Director of Public Prosecutions v Sibley - [2023] ACTSC 267

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Sibley
Citation:	[2023] ACTSC 267
Hearing Date:	20 September 2023
Decision Date:	20 September 2023
Reasons Date:	21 September 2023
Before:	Mossop J
Decision:	1. Exhibit A2 is admissible.
Catchwords:	EVIDENCE – Compliance with s 23V of the Crimes Act 1914 (Cth) – where offender had been questioned and made admission to investigating official – obligation for investigating official to “make … available” a copy of the recording and transcript to the person or their counsel – meaning of “make … available” – failure to comply with legislation – evidence admitted and jury advised of non‑compliance
Legislation Cited:	Crimes Act 1914 (Cth), ss 23V, 23YG Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth)
Cases Cited:	R v Martinez [2023] ACTSC 181 R v Vinayagamoorthy& Ors [2009] VSC 275
Parties:	Director of Public Prosecutions Haylie Sibley (First Accused) Natalie Hyde (Second Accused)
Representation:	Counsel S Saikal-Skea ( DPP) P Bevan (First Accused) J Purnell SC (Second Accused)
Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service (NSW/ACT) Bevan & Co Lawyers & Conveyancers
File Numbers:	SCC 284 of 2022 SCC 343 of 2022 SCC 344 of 2022

MOSSOP J:

Introduction

Counsel for Ms Sibley objected to the admission of a digital audio recording taken at the time of the execution of a search warrant at her house. The basis for the objection was that there had been a breach of the obligation upon the police under s 23V(2) of the Crimes Act 1914 (Cth) which requires that if a person is questioned as a suspect and makes an admission to an investigating official then, if that is recorded, the investigating official must “make the recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording”. Counsel for Ms Sibley argued that the reference to making it available required that it be served upon Ms Sibley. It was uncontroversial that the recording had not been served on Ms Sibley within that timeframe.
I ruled yesterday that the recording was admissible. These are my reasons for that ruling. It is necessary first to set out some of the relevant parts of s 23V. Relevantly, it provides:
(1)If a person who is being questioned as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:
(a)if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission— the questioning of the person and anything said by the person during that questioning was tape recorded; or
(b)in any other case:
…
(2)If the questioning, confession or admission, or the confirmation of a confession or admission, of a person is recorded as required under this section, the investigating official must, without charge:
(a)if the recording is an audio recording only or a video recording only—make the recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording; and
(b)if both an audio recording and a video recording were made—make the audio recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording, and inform the person or his or her legal representative that an opportunity will be provided, on request, for viewing the video recording; and

(c)if a transcript of the tape recording is prepared—make a copy of the transcript available to the person or his or her legal representative within 7 days after the preparation of the transcript.

…
(5)A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.
(6)A court may admit evidence to which this section applies even if a provision of subsection (2) has not been complied with if, having regard to the reasons for the non-compliance and any other relevant matters, the court is satisfied that it was not practicable to comply with that provision.
(6A)To avoid doubt, subsection (6) does not limit subsection (5).

(7)If a judge permits evidence to be given before a jury under subsection (5) or (6), the judge must inform the jury of the non-compliance with the requirements of this section, or of the absence of sufficient evidence of compliance with those requirements, and give the jury such warning about the evidence as he or she thinks appropriate in the circumstances.

