R v Musa

Ruling 1

1. The first objection was to a portion of the BWV, as follows: V.2 Yeah. Then I was driving out and he jump in front of me. Out of anger I just hit him. P.1 Out of anger you hit him? V.2 Yeah. Because - - - P.1 On purpose? V.2 No, no, not on purpose. Because I'm angry of what I, I have seen. If he explain himself to me all this wouldn't happen. P.1 So when you say you were angry and out of anger you hit him what do you mean by that?
2. At the time of that conversation, on the case of both parties, the accused had experienced a serious motor vehicle collision a few minutes before. She also had suffered a significant injury to her hand. She was arrested and told to sit near the car park exit. There was evidence that she had never interacted with any criminal justice system before in her life. Emergency services and bystanders constituted a significant distraction. As I have noted, she was provided with an incomplete caution (in my assessment, that was a matter of oversight, not malice).
3. But for one factor, I would not have excluded the subject of ruling 1, for the following reasons. I did not believe that the circumstances combined with the conduct of the police officer rose to the level of oppression. Nor did I consider that there was any question of the circumstances affecting the likelihood, or unlikelihood, of the truth of what the accused had to say (I appreciate that the preceding summary does not entirely accurately engage with the aspect of "onus" in s 85). That was based to a significant degree upon what the accused had said in the BWV as a whole, and the manner in which she had said it. Furthermore, accepting the incompleteness of the caution provided, I was well satisfied that the factors in s 138 called for the evidence to be admitted (not least the subject matter of the trial being murder; the contravention being less grave because of its partial nature; and the evidence being quite probative of an intention, at the least, to inflict grievous bodily harm).
4. The matter that "tipped the balance" in favour of discretionary exclusion on the basis of unfairness was the statement by the police officer to the accused to "Keep, keep talking", seconds before the objected to admissions (voir dire exhibit D2, page 3). In combination with everything else, I felt that it was, at the least, an inappropriate encouragement and, at the most, an inappropriate demand that the accused continue to provide her version of events to the police officer.
5. For those reasons, ruling 1 excluded lines 4 to 10 of the BWV transcript.
6. I turn now to the rulings pertaining to the recorded interview.

