Director of Public Prosecutions (NSW) v Cottrell
[2013] NSWLC 23
•26 July 2013
Local Court
New South Wales
Medium Neutral Citation: Director of Public Prosecutions (NSW) v Cottrell [2013] NSWLC 23 Hearing dates: 28/03/2013 Decision date: 26 July 2013 Jurisdiction: Criminal Before: Magistrate Favretto Decision: Admissions inadmissible
Catchwords: CRIMINAL LAW - evidence - admissions - failure to record alleged admissions during informal conversation between two police officers - whether conversation was "official questioning" Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Police Act 1990Cases Cited: Bryant v R [2011] NSWCCA 26
Carr v The State of Western Australia [2007] HCA 47
Kelly v The Queen [2004] HCA 12
Nicholls v The Queen [2005] HCA 1
R v Horton (1998) 45 NSWLR 426
R v Naa [2009] NSWS 851
R v Reid [1999] NSWCCA 165
R v Robinson [2003] NSWCCA 188
R v Rowe [2001] NSWCCA 1
R v Sharp [2003] NSWSC 1117
R v Taouk [2005] NSWCCA 155Category: Procedural and other rulings Parties: Director of Public Prosecutions
David Luke Cottrell (the accused)Representation: Ms D Paterson (for DPP)
Mr J Davidson (for the accused)
AC Lawyers (for the accused)
File Number(s): 2012/300849 Publication restriction: Nil
Judgment
Introduction
The matter has previously been fixed for a summary hearing. The accused is a serving New South Wales Police Officer who is charged with bribery contrary to s 200 of the Police Act 1990. The offence is an indictable offence and carries a maximum penalty of 7 years imprisonment and/or a fine of 200 penalty units ($22,000). Section 207(2) of the Police Act 1990 further provides that if the defendant and prosecutor consent and the court thinks it appropriate to do so the court may hear and determine the matter. If the matter is dealt with in the Local Court the maximum penalty is 50 penalty units ($5,500) or 2 years imprisonment or both.
The Director in proof of the offence relies upon oral admissions made by the accused to a fellow police officer in a conversation between them while both were on duty. The accused has objected to the admissibility of those admissions because they were "made in the course of official questioning" by an "investigating official" within the meaning of s 281 of the Criminal Procedure Act 1986 and there is no reasonable excuse why they were not electronically recorded. If the court holds that there has not been a breach of s 281 then the accused wishes to be further heard as to whether the admissions should be excluded under ss 139 and 90 of the Evidence Act 1995.
A voir dire has been held (s 142 Evidence Act 1995) before me and Constable Vrahas called to give evidence of the alleged admissions made to him by the accused. The accused denies the admissions but the present issue for consideration is whether evidence relating to those admissions is excluded by s 281(2).
The admissions
Both the accused and Constable Vrahas were stationed at Hurstville Police Station. In late 2011 the NSW Police Professional Standards Command began investigating a complaint about a possible inappropriate relationship between police officers attached to the Hurstville Local Area Command and tow truck operators who were being given information in advance about motor vehicle accidents in the Command area.
Constable Vrahas was called and his statement of 2 February 2012 tendered into evidence on the voir dire (Exhibit VD1). Constable Vrahas says that he had formed a relationship with two tow truck drivers he knew as "Charlie" and "Fred" which included socialising by meeting for coffee from time to time. He also knew them from their attendance at motor vehicle accidents and "Fred" also did some motor vehicle panel work for him. On 26 January 2012 Constable Vrahas attended "Fred's" panel beating business in Peakhurst to drop off some car parts to be painted. While he was there "Charlie" came over and informed him that a Sergeant from Professional Standards had approached him wanting to talk about "receiving messages regarding accidents from Police and who I knew in the Police" (at paragraph 6). In his statement Constable Vrahas says he said to "Charlie" "If its professional standards, you need to be honest with them. If you have had dealings with Police you need to tell them, but they would already know. If it's about me referring you to my missus for advice, you need to tell them about it" (at paragraph 6).
The basis of why he told "Charlie" he had to tell Professional Standards is not in evidence but even at this stage Constable Vrahas's state of mind is that there had to be honest dealings with Professional Standards.
