Director of Public Prosecutions v Ivanisevic (No 3)
[2024] ACTSC 24
•5 June 2023, 6 June 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Ivanisevic (No 3) |
Citation: | [2024] ACTSC 24 |
Hearing Date: | 5-6 June 2023 |
Decision Date: | 5 June 2023, 6 June 2023 |
Reasons Date: | 5 June 2023, 9 February 2024 |
Before: | Loukas-Karlsson J |
Decision: | (1) The application for the body-worn camera conversations with the complainant on 24 February 2022 and 16 March 2022 to be ruled inadmissible is dismissed. (2) The application to exclude the Family Violence Evidence in Chief on 16 March 2022 is dismissed. |
Catchwords: | CRIMINAL LAW – EVIDENCE – whether body-worn police camera footage and Family Violence Evidence in Chief (FVEIC) should be excluded under s 138 of the Evidence Act 2011 (ACT) – police did not announce to the complainant that the complainant was being recorded – proceeded on assumption that the body-worn camera footage was prima facie inadmissible – finding that the desirability of admitting the footage outweighs the undesirability of admitting evidence that has been obtained in the way in which the footage was obtained in any case – FVEIC had been conducted as soon as reasonably practicable – finding that the desirability of admitting the FVEIC outweighs the undesirability of admitting evidence that has been obtained in the way in which the FVEIC was obtained in any case – evidence admissible – application dismissed. |
Legislation Cited: | Crimes (Surveillance Devices) Act 2010 (ACT) ss 43B, 43C Crimes (Surveillance Devices) Body-worn Camera Guidelines 2022 (ACT) items 4.10, 4.11, 4.13 |
Cases Cited: | Director of Public Prosecutions v Carr [2002] NSWSC 194, (2002) 127 A Crim R 151 |
Parties: | Director of Public Prosecutions Marko Ivanisevic ( Accused) |
Representation: | Counsel M Dyason ( DPP) T Jackson ( Accused) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Accused) | |
File Numbers: | SCC 272 of 2022 SCC 273 of 2022 |
LOUKAS-KARLSSON J:
Introduction
1․The trial of the accused, Mr Marko Ivanisevic, commenced before me on 5 June 2023. At that late stage, counsel for the accused indicated there were two objections to the admissibility of evidence that the prosecution was seeking to adduce in the course of the trial.
2․First, counsel for the accused sought that the following evidence be ruled inadmissible:
(a)The body-worn camera footage taken by Constable Boswell involving a conversation with the complainant in a police vehicle on 24 February 2022; and
(b)The body-worn camera footage taken by Constable Barrett involving a conversation with the complainant at the Tuggeranong Health Centre on 16 March 2022.
3․The objection to the admission of the body-worn camera evidence was made on the basis that the police officers failed to announce that the conversations with the complainant were being recorded, contrary to ss 43B and 43C of the Crimes (Surveillance Devices) Act 2010 (ACT) (Surveillance Devices Act) and contrary to the Crimes (Surveillance Devices) Body-worn Camera Guidelines 2022 (ACT) (the Guidelines).
4․I indicated on 5 June 2023 that this evidence was admissible and the application to exclude the conversations with the complainant recorded on the police officers’ body-worn cameras was dismissed. I gave ex tempore reasons, which are set out below.
5․Second, a further issue arose concerning the delay between the first Family Violence Evidence in Chief (FVEIC) interview being undertaken on 24 February 2022 and the subsequent FVEIC on 16 March 2022. Counsel for the accused submitted that under s 81A(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA), a FVEIC must be done “when the facts are reasonably practicably known”. Counsel for the accused submitted that there was no “reasonably practical” basis on which to delay the undertaking of a FVEIC for 20 days and that, therefore, the FVEIC interview undertaken on 16 March 2022 with the complainant should be excluded.
6․I indicated on 6 June 2023 that the application to exclude the FVEIC interview of 16 March 2022 was dismissed. The reasons were reserved. Those reasons now also follow.
Evidence given at the hearing
7․I heard evidence from two police officers concerning the use of body-worn cameras. The evidence is detailed below.
Constable Barrett
8․Constable Barrett gave evidence that, at the time of the incident currently before me for trial, she was attached to the Tuggeranong Police Station in a General Duties role. Constable Barrett confirmed she was, in this role, tasked with attending callouts.
