanation at Q 587. (18)There were two further references to the police speaking to Joe Abousleiman. At Q 639 "We have spoken to Joe. Octevian, who was in the car? It's not a hard question, mate?" This was in the character of a threat and at Q 643 "Okay that's what Joe told us too. So tell the truth. Yeah. So you leave Merrylands Police station ..." This gave context to Mr Camille being told earlier that they had been speaking to Joe Abousleiman. (19)By responding to the suspect's answers by saying "I would have thought so" (Q 662), the police had acted inappropriately. (20)Mr Camille again asked to go home (Q 765-767). The perception created by the response to this request was that the interview must be completed. The explanation given by the police officers at this time left out any reminder that he did not need to answer any questions. It was submitted that as a matter of procedural fairness he should have been given a caution at this time. The Police Code of Practice (exhibit G) was relied on as demonstrating that this was unfair. (21)Finally, in Q 827 the suspect, when asked whether he was happy with the interview, responded affirmatively, and then asked whether the police were happy. It was submitted that this gave an insight into his state of mind, namely, that he was tailoring his evidence to what he perceived the police officer's wanted to hear. 30A general submission was made by Counsel for Mr Heleta that the last questions asked of Mr Camille, relating to the fairness of the interview, were basically safeguards designed to protect witnesses. In this case, Mr Camille was in a vulnerable position, being in custody for the first time, and he was asked many questions. Appropriate weight should therefore be given to any view he expressed as to the fairness of the questioning. 31Counsel for Mr Osuji, Ms Hawkins, supported the application but made no additional submissions.

The Crown Submissions 32In respect of the final general submission made by Counsel, the Crown submitted that the safeguards were designed to protect accused persons and that submissions made on behalf of Mr Heleta would be good and valid submissions if Mr Camille was on trial. However, he was not now an accused or co-accused. He was a witness. As an accused he had not been compellable to give evidence which was the foundation of the rule prohibiting cross-examination of accused persons in records of interview. Mr Camille, it was submitted, was now a compellable witness and as such the question was one of voluntariness of the evidence given by him. 33If Mr Camille chose not to give evidence in a favourable way, he may be cross-examined with leave. 34The Crown submitted first that the evidence was not improperly obtained so as to warrant exercise of the Court's discretion pursuant to s 138. Mr Camille was not on trial, even though he was a suspect at the time of making the interview. His evidence had high probative value and was important, and may be of central importance to the police case, for example, if the defence were going to suggest that Mr Camille fired the gun, and not the accused, or one of them. Further, s 138(3)(h) was not engaged as not all of the evidence could have been obtained from Mr Abousleiman. 35Secondly, the Crown submitted that Mr Camille was a witness who the Crown ought to call, having regard to his prior inconsistent statements. 36Thirdly, even if the probative value is diminished because of the manner in which some of the evidence was obtained, there was no danger here of unfair prejudice. The jury had access to the video and could see for themselves the manner in which the evidence was obtained. The defendant had the opportunity then to highlight any such impropriety. 37Fourthly, the Crown submitted that the evidence will attract an unreliability warning and direction. Even if the probative value was somewhat diminished, it was not to the extent that it was outweighed by unfair prejudice, therefore the Court should not exercise its discretion pursuant to s 137 of the Evidence Act.

Submissions in Reply 38In reply, with respect to the proposition that at the time of the interview Mr Camille was a suspect, Mr Khan referred to his outline of written submissions, and in particular paragraph 25-27 thereof, in respect of the gravity of the impropriety that was alleged on behalf of the accused here.