Ruling 2

1. As I have said, it was conceded by the Crown that the accused was not given written notice of her rights at the police station in contravention of two separate sections of LEPRA. That enlivened the evaluative judgment in s 138. In written submissions, senior counsel for the accused further asserted that the accused was a "vulnerable person" by reason of her non-English speaking background, as defined in s 28(1)(e) Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW). Section 29(2) of the Regulation expressly provides that the custody manager must ensure the caution and summary required by LEPRA s 122 are given, amongst other things. As previously noted, this did not occur.
2. In a nutshell, I was well satisfied that, despite those unlawful failings, the contents of the recorded interview should be admitted, though subject to other objections, operating discreetly or in combination. That is because: the recorded interview was extremely probative evidence of the state of mind of the accused at the time of the collision; it was extremely important evidence in the proceedings; the offence alleged was the most serious known to law (except perhaps for treason); in all the circumstances, not least the oral explanations of her rights, the contravention was not particularly grave; my satisfaction that the contravention was a matter of oversight or legal ignorance, not intention or recklessness (in the sense of foresight of the possibility of contravention); and the contravention was not a breach of a fundamental human right. It is true that it would not have been difficult to comply with the legislation, and it was unlikely in the extreme that any proceedings would be taken against the custody manager for his breach. Even so, in all of the circumstances I was amply satisfied that the evidence should be admitted, despite the contraventions of LEPRA.
3. The effect of that assessment was that, except when other compelling factors were able to be relied upon by the accused, I did not believe that the contraventions of LEPRA on their own should lead to exclusion of any part of the recorded interview.
4. Another generic aspect of my approach to the objections to portions of the recorded interview was that one may accept that: the interview commenced in the early hours of the morning; the interviewee had been without sleep for many hours; the interviewee had been in a motor vehicle collision; she had returned from hospital, where she had been treated for a significant hand injury; and although she had good proficiency in English, it was not her first language. Even so, I did not accept the proposition of senior counsel for the accused that a realistic option would have been to postpone the interview until daylight hours that morning, perhaps 12 hours after the collision itself. Speaking generally, I considered that the police had an entitlement to seek to interview the accused when they did; whether she chose to engage in that interview, is of course, another matter entirely.
5. A final overarching aspect of the recorded interview is that, to my assessment, the accused was not overly overtly distressed by the way the evening and early morning had unfolded. As the AVL product shows, she did not dissolve into floods of tears, cries of emotional pain, or other manifestations of distress that I have previously seen in recordings of persons being questioned about a homicide. Speaking generally, and accepting that English was not the first language of the accused, she spoke firmly, if not forthrightly, and - making due allowance for the difficulty in one human being assessing another's state of mind, especially through a recording - her mood seemed to feature some irritation, if not exasperation, with the police. She also struck me as an intelligent person who was fully engaged mentally and emotionally with the process of the recorded interview.
6. In short, in my opinion the general circumstances of the interview did not on their own call for exclusion of any portion subject to objection. Having said that, in combination with other, more compelling factors, they could play some role.
7. Turning to discuss specific aspects of ruling 2, Q&A 332 needed to be seen in its context, which most relevantly commences at Q 329: Q329 [03.03] Ah hmm. So just so I get it right, you turned out of the parking space, which was very tight? Yeah Q330 Q: And then you pressed the accelerator? A Yeah, just to get out. Q331 Just to get out. A Yeah. Q332 And then you saw him walking towards you? A Yeah, I saw him walking towards me.
8. I accepted the proposition for the accused that Detective Senior Constable Duggan was purporting to summarise what he had already been told by the accused, by way of the introductory phrase, "So just so I get it right". But it was established to my satisfaction that, prior to the asking of Q 332, the accused had not informed interviewing police that she had seen the deceased walking towards her before the collision.
9. In the circumstances, I considered that neither s 135 nor s 137 was engaged: although the question may have been misleading, the answer was not; and although the answer in the circumstances of the question may have had limited probative value, because that limitation could readily be explained to the jury, I felt that there was little or no danger of unfair prejudice.
10. Even so, taking into account all contextual factors, and my assessment that the question purported to summarise something that the accused had not actually said, I exercised my discretion to exclude the Q&A pursuant to s 90. That was because, having regard to the circumstances in which the admission was made, I felt that it would be unfair to the accused to admit it.

Ruling 3

1. As for Q&A 363, however, to my mind that was in a different category: Q363 Yep. A Before I go home. If I drive like that, maybe, maybe I'm dead by now. Maybe I cause a big accident on the road.
2. My understanding of the passage was simply that the accused was saying that, as a result of her emotional distress at having found the deceased in his apartment with another woman, she wished to drive away from the apartment block, and was then planning to park by the side of the road and relax a little, for fear of being involved in a serious motor vehicle accident if she continued to drive.
3. I felt that the evidence was certainly relevant, in that it at the least could rationally indirectly affect the assessment of the probability of the existence of a necessary mental element for murder at the time of the collision. I also saw no unfairness in its admission.
4. Though senior counsel for the accused submitted the answer was mere musing, rather than a clear expression of what she had been feeling at the time of the offence, I thought it was quite probative as to her emotional state at the time when seeking to leave the apartment block. And I saw negligible prejudice in it, in that it could not be interpreted as suggesting intentional self-harm or harm to others.
5. For those reasons, ruling 3 was in favour of admission.

Ruling 4

1. The subject matter of ruling 4 was quite similar to that of ruling 2. The passage objected to was as follows: Q395 So why did you lose control when you saw him? Because you, you managed to get, like you said, this big car out of a tight spot which takes a lot of car control. A I didn't know that he's coming. Q396 But then - - - A The only, the only thing I know is he's talking to that lady. So I don't want him to come and talk to me and say something. That's why I press accelerator. Q397 But how come that didn't happen before when you had to get this car out of the tight spot? That, that takes a lot of skill. A No, no. I can't press accelerator when the car is in the, because there is a, like a wall.
2. Senior counsel for the accused submitted that the questioning by police in Q&A 395-397 repeatedly put forward a scenario not given by the accused; namely, that she had "lost control" upon seeing the deceased. The Crown, rather, suggested that the questioning merely intended to test the accused's assertion that she had only lost control of her vehicle after the collision, and not while manoeuvring out of her tight parking spot immediately beforehand.
3. In a nutshell, I did not accept that the question, "So why did you lose control when you saw him?" was soundly based. And that was because I was not satisfied that the accused had previously said that she had lost control when she had seen the deceased. And yet, that opening question was the basis upon which the portion subject to objection proceeded.
4. Again, I believed that neither s 135 nor s 137 was engaged, for similar reasons to those pertaining to ruling 2. But I believed that it would be unfair to the accused for the jury to hear her answers to those questions, in light of the circumstances in which those answers had been given.
5. For those reasons, ruling 4 excluded the passage.