9․On 24 February 2022, Constable Barrett gave evidence that she attended the Tuggeranong Health Centre and met the complainant. Constable Barrett and the complainant had a recorded conversation on Constable Barrett’s body-worn camera during which the complainant made allegations concerning family violence that she was allegedly experiencing. Constable Barrett subsequently requested the complainant participate in a FVEIC.
10․Approximately three or four minutes after commencing the FVEIC, the complainant indicated that she no longer wished to participate in the interview. Constable Barrett gave evidence that the complainant did not feel as though it was the right time and that she “was not in the right mind frame to complete the rest of the FVEIC”. A transcript of this initial FVEIC was tendered at the hearing before me and exhibited on the voir dire.
11․Constable Barrett gave evidence that she informed the complainant that a separate time could be organised if she wanted to participate in another FVEIC. Constable Barrett gave evidence that another time was not organised, however she explained to the complainant how this could be arranged. Further, Constable Barrett gave evidence that she provided the complainant with examples of how to do so, including through the police station or by calling the police communications system.
12․Constable Barrett gave evidence that she did not recall whether she knew where the complainant was residing at the time, or whether she tasked a superior or supervising officer with following up with the complainant. Constable Barrett did not recall whether she obtained any contact details for the complainant and indicated her only interaction with the complainant was on that date, 24 February 2022.
13․Under cross-examination, Constable Barrett confirmed that she could have sought advice from supervisors, however it would be her role to investigate matters as they arose. Constable Barrett confirmed that had she decided to charge the accused, she would most likely have become the officer-in-charge. Other than seeking advice, Constable Barrett confirmed that she would have undertaken the investigation and prepared the brief of evidence in relation to the accused.
14․Constable Barrett also gave evidence that she was aware that there is a period of approximately 30 seconds without audio when commencing body-worn video recordings, and that she could not say definitively that she had informed the complainant that she was recording on her body-worn camera. Under cross-examination, Constable Barrett indicated it is practice to tell someone before any conversation that they are being recorded and that there was a possibility that this may not have been done when she was speaking with the complainant on 24 February 2022. Constable Barrett conceded under cross-examination there were “no issues [with] the environment or the setting [and she] had ample opportunity to advise [the complainant] of [the] recording”.
15․Constable Barrett gave evidence she was aware of the Guidelines in relation to body-worn cameras and agreed that it is appropriate to advise a person that they are being recorded on a body-worn camera.
Constable Boswell
16․Constable Boswell also gave evidence before me on 5 June 2023. Constable Boswell is the informant in this matter.
17․Constable Boswell gave evidence that the first interaction he had with the complainant was on 16 March 2022. On this date, Constable Boswell gave evidence he had attended the location in response to an unrelated enquiry (namely, the suspected theft of the accused’s motor vehicle). Senior Constable Chapman (S/C Chapman) also attended the location with Constable Boswell. On arrival, Constable Boswell and S/C Chapman approached the front door with the intention of “following up on the enquiry… and talking to the accused about his car”. The officers spoke with the accused and Constable Boswell proceeded with the accused to inspect his vehicle that he had reported stolen but which apparently had been returned to the accused’s address. Constable Boswell and the accused discussed how the vehicle was returned to the accused.
18․Constable Boswell gave evidence that S/C Chapman subsequently indicated to him that they were to transport the complainant back to Tuggeranong Police Station and the complainant was assisted into the police vehicle by S/C Chapman. Constable Boswell gave evidence that both officers travelled back to the police station with the complainant and, on cross-examination, that his body-worn camera was activated for this journey.
19․Constable Boswell gave evidence that discussions occurred in the police vehicle that related to “some of the stuff that was also covered off in the FVEIC… that a number of offences had happened while she was [at the location with the accused]”. Constable Boswell confirmed that an FVEIC interview with the complainant took place at the police station later that day, 16 March 2022.
20․Constable Boswell believed that the conversation with the accused was being recorded on his body-worn camera. Constable Boswell gave evidence he could not recall whether he “made any comments” to the accused about the body-worn camera footage.
21․Under cross-examination, Constable Boswell gave evidence that he had received police training on the use of body-worn video. He gave further evidence he was aware that, if the body-worn camera has been “left on standby mode”, it takes 30 seconds for the sound to be engaged and that, consequently, there is a period where video but not audio recording is available.
