R v AKB (No. 1)

[2018] NSWSC 1040

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v AKB (No. 1) [2018] NSWSC 1040
Hearing dates:	5 July 2018
Date of orders:	06 July 2018
Decision date:	06 July 2018
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. The evidence in paragraph 11 of the statement of Senior Constable Totakil of 21 October is admitted. 2. The evidence in paragraph 17 of the statement of Senior Constable Totakil of 21 October 2016 is rejected.
Catchwords:	CRIMINAL LAW – evidence – admissions – Criminal Procedure Act 1986 (NSW) s 281 - unrecorded statements made to police – whether accused was suspected or could reasonably have been suspected of committing an offence at time of admissions – whether there was a reasonable excuse for failure to make tape recordings of admissions   EVIDENCE – admissions – criminal proceedings – serious indictable offences – whether statutory provision for admissibility complied with - whether admissions liable to be excluded
Legislation Cited:	Crimes Act 1900 (NSW) s 424A (repealed) Criminal Procedure Act 1986 (NSW) s 281 Evidence Act 1995 (NSW)
Cases Cited:	Horton v R (1998) 45 NSWLR 426 Queensland Bacon Pty Limited v Rees (1966) 115 CLR 266 R v Crowther-Wilkinson NSWSC 70096/01; unreported 8 May 2002 R v Schiavini (1999) 108 A Crim R 161 Regina v Taouk [2005] NSWCCA 155; (2005) 154 A Crim R 69
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Crown [AKB] (Accused)
Representation:	Counsel: C Maxwell QC & R Kotsis (Crown) C Davenport SC (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Oxford Lawyers (Accused)
File Number(s):	2016/311049

JUDGMENT

1. The accused is charged with murdering his wife on 18 October 2016. The Crown case is that the accused set fire to the premises where the accused and his family lived, with the origin of the fire being in the bedroom where the deceased slept. The Crown case is that, when the deceased realised there was a fire in her room and tried to escape through the bedroom door into the corridor of the house, the accused actively prevented her from doing so by pushing her back into the room and by shutting the door to prevent her escape.

2. The Crown seeks leave to adduce evidence of what was said by the accused to Senior Constable Saleem Totakil who arrived at the burning premises about ten minutes after a triple-0 call was made to report that the premises were on fire.

3. The relevant evidence is in a statement by Senior Constable Totakil on 21 October 2016. It relevantly says this:

8.   I saw a young male child holding a garden hose spraying water onto the left window which was engulfed in flames. I now know this child as WB. I ran inside the house via the front door. Inside the hallway, the smoke was thick and heavy the whole hallway was covered in smoke, affecting my vision, I could not see through the hallway. I ran about 1 to 2 meters inside the hallway where I met a male, who I now know as [AKB]. [AKB] was crouched down, moving slowing towards the front door. I did not hear him say anything. I grabbed him by his shoulders and assisted him out of the premises and moved him about 3 to 4 meters down the driveway. Constable De Jesus moved [WB] down the driveway away from the premises.

[AKB] said - "My wife, she is still inside, please help her."

I said - "Whereabouts inside the house is she?"

[AKB] said - "The room with all the fire"

([AKB] was indicating the room in engulfed in flames)

…

11.   [AKB] walked up the driveway wanting an update about his wife. [AKB] was advised to leave by Acting Sergeant McLean. I walked [AKB] away from the premises and remained with him His two sons were in the care of a neighbour. [AKB] did not appear concerned or distressed from the fire or the fact his wife was still inside the house. He appeared calm and relaxed. He was speaking clearly and calmly in English and in Dari. He wasn't coughing and didn't appear to be affected by the fire or smoke. [AKB] was wearing a Green shirt with traditional Afghani light blue pants.

I Said - "[AKB], my name is Senior Constable Totakil, from Merrylands Police. I'm going to ask you some questions in relation to your house being lit up on fire. You do not have to say or do anything if you do not want to. Do you understand that?"

[AKB] said - "Yes."

I said - "Anything you say or do I will record and use that recording in court as evidence. Do you understand that?"

[AKB] said - "Yes."

I said -"What happened?"