Constable Vrahas then continues in his statement to give the following evidence. It is crucial for the resolution of the s 281 issue to set it out at length, not only for its content but its temporal context as to whether what began as an informal conversation with the accused, remains that or whether, as the accused submits, it escalates into "official questioning". At paragraphs 7-9 he recalls the following conversation with the accused:
7. On Friday night the 27 January 2012 I was rostered on duty 6pm to 6am on Hurstville 15. I was rostered on 15 with Constable David COTTRELL. I have known Dave since I started at Hurstville. We had become friends being on the same team for the past year. About 7:30pm just after a job we were driving round Hurstville and said to David, "Dave, something is bothering me, can I talk to you about it"
He said "yeah what up"
I pulled over at BP Mortdale and we got out of the car and I said,
"Charlie the tow truck driver was approached by Professional Standards and they were asking him about what Police Officers he knows. They also wanted to know if he had been receiving text messages from any Police. I'm really fucked because I have been texting Charlie outside of work and meeting up for coffee. They are going to think that I have been giving Charlie information about accidents".
8. It was about then I noticed Dave go silent and very pale in the face. I went on to say to Dave, "Have you ever text Charlie outside of work or am I the only idiot to do it. Surly they can get my phone records to show that I haven't been texting him accidents."
Eventually Dave said, "I've sent him messages, what's wrong with that?"
I said, "Yeah, but no accidents?"
Dave said, "Yeah, I've been messaging him where accidents are."
I said, "Surely you can't be that fucking dumb. Are you kidding me, your telling him where the accidents are?"
He said something similar to "Yeah, there's nothing wrong with that"
I started getting angry with him and said, "Mate they are there before us at the accidents, why would you be sending them messages where the accidents are?"He said, "Well that's the thing, they are there to assist us anyway so what's the issue."
9. We got back into the car and I said again, "Mate are you for real, your really messaging the towies where the accidents are or are you just saying it to make me feel better?"
Dave got out his mobile phone. I'm not sure what make or model it was. He proceeded to show me a series of texts he had sent. I saw that there were addresses in the message field and in the address field was something like "tow truck" or "towing truck". One of the messages read something like, "Westfield Carpark level 3 acco".
I don't remember the other wording of the messages however they were similar and just short and brief including an address.
I said, "Why would you even keep those message on your phone?" I don't remember what he said.1
I said something like, "They are going to think its me"
He said, "Well that's fine, you've got nothing to worry about"
I said, "Do you think they are dumb, do you think they can't check your phone, why would you do such a stupid thing. Does any one else from work know about this"
He said, "No. Do you know when Charlie is going to speak with these people again?"
I said, "Next week some time, but I'm not getting involved in this any more."
Dave said something like, "If Charlie gets there first, I get something out of it. He then told me straight out that he received money."
He told me he would meet up with them and get a spotters fee. He said that he had got over a thousand dollars.
I said, "Is the job really worth getting money on the side".
I said, "Does anyone else know about this and how would you get the money?"
He said, "I would go to a Smash repair shop on Boundary Road Peakhurst where St George City Towing work out of and pick it up from them."
I said, "Your telling me you go straight there in uniform and take the money from them?
He said something like, "I go around the back and get it"I said, "What about the people you work with, did they know?"
He said, "No they didn't" or words to that effect.
By this time I was saying I don't want to know about this.
Section 281 of the Criminal Procedure Act 1986
Section 281 provides:
281 Admissions by suspects
(1) This section applies to an admission:
(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and
(b) that was made in the course of official questioning, and
(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.
(2) Evidence of an admission to which this section applies is not admissible unless:
(a) there is available to the court:
(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or
(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.
(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).
(4) In this section:
investigating official means:
(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or
(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.
official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.
reasonable excuse includes:
(a) a mechanical failure, or
(b) the refusal of a person being questioned to have the questioning electronically recorded, or
(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.
tape recording includes:
(a) audio recording, or
(b) video recording, or
(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.