22․Under cross-examination, Constable Boswell confirmed that he understood the Guidelines which direct, at 4.10, that the “the use of a body-worn camera by a police officer must be overt” and, at 4.11, that “covert use of a body-worn camera refers to purposely concealing so a person is unaware that a police officer is wearing and/or using a body-worn camera”.
23․Constable Boswell could not confirm whether he had informed the complainant that he was recording. Constable Boswell agreed under cross-examination that he could, in practice and as he had done in the past, have said words to the effect of, “I’m just letting you know my camera is on and it will start recording what you say”. Constable Boswell could not say whether he said words to this effect on this occasion.
Admissibility of the body-worn camera evidence
Failure to advise of the use of body-worn camera video recording
24․Counsel for the accused submitted that the officers are required by the Surveillance Devices Act and the Guidelines to announce that they are using body-worn video, and that the failure to do so renders the body-worn video prima facie inadmissible.
25․Counsel for the accused submitted that it was not available on the evidence to find that both Constable Boswell and Constable Barrett advised that they were using body-worn video recording and, therefore, the officers did not comply with the Guidelines. Counsel for the accused submitted that the circumstances in s 43B(3)(a)-(c) of the Surveillance Devices Act did not apply, namely that it was in this case reasonably practicable to do so, it would not have caused or increased a risk to a person’s safety, and it would not have unreasonably limited a person’s privacy.
26․In view of this, counsel for the accused submitted that on both 24 February 2022 and 16 March 2022, where the police officers accepted that there was “nothing exigent” at either scene in which the body-worn footage was captured, there is a requirement for the officers to have informed the individual that they were recording on a body-worn camera. Counsel for the accused submitted that this amounted to an impropriety and the evidence should be ruled prima facie inadmissible. Therefore, enlivening a consideration of s 138.
27․The prosecution submitted that an impropriety was not established. The prosecution referred to 4.13 of the Guidelines which provides as follows:
4.13 Whether use of a BWC is considered overt depends on all the circumstances. Generally, the use of a BWC may be considered overt where:
(a) The BWC is worn in such a way that is plainly visible to the person being
recorded, and the recording (both video and audio) is not obstructed; and(b) A police officer announces the use of the BWC as soon as reasonably
practicable after commencing dealing with a person in the course of the officer’s
duties, in a language that is readily understood by that person.
28․The prosecution submitted that this does not amount to a mandatory requirement in the presence of other circumstances that would signify the camera operating, in this case:
(a)The camera being “plainly observable”; and
(b)The camera making a “beeping sound”.
29․I note the Guidelines direct both that these body-worn camera be “plainly visible” and the police officer announce the use of the body-worn camera. The prosecution submitted, generally, this was a scenario where the use of the body-worn cameras could be considered to be “overt”.
30․I am not necessarily persuaded that the evidence obtained via body-worn camera on 16 March 2022 and 24 February 2022 should be ruled prima facie inadmissible. Nevertheless, I am prepared to assume for the purposes of this legal exercise that it is prima facie inadmissible. On the assumption that an impropriety exists, I will now consider s 138 of the Evidence Act 2011 (ACT) (Evidence Act).
Section 138 of the Evidence Act: Body-worn camera video recording
31․In view of the prima facie failure to comply with the legislation, counsel for the accused made submissions in relation to s 138 of the Evidence Act.
32․Section 138 of the Evidence Act relevantly provides as follows:
138Exclusion of improperly or illegally obtained evidence
(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;
must not 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 the person 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 the person 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 must 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.
33․In brief, counsel for the accused submitted in relation to s 138(a)-(c) that the evidence is not “significantly probative given the witness would be available to give evidence in any event”. Counsel for the accused conceded that this is a criminal proceeding and is, therefore, a serious matter. Counsel for the accused submitted that the contravention could not be said to be of “significant gravity”. Counsel for the accused further conceded the omission by the officers was not deliberate. However, he submitted that the failure to comply was reckless. Counsel for the accused submitted that “there was nothing surrounding the situation that would require an exigency in their action” and that the right of the person to choose not to be recorded is “an aspect of a human right”.