[AKB] said - "I was in deep sleep when I heard my wife scream. I went into the bedroom and saw that everything was on fire I grabbed her but she fell, so l took my two sons out of the house. I went back inside to help my wife but I could not because of the smoke."

12.   [AKB] spoke in broken English and Dari. I speak and understand Dari. I have been speaking Dari all my life. [AKB] was asking about his two sons' whereabouts. At the time a neighbour from number 27 Clement Street told [AKB], they were in her house. I walked with [AKB] to number 27 Clement Street. He spoke with his sons. [AKB] asked his sons if they were okay. [AKB] was checked by Ambulance personnel who cleared him from any injuries. [WB] and [MB] were taken back inside 27 Clement Street, by the neighbour.

13.   Sergeant Byatt walked to where I was with [AKB]. I advised Sergeant Byatt that [AKB] was able speak broken English and his native language is Dari, which I speak and understand. Sergeant Byatt asked if there was any other female inside the house apart from his wife. I asked [AKB] in Dari, if there is any other female inside his house apart from his wife. [AKB] told me that apart from his wife, there is no one else inside the house. I relay (sic) this to Sergeant Byatt. Sergeant Byatt asked me if [AKB] had said anything to me about what happened in relation to his house being on fire.

I said - "He told me, that he was asleep in the lounge and was woken up by his wife's voice, yelling out his name "[AKB]". He got up and ran to her bedroom. He noticed the whole room was lit up on fire. He grabbed her hand and tried to pull her out of the room, but she fell down. He couldn't get to her so he took his two sons out of the house. Once they were out he tried to get back inside on three occasions to get to his wife, but couldn't."

14.   Sergeant Byatt instructed me to stay with [AKB]. Sergeant Byatt walked away towards 2/33 Clement Street. A few minutes later he returned, at the time [AKB] washed his hands and drank water from the tap of 2/33 Clement Street. Sergeant Byatt advised me not to allow [AKB] to drink water or wash his hands again and also to Caution him. I informed Sergeant Byatt I had cautioned him earlier. However whilst Sergeant Byatt was present I cautioned [AKB] again, in English and in Dari.

I said - "I am Senior Constable Totakil and this is Sergeant Byatt we are from Merrylands Police Station. I'm going to ask you some questions in relation to your house being lit up on fire. You do not have to say or do anything if you do not want to. Do you understand that?"

[AKB] said - "Yes."

I said - "Anything you say or do I will record and use that recording in court as evidence. Do you understand that?"

[AKB] said - "Yes"

15.   I cautioned [AKB], in English and in Dari, so that Sergeant Byatt could understand as well. [AKB] appeared to understand the caution in English and in Dari, as he was responding to me by nodding his head forward and saying "Yes".

16.   Sergeant Byatt and l walked with [AKB] across the road from 27 Clement Street. [AKB] sat down along the kerb. I remained with him, Sergeant Byatt walked away.

17.   Whilst I was still with [AKB], Inspector Kirby had arrived. I had a conversation with her and she had a conversation with [AKB]. I heard [AKB] speak with Inspector Kirby in broken English.

Inspector Kirby said - "Hello, are you okay?"

[AKB] said - "Yes."

Inspector Kirby said -"What happened?"

[AKB] said -"I was in deep sleep, in the lounge room, because I hurt my back. I heard my wife say my name. I ran to her bedroom and saw the fire. I tried to get her out but she fall to the ground. I then take my children out of the house. If I stayed inside I would be killed."

Inspector Kirby said - "You stay strong for your kids."

[AKB] said - "Thank you. Any update of my wife?'

Inspector Kirby said -"We don't have anything at this stage."

18.   After this conversation Inspector Kirby walked away. Shortly after Senior Constable Villamoran came over and we remained with [AKB].

19. I had a conversation with Acting Sergeant McLean. As a result of this conversation, Constable Villamoran and I conveyed [AKB] to Merrylands Police Station, for Holroyd Detectives to obtain a witness statement in relation to the house fire from [AKB]. Whilst on our way to Merrylands Police Station, I received a phone call from Constable Jeske advising me that [AKB] is now a suspect and needs to be placed under arrest for the house fire.

20.   When we arrived at Merrylands Police Station, I placed [AKB] under arrest and introduced him to Sergeant Pearce, who at the time was the custody manager.

