Director of Public Prosecutions v Tran (Ruling No 1: unrecorded interview)
[2019] VSC 823
•13 December 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0294
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMY TRAN |
---
JUDGE: | BELL J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6, 7, 8, 12, 19, 20 and 23 August 2019 |
DATE OF RULING: | 13 December 2019 |
CASE MAY BE CITED AS: | DPP v Tran (Ruling No 1: unrecorded interview) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 823 |
---
CRIMINAL LAW — evidence — accused charged with murder — identity in issue — accused made alleged admissions in unrecorded interview with police — admissions suggested that accused knew she was the offender — admissions not subsequently confirmed in recorded interview — whether circumstances are exceptional and justify reception of evidence of admissions — Crimes Act 1958 (Vic) s 464H(1)(c) and (2).
---
APPEARANCES: | Counsel | Solicitors |
| For the prosecution | Mr M Gibson QC with Mr D A Glynn | Office of Public Prosecutions Victoria |
| For the defence | Mr G W Casement with Ms S Lenthall | Leanne Warren & Associates |
HIS HONOUR:
The accused is charged with the bashing murder of an elderly woman in a suburban street. It is not in dispute that the woman was so bashed and later died in hospital. At about the time of the attack, the accused was seen in the vicinity wearing distinctly coloured clothing. But there was no eyewitness to the actual event. In this trial of the accused before a jury for murder, identity and intention are the main issues. Was the accused the attacker? The accused denies that she was. What was the intention of the attacker at the time? The accused places this in issue.
Police attended at the scene shortly after the attack. On the following day they attended a nearby house where the accused was found lying on a couch. After being arrested and cautioned, the police asked her questions, which she voluntarily answered. The questions and answers were written down by the two officers concerned but the conversation was not audio or audio-visual recorded. According to the police, when first asked whether she knew why she was being arrested, the accused answered that it was for ‘bashing the old lady’. When later formally interviewed, she did not confirm this first answer, indeed in one later answer she denied it. The prosecution seeks to lead evidence of the accused’s first answer in the trial.
Under s 464H(1) of the Crimes Act 1958 (Vic), a confession or admission of a suspect to investigating police that is not audio or audio-visual recorded is inadmissible against the accused in a trial of the charge. But s 464H(2) gives the court discretion to admit the evidence when exceptional circumstances justify doing so. This, submits the prosecution, is a case where that exception applies. It is not, submits the defence.
The general rule against the admission of unrecorded confessions and admissions is central to the scheme laid down in ss 464–464H of the Crimes Act applying to the custody of alleged offenders and the investigation of crime. Those provisions were introduced as new sub-div (30A) of div 1 of pt III of that Act by the Crimes (Custody and Investigation) Act 1988 (Vic). I described the central elements of the scheme in Director of Public Prosecutions (Vic) v Toomalatai:[1]
[I]n 1988 … the Crimes (Custody and Investigation) Act … [introduced] a package of reforms of fundamental importance to the fair conduct of police interrogations. Let me give four examples ... First, a suspect must … be informed of the circumstances of the offence that gave rise to their arrest[2] and of their right to remain silent.[3] Secondly, a suspect must usually[4] be informed of their right to communicate with a friend or relative and legal practitioner.[5] Thirdly, a suspect who does not have sufficient knowledge of English must be given the assistance of an interpreter.[6] And fourthly, subject to qualifications … confessions and admissions of suspects must be taped or video-recorded.[7]
[1](2006) 13 VR 319, 326–7 [41] (‘Toomalatai’).
[2]Section 464A(2)(a).
[3]Section 464A(3).
[4]Under s 464C(1)(c) and (d), as under s 464E(2), the rule does not apply where the police believe on reasonable grounds that compliance would result in the escape of an accomplice or the fabrication or destruction of evidence or the questioning is so urgent, having regard to the safety of other people, that it should not be delayed.
[5]Section 464C(1).
[6]Section 464D.
[7]Section 464H(1). The original requirement for tape-recording was extended to include video-recording where the facilities are available by s 6 of the Crimes (Questioning of Suspects) Act 2000 (Vic).