Ruling 5

1. The subject matter of ruling 5, however, was different again. The passage objected to was as follows: Q402 O.K. What can you tell me if I say that you lost control upon seeing your boyfriend? A I don't know if I lost control or I don't, I don't lost control. All I know is this man is not honest. Q403 Mmm. A He has been playing with me all this time. Q404 And I can understand that would be - - - A And I thought he's my boyfriend. Q405 Yeah. A I have a family. I can't come there and kill someone. Q406 Mmm. A I have kids. My kids is more important than these things. Q407 Absolutely. A Yeah.
2. In my opinion, the questioning police in this portion of the recorded interview were not purporting to summarise things the accused had already said. Nor were the police enquiring as to the reasons for putative circumstances or events that had not, in truth, been established at the time of their enquiry.
3. My reading of Q&A 402 to 407 was that the police were simply putting their inculpatory thesis to the accused by way of a series of propositions, and asking her to comment on them if she wished. So much was established, in my opinion, by the preparatory words "What can you tell me if I say that…" I did not regard that approach as unfair; I regarded the answers as quite probative; and I saw little or no danger of unfair prejudice.
4. For those reasons, the portion was admitted.

Ruling 6

1. It was agreed between the parties that if ruling 1 was in favour of the accused, then Q&A 710 to 722 required exclusion as well (TT 194.11 ff). They were as follows: Q710 [03.39] So there is a lady inside. I was driving out. He jump in front of me. Out of anger I just hit him. What do you say about that? A That time I was shaking, I don't know what I'm talking, even, what I'm saying. Q711 Yeah. O.K. A Yeah. I was shaking. Q712 So you said, "I was driving out." A Of course, what happen - - - Q713 Yeah. A - - - something like that, never, you haven't seen in your life before. Q714 Yeah, yep. A You can say whatever. Q715 Yep. I was driving out. He jump in front of me. Out of anger I just hit him. And then you said, "Not on purpose." A No, no, no. Never. I never thought this would happen. Never. Q716 Because I am angry for what I have seen. If he explained this to me, this wouldn't happen. A Yeah. Q717 He was with somebody else inside. There is a lady inside. A Yeah. Q718 Do you agree that you said - - - A I said all this. Q719 You said all this. A Yeah. Q720 [03.40] O.K. A But some, because I'm shaking, some cannot be correct because I don't know. Yeah. Q721 What do you, what do you mean by that? A Because of the situation that I have been through. Q722 Yeah. A Is the first thing, first time in my life to see something like this and something like this will happen to me.
2. I agreed with that joint position, with the result that I also excluded that portion of the recorded interview.

Ruling 7

1. The subject matter of ruling 7 was said by senior counsel for the accused to follow automatically from my exclusionary ruling about the portion of the BWV. But I did not accept that: I felt that it could stand on its own, subject to concomitant adjustment to Q 766: Q766 O.K. So [like I said, just from reading this, um, obviously seems to me like, um,] you were quite angry that there was a girl inside his unit. A To be honest, I wasn't angry since I know him. I know the type of person he is. Q767 Yep. A I'm not angry. This thing happened to me before - - - Q768 O.K. A - - - with another boyfriend and I walked out Q769 So the fact that you've found another girl in your boyfriend's unit - - - A Mmm. Q770 [03.45] - - - and your boyfriend answered the door only wearing underpants - - - A Yes. Q771 - - - that didn't make you angry? A No. Because the whole week he's not replying to me. I know that he doesn't want me any more.
2. In other words, I did not regard it as merely being a "backdoor" way of seeking readmission of material regarding the accused's assumed "anger" towards the deceased that I had separately excluded.
3. Nor did I believe that any aspect of the behaviour of the police rose to the level of oppression. My approach to it was that the accused at that stage was readily, firmly, and coherently providing her version of events to police.
4. For those reasons, ruling 7 was that the material would be admitted.