The parties' arguments
The Director submits that by taking into account the circumstances and context of the conversation it cannot be said Constable Vrahas was an "investigating official" nor were the admissions made "in the course of official questioning". The conversation arose out of Constable Vrahas's concerns for himself following what he had been told by "Charlie" and was concerned that because of his texting "Charlie", Professional Standards would think he was the one giving inside information to tow truck drivers about accidents. The conversation it is submitted was no more than a spontaneous informal discussion where Constable Vrahas was looking for advice from the accused because they were "mates" (T25.25) or "work friends" (T30.40). The showing by the accused of the messages on his phone that followed was purely spontaneous by the accused. Once the accused had showed him the phone messages with some further discussion about them, he said to the accused in response to a question about when he was next to see "Charlie", "Next week some time, but I'm not getting involved in this anymore." It is at this point that the accused then goes on to volunteer the admission that he was getting paid money (that is a bribe) for a "spotters fee" of "over a thousand dollars." In re-examination Constable Vrahas said that during the conversation he did suspect the accused had committed an offence but he did not suspect it to be a "serious indictable offence" 2 (T34.31-35.1), nor did he believe in his own mind that he was investigating the accused (T33.5-20). The reason he says he had that belief was that the NSW Police Code of Conduct and Ethics prohibits a police officer from investigating a friend or relative because it creates a conflict of interest and that is also why he did not administer a caution once he the accused became in his mind a suspect (T32-33).
The Director relies upon the decisions in R v Naa [2009] NSWSC 851 at [76] and Bryant v R [2011] NSWCCA 26 at [148] (where it was held the admissions were not in response to questioning "in connection with the investigation...of the commission of an offence"; R v Robinson [2003] NSWCCA 188 (where it was held the admissions "were volunteered by the appellant rather than as a result of question put to him" at [99]; R v Villa [2005] NSWCCA 4 where it was held "the appellant was not a suspect and further that at that time, he could not reasonably have been suspected of having committed an offence" at [47]; not only for their relevant statements of principles in interpreting s 281 but also as dealing with analogous factual circumstances.
The Director has made no submissions on the application of the "reasonable excuse" provisions in s 281(2)(a) (ii) and (2)(b).
The accused takes issue with the Director's narrow approach and the reliance on the subjective state of mind of Constable Vrahas. The crux of the accused's submission is, that as the conversation escalated into the ambit of s 281, Constable Vrahas did not appreciate the significant change in circumstances and the strict obligations imposed upon him by s 281 once he came within its ambit. The accused submits that from a consideration of the authorities, the conduct of Constable Vrahas was the very type of evidence that the Parliament sought to prohibit and that in this case there was a clear and blatant failure. From the time Constable Vrahas observed the accused's demeanour change to that, from his experience, to be consistent with the demeanour of a suspect trying to hide something, there was a line that either could or could not be crossed. As Constable Vrahas was alerted to the Professional Standards investigation, observed the change in demeanour of the accused and heard the subsequent alleged admission by the accused that he had been texting tow truck drivers, it is submitted that Constable Vrahas knew at that point what he had just been told was the very conduct that Professional Standards were investigating and by its nature he knew it was serious. It is at that point that Constable Vrahas should have terminated the conversation and thereafter discharged his obligations by immediately reporting the matter to a superior officer. However, by continuing the conversation he transformed the informal nature of the conversation into "official questioning" and into the ambit of s 281.
The relevant legal principles
The interpretation of the words "official questioning" and "in the course of official questioning" in s 281, its former provisions as well as similar if not identical interstate provisions, has been the subject of considerable judicial review and were comprehensively referred to by Howie J in R v Naa and Bryant v R.
The following principles are relevant:
a) The section only operates upon objection: R v Reid [1999] NSWCCA 258.
b) Once the strict requirements of admissibility under s 281 are not satisfied the evidence is inadmissible: Schiavini v R [1999] NSWCCA 165 at [24].
c) The general purpose of the provision is to provide a reliable and objective means of resolving disputes about the conduct and substance of police interviews, deterring police malpractice and the making of false or unfair allegations against police: R v Horton (1998) 45 NSWLR 426 per Wood CJ at CL at 21-23; Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 at 207 [8]; Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at 225-232 [22]-[40]; Carr v The State of Western Australia [2007] HCA 47 at [57]-[58]. In Carr Gleeson CJ said at [7] that the proper approach in construing legislative provisions of this kind is, "The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object?"