As regards the fourth element of the package — the requirement that confessions and admissions to police be audio or audio-video recorded — the general rule and the exception are stated in s 464H(1) and (2) respectively as follows:
(1)Subject to subsection (2), evidence of a confession or admission made to an investigating official by a person who—
(a) was suspected; or
(b) ought reasonably to have been suspected—
of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless—
(c)if the confession or admission was made before the commencement of questioning, the confession or admission was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person and the confirmation was recorded by audio recording or audiovisual recording; or
(d)if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording; or
(e)if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was recorded by audio recording or audiovisual recording; or
(f)if the confession or admission was made during questioning in accordance with an order made under section 464B(5), the questioning and anything said by the person was recorded by audiovisual recording—
and, if either an audio recording or an audiovisual recording was made, that recording or, if both an audio recording and an audiovisual recording were made, the audiovisual recording is available to be tendered in evidence.
(2)A court may admit evidence of a confession or admission otherwise inadmissible by reason of subsection (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances—
(a) are exceptional; and
(b) justify the reception of the evidence.
The admissions of the accused were allegedly made in the circumstances covered by para (1)(c).
According to the prosecution, the circumstances in which the admissions were made by the accused to the police were entirely routine. When the two police officers entered the house to find the accused lying on the couch, they observed that she was wearing a light red or pink coloured top of the kind worn by a female who was seen near the scene of the crime. In another room to which the accused was taken, one of the police officers in the absence of the other cautioned the accused as follows:
I said, ‘You are under arrest for serious assault. You are not obliged to say or do anything unless you wish to but anything you say or do may be used and given in evidence. Do you understand that?’
She said, ‘Yes.’
I said, ‘You may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner. Do you understand those rights?’
She said, ‘Yes.’
I said, ‘Do you wish to exercise those rights?’
She said, ‘No.’
The second officer then entered the room. The first officer in the presence of the second continued to speak with the accused as follows:
I said, ‘Amy, do you know why you are under arrest?’
She said, ‘Yeah for bashing the old lady.’
I said, ‘Do you want to tell me about that?’
The accused remained silent for a short time while appearing to be staring blankly.
She said, ‘Am I the Queen of England?’
There was no further conversation with the accused in relation to the offence until she was formally interviewed.
Because s 464H(1)(c) makes evidence of the alleged admissions of the accused inadmissible unless they are subsequently confirmed in an interview that was audio or audio-visual recorded, the police raised the matter with her when she was so interviewed. In the following conversation, she did not give that confirmation:
Q317 O.K. I just want to go through the conversation I had with you yesterday. O.K.?
A Mm’hm.
Q318 After I told you you were under arrest for serious assault, I gave you your caution and rights that you didn’t have to say anything to me, and could contact a friend, relative or solicitor. Do you remember that?
A Mm’hm.
Q319 I then said, “Amy, do you know why you are under arrest?” Do you remember me asking you that?
A Yep.
Q 320 Do you remember what you replied?
A Not really.
Q321 If I said you replied, “Yeah, for basing the old lady”, do you remember you said that to me?
A No, I don’t.
In subsequent answers in the same interview, the accused denied certain propositions that were put to her. For example, she positively denied answering ‘[y]eah, for bashing the old lady’ when asked whether she knew why she was under arrest (Q 274). It will not be necessary to go into this inconsistency. But, as the defence submits, a purpose of the custody and investigation provisions is to minimise the scope for controversy about what was said by accused persons to police before a formal interview takes place. We appear here to have that kind of controversy.
The general rule against the reception of evidence of an unrecorded confession or admission in s 464H(1)(c) applies in the circumstances specified in the provision. Those circumstances are that:
· the evidence is of a confession or admission;
· the confession or admission was made by a person who was suspected or ought reasonably to have been suspected of having committed an offence;
· the confession or admission was made by the person to an investigating official;[8]
· the confession or admission was made before the commencement of questioning; and
· the confession or admission was neither recorded by audio recording or audio-visual recording nor was it, in substance,[9] confirmed by the person in such a recording.