Ruling 8

1. In contrast, the subject matter of ruling 8 was in yet another category: Q791 But that's what you said. A Yeah. Q792 They're your words. Out of anger I just hit him. DETECTIVE SENIOR CONSTABLE DUGGAN Q793 Yeah. DETECTIVE SENIOR CONSTABLE MCLAUGHLIN Q704 That's, that's not our words. That's what, what you said. A Yeah, because he was asking me and I was sitting down there - - - Q795 Yeah. A And someone lying in front of me and I can see blood everywhere and I don't know what I'm saying even. Q796 Mmm. DETECTIVE SENIOR CONSTABLE DUGGAN Q797 So out of this other stuff that you said, is any of it not correct? Do you want me to read it to you again? A No, no, the, the only thing that I say, out of anger, I hit him. Q798 Yeah. A I don't know. Some maybe can be correct, some, because I was talking and I don't know what I'm saying, even. Q799 Yeah. A Yeah.
2. In my opinion, it did necessarily follow from the exclusion of the portion of the BWV product that this must also be excluded. It can be seen that the questioning detectives were quoting to the accused the crucial words from the excluded portion of the BWV. Whilst there was some extrapolation upon that, I regarded it as the foundation of the passage.
3. Contingently, I did not regard the questioning as rising to the (reasonably) high level of what the statute means by oppressive conduct: see generally R v Sumpton [2014] NSWSC 1432; Habib v Nationwide News Pty Ltd [2010] NSWCA 34; (2010) 76 NSWLR 299, and the other adjectives surrounding "oppressive" in s 84(1) of the Evidence Act. But I did regard the repetitive and to a degree combative nature of the questioning as engaging, as needs be, s 90 of the Evidence Act.
4. For those two reasons, the passage was excluded.

Ruling 9

1. Yet again, I took a different view of Q&A 822, the subject matter of ruling 9: Q822 And then, you did, you started the, your big car and had the control to get it out of a very tight spot and then Paul comes into your vision and I would suggest to you that when you saw that you accelerated intentionally to hit him. What can, what do you say to that? A No, no. I accelerated, when the car out - - -
2. Though it was argued that the questioning improperly, and oppressively, continued to assert a position previously denied by the accused, I did not regard it as rising to being oppressive, whether seen in isolation or in context. Nor did I consider that the unfairness discretion was engaged. In light of the opening words of Q 821 ("Yeah, I can, I can understand that…") and the concluding words of Q 822 ("What can, what do you say to that?"), I thought it clear that the questioning detectives were simply putting a proposition and inviting comment upon it, and I felt that they were entitled to do so.
3. On that analysis, ruling 9 was that the portion would be admitted.

Ruling 10

1. Ruling 10 pertained to questions and answers that occurred whilst the accused was watching CCTV footage, obtained from the car park, that depicted the collision itself. The detectives asked the accused a number of questions about what they asserted the CCTV showed about how the SUV was being driven, and what she as the driver of the SUV must have perceived: Q849 Exactly, he's in the middle - - - DETECTIVE SENIOR CONSTABLE MCLAUGHLIN Q850 [03.54] How could you not see him? He's in the middle of the road. A Yeah. Because I can't press - - - Q851 Play it to the camera if you want ..... A Because I can't press brake, my head is not there to, I don't know if my leg is on the thing. Q852 ..... you said your head's not there, is that because - - - A Because of what happened. Q853 Because of what happened. A Yeah. Because my, I don't know if my leg is on the accelerator or, or on the brake. Q854 O.K. A Yeah. (FOOTAGE PAUSED) DETECTI/E SENIOR CONSTABLE MCLAUGHLIN Q855 And I'm not trying to be difficult, but what I'm, what I've suggested to you a few times that you knew where the accelerator and brake was at the start and - - - A I know, yeah. I know. Q856 And upon seeing Paul is when you've suddenly lost control of perfectly good car that was serviced in March. A Because, see, he's far away. I was, I was, the car is already in the middle is, and is in the middle of the road. Q857 Yeah, it's, and you're in perfect control of it until Paul comes into your line of sight and then the car accelerates. A No, no, it's not like that. Q858 Do you need to see - - - A The car is already - - - Q859 Would you like - - - A - - - coming. Q860 [03.55) Do you want to see it again? Do you want to see the footage again? A Yeah.
2. Whilst I did not consider that the conduct of the investigating officers rose to the level of oppression, reading those questions and answers as a whole, my finding was that they had a flavour of disbelief ("How could you not see him?"), repetition ("what I've suggested to you a few times"), and importuning ("Do you want to see it again? Do you want to see the footage again?"). In context, I exercised my discretion pursuant to s 90 to exclude that portion of the recorded interview.

