R v Pitts [2012] NSWSC 1652 | Case summary

Whether the Initial Interview ought be excluded 16The accused submitted that I ought exercise the discretion conferred by s 138 of the Evidence Act to reject the Initial Interview. Section 138 relevantly provides: "(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 that 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 or 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 proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, 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." 17The accused did not contend that any of the matters referred to in s 138(2) applied. He addressed various factors to be taken into account under s 138(3) as follows. 18First, the accused contended that the probative value and importance of the evidence did not warrant its admission. He submitted that there were witnesses who could testify as to what the accused had done. He also submitted that the Initial Interview was of poor quality and that much of what was said was obliterated by the sound of the police radio. 19The Crown relied on the following as an admission: "The knife was on the ground. I had to go out there and defend myself. They kicked my door in." 20It contended that the accused armed himself with a knife before venturing outside the unit which tended to show that he was the aggressor. The Crown submitted that the evidence was of some importance. 21Secondly, the accused submitted that the contravention was grave because, although not intentional, it was at least careless if not reckless and showed a disregard of the rights of the accused. The Crown submitted that since it was not intentional it ought not be regarded as grave. 22It was common ground that there was no difficulty in obtaining the evidence without a contravention. 23I do not consider the probative value or importance of the evidence to weigh heavily in favour of its admission. Although the passage relied upon by the Crown as an admission tends to indicate that the accused was the aggressor, rather than someone who killed another in self defence or in defence of others, its importance in that regard is mitigated by the other self-serving statements contained in the Initial Interview. 24Although the contravention was unintentional, it was nonetheless grave. The privilege against self-incrimination is a fundamental right accorded to an accused. The giving of a caution is an important mechanism for the protection of the right. I consider that the effect of the caution was substantially undermined by the reference to compliance with conditions. The circumstances that there were no applicable conditions and that the condition which was thought to apply, did not in fact apply, makes it worse, not better. I do not consider the fact of a previous caution having been given to make the reference to conditions less egregious. 25For these reasons, I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it, having regard to the way in which it was obtained.

Whether the ERISP ought be admitted 26The evidence established that the Initial Interview took place not long after midday on 2 August 2012. Shortly after 4.00 pm the accused was subjected to forensic procedures at Redfern Police Station. Portions of the transcript of the forensic procedures were tendered. The transcript established the following: (1)The accused had a "scratch" on his forehead which had been obtained when he was kicked in the head in the incident that had occurred that morning which led to the death of the deceased. (2)The accused had a deep cut to a finger on his right hand which had been dressed tightly by ambulance officers. The dressing was subsequently removed by the medical practitioner who was present for the forensic procedure and a further dressing applied. 27Some time after the forensic procedures were carried out, the accused was interviewed by police. The interview commenced at 7.35 pm and concluded at 8.02 pm. Subsequently the accused was taken to hospital for treatment. 28The transcript of the ERISP records several occasions on which the accused indicated that he did not want to answer questions. When the police told the accused that they wanted to ask him questions about the stabbing of the deceased in Redfern earlier that day and asked if he understood, the accused said: "Yeah. My lawyer's instructed me not to say nothing." 29Despite this statement, the police continued. A caution was given to which the accused answered: "Yeah. My lawyer said not to do anything." 30When asked whether he wanted to tell the police about the incident, the accused answered in the negative and said, further, "no comment". 31The interrogating police officer then said: "All right. Can I just ask you one question, can I just get your mobile phone number?" 32The accused complied and further questions were asked, notwithstanding the intimation that only one would be. Questions about the mobile phone service then ran straight into questions about relevant events, on part of which the Crown relies as admissions. The following exchange demonstrates what occurred: "Q26 Prepaid. All right. Not a problem. Can you tell me who was in your house today? A I don't know them. Q27 You don't know them? A No. I don't know them by name. Q28 Oh, you don't. How long have you lived there for? A Five years." 33Further questions were asked about the accused's nieces, who were staying with him at the time. Once again, the accused reiterated his lawyer's advice to say nothing and, once again, this was disregarded and the interrogating police officer continued to ask questions. He was then asked about the five people who came to his house. His response and the subsequent questions were: "Q75 O.K. Just getting back to the five people you were talking about before, what time did, what time did they come to your house? A I, I don't know. No comment. Q76 Are you feeling all right? A ... Q77 Craig, I understand you don't want to answer any questions but when police first arrived at your house today you spoke with a Detective Senior Constable ... A Yeah. Q78 Do you agree with that? A Yeah. Q79 O.K. I'm just going to play you something O.K. A Ah hmm." 34The Initial Interview was then played to the accused. At the conclusion he was asked whether he wanted to say anything further or elaborate and he declined to do so. The interrogating police officer then adopted a different approach and the following exchange occurred: "Q88 Mate, what, what's happened today is, you know, it must have been a very terrifying experience for you and your nieces and your sister. I can only imagine how you must've felt. A Very scared is how I felt. Q89 I can imagine. If you were sitting at home in your own house with your family minding your own business -- A Mmm. Q90 [19.46] Yeah, and then what happened? A They kicked my door in." 35The interview continued. Later, the police asked a series of questions which were apparently designed to establish that the accused had answered questions of his own free will. The accused repeated that he had been advised not to answer questions and then said: "...after I said that I wasn't, didn't want to do the interview because of what my lawyer said... they kept trying to get me to talk..." 36The Crown relies on the ERISP because it contains assertions by the accused that he did not know the men who came to his house on 2 August 2011, one of whom he killed. He said in the course of the ERISP that he had never seen them before and could not describe them at all. The Crown case is that the accused did know these men and relies on the lies as amounting to a consciousness of guilt. 37In R v Plevac (1995) 85 A Crim R 570, at 579-581, the Court of Criminal Appeal outlined the principles that apply when questioning a suspect. The first question is whether the suspect is willing to answer questions. If the suspect is willing to answer questions, the questioning must be fair and must not amount to undue insistence or pressure. The Court said: "Police should not persist with such an interrogation after the suspect has indicated that he or she does not wish to answer further questions... 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." 38I do not consider the questioning of the accused to be fair. He declined to answer questions at the outset but then was encouraged to give his mobile phone number, having been told that he would be asked one question. On several occasions he declined to answer questions, said he did not want to answer questions or reiterated his advice, which was not to answer questions, but the police persisted in asking him questions. 39Further, the expression of sympathy for his plight was offered as a way of encouraging him to answer further questions about what had occurred. I have also taken into account that the interview took place on the same day as the incident, in the course of which the accused's head and hand had been injured. These injuries were obvious to police. There was still blood on the accused's hand and a mark on his forehead. The accused's capacity to withstand the various techniques that were adopted by the police to get him to answer questions was evidently diminished. 40Although he was not threatened and the statements made to him do not amount to an inducement, I have come to the conclusion that, in all the circumstances, the accused's answers were not given voluntarily and the questioning of him was not fair. 41I consider that, having regard to the circumstances in which the admission was made, it would be unfair to the accused to use the evidence. Accordingly, I exercise my discretion to refuse to admit the ERISP: s 90 of the Evidence Act. Furthermore, I am not satisfied that the circumstances in which the so-called admission was made were such as to make it unlikely that the truth of the admission was adversely affected. Accordingly, evidence of the admission is not admissible: s 85(2) of the Evidence Act. 42These matters, taken together, lead me to conclude that the ERISP is inadmissible.

R v Pitts

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