[8]Section 464(2) of the Crimes Act defines investigating official to mean:
a police officer or a person appointed by or under an Act (other than a police officer or person who is engaged in covert investigations under the orders of a superior) whose functions or duties include functions or duties in respect of the prevention or investigation of offences; …
[9]In R v Sindoni [2009] VSC 269 (2 June 2009) [3], Bongiorno J held that, in this context, in ‘substance’ means ‘”to the same effect” or “substantially the same”’.
It is established that the expression ‘confession or admission’ in s 464H(1) is given its ‘generally accepted meaning in the field of criminal law’.[10] In that field, there is a distinction between a confession and an admission. According to Coldrey J in Hazim:
The accepted distinction between confessions and admissions is that the former involve admissions of actual guilt of the crime, whereas the latter relate to key facts which tend to prove the guilt of the accused of such crime. The category of admissions includes relevant false denials.[11]
In R v Efandis (Ruling No 2), Kaye J pointed to the underlying purpose of the regime constituted by s 464H, which is ‘to protect persons, suspected of offences and who are later charged, by ensuring that admissions alleged against them are genuine and voluntary and have not been unfairly obtained.’[12] Therefore, held his Honour, ‘a narrow construction should not be adopted of the phrase “confession or admission”’.[13] Just as it includes false denials, it includes admissions of inculpatory knowledge of true facts.[14]
[10]R v Efandis (Ruling No 2) [2008] VSC 274 (22 July 2008) [36] (Kaye J) (‘Efandis’).
[11](1993) 69 A Crim R 371, 380, approved by Efandis [2008] VSC 274 (22 July 2008) [36] (Kaye J).
[12][2008] VSC 274 (22 July 2008) [37].
[13]Ibid.
[14]Ibid.
The alleged answer of the accused that she was being arrested ‘for bashing the old lady’ was an admission of being the attacker. It was also an admission that the victim was an old lady and that the assault was a bashing, which the accused had not been told by the police and she could only have known by reason of being the attacker. In the first respect, it was an alleged admission of actual involvement in the offence, although not of actual guilt for the crime. In the second respect, it was an alleged admission of inculpatory knowledge of a true fact. So, we are dealing here with admissions, not a confession.
The admissions of the accused were made to police when investigating the crime.
The accused was an actual suspect who had been cautioned at the time.
The admissions were made before the commencement of questioning.
The admissions were neither recorded by audio recording or audio-visual recording nor were they, in substance, confirmed by the accused in such a recording.
Therefore, the question is whether evidence of the admissions should be received because, under s 464H(2), the circumstances are exceptional and justify the reception of the evidence. The onus is on the prosecution to so establish, as it seeks to adduce the evidence.
Before considering the submissions of the prosecution and the defence about whether the exceptional discretion to admit the evidence should be exercised, it is well to emphasise the importance of the general exclusionary rule. That rule, and the other elements of the scheme enacted by ss 464–464H, was introduced because disputes over the admissibility of unrecorded confessional evidence were damaging public confidence in the system of justice and intolerably increasing the cost and length of criminal trials.[15] ‘Verballing’ (where police officers would falsely claim that a suspect had voluntarily confessed to a crime or made inculpatory admissions) was a ‘scourge’,[16] so much so that it was decided in 1991 by the High Court in McKinney v The Queen that it would be dangerous for a jury to rely upon evidence of an accused’s confessions or admissions without corroboration by contemporaneous audio or audio-visual recording.[17] Legislation was introduced in each jurisdiction requiring such recording. By 2004 it was possible for Gleeson CJ, Hayne and Heydon JJ to say in Kelly v The Queen: ‘Few now doubt the advantages of the widespread police practice of video-recording confessions, and few now criticise the various types of legislation which underpin that practice’.[18]
[15]See generally Kelly v The Queen (2004) 218 CLR 216, 225–323 [22]–[40] (Gleeson CJ, Hayne and Heydon JJ), 250–1 [96] (McHugh J (‘Kelly’).