Ruling 11

1. Ruling 11, on the other hand, pertained to a passage in which the questioning detectives repeatedly made it clear that they were merely alleging various matters, and inviting comment: DETECTIVE SENIOR CONSTABLE DUGGAN Q864 So what, what we allege is that, um, as Peter said, is that you've gone into the unit, Paul's answered the door in his undies, you've seen a girl inside the unit - - - A Yes. Q865 - - - and this has angered you. That's what we, we, we're obviously, we allege, O.K. A Yeah, yep Q866 So then you, you've got in, you've got in your car to leave. A Yes Q867 Yeah. You've pulled out of the parking spot - - - A Yeah. Q868 O.K. A I never thought that he can get out and get dressed and come out. Q869 Yeah. A I never thought that. DETECTIVE SENIOR CONSTABLE MCLAUGHLIN Q870 (03.53] You never thought that? A Yeah. Q871 O.K. DETECTIVE SENIOR CONSTABLE DUGGAN Q872 But we allege that when you've pulled out of the parking spot and you've, you've seen Paul, you've intentionally driven at him at speed. A Not at speed. I never, I never - - - Q873 And hit him, and hit him to kill him. A No, no, no, no. Never.
2. As can be seen, the phrase "we allege" was used three times in the course of that short passage. I felt that the circumstances of the police explicitly putting propositions were neither oppressive nor unfair, and therefore admitted the evidence.

Ruling 12

1. This ruling related to Q&A 874 to 881: DETECTIVE SENIOR CONSTABLE MCLAUGHLIN Q874 Did you want to hit him? A Maybe I want to hit him but not to kill him, no. Never. Q875 You want to hit him. O.K. I appreciate you being - - - A Yeah. Q876 - - - honest with Robert and I. A Yeah. DETECTIVE SENIOR CONSTABLE DUGGAN Q877 Yep. DETECTIVE SENIOR CONSTABLE MCLAUGHLIN Q878 I - - - A Because of what happen - - - Q879 l--- A ---maybe I want to hit him, but never - - - Q880 (03.56] I understand - - - A - - - never, not to kill him. DETECTIVE SENIOR CONSTABLE DUGGAN Q881 Yeah. A Never, yeah.
2. Those answers certainly constituted a change of position on the part of the accused, about her state of mind at the time of the collision. And that change of position was damaging to her case. But I thought it important that the exchanges occurred after the accused had watched the CCTV of the collision which, to my assessment, was potentially quite inculpatory. In other words, I thought that the Crown submission that the change of position could well be ascribed to a desire to seek to explain difficult evidence, rather than any wrongful encouragement on the part of investigating police to the accused to accept their interpretation of the collision, had force.
3. Whilst it was true that the change of position came towards the end of a lengthy recorded interview, in all of the circumstances that I have set out at the commencement of this judgment, I did not believe that that state of affairs rose to the level of oppression. Nor did I see unfairness, in the circumstances at the time of this passage, giving rise to a discretionary exclusion. I was also satisfied on balance (to express the question of "onus" in s 85 correctly) that the circumstances in which the accused gave those answers made it unlikely that the truth of the admission was adversely affected.
4. For those reasons, ruling 12 was that the passage containing the change of position by the accused would be admitted.