A number of matters should be immediately noted:
(a)The consequence of subs (1) is inadmissibility. In contrast, the consequence of non-compliance with subs (2) is not stated to be inadmissibility.
(b)The power in subs (5) can apply whenever there is evidence to which the section applies. In contrast the power in subs (6) applies only where a provision of subs (2) has not been complied with. Subsection (6A) makes it clear that subs (6) does not limit subs (5).
(c)The provision refers to questioning being “tape-recorded”, an expression consistent with recording on magnetic tape. In the present case, consistently with the universal availability of digital recording, the recording was digital and not on magnetic tape. There was no submission made that digital recording failed to comply with the requirement that the questioning be “tape-recorded”.
(d)What is involved in the expression “make … available” is not defined. That contrasts with a later provision (s 23YG) which defines what is required for the purposes of a later Part of the Act where there is a requirement to make material available to a suspect.
The question of whether or not there has been non-compliance with s 23V(2) depends upon what is meant by the expression “make … available”.
The legislative history of s 23V is summarised in R v Martinez [2023] ACTSC 181 at [69]‑[77]. The requirement that the investigating officer “make … available” the recording was inserted into the Crimes Act in 1991: Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth). The explanatory memorandum for the relevant Bill simply repeats the language of s 23V(2) and does not shed additional light on the meaning of “make … available”.
The parties did not refer the court to any other decision since 1991 as to what was required by the expression “make … available”. Nor did they make clear that any thorough search of the case law had been undertaken. One of the decisions referred to was R v Vinayagamoorthy [2009] VSC 275 in which, in dealing with a claim that there had not been compliance with s 23V(2), Coghlan J referred to the tape not being “copied and served”. Counsel for Ms Sibley submitted that this was authority for the proposition that service was a requirement of “make … available”. I do not accept that submission. There is nothing in the reasons which indicates that there was any submission that something less than service was required or that the facts gave rise to a possible argument that the recording had been made available in some manner other than by service. The decision is not, therefore, authority for the proposition that “make … available” requires service of the tape recording upon the suspect.
Some indication of what is required by the expression “make … available” is provided by the other concepts in s 23V. Subsection (2)(b) draws a distinction between “make … available" and a requirement to "inform the person or his or her legal representative that an opportunity will be provided, on request, for viewing the video recording”. Further, subs (2)(c) applies the concept of “make … available” in circumstances where that must necessarily involve some notice to the person because a transcript may never be prepared, but if it is, that can occur at any time after the recording was made. There would be no content to the expression “make … available” if there was no communication of the existence of the transcript.
I do not accept the submission that “make … available” necessarily involves service of the recording on the suspect. The expression “make … available” does not of itself necessarily imply a requirement for service, although service would be a means by which the obligation to “make ... available” would be complied with. The scope of the expression “make ... available” is broader than to “serve” the person or “give” the recording to the person. Given the ready availability of such alternative language, the expression “make ... available” must be understood as a deliberate drafting choice which does not necessarily require service of the recording.
In the present case, the officer who made the recording indicated that his understanding was that service of the recording was not required as a matter of course and that his practice was to upload the recording to the Australian Federal Police electronic system and provide it to a suspect or their lawyer if a request was made. It was “made available” in that it was available to be provided if a request was made.
There was also evidence that in the early part of the execution of search warrant the following exchange occurred:
Q 57.But we can go through that in more detail at the moment, but as long as you don’t feel like you’re under the influence of - - -
A.Oh, no. No, no, no, no.
Q 58.- - - or, you know, any sort of way from any drugs or alcohol, we can continue. So at the completion of the record of search warrant, a copy of the recording will be made available to you as soon practicable. And if a transcript is made of the search warrant, a copy will be made available to you within seven days. Okay?
A.Mm-hmm.
Q 59.And that’s also if you want your lawyer to contact us and we can arrange that that way as well …
Having rejected the submission that “make ... available” necessarily requires service or giving of a copy of the recording to the suspect or the suspect’s lawyer, the issue is whether the expression requires more than simply retaining the recording and responding favourably to a request for a copy if such a request is made. The language in subs (2)(b) in relation to providing an opportunity “on request” for viewing of the video tends to indicate that “make ... available” is not confined to positively responding to a request. Further, as pointed out above, to “make ... available” a transcript prepared at some unspecified future time must mean more than simply retaining the transcript on an electronic system and responding favourably to a request from a suspect or the suspect’s lawyer. The reason is that unless more is done, the suspect or their lawyer would not be aware that a transcript had been brought into existence and hence the seven-day limitation would be of no use unless, by pure chance, a request was made within that period or a standing request was made prior to the transcript being created.
For these reasons I conclude that something more is required than merely storage of the recording. How much more is uncertain.
Having regard to the limited assistance received from the parties on this issue, it was appropriate to resolve the matter on a limited basis confined to the factual circumstances of this case. I concluded that mere storage of the recording in the context of the very limited information given in Q 58 set out above was insufficient to satisfy the requirement to “make ... available” the tape-recording within the seven-day period. That is because, in addition to failing to refer to the seven-day period rather than “as soon [as] practicable”, the information given to the suspect gave no information as to the manner in which it would be made available or what was necessary in order to get access to the tape‑recording. That is in contrast to a circumstance in which there was, as part of the search warrant script used by AFP officers, for example, a clear statement that it would be made available upon request to the investigating officer, available for collection from a particular police station or able to be sent to the suspect if an address was provided to the investigating officer. In my view, what was said was insufficient to adequately alert the suspect in any practical manner as to how it was “available”. In that way, although it was in fact “available”, what was done was not sufficient to meet the requirement that it be “made … available” by the investigating officer.
That conclusion does not require exclusion of the evidence. There is no express statement in s 23V(2) that the evidence is inadmissible. Subsection (5) requires the court to have regard to “the nature and reasons for the non-compliance” and be satisfied that “in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice”.
The nature of the non-compliance involves the failure to provide adequate information either at the time of the search warrant or subsequently to the suspect as to how the recording was available.
The reason for the non-compliance was that the officer in question considered that storage of the recording and responding positively to any request were sufficient to comply with the obligation under s 23V.
The other relevant circumstances of the case are:
(a)The case was not one in which the statute expressly rendered the evidence inadmissible.
(b)The accused was aware of the making of the recording and that it was “available” to her.
(c)The Statement of Facts prepared by the police and available to the accused and her lawyer within the seven-day period made reference to the existence of the recording and admissions made during the course of the recording.
(d)The investigating officer gave evidence and was cross-examined by the lawyer for the accused during the course of a bail application made within the seven‑day period.
(e)No request was made for the recording prior to it being provided during the course of disclosure by the prosecution.
(f)No prejudice or consequence of any sort was identified as resulting from the fact that the audio recording was not provided earlier than it was.
I considered that “the special circumstances of the case” could be satisfied by an aggregation of different factors and did not require anything exceptional to be established. In the particular aggregation of circumstances which were sufficient to be considered “special”, I was satisfied that the admission of the evidence would not be contrary to the interests of justice. I therefore ruled that the recording was admissible.
Pursuant to s 23V(7) I am required to inform the jury of the non-compliance and give the jury such warning as I consider appropriate in the circumstances. I will inform the jury of the non-compliance in my summing up. I consider that no warning is appropriate in the circumstances that I have outlined.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

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