[16]Jeremy Gans, Andrew Palmer and Andrew Roberts, Uniform Evidence (Oxford University Press, 3rd ed, 2019) 241 [8.3.3].
[17](1991) 171 CLR 468, 476 (Mason CJ, Deane, Gaudron and McHugh JJ).
[18](2004) 218 CLR 216, 230 [37].
In Victoria, the following statement about the problem in a 1984 report from New South Wales was influential:
1.1The incidence of disputes over statements of a confessional nature said to have been made in the course of police questioning of suspected persons is frequent. The process by which evidence of this type is currently given and the manner in which disputes are resolved is utterly unsatisfactory.
1.2The inadequacy of the present system of dealing with confessional evidence is a major factor contributing to the duration of criminal proceedings, and to consequently unacceptable delays that are currently experienced in bringing criminal cases to finality.
1.3The present system of criminal prosecutions is heavily dependent upon proof of confessional material. The means by which that evidence is obtained and presented in court is inefficient and usually incapable of providing the foundation on which a reliable conclusion of fact may be based.
1.4There have been several major inquiries conducted on this subject, both in Australia and in the United Kingdom. The unanimous conclusion made by those inquiries has been that the use of electronic recording of police interviews is both practical and desirable.
1.5There have been frequent statements by eminent Judges, practising and academic lawyers calling for the introduction of a system of electronic recording of police interviews to overcome the crippling effect that the continuing disputes over confessional statements, both inside and outside the courtroom, has had upon the administration of criminal justice.[19]
[19]Consultative Committee of the New South Wales Department of the Attorney-General, The Use of Electronic Equipment to Record Police Interviews (1984) 2–3 [1.1]–[1.5].
This statement was adopted by the Victoria Consultative Committee on Police Powers of Investigation in its 1986 report entitled Custody and Investigation, along with other statements like it in the ‘vast number of reports in Australia and overseas’[20] on the subject. The committee was chaired by the Director of Public Prosecutions, John Coldrey QC, who was later appointed to be a judge of this court. The report of the committee led to the enactment of the Crimes (Custody and Investigation) Act in 1988, which introduced sub-div (30A) into the Crimes Act. Of that sub-division, Brennan, Dawson and Gaudron JJ stated in Pollard v The Queen that ‘one of [its] main purposes … was to ensure the integrity of the questioning process and to reduce the scope both for impropriety and for allegations of impropriety during questioning’.[21] Likewise, in Hazim, Coldrey J (Teague J agreeing) stated that ‘a purpose of this legislation was to reduce the level of disputation at trial about the voluntariness, fairness and accuracy of interviews conducted with suspects’.[22]
[20]Victoria Consultative Committee on Police Powers of Investigation, Custody and Investigation (1986) 82 [6.17].
[21](1992) 176 CLR 177, 192.
[22](1993) 69 A Crim R 371, 381.
The present case is an instance of a suspect making an alleged confession or admission to a police officer in the presence of another police officer in circumstances where it was noted but not recorded. It falls squarely within the category of evidence that is covered by the general exclusionary rule. It comes within one of the examples given by Gleeson CJ, Hayne and Heydon JJ in Kelly[23] under the heading ‘[t]he problems of confessions to the police’, The reception of such evidence gives rise to a risk of miscarriage of justice. As stated by their Honours, disputes about such evidence include allegations of ‘possible fabrication’ but also ‘misunderstanding, misrecollection, coercion, or oppression in a broad sense’.[24]
[23](2004) 218 CLR 216, 225 [24].
[24]Ibid 225, [23], [25].
Section 464H(1) includes within its scope unrecorded confessions or admissions allegedly made by a suspect ‘without stimulation by the police or without warning to the police’.[25] If the admission allegedly made by the accused in the present case is to be so characterised, as was submitted by the prosecution, it is covered by the provision. However, it was not really made without stimulation or warning because it was responsive to an open-ended question asked by police about whether she knew why she was under arrest. That kind of admission is plainly covered by the provision.
[25]Ibid 229 [32] (Gleeson CJ, Hayne and Heydon JJ).