34․I was not addressed by counsel for the accused in relation to whether the impropriety or contravention was contrary to or inconsistent with the rights of a person recognised by the International Covenant on Civil and Political Rights. Nevertheless, counsel for the accused emphasised the right to privacy in that regard. Counsel for the accused did not make any submissions in relation to other proceedings likely to be taken in relation to the contravention.
35․Finally, counsel for the accused submitted that, the difficulty, if any, of obtaining the evidence without impropriety or contravention of Australian law was a matter that could have been resolved by the relevant officers by stating that body-worn cameras were being used.
36․The prosecution submitted that the evidence would assist the jury in considering reliability and credibility of the complainant, as well as being relevant to the substantive allegations themselves. The prosecution submitted that the evidence is important in the proceedings, particularly in relation to establishing tendency. The prosecution agreed these are serious charges for the purpose of s 138(3)(c), with the most serious charge being intentionally inflicting grievous bodily harm.
37․The prosecution submitted that the impropriety was “minute in nature” and was reckless “at its highest, if it is indeed impropriety”. The prosecution did not address me in relation to 138(3)(f). The prosecution conceded that, ultimately, it would not have been difficult to obtain the evidence absent the impropriety. The prosecution submitted, however, that police officers are continuously engaging in training and that the prosecution routinely engages in the process of providing feedback to officers after trials.
Conclusion in relation to the admissibility of the body-worn camera evidence
38․Clearly, it would not have been difficult for the officers at the time to indicate to the complainant that the conversations were being recorded on their body-worn cameras on 24 February 2022 and 16 March 2022.
39․Nevertheless, in all the circumstances, having weighed the matters under s 138 (on the prima facie basis that there was an impropriety), 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”. This is particularly true, in my view, when weighing up the significant probative value of the evidence, the seriousness of the charges, and the minor and, at its highest, reckless nature of the contravention.
Admissibility of the FVEIC on 16 March 2022
40․Counsel for the accused objected to the admissibility of the FVEIC conducted by Officer Boswell and Officer Chapman with the complainant on 16 March 2022.
41․I note that the application for the evidence to be ruled inadmissible was made in relation to Counts 1-4, 8 and 9. Counsel for the accused conceded that, in relation to Counts 5-7, the FVEIC is “appropriate given that is the first time the police become practically aware of those facts”.
Background
42․On 24 February 2022, the complainant spoke with two police officers at the Tuggeranong Community Health Care Centre. One of these officers was Constable Barrett, who gave evidence before me detailed at [8]-[15]. As previously indicated, the complainant commenced a FVEIC on 24 February 2022 however, after only a few minutes, communicated that she was no longer willing to participate in the FVEIC. The FVEIC was then concluded.
43․Of particular note, Constable Barrett gave evidence of the following:
(a)Constable Barrett does not recall being made aware of the complainant’s current residential address or taking any contact details from the complainant;
(b)Constable Barrett informed the complainant that, should she change her mind about participating in the FVEIC, she could contact the police to arrange a time to complete the interview; and
(c)Constable Barrett was a general duties officer attached to the Tuggeranong Police Station whose primary function was (as submitted by the prosecution) to be “called out to random requests for assistance on a day-to-day basis”.
44․I note that, during the brief FVEIC, the complainant communicated that she did not have a mobile phone. This is consistent with the Case Statement in this matter which describes (at [48]) S/C Chapman requesting the accused locate and hand over the complainant’s mobile phone to police; the accused did so, obtaining the mobile phone from “the back of a high cupboard in the kitchen”.
45․As detailed earlier, subsequent to the events of 24 February 2022, Officers Boswell and Chapman attended the accused’s residential address for an unrelated matter on 16 March 2022. The complainant was transported to the Tuggeranong Police Station where she participated in a FVEIC in relation to all counts on the indictment. This FVEIC undertaken on 16 March 2022 is the subject of the objection by counsel for the accused.
Relevant principles
46․The objection made by counsel for the accused, to the admission of the FVEIC conduct on 16 March 2022 is on the basis that this FVEIC was not conducted “as soon as practicable after the events mentioned in the statement happened”. This is a requirement under s 81A(2)(a) of the EMPA.
47․Section 81A of the EMPA provides as follows:
81ARecorded statement—requirements
(1)A police officer must, before making a recorded statement, tell the complainant that—
(a)the recorded statement may be used in evidence at a hearing; and
(b)if the recorded statement is used in evidence at a hearing, the complainant may be called to give evidence under cross‑examination in person at the hearing; and
(c)the complainant does not have to consent to the recording.