d) The terms of s 281 are similar to the provisions of the Tasmanian legislation considered by the majority of the High Court in Kelly v The Queen and the majority's decision should be followed: Bryant at [147].
e) The court is required to make an objective assessment of the circumstances and questioning by a police officer may still amount to official questioning regardless of the belief of the police officer: R v Sharp [2003] NSWSC 1117 at [21].
f) While the subjective purpose of a police officer engaging with a suspect might not be decisive as to whether the officer is involved in "official questioning" it may still be relevant: R v Naa at [79] (although Howie J did not elaborate further).
g) A misconception by a police officer about when the section applies and what was required in order to comply with it cannot give rise to a reasonable excuse: R v Sharp at [13].
h) In R v Sharp Howie J made the following pertinent observations about the policy behind s 281 and it is instructive to quote these observations at length:
15 "Official questioning", for the purposes of s 281, means "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". I acknowledge once more that the policy behind the section should impact upon how the words of the provision are interpreted or applied. I am also conscious of the apparent width of the term as defined in the section.
16 Further, I appreciate that there is to some degree an interrelationship between "official questioning" and "reasonable excuse". The wider the interpretation given to "official questioning", and, thus, the more extensive the obligation on police to electronically record conversations with suspects, the more likely it is that a reasonable excuse might be found for not recording a particular conversation in which an admission occurs. But the term "official questioning" must, in my view, have some limit and the conversation under consideration must be reasonably capable of being construed as questioning by a police officer.
17 The policy behind the legislation is, as I have stated, obvious. It is an attempt to limit the opportunities both for a police officer to fabricate the making of an admission by a suspect, and for an accused person to challenge evidence of the making of an admission at a trial of a criminal offence. However, Parliament could have gone further in that endeavour, had it wished to do so. It could have required that any admission, allegedly made by a suspect, be inadmissible unless electronically recorded. If the legislation had been to that effect, it would have been irrelevant whether the admission occurred in questioning or otherwise. But it did not do so, and there is nothing in the Second Reading Speech to indicate that its purpose was other than to regulate police questioning. It is, in my view, inappropriate for the courts to interpret the legislation to bring about that result, however desirable it may be. There can be no doubt about the meaning of the word "questioning" and there is no occasion to give it any other meaning than it generally possesses.
18 There are clearly occasions where it will be necessary for a police officer to ask a suspect or other person a question but where there may be some doubt, to my mind at least, whether the questioning falls within the scope of the provision. One such occasion may be when the suspect is being processed by the custody officer under Part 10A of the Crimes Act. Yet questioning of the accused by the officer in accordance with the Part may literally fall within the meaning of "official questioning" and hence the section might operate to exclude any admission made at that time. An admission which is made during that process and which is not recorded might be admitted into evidence because there would be a reasonable excuse for failing to record the admission because it was unexpected and unresponsive to the question asked.
19 But it seems to me that, because the legislation does not require that all admissions be electronically recorded, police should be able to determine with some degree of certainty what is and what is not "official questioning" for the purposes of the section and thus know when it is that they should takes steps to have a conversation electronically recorded to preserve any admission made by the suspect. However, where a police officer engages a suspect in conversation on any matter touching the investigation of an offence without recording the conversation, the officer takes a real risk that a court will find it to be official questioning regardless of the belief of the officer on that subject. As with Detective Hall in the present matter, if the police officer ought to have known that he or she was engaged in official questioning at the time an admission is made, a reasonable excuse for a failure to record an admission will not arise simply because the police officer might not have realised that the conversation was "official questioning" for the purpose of the section.
20 I hesitate to attempt to give any more meaning to the words of the section that arise from the definitions contained in it and the policy behind the legislation. But the word used is "questioning" and it seems to me that it at least implies that the police officer is attempting to elicit from the person a response that the officer foresaw might provide information relevant to the investigation of the commission of an offence or possible offence, or be to the person's prejudice in that regard. I would be prepared to find in an appropriate case that statements made by the officer to the suspect might amount to "questioning" even though there may be no question asked. However, the mere fact that an admission occurs in response to a question or statement made by a police officer cannot retroactively convert the conversation into "official questioning" if it did not fall within the definition at the time the admission was made.