Having regard to the primary purpose of the general exclusionary rule in s 464H(1), it is important that the discretion in s 464H(2) be confined to cases that are truly exceptional and justify reception of the evidence. When a party calls upon the court to admit evidence under s 464H(2), this is a relevant consideration. Relying upon the judgment of McHugh J in Nicholls v Coates,[26] Eames JA stated in R v Schaeffer that ‘the legislative policy for the recording of interviews with suspects, and the avoidance of disputes about alleged admissions’ are matters of relevance that have to be given appropriate weight in the exercise of the discretion.[27] If the discretion is exercised too readily, it will undermine the general rule, little by little, case by case, until it is a general rule in name only.
[26](2005) 219 CLR 196, 237 [98]ff.
[27](2005) 13 VR 337, 353 [61]–[63].
The procedures in s 464H have strengthened the capacity of the courts to give faster and more informed rulings on the reception of disputed evidence of confessions and admissions. I have already mentioned the endorsement of such procedures by Gleeson CJ, Hayne and Heydon JJ in Kelly (see above). Vincent JA (Charles JA and Osborne AJA agreeing) stated in R v Cavkic that the requirement that confessions and admissions be recorded ‘enables the judge at trial to gain some appreciation of the circumstances and condition of the confessionalist, assists in the determination of the issue of voluntariness, whether the evidence should be excluded in the exercise of discretion, and should remove doubt as to what was said by the parties to the conversation’.[28] Examples from my own experience include Toomalatai[29] where the audio-visual recording showed that a young suspect had not been properly assisted in the police interview by his independent person and Director of Public Prosecutions (Vic) v Natale (Ruling)[30] where the recording showed that an elderly Italian suspect with mental illness had not fully understood the police questioning in the absence of an interpreter.
[28](2005) 155 A Crim R 275, 288 [248].
[29](2006) 13 VR 319.
[30][2018] VSC 339 (26 June 2018).
The discretion in s 464H(2) is not an open discretion to admit evidence that is inadmissible under s 464H(1). The court must first be satisfied on the balance of probabilities that the circumstances are both ‘exceptional’ and ‘justify the reception of the evidence’ (s 464H(2)(a) and (b)). By reference to the judgment of the Court of Appeal in R v Steggall,[31] Hollingworth J held in Director of Public Prosecutions (Vic) v Donnelly that ‘exceptional circumstances’ are those that are ‘unusual, special, out of the ordinary’.[32] The requirement that the circumstances be exceptional and such as to justify reception of the evidence is not to be confused with a requirement that there are good reasons for admitting the evidence. There are usually at least some good reasons for receiving probative evidence of confessions or admissions. As Hollingworth J went on to say in Donnelly, ‘[i]t is plain that something more … is required.’[33] Whether the circumstances are exceptional and such as to justify admitting the evidence is an evaluative exercise that is undertaken without ever losing sight of the primary purpose of the general exclusionary rule in s 464H(1). The persons seeking to adduce the evidence bear the onus of satisfaction. Unsurprisingly, there have been few cases in which evidence that is primarily inadmissible has been admitted as a justified exception to the rule.
[31](2005) 157 A Crim R 402, 406 [12] (Nettle JA, Buchanan and Eames JJA agreeing).
[32](2006) 166 A Crim R 534, 539–40 [30] (‘Donnelly’).
[33]Ibid 540 [30].
One case in which evidence of inculpatory admissions was admitted was R v Dupas.[34] The admissions were made by the accused in a police vehicle after he was arrested and cautioned in relation to a charge of murder at a time when the police had activated a portable tape-recorder. The admissions were not recorded because the tape-recorder malfunctioned. For the following reasons, Vincent J held that evidence of the admissions should be received under s 464H(2):
[34][2000] VSC 372 (10 August 2000) (Vincent J).