Determination 39I viewed the whole of the ERISP interview and noted the observations and objections made by Counsel for the Applicant during that process. I note the standard caution that Mr Camille was issued with and his acknowledgement thereof. I have carefully assessed his demeanour throughout the questioning process. Mr Khan submitted on behalf of Mr Heleta that the demeanour of Mr Camille raised the possibility that he was fashioning his account to what he believed the police already knew. For example, Q 268, where he replied to the question by saying "Well, but you already know". The officer replied "I probably do know but I want you to tell me". It was submitted that the balance of the interview was conducted in that context where certain responses were accepted by the police officer and others were not. I do not accept that submission. 40The demeanour of the suspect during the questioning process was, subject to him telling the police officer that he was stressed and asking to go home on two occasions, that of a person voluntarily providing information to the investigating officer. 41I do agree with the submission made by Counsel that the use of the expression "mate" was inappropriate in the context of the police questioning and it could be interpreted as ingratiating conduct by the police. I agree with the comment made by Nicholson SC DCJ in R v Powell, supra, at paragraph 41 as to use of the term "mate". However, it was used in nine of over 800 questions, and did not have a permeating resonance throughout the interview. The suspect was not overborne or otherwise seduced by its use into providing information he would otherwise not have provided. I distinguish the decision in R v Powell where the ERISP interview was excluded for reasons that are totally different from the circumstances here. 42The Crown has conceded that some of the questioning was unfair and the ERISP interview may well be held to be inadmissible if it was sought to be admitted as against Mr Camille as an accused person. However, now that the charges against him have been withdrawn, the same considerations of fairness do not apply. Much of the offending material has been the subject of agreement between the Crown and Counsel for the Accused as being excised in any event. Some of it was not, for example, Q 178 which read: "Q178: Come on, Octevian. What do you mean you don't know?" That was relied on by Mr Khan of Counsel as demonstrating impropriety on the part of the investigating officer. However, it was not subject to an application for excision by either accused. Further, the police made it clear a number of times throughout the interview that they wanted his side of the story. 43There is no evidence on the DVD of the ERISP interview that Mr Camille was overborne in the manner in which he answered the police. He did say on two occasions, "I want to go home", however, he continued to answer questions put to him by the police. I do not accept the submission that that was an indication that he was being forced to complete the interview in that the perception he held was that he must complete it. In fact he was told that he was not being forced to complete it. 44Nor is the use of leading questions sufficient to rule the whole of the interview inadmissible. This includes putting Mr Camille on notice as to what the police knew what Mr Abousleiman had said. It comes within the first two propositions set out by the Court of Appeal in R v Plevac, supra. 45Mr Khan's submission as to the use of derision by the investigating police in response to some of Mr Camille's answers was made out in respect to a very small number of responses from the police (for eg. Qs 317, 318, 404 and 467-477). Again, these did not permeate the whole of the interview and have been the subject of excision by agreement in any event. In R v Pritchard, supra, referred to above, it was stated that the police would not have been permitted to express their incredulity or total disbelief in the applicant's answers at trial. That also will not happen here once the material is excised. 46I do not find that any threat was made out as submitted by Mr Khan in respect of Q 304. Nor did the questioning amount to persistent importunity or sustained or undue insistence or pressure to the extent that it crossed the line so as to render the process unfair - see R v Clarke (1997) 97 A Crim R 414 where at 419 Hunt CJ at CL said: "It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent (Smith [1964] VR 95 at 97; Lavery (No. 2) (1979) 20 SASR 430 at 470; O'Neill (1988) 48 SASR 41 at 56). It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence." 47The document is in my view capable of selective redaction so as to avoid unfairness to the accused. That process does not give rise to the prospect of speculation by the jury caused by gaps in the ERISP interview or its transcript. The jury are, in any event, given a clear direction as to speculation and could be given a specific direction in respect of this evidence. 48I find that the evidence contained in the record of interview is of high probative value and that any prejudicial material can be excised by deleting the offending questions and answers. The evidence was given voluntarily and on the evidence before me, no impropriety in the conduct of the Police has been made out so as to warrant exercise of the Court's discretion to exclude the evidence for unfairness - see Swaffield v R (1998) 192 CLR 159. 49With respect to s 138 of the Evidence Act 2005, I find that the investigating police officer did nothing in the course of the questioning which he knew or reasonably ought to have known was likely to impair substantially the ability of Mr Camille to respond rationally to the questioning. Nor did he make a false statement knowing that making that statement was likely to cause Mr Camille to make an admission so as to amount to improper conduct within s 138(2). Nor do I find that the evidence was otherwise improperly obtained so as to satisfy s 138(1). In so deciding, I have taken into account the high probative value of the evidence and its importance in these proceedings, which are serious criminal proceedings. The fact that some, if not most of the evidence, could have been obtained from Mr Abousleiman, does not amount to impropriety and does not weigh heavily in the exercise of the Court's discretion pursuant to s 138(3)(h). 50I further decline to make an order pursuant to s 137 of the Evidence Act 2005 on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. Any risk or prejudice can be minimised by appropriate redaction of the document in respect of the clearly unfair passages, and appropriate directions given to the jury in respect of speculation generally and speculation in respect of any gaps left in the ERISP interview or its transcript. The evidence was in my opinion given voluntarily by Mr Camille, who is now a compellable witness in the proceedings and should not be ruled inadmissible in the absence of any proven impropriety on the part of the investigating police.

Conclusion 51For the above reasons, I am not satisfied that there is sufficient grounds for the whole of the ERISP interview to be ruled inadmissible. I therefore order as follows: (1)Application for ERISP Interview of Octevian Camille to be ruled inadmissible is refused. (2)Preliminary rulings as to admissibility made in respect of the ERISP Interview of Mr Joe Abousleiman, which were subject to the ruling on this application, are now ruled finally admissible. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2014

R v George Heleta R v Sailosi Osuji

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