21 I wish to emphasise that, in my opinion, the court is required to make an objective assessment of the circumstances surrounding the making of the alleged admission in determining both whether it was made during official questioning and whether there is a reasonable excuse in failing to electronically record it. If my view of official questioning is correct, it would follow that, if the police officer did not foresee that a response might be given to the statement or question made to the suspect but ought to have done so, the conversation would amount to "official questioning". To that extent the conduct of the police officer is subject to the court's review so far as the admissibility of any admission allegedly made by the accused is concerned.
22 Nothing that I have said in this judgment should be taken as a green light for police to ignore the provision or return to the type of practices that caused Parliament to enact it. The legislature might find that a point in time has been reached when it is opportune to reconsider the provision and further limit the opportunities for disputes to arise about admissions, as occurred before me. This is particularly so given the advance of technology for recording the human voice since the section was enacted.
23 In respect of the conversation between the accused and Detective Bennett, the portion of the conversation to which objection is taken must be viewed in the context of what went before it and s 281 must operate in a realistic and commonsense way. It was not inappropriate, in my opinion, for Detective Bennett to speak to the accused at the scene in order to see how she was and to attempt to alleviate her concerns when she expressed her fears. I do not believe that he intended by anything he said, to elicit an admission from her or to obtain information beneficial to their investigation of the murder. Nor should the officer have reasonably foreseen that an admission might be made as a result of what he said to the accused.
24 I acknowledge that the intention of the police officer cannot take a conversation outside the scope of the provision if otherwise it falls within the meaning of "official questioning". But in this case, I am satisfied that the intention of the officer was not to question the accused at all but rather to allay her fears. I accept his evidence that the admission made by the accused was, so far as he was concerned, unresponsive to the statement made by him that occasioned it.
In R v Naa Howie J adopted these observations and said that while his decision is R v Sharp was before the High Court had reason to consider similar provisions in other jurisdictions, what the High Court did say did not affect what he had said (at [48]).
i) The words "in the course of'' do not require that there be a causal connection between the admission and the official questioning but the admissions must arise during "the course of official questioning": Kelly v the Queen at [45], and at [52] where the majority said:
The expression "in the course of official questioning" in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s 8(2)(a) of the Act relatively narrow in the sense that it does not provide that video-recording is a condition for admissibility of all confessions made by persons who are suspected or ought reasonably to have been suspected of having committed a crime: video-recording is only a condition for admissibility of those made "in the course of official questioning". It renders s 8(2)(a) of the Act relatively broad in the sense that it does provide that video-recording is a condition for admissibility of confessions made "in the course of official questioning", without any limitation turning on whether the maker of the confession is in custody or under arrest. The requirement that confessions be video-recorded extends to confessions made anywhere so long as they are made "in the course of official questioning" - whether in police stations, in police cars, at the scene of a crime, or during informal encounters. The difficulty of video-recording confessions in particular circumstances is met by ss 8(2)(b)-(d) and (3)(a)-(d) of the Act. But whether the expression "in the course of official questioning" is viewed as making s 8(2)(a) narrow or broad, it stipulates a relatively clear criterion, suitable for application by police officers, whose usual procedures are formal and methodical.
In R v Naa Howie J said in this context at [77]:
Although, as James J noted, the words "in connection with an investigation" are of wide import, in effect they confine or focus the scope of the questioning between a police officer and a suspect. Without these words "official questioning" would arise whenever a police officer is questioning a person who is or, ought reasonably to have been, suspected of committing an offence whatever be the content or circumstances of the questioning. As I pointed out in Sharp, that is not what Parliament sought to achieve by the provisions. There may be formal or informal police procedures before or after arrest that do not fall within the ambit of the section because they are not in connection with an investigation...
j) A question only falls into the ambit of s 281 where the police officer has reason to suspect the person of committing a crime: R v Villa at [44]-[53]; R v Taouk [2005] NSWCCA 155; R v Naa at [69]-[70].