Those provisions are designed to ensure that appropriate protections are in place with respect to the interviewing of suspects. Ordinarily it is required that any conversation with a person who is suspected of having committed an indictable offence be interviewed with the conversation recorded by means of a tape recorder. Where there has not been compliance with this general scheme, the evidence is to be treated as inadmissible unless the court is satisfied on the balance of probabilities that the circumstances are exceptional and that they justify the reception of the evidence.
…
The undisputed position is that the police members concerned endeavoured to comply with the statutory requirements of s 464. They had in their possession a tape recorder and attempted to record the conversation with which they proposed to have with the accused man in accordance with the provisions. Their failure to do so simply resulted from the fact that the machine did not operate.
No argument has been advanced, nor does any appear to be reasonably open in the circumstances, that there was any kind of trick involved or pretence engaged in by them, or that the police members had any expectation or suspicion that the machine might not operate in a normal manner. In other words, it is both undisputed and obvious that the failure to comply with the provisions was purely accidental and unintended.
Subsequently, at the time of the tape recorded interview which took place at the police station, an attempt was made to confirm, at least in part, the fact and substance of the earlier conversation.
This is not a case which raises any suspicion whatever concerning the actions of the members concerned. The evidence obviously possesses relevance in the context of the present trial. I can see no justification based upon the notion of the balance of probative value and prejudice which would justify the raising of any concerns at that level.[35]
On appeal, no error was found in this reasoning.[36] In the present case, the prosecution relies upon the consideration that the police were not involved in any trick or pretence and there is nothing in the circumstances to raise any concern about the actions of the police.
[35]Ibid [10], [12]–[15].
[36]R v Dupas [2001] VSCA 109 (3 August 2001) [38] (Winneke P, Phillips and Batt JJA agreeing).
In Donnelly, Hollingworth J refused to admit evidence of admissions made by two accused.
The first accused, who had poor literacy skills and was in remand custody, voluntarily made a written statement to police in response to questions asked in an unrecorded interview. The accused had received legal advice before he gave the statement and the interview with the police had been arranged with his lawyer. The situation was one in which the police had effectively constructed a voluntary question and answer interview of a suspect in custody without the interview being recorded as required by s 464H(1)(d) or (e). Her Honour held that exceptional circumstances justifying reception of the evidence had not been made out.[37] In the present case, the defence rely upon the consideration that the evidence was not admitted even though the admissions were made voluntarily.
[37] (2006) 166 A Crim R 534, 540 [34].
The second accused made a voluntary recorded oral statement to police in an interview room. After that interview ended and in the same room, he made an oral admission that he did not later confirm in a subsequent recorded interview. He was taken to a nearby witness room immediately afterwards, where he made a voluntary unrecorded statement. Hollingworth J refused to receive either admission. Her Honour held that the general exclusionary rule applied and the case for discretionary reception of the evidence was weak.[38] As in the present case, the prosecution relied upon the voluntariness of the admissions. Her Honour held that ‘[t]he voluntariness of a statement does not make it exceptional’.[39]
[38]Ibid 542 [44]–[45].
[39]Ibid 542 [45].
In R v Nicoletti,[40] the Court of Appeal allowed an appeal and acquitted an accused who had been convicted upon the basis of voluntary ‘off-tape admissions’ to police that had been admitted under s 464H(2). The circumstances were that, when cross-examining the informant, counsel for the accused elicited some evidence of the conversation with police, but not of the inculpatory admissions. In re-examination, counsel for the prosecution was allowed to elicit evidence of the whole conversation, including those admissions, over defence objection. Maxwell P (Neave JA and Bongiorno AJA agreeing) held that the discretion in s 464H(2) had miscarried because there was ‘nothing in the circumstances of the case which could properly be characterised as “exceptional circumstances” so as to justify the reception of the evidence.’[41] In the present case, the defence submit that if the evidence was not admitted in Nicoletti, it would not be admitted here.
[40](2006) 164 A Crim R 81 (‘Nicoletti’).
[41]Ibid 89 [39].
