R v Youssef

Consideration

With regard to the practicalities of s 139 Evidence Act 1995, I accept the analysis of Higgins J in Taylor, and, of course, the observations in Deng as to the purpose and need for wider consideration of the situation to ensure that the caution to remain silent is understood. However, the evidence here establishes that the accused was relevantly cautioned at least twice before the interview commenced, allowing for the real possibility that the accused was in a similar tired condition at the time of the earlier interview, and had understanding throughout the interview of his entitlement to remain silent.
I do not accept the evidence of the police officer that the accused said words to the effect that he was anxious to get on with the interview before it started, given the officer's prepared statement does not refer to that matter. That assertion has all the hallmarks of recent invention. But I have taken this matter into account in considering other matters in the assessment of the officer's credibility relevant to the application and nothing turns upon it given other evidence, particularly the recording of the interview. As counsel herself said, the electronic recording itself was the key evidence. Having viewed the interview, and observed the tiredness of the accused which is self evident at the beginning, I am also satisfied that the accused indicated early in the interview that he understood the caution that had been administered having regard to the particular questions that were asked and answers given at Q 5-7, as per the transcript of the interview. I am mindful that the accused stated, after being asked question 18, "I just feel asleep in there … ". However, he was also asked by the police officers questions about whether he was ready to continue, whether he wanted a break or some refreshment, all of which he declined. He said that he did not want to have a sleep when asked if he wanted to do that (Q 20) - the answer is "Yes, yeah, no, no". But he clearly said he did not want to sleep. He then said … "I'm all right … I'll be all right … thank you … I'll just stay".
I also have regard to, Q 308 and 312 and his direct answers to them, questions asked of him by the independent officer. I have come to the view, despite his tiredness, the accused at relevant times indicated that he understood that he did not have to answer questions, participated in the interview with that knowledge and willingly. I conclude that there was no breach of s 139 of the Act and, thus, s 138 is not engaged.
With regard to the objection pursuant to s 137, bearing in mind for this section the Court is not required to assess the reliability of the admissions (see XY [2013] NSWCCA 121 and Shamouil [2006] NSWCCA 112, at [60]-[68]), in my view the probative value of the evidence is at face value considerable, having regard to what I understand to be the nature of the Crown case and the characteristics of the circumstantial evidence case that the accused's admissions bring into dispute. These matters were summarised in the course of submissions, with the Crown also pointing out some other matters relating to CCTV footage of a person the Crown says is the accused from the previous day.
On the other hand no relevant unfair prejudice was identified that could not be dealt with by direction or could not be met by appropriate editing of the recording, such as reliance upon the sound rather than the images, or simply tender of the transcript, assuming that its contents could be agreed upon. It would appear to me, in any event, that the appearance of the accused is something that would be relevant for argument on the behalf of the accused in assessing the weight to be given to the representations made by the accused and, if need be, to address the issue that the Crown would seek to argue that the accused told "deliberate lies" as evidence of consciousness of guilt. I would not exclude the evidence of the interview pursuant to s 137 Evidence Act.
With regard to s 85 and s 90, there are a number of issues that are common. I accept that the accused started out appearing very tired. I accept that on two occasions during the formal preliminary questions the accused gave the appearance of having some difficulty staying awake and on other occasions seemed to have some difficulty responding to or concentrating on particular questions. For example, in one of the preliminary questions, he was asked his birth date and initially said, "23", which is in fact the number of an address he gives (Q 28). But I also note that he corrected himself quickly.
However, his tiredness diminished over time and during the course of the interview he became more engaged as the interview proceeded. His answers and the method of giving them taken together as whole, lead the Court to the conclusion that he was endeavouring to explain himself out of an inculpatory situation having digested and understood aspects of the matter brought to his attention, which as I understand it are constituent parts of the Crown case to inculpate him. An example of this is his explanation as to how he may have come in contact with a replica firearm, which is also a cigarette lighter, that is said on the Crown case to be similar to the weapon used in the alleged armed robbery.
I note his answer to Q 279 as showing a nimbleness of mind on his part, with a suggestion that the replica firearm which was found nearby to him on his arrest (subsequently found with his DNA profile on it) could have been discarded by someone from a nearby bakery. But there are other features to be borne in mind. Before the nub of the interview was commenced he was given the opportunity to stop or be refreshed (Q 20 - 25). There is no doubt that if he said he did not want to continue, given his presentation, this issue would not have been debated here as was conceded in submissions. The police were captive to his wishes. He not necessarily to theirs, although he was in custody. I note that half an hour later when asked at Q 292 if he wished to participate in an identification parade he said he was 'too tired' and did not participate.
I also note that after Detective Maher had finished asking the questions of the accused where some suggestion of confusion arises (said to reflect matters for consideration under ss 85(2) or 90 - see Q 28 - 147). Constable Perry asked a series of questions (Q 154 - 177) in which she recapped upon the accused's earlier answers. His responses to those questions are not only lucid, but on occasions he either corrects her or adds information to that previously supplied. There was no 'gratuitous congruence' in the course of that part of the interview by the accused.
Even in the earlier part of the interview when questioned by Detective Maher, he gave an account about the circumstances of his arrest that reflected, at least from his perspective, a clear memory of what he claimed had happened. He could remember the name of the arresting officer and details of his interaction with him (see Q 135 - 138).
When the independent officer came in to speak to him (see Q 300 - 312) he had clearly heightened alertness and gave direct answers not suggestive of any disadvantage or unfairness in the earlier questioning. I have taken into account the reference to the smiling of Detective Maher in the course of the early part of the interview, but could not conclude that it necessarily reflected a deliberate "taking advantage" of the accused.
As to the issue of his drug affectedness, I am not satisfied that he was drug affected. It was not the opinion of the police officer that he was, he did not admit to taking drugs, and the assertion by Raja that he had taken drugs was never put to him. In that regard I note Raja's 'admission' that he took drugs, yet his presentation was entirely different from the accused. One might have thought that the use of amphetamines would have heightened the accused's presentation rather than rendering him drowsy. There is no evidence of him at that time taking any particular medication or other prohibited drug that might have caused his drowsiness, although he was using medication of various types according to Custody Management Records.
Ultimately, in the context of what I understood the Crown's case to be, the prosecution has satisfied me that in all the circumstances the truth of the representations made by the accused is unlikely to have been affected by the surrounding and particular circumstances of the interview.
Further, in the context of the various answers the accused gave to questions and the opportunities the accused had to discontinue the interview and remain silent, I do not consider that I should exercise the discretion available pursuant to s 90 of the Act to exclude the contents of the interview.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (4)