k) In Carr v The State of Western Australia Gummow, Heydon and Crennan JJ (with Gleeson CJ agreeing but with additional reasons on other grounds) in considering the relevant Western Australia provision said of the use of the word "interview" at [47]-51] (footnotes omitted):
The meaning of "interview" in Ch LXA
47. Beyond the clarification that "interview" means an "interview with a suspect by ... a member of the Police Force", the Criminal Code does not otherwise define the word "interview". The Court was taken to a number of dictionary definitions, none of which provided a clear resolution to the present case. The appellant contended that "interview" connoted a "formal, unhurried interrogation procedure directed to the investigation of crime", as opposed to a chat, informal banter, or talk carried out in an atmosphere of informality. In part, this proffered definition was derived from dicta in the judgment of Wright J in R v McKenzie. In that case certain admissions were ruled inadmissible because they were not recorded by videotape, not for the absence of an "interview".
48. The appellant submitted that a mere conversation would not suffice to constitute an "interview". To this end, the appellant pointed to the absence of any definition such as that found in s 74C of the Summary Offences Act 1953 (SA), in which "interview" is defined to include:
"(a) a conversation; or
(b) part of a conversation; or
(c) a series of conversations".
This comparison of the South Australian and Western Australian provisions is of doubtful utility. The South Australian provisions were inserted in 1995 by s 5 of the Statutes Amendment (Recording of Interviews) Act 1995 (SA), well after the enactment in 1992 of the relevant Western Australian provisions. The most that could be said is that the South Australian provision might tend to highlight an ambiguity in the Western Australian one, but it does nothing to resolve that ambiguity one way or the other. The inclusion of conversations in the South Australian definition says nothing about whether they are to be excluded from the Western Australian provision, which is silent on the matter.
49.The appellant also contended that the "formality" of an interview required a "meeting of minds" about the nature, context and purpose of the discussion. However, that phrase is more likely to mislead than assist. The absence of a "meeting of minds" might indicate that the appellant's admissions were involuntary, or that they were elicited by unfair deception. Such cases can and should be dealt with under the common law exclusionary rules. They are not matters which touch upon the definition of "interview".
50.Even if it be accepted that the term "interview" connotes a degree of formality, it is not apparent where that line is to be drawn. The conversation between the appellant and the police officers in the present case was no mere informal chit-chat: the police officers fell in with the appellant's style of speech, but they structured the relevant part of the conversation as a patient and deliberate sequence of questions and answers designed to elicit admissions. However, there is much force in the observation of Ormiston J in R v Raso that:
"it would be difficult to identify that form of questioning which constitutes an 'interview' and that which constitutes some less formal kind of questioning in circumstances where the questions are being administered by the police".
Raso concerned the meaning of s 23V(1) of the Crimes Act 1914 (Cth) which at that time included the phrase "interviewed as a suspect". That legislation concerned the tape recording of such interviews, and Ormiston J considered it:
"artificial, and possibly conducive to the abuses which the legislation is trying to avert, to draw distinctions between questioning which takes place on a relatively casual basis and questioning which results from some formal or organised interview".
51.The same is true of the present case. Contrary to the appellant's submissions, neither logic nor the text of Ch LXA justifies the conclusion that "formality" requires that the suspect appreciate that the conversation was being recorded and that its contents could be used as evidence against him. Rather, in an appropriate case these matters may attract the common law exclusionary rules relating to involuntariness, unfairness or public policy.
Determination
The idiom "Crossing the Rubicon" is apt in the circumstances of this matter, namely whether Constable Vrahas, after having allegedly been told by the accused of his texting tow truck drivers, had reached the s 281 Rubicon of "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". If that were the case and he then continued to question the accused then the s 281 "die is cast".3
The following oral evidence is critical to the determination of this issue. Constable Vrahas acknowledged the change in demeanour in cross-examination as follows (at T23.10-20).
Q. Yes, certainly. I'm just referring to the part in your statement where you said that Dave went silent and he went very pale. They are observations that you made of him?
A. Yes, that's correct.
Q. I'm just saying they may or may not be factors that you would take into account with a suspect that perhaps that suspect may have something to hide. Can I put it that briefly?
A. Yes, that's correct.
Later in cross-examination he gave the following evidence (T24.5-26.27):
Q. You got angry with him and you said to him, "Mate, they're there before us at accidents. Why would you be sending him text messages?" You see whilst this conversation started off in an informal way, if I can put it that way, an informal way between a couple of mates, the content of the conversation started to change in a way that appeared to implicate the accused, didn't it?