There is lastly Efandis[42] in which Kaye J refused to admit the evidence. The police spoke with the accused as a suspect in a murder investigation. The victim was burned to death in his house. The accused voluntarily attended at the police station. When told by police that foul play was suspected, she asked ‘[i]s that because [the victim] was drugged’. The question was noted down, but the conversation was not recorded. The question contained an implied admission of involvement in the crime because the accused had not been told that, as the victim was drugged, he could not have lit the fire himself. The accused was subsequently arrested, cautioned and formally interviewed but was not asked to confirm that she had asked the incriminating question. In declining to receive the evidence under s 464H(2), his Honour gave significant weight to the failure of police to ask the accused to confirm the admission in a recorded interview because this ‘deprived the accused of the opportunity to respond to it, and to have that response admitted in evidence’.[43] The prosecution in the present case submits that Efandis is distinguishable because the police gave the accused that opportunity.
[42][2008] VSC 274 (22 July 2008).
[43]Ibid [46].
Applying s 464H(2) to the present case with these authorities in mind, I decline to exercise the discretion to receive the evidence. The circumstances are not exceptional and do not justify that course.
The alleged admissions were made by the accused voluntarily in response to a question asked by police shortly after she was arrested and cautioned and before being taken to a police station for recorded questioning. The police did not audio record or audio-visual record the conversation. The question and the answer containing the admissions were witnessed by two police officers and were noted in writing. Contrary to the prosecution submissions, these circumstances are (fortunately) not now routine, due to the enactment of the custody and investigation provisions. Previously, such circumstances routinely gave rise to evidentiary disputes that were damaging public confidence in the system of justice and intolerably increasing the cost and length of criminal trials. They were the days in which police verballing was a scourge.
The fact that the admissions were made voluntarily is a relevant consideration but is far from dispositive. The provision is aimed at all confessions and admissions made in the specified circumstances, voluntary or otherwise. When the general exclusionary rule applies, all such confessions and admissions are inadmissible unless the circumstances are exceptional and justify reception of the evidence. The admissions in Nicoletti, in Donelly and in Efandis were not received even though they were voluntary. To repeat the words of Hollingworth J in Donelly, ‘[t]he voluntariness of a statement does not make it exceptional’.[44] As discussed above, the problems to which confessions and admissions gave rise, if unrecorded, include disputes about possible fabrication but also disputes about misunderstanding, mis-recollection, coercion, or oppression in a broad sense. The custody and investigation provisions were designed to avoid all such disputes. Therefore, the test in s 464H(2) was made to depend not upon whether the confession or admission was made voluntarily but upon whether the circumstances were exceptional and justified reception of the evidence. It is consistent with the purpose of this provision, so understood, to give only a certain weight to the fact that the accused’s alleged admission was made voluntarily.
[44](2006) 166 A Crim R 534, 542 [45].
As to concern about the conduct of the police, the question that gave rise to the alleged admission in the present case was made in circumstances where, after arresting and cautioning the accused in respect of a charge of ‘serious assault’, the police officer immediately asked her (‘Amy’) whether she knew why she was being arrested. The accused allegedly answered that it was for ‘bashing the old lady’ (there is a police note of this answer but she has denied so answering). Immediately after that, as the prosecution had to concede, the police tried to conduct an (unrecorded) interview with the accused. So, when the accused gave that alleged answer, the first officer followed up immediately with the question: ‘Do you want to tell me about that?’. The accused did not give a sensible answer and, quite properly, no more questions were asked at that point.
Although it obviously could have, the defence has not placed in issue the purpose behind these questions. It has not contended that police adopted the deliberate course of asking a question that was designed to elicit an admission or confession, one that might lead to other inculpatory answers to questions. The defence has not called for the two officers to give evidence and be cross-examined in the voir dire. Rather it has relied upon the strength of the general exclusionary rule in s 464H(1) and the exceptional nature of the inclusionary discretion in s 464H(2). I think this should be encouraged. The party opposing reception of such evidence should have confidence that the court will respect the primary purpose of these provisions.