(2)A recorded statement must be made—
(a)as soon as practicable after the events mentioned in the statement happened; and
(b)in the form of questions and answers.
NoteIf the recorded statement is to be admitted as evidence in a
proceeding, the rules of evidence apply to the content of the statement.
(3)A recorded statement of a complainant must include the following:
(a)the name of each person present during any part of the recording;
(b)a statement by the complainant—
(i) of the complainant’s name, age and whether the complainant lives in the ACT; and
(ii) about the truth of the representations made by the complainant in the recorded statement;
(c) any other matter prescribed by regulation.
(4)As far as is practicable, a recorded statement must not contain an image of—
(a)a child; or
(b)a person who is intellectually impaired.
(5)If any part of a recorded statement is in a language other than English—
(a)the recorded statement must contain an English translation of the part; or
(b)a separate written English translation of the part must accompany the recorded statement.
(6)A recorded statement must not be edited or changed unless—
(a)both parties consent to the edits or changes; or
(b)the court hearing the proceeding in which the recorded statement is tendered otherwise orders.
…
(emphasis added)
Consideration
48․Counsel for the accused correctly submitted that the facts in this case are “somewhat unusual” in that the police officer (who, had charges been laid at that time, would have become the informant) did not make “further arrangements” or attempt to contact the complainant.
49․Counsel for the accused relied on a decision of Burns J in R v HC [2017] ACTSC 276, (2017) 325 FLR 59 (HC) in support of the submission that a 20-day delay was not “as soon as practicable”. I note the facts in HC are that the FVEIC was undertaken three days subsequent to the incident; about one-and-a-half day after police were made aware of the incident. Within that period, the police in HC attempted to liaise with the complainant about setting up a time for the FVEIC.
50․Burns J in HC, in considering the phrase “as soon as practicable”, stated the following at [67]:
The expression “as soon as practicable” is imprecise and is flexible in its application: Creely v Ingles [1969] VR 732. The meaning given to the expression will depend on the circumstances: see Tampion v Chiller [1970] VR 361 (Tampion v Chiller) at 364 per Anderson J. The expression does not mean “as soon as possible”: Tampion v Chiller at 365; Wills v Whitside, Ex parte Wills (1987) 2 Qd R 284 at 288. In assessing whether an obligation cast upon a police officer to do something “as soon as practicable” has been complied with, a court should allow for normal factors of police practice: Richards v Schutt (1978) 18 SASR 421 at 425, quoted with approval by Duggan J in Magain v Roberts (1991) 14 MVR 313 at 320. Where an obligation cast is upon a person to perform an action “as soon as practicable”, the requirement is usually to be assessed from the point of view of the person upon whom the obligation is cast: Martin v Commonwealth of Australia (1975) 7 ACTR 1.
(emphasis added)
51․Relevantly, his Honour went on to state at [70]:
The obligation to make the recorded statement as soon as practicable is one which statute casts upon the police, and the obligation must be considered from their perspective.
52․Counsel for the accused submitted that the key distinction between this matter and HC is that the police officers in HC made “active efforts” to contact the complainant and engaged in “diligent investigation”. Counsel for the accused submitted that it was the “diligent investigation” in HC that allowed this conduct to fall within the bounds of “reasonable practicability”. In this case, counsel for the accused submitted, it was “left to the complainant’s own devices” and only arose in relation to a separate incident.
53․Counsel for the accused distinguished between a refusal to participate in a FVEIC and a desire not to continue the FVEIC at the time. Counsel for the accused submitted that, even in the absence of a phone number or address for the complainant, there was capacity for police officers to access databases and contact the Health Centre. Counsel for the accused submitted there were “ways and means of which [the police] could have approached the complainant for a FVEIC prior to the call-out by the different patrol on 16 March [2022]”.
54․Counsel for the accused submitted, taking into account the foregoing factors, the FVEIC was therefore not undertaken “as soon as practicable”.