...
Q. In a way that appeared to implicate the accused.
A. Yes.
Q. And no doubt this came as somewhat of a surprise to you?
A. Yes.
Q. After you started getting this information, and the texts were the subject of further discussions, we see from your statement - and I will read it to you - "Dave got out his mobile phone," and you don't know the make or model, and he started to show you a series of texts. You saw addresses in the messages and something like "towing" or "tow truck." I think, in short, what you have seen was then physical evidence in relation to what Dave had told you he had been doing?
A. That's correct.
Q. So we've got a gradually, as it were, escalating - that may not be the right word, but we have got this informal conversation between mates. You knew Dave pretty well, didn't you?
A. Yes.
Q. A pretty robust individual, isn't he?
A. Yes.
Q. So you have the cue with him going silent and going pale. We have the various steps I've taken you to and then the citing of the physical evidence that confirms two things. Number one, it confirmed the answers that he had given to you. Correct?
A. Yes.
Q. Number two, it confirmed that he was in possession of evidence that could well pertain to the inquiry that Professional Standards was undertaking?
A. Yes.
Q. It would appear that when you had got those admissions, for want of a better word - you have seen the evidence - that you were in a position where the normal responsibilities that we have spoken about of a police officer investigating and the normal obligations to caution et cetera, came into play, didn't they? Some of those ordinary street tactics or street things that you would do. It would appear that you have gone from your conversation with a mate to something more sinister?
A. That's correct.
Q. If we move down the conversation. You kept asking him questions in an ongoing basis, didn't you?
HIS HONOUR: In a?
DAVIDSON
Q. An ongoing basis--
A. Yes.
Q. -- because Dave was being quite cooperative with you and he was answering all of these questions as you put them to him, wasn't he?
A. Yes.
Q. And you are gathering, question by question by question, what is amounting to evidence of his involvement in something that was interesting Professional Standards?
A. That's correct.
Q. Let me suggest - and please feel free to look to your statement - that when you get to the point where you say - and you know that I'm reading from page 4 of your statement - "'Do you know when Charlie is going to speak with these people, Professional Standards?' I said, 'Next week some time, but I'm not getting involved in this anymore.'" Obviously from the question and answer process with Constable Cottrell it was starting to emerge that he may well have been involved in something illegal or sinister?
A. That's correct.
In further cross-examination Constable Vrahas agreed that at this point he did not give the accused a caution (T26.39) nor did he as the conversation continued with the more damning alleged admissions made to more ongoing questions (T27.23). Constable Vrahas also agreed that while he had the opportunity to do so he took no immediate steps to notify a more senior officer of the alleged admissions so the accused could be given the opportunity of adopting them (T28.5-27). In re-examination Constable Vrahas said (at T34.30-35.25):
Q. You were asked a question about evidence that had been given yesterday by the Professional Standards officer and obviously you weren't here for that. At the time when you were speaking to David Cottrell did you suspect that there had been an offence committed?
A. (No verbal reply)
HIS HONOUR: I'm sorry, the answer was?
PATERSON: He's contemplating his answer, your Honour.
HIS HONOUR: You are contemplating. I thought I heard something said.
PATERSON: There was a pregnant pause, your Honour.
A. Yes.
Q. Did you suspect that it was a serious indictable offence?
A. No.
PATERSON: Your Honour, I will just check that this has been--
Q. You said in evidence that you didn't immediately report what had happened?
A. No.
Q. Can you say when you did report it?
A. That night.
Q. Who did you speak to?
A. Your Honour, that was to Leading Senior Constable Dibb.
HIS HONOUR
Q. Leading Senior Constable?
A. Leading Senior Constable Dibb, that night.
PATERSON
Q. Why did you go and speak to Leading Senior Constable Dibb?
A. I believed from the information that I had received from Constable Cottrell that a known offence had been committed and I went to a senior officer because I didn't know exactly what to do.