Without evidence from the two police officers, and particularly from the one who asked the questions, I cannot find, and I do not find, that a deliberate purpose of the questions was to elicit an admission or confession in a situation where the accused was at her most vulnerable. The prosecution submitted that the first question was asked out of concern for the welfare of the accused. The defence disputed this, without demanding that the proposition be tested. In terms, the first question was dangerously open-ended and not expressly directed to the welfare of the accused. I cannot find that it was or was not asked out of concern for her welfare. But on no view was the second question asked out of that concern. The apparent purpose of this question was to obtain inculpatory evidence from the accused, especially evidence that she was the attacker.
Whatever its purpose, such questioning generates disputes of the very kind that the custody and investigation provisions were designed to avoid. A police officer told the accused that she was being arrested on a charge of serious assault. Yet very soon afterwards, when she was in a vulnerable position, he asked her whether she knew why she was being arrested. The accused had not sought any explanation of the reason for her arrest and charge. The officer had just told her the reason. There is nothing in police standard procedures to mandate the course taken, for these emphasise what s 464H(1) and (2) require for admissions and confessions to be admissible.[45] The question was dangerously open-ended. It was capable of being understood by the accused as going to the circumstances of her involvement in the offence for which she had been charged. The prosecution contends that, by the answer, she did so understand it, which is why the answer contains an alleged admission. The inculpatory answer was followed up with a further question that was interrogatory in nature. What was, by then at least, a suspect interview was not being recorded.
[45]In Victoria Police Manual — Guidelines — Interviews and Statements (Victoria Police, 2010) 2 [2.1] it is stated under the heading ‘Conducting an interview with a suspect or accused — Recorded Interviews’:
2.1Legislation
… to ensure the admissibility in court of a confession or admission to an indictable offence, the interview must be recorded. As such, if the confession or admission was made:
· before the commencement of questioning or at a place where facilities to conduct an interview were not available, the police member must either:
– record such evidence at the time, or
–take notes of everything said at the time and later obtain confirmation of what was said on a recording by getting the suspect to repeat in substance what was said previously
· at a place where facilities are available, then the questioning and anything said by the person needs to be recorded. Immediately commence recording when conducting any questioning.
These circumstances give rise to judicial concern even if the purpose of the police was not deliberately to induce the accused into making an admission or confession when in a position of vulnerability. That is because, as I have already stated, the purpose of the custody and investigation provisions is to avoid disputes about possible fabrication of confessions or admissions but also misunderstanding, mis-recollection, coercion, or oppression in a broad sense. To make an informed judgment about these matters in the present case, it would be necessary to conduct a full pre-trial examination of the conduct of the police. That is the very kind of costly and time-consuming examination that the custody and investigation provisions were designed to avoid. Commendably, the defence does not call for such an examination but relies upon the general exclusionary rule. This concern tells strongly against finding that the circumstances were exceptional justifying reception of the evidence.
There is lastly the fact that the police did put the alleged unrecorded admission to the accused in a subsequent recorded interview. This too is a relevant consideration, but far from dispositive. Where an unrecorded confession or admission is subsequently confirmed in recorded form, the recorded confirmed statement is admissible because the general exclusionary rule does not apply (see, eg, s 464H(1)(c)), not because the subsequent confirmation represents exceptional circumstances justifying reception of the evidence. Where the unrecorded confession or admission is confirmed in recorded form, the policy of s 464H(1) in favour of receiving only recorded statements is promoted. Where the confession or admission is not confirmed in the subsequent recorded interview, the policy of the provision is not promoted. Therefore the fact that an unrecorded confession or admission was put to the accused for confirmation in a recorded interview can only be given a certain weight for the purpose of s 464H(2). In this case that weight is low.
As submitted by the defence, the circumstances of the present case are far from exceptional and such as to justify reception of the evidence. The evidence of the admissions of the accused are not admissible under s 464H(1) and will not be received under s 464H(2).[46]
[46]This ruling should be read with DPP v Tran (Ruling No 2: dying declaration) [2019] VSC 824 (13 December 2019) (Bell J). After the two rulings, the accused pleaded guilty to manslaughter, for which she was sentenced: DPP v Tran (Sentence) [2019] VSC 822 (13 December 2019) (Bell J).
4
10
0