55․On the other hand, the prosecution submitted that, in circumstances where the complainant had indicated to police that she was not able to participate in a FVEIC at that time, it is clearly not practical for this to be pursued. There is obviously force to this submission on the specific facts of this case as detailed earlier at [10]-[11] of this judgment. The prosecution correctly submitted that on the next occasion police had the opportunity to engage with the complainant, namely 16 March 2022, the complainant communicated she was ready to engage with this process. Shortly thereafter, the FVEIC was conducted promptly.
56․In accordance with HC, the requirement for an FVEIC to be conducted “as soon as practicable” is an obligation cast upon police. Nevertheless, the practicality of engaging a complainant in a FVEIC depends on the willingness of a complainant to engage in such a process, at that time. That must be correct. The expression “as soon as practicable” is both imprecise and flexible: see HC at [67]. The police cannot force an unwilling or unprepared person to undertake an FVEIC. So much must be accepted. The prosecution submitted that it is not practicable if the complainant does not want to proceed, and that it is difficult to put a reasonably practicable time frame on “when a person is ready” to participate. I accept this submission on the facts of this case.
57․Further to this, the prosecution submitted that the police were not, on the face of it, able to contact the complainant to enquire as to whether she wanted to participate in another FVEIC. This prosecution submission was developed in the following way: the practicability of engaging with the complainant with respect to participating in the FVEIC arose when the police next engaged with the complainant on 16 March 2022. The prosecution submitted that this amounts to the FVEIC having been conducted “as soon as practicable” in the relevant circumstances.
58․In my view, the FVEIC is admissible as it was undertaken “as soon as practicable”.
Applicability of s 138 of the Evidence Act
59․I have concluded that the FVEIC was undertaken “as soon as practicable”. If I had not come to that conclusion, it would then have been appropriate for me to consider s 138 of the Evidence Act, as to the evidence being obtained improperly. See Parker v Comptroller-General of Customs [2009] HCA 7, (2009) 83 ALJR 494 at [29]-[30]; Director of Public Prosecutions v Carr [2002] NSWSC 194, (2002) 127 A Crim R 151; R v Cornwell [2003] NSWSC 97, (2003) 57 NSWLR 82.
60․The following matters are relevant under s 138:
(a)The probative value of the evidence is high. The interview goes to establishing the counts charged on the indictment;
(b)The evidence is important in the proceedings. The evidence is consistent with the legislative purpose behind the provisions of the EMPA which allow for recorded statements to be admitted as evidence-in-chief;
(c)The offences currently before the Court are indeed serious offences;
(d)The gravity of the impropriety is not of substantial significance. The delay in question is 19 days. The FVEIC was conducted on the next occasion ACT Police came into contact with the complainant;
(e)The impropriety was reckless, not intentional;
(f)The impropriety was not argued to be inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)I note that the prosecution stated an intention to communicate with the officers involved regarding areas for improvement, though will not be taking any other proceedings in relation to this particular aspect.
Conclusion on admissibility of the FVEIC
61․It is clearly not ideal and not best practice that the officers in question did not obtain an address for the complainant at the initial FVEIC. This, of course, made it difficult to follow up with the complainant and make relevant enquires about her capacity to participate in a FVEIC. Nevertheless, as the police did not have an address and the complainant did not have a mobile phone, it is difficult to put a “reasonably practicable” timeframe on when someone is ready and able to participate in a FVEIC on the facts of this specific case. At the next available occasion where officers were in contact with the complainant, a FVEIC was undertaken.
62․The obligation is indeed place upon police (rather than the complainant), as discussed in HC at [67], nevertheless police cannot force a complainant who is unwilling or “not ready” to participate in a FVEIC. I have considered this and considered the immediacy with which a FVEIC was undertaken at the next interaction with the complainant on 16 March 2022.
63․Therefore, I concluded that on the specific and unusual facts in this case, the FVEIC was undertaken as soon as practicable. Had that not been the case, in my view “the desirability of admitting the evidence” outweighed “the undesirability of admitting the evidence that has been obtained in the manner in which it was” in accordance with s 138 of the Evidence Act.
64․Thus, the application to exclude was dismissed.
Orders
65․For the foregoing reasons, the following orders were made:
(1)The application for the body-worn camera conversations with the complainant on 24 February 2022 and 16 March 2022 to be ruled inadmissible is dismissed.
(2)The application to exclude the Family Violence Evidence in Chief on 16 March 2022 is dismissed.
| I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 9 February 2024 |
7
3