The court accepts that the conversation did commence as an informal conversation about the Professional Standards investigation and Constable Vrahas's own concerns for himself and continued as such to the point when the accused's own connection with the investigation began to emerge and was not "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". However, the court accepts the accused's submission that at a certain point the questioning by Constable Vrahas moved from a conversation between work mates or friends into "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". That point, the court accepts, was as the accused objects.
Constable Vrahas accepts that by then the accused was a suspect and while the conversation remained informal an objective assessment of the circumstances thereafter, is that the admissions that followed were no longer incidental, unsolicited or unresponsive to the ongoing questions by Constable Vrahas. By continuing to elicit from the accused a response that he foresaw might provide information relevant to the investigation of the commission of an offence or possible offence the s 281 line was crossed: R v Sharp at [20]. In those circumstances the factual analogies in R v Naa; Bryant v R; R v Robinson and R v Villa are not apposite. It would be artificial to say that on an objective assessment of the circumstances as set out in the evidence above, the continued questioning did not become "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". By the time Constable Vrahas had observed the change in demeanour of the accused, heard the subsequent alleged admission that he had been texting tow truck drivers and knowing of its serious nature because it was the very conduct that Professional Standards were investigating, the accused was by then implicated and, it follows, a suspect (T24.45-25.7).
The Director's submission that Constable Vrahas was not an "investigating official" is not accepted. Constable Vrahas was a police officer and he meets the statutory definition and that is all that is required in that regard: Bryant v R at [147].
That Constable Vrahas did not believe the accused to have committed an a "serious indictable offence" (T34.31-35.1) is not the issue, but rather the issue is whether the investigation "relates to" a relevant indictable offence which it did in this matter: R v Rowe [2001] NSWCCA 1. Whilst Constable Vrahas did not in his own mind believe that he was investigating the accused (T33.5-20) that may be relevant as to whether he was intentionally undertaking "official questioning". However, that is not the test as questioning by a police officer may still amount to official questioning regardless of the belief of the police officer: R v Sharp [2003] NSWSC 1117 at [21].
That the conversation was between work mates or friends is a circumstance the court needs to take into account. However, the individual characteristics of the questioner (other than needing to be an investigating official) and the suspect are not material for the application of s 281 although individual characteristics may be relevant for other exclusionary grounds. For instance, would the application of s 281 in these very circumstances be any different if the conversation had been with "Fred" or "Charlie". The answer to that should be no.
The court also accepts the accused's submission that the Director cannot rely upon the "conflict of interest" argument. Constable Vrahas had created that very issue once the accused became implicated and he should have desisted from asking further questions and reported the matter to his superior officer. However, at his peril, he continued to ask questions and crossed the line into "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence".
The Director has not made any submission that in the event s 281 did apply then there was a "reasonable excuse" for not recording the conversation under s 281(2)(a)(ii) and (2)(b). The accused has submitted that it proceeds on the basis there is a concession by the Director that there is no "reasonable excuse" and the Director has not replied to that submission. The accused submits that there was ample opportunity when they got back to the police station that night for Constable Vrahas to take steps for the accused to be electronically interviewed and the alleged admissions put to him. Constable Vrahas acknowledged that he had an opportunity to report the matter to a senior officer so steps could be taken to electronically interview the accused but nothing was done (T28.5-33). While Constable Vrahas's evidence is that he did report the alleged admissions to Leading Senior Constable Dibb that night (T35.15) there is no evidence from Leading Senior Constable Dibb as to whether he took any steps to electronically interview the accused. Subject to confirming with the Director that he is not relying on a "reasonable excuse" for failing to electronically interview the accused the court accepts the accused's submission there is none. It follows that the evidence of Constable Vrahas after the words "I said something like, 'They are going to think it's me'" will be inadmissible.
Magistrate Favretto
Downing Centre Local Court
26 July 2013
Footnotes
1 It is at this point that the accused made the s 281 objection and the court embarked on the voir dire.
2 Ms Paterson posed the question in those terms but s 281 is not so limited applying to all "indictable offences" other than offences that can be dealt with summarily without the consent of the accused (s207(2)).
3 Words attributed to Julius Caesar by the Roman historian Suetonius when Julius Caesar in January 49BC decided to cross the Rubicon River in NE Italy with a legion and march on Rome in an act of insurrection.
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Decision last updated: 20 May 2014
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