R v AKB (No. 2) [2018] NSWSC 1075

R v AKB (No. 2) [2018] NSWSC 1075

Although no question as such was put to the accused after the interview, the assertion made by Detective Hodges – not previously raised – was objectively likely to produce a response and did so; therefore, the accused’s statement was made in the course of official questioning under s 281. Because no subsequent attempt was made to record the statement and no reasonable excuse is established for failing to do so, the relevant portions of Detective Hodges' and Anita Hemmati's statements must be excluded.

Jurisdiction
Australia
Judgment Date
10 July 2018
Procedural Posture
Criminal / Evidentiary Ruling
Outcome
Evidence rejected in part
Legal Topics
['admissions' 'statutory Admissibility' 'official Questioning' 'recording Requirements']
['criminal Law' 'evidence'] ['admissions' 'statutory Admissibility' 'official Questioning' 'recording Requirements']

Case Brief

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Procedural Posture

Criminal / Evidentiary Ruling

Legal Issues

  1. 1 ["Whether statements made to police after a recorded interview were made 'in the course of official questioning' under s 281 of the Criminal Procedure Act 1986 (NSW) and therefore subject to recording requirements for admissibility" 'Whether a reasonable excuse existed for not subsequently recording the statements']

Ratio Decidendi

Although no question as such was put to the accused after the interview, the assertion made by Detective Hodges – not previously raised – was objectively likely to produce a response and did so; therefore, the accused’s statement was made in the course of official questioning under s 281. Because no subsequent attempt was made to record the statement and no reasonable excuse is established for failing to do so, the relevant portions of Detective Hodges' and Anita Hemmati's statements must be excluded.

Court Disposition

Evidence rejected in part

Orders

  • ["Paragraph 33 of Detective Hodges' statement from the words 'The interpreter gave [AKB]'s response' to the end of the paragraph, and the whole of paragraph 8 of Anita Hemmati's statement of 6 December 2016 are rejected."]