Ruling 13

1. Penultimately, Q&A 889 to 916 were similar to the subject matter of rulings 5, 9, 11 and 12: Q889 So we'll go through it again. So you've come out of the spot - - - A Ah hmm. Q890 (03.57] - - - and you've turned. A Yeah. Q891 And you were in control of the car. A Yeah. Q892 Tell me if you disagree, but you were then. A Yeah. Q893 How did you feel, then, when you saw Paul? You're driving and then bang, you see Paul straight in front of you. A Yeah. Q894 What, what went through your brain? Tell Robert and I. A No, no, I just want to hit him out of my way. Q895 Just want to hit him out of your way. A Yeah. Not to kill him. Q896 So what can you tell me then? Did you then hit the accelerator to increase your speed? A No, no, no. The same speed. I didn't hit the accelerator. Q897 But you didn't take, you didn't take any action to not hit him, did you? You were, is it, am I correct in saying you were happy to hit him? A No, no. I'm not happy to hit him. I even feel bad. Q898 I know, but you said before you did want to hit him. A Because I saw him in front of me and there is no way I can press the brake and the car will not even hit him, because the car is coming very fast. Q899 Yeah. DETECTIVE SENIOR CONSTABLE DUGGAN Q900 [03.58] But you're wanting, you wanted to hit him to get him out of your way. A Yeah. Q901 Is that correct? A Yes. Q902 But, but you're saying even though you wanted to hit him, you didn't want to kill him. A No, no, no. Q903 Is that, is that, is that correct, what I'm saying? A Yes. Q904 So you wanted to hit him to get him out of your way - - - A Yeah. Q905 - - 'but you didn't want to-kill him. A Never. Q906 No. What was, what did you think would happen? A I never thought that he's going to die, never. Q907 Ah hmm. A Yeah. Never. Q908 Did you think you would hurt him? A I don't know. Q909 'Cause, obviously, you've got a big car - - - A Yeah. Q910 [03.58] - - - and he's only a human being. What did you foresee would happen? What did you think? A I don't know. Q911 Did you even have time to think, though, did you - - - A No, no. Q912 So just so I've got it right, you've pulled out of the spot, you've seen Paul, you've pressed the accelerator and you wanted to hit him to get him out of the way? A Yeah. Q913 But you, you had no intentions on killing him? A No, no, no, never. Q914 No. A Never. Q915 O.K. Did you think - - - A Someone that I'm worried about him, whole week, why will I go there and kill him? Q916 I, I know, yeah. A If I even text him maybe I'm coming, I'm, I'm going to do this and do that, that is understandable, but - - -
2. I assessed the passage as constituting the investigating detectives putting propositions to the accused with which she could agree or disagree: for example, "Tell me if you disagree"; "am I correct in saying"; "Is that correct?"; and "So just so I've got it right".
3. I also felt that, although there were some leading questions, they were leavened by a reasonable proportion of non-leading questions; the passage did not constitute unfair importuning; and leading questions are not inherently prohibited in a police interview in any event. Finally, I felt that the accused was freely choosing to answer the allegations that were being placed before her.
4. On that basis, I considered that the passage should not be excluded on the ground of oppression; that I should not exercise my discretion to exclude it on the basis of unfairness in the circumstances; and that the precondition for admissibility founded upon reliability based upon circumstances had been established.
5. For those reasons, I did not exclude the passage that was the subject of ruling 13.

Ruling 14

1. Finally, Q&A 922 to 925 were merely the orthodox conclusion of the recorded interview: DETECTIVE SENIOR CONSTABLE DUGGAN Q922 Is, is there anything else you want to tell us? A No. Q923 Do you have any other questions? DETECTIVE SENIOR CONSTABLE MCLAUGHLIN Q924 No. DETECTIVE SENIOR CONSTABLE DUGGAN Q925 That's - - -
2. Although LEPRA had not been complied with, in the absence of any more specific objection, in accordance with my previous approach, I believed that that portion of the recorded interview should be admitted into evidence.

Conclusion

1. Those were the reasons for the rulings with which I provided the parties on 25 November 2022. R v Musa Admissibility Table (112740, pdf)

Amendments 05 April 2023 - Added an attachment: The admissibility table. 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: 05 April 2023