I said - "[AKB], as I introduced myself earlier. My name is Senior Constable Totakil and this is Senior Constable Villamoran, we are from Merrylands Police Station. At this point in time you are under arrest, for causing the fire at your home. You do not have to say or do anything if you do not want to. Do you understand that?"

[AKB] said - "Yes."

I said -"Anything you say or do I will record and use that recording in Court as evidence. Do you understand that?"    (emphasis added)

4. Senior counsel for the accused objected to the admissibility of paragraphs 11 and 17 of the statement in reliance on s 281 of the Criminal Procedure Act 1986 (NSW). That section relevantly 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.

…

(4) In this section:

…

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.

…

5. Senior Constable Totakil gave evidence on the voir dire. In the course of so doing he gave this evidence:

Q. So you arrived there at about 3.41?

A. Yes.

Q. So I'm taking you to this point where he walked away and you remained with him. How long after 3.41 was it about?

A. It would have been probably about five to 10 minutes.

Q. Was the fire raging at that point?

A. Yes, it still was. It was, the roof had collapsed as well by that stage as well.

Q. You've described his appearance "did not appear concerned or distressed"?

A. That's correct.

Q. And "appeared calm and relaxed"?

A. That's correct.

Q. "Wasn't coughing"?

A. No.

Q. You then told him who you were and gave him what's commonly known as a caution?

A. That's correct.

Q. At that point did you suspect that he may have been involved in setting that fire?

A. No, I didn't.

Q. Was there anything about the circumstances at that point of time looking at it in retrospect if you like, looking back at it that may have caused you as the police officer to have some suspicion that he was involved?

A. It was - so it was in relation to - because I knew that there was a female still inside so at that stage I didn't know what was going on so that's why I cautioned him just in case if it led on to anything more sinister.

Q. By "more sinister" you mean if subsequently it appeared that he had been involved?

A. Yep.

Q. But at that point what was the prime purpose for you asking the question "what happened"?

A. Because I wanted to know how the fire occurred and who else was inside, just so I could give the fire brigade and other police information because I was one of the first officers there.

Q. So at that point how many, you said about 10 minutes later, was that it?

A. That's correct.

…

Q. Is this a fair summary, that you gave him the caution at paragraph 11, not because you suspected he was involved, but if at some time in the future, evidence arose that might involve him, it could be said that you had properly cautioned it?

A. That's correct.

…

Q. If you go down to paragraph 14, rather than repeat it, just read through it to yourself clearly, 14?

A. Do you want me to read it out loud?

Q. No, just to yourself first so that you're familiar.

A. Yep.

Q. So you've given him another caution then at the instruction of Sergeant Byatt?

A. That's right.

Q. Had you spoken with Sergeant Byatt at all about that question of whether he was suspected of being involved at that point?

A. No, I hadn't.

Q. At that point, did you have any suspicion that he had been involved?

A. Involved, no.

Q. In setting the fire?

A. No.

Q. Then at paragraph 19 you are on the way to Merrylands Police Station, you received a phone call advising you that Mr AKB was at that point a suspect and needed to be placed under arrest?

A. That's right.

Q. Were you with Mr AKB then?

A. I was, I was in the car, yes.

Q. Up until that point had you ever suspected?

A. No, until that phone call, no.

…

6. In cross-examination Senior Constable Totakil said he did not have a tape recorder with him, that he does not carry a tape recorder and that it is not normal procedure to have a tape recorder available to take recordings of things people say. He did not ask other police officers whether they had a tape recorder. He recorded the accused’s version in his notebook but he did not ask him to sign it or adopt it in any way.

7. He said that the accused was free to leave when they were at the secne because he was not under arrest. He said he supplied his notebook confirming the accused’s account to one of the detectives when he returned to Merrylands Police Station. He agreed that he cautioned the accused on three occasions. The first was before he asked him what happened, the second was at the instruction of his supervising officer and the third was when he was arrested at Merrylands Police Station.

8. He said he did not caution anyone else at the fire. He denied that when he cautioned him for the first or second times that he considered him a suspect.

9. In answer to questions from me, Senior Constable Totakil said that if he had been speaking to a neighbour he would not have cautioned them because they were not a resident of the place on fire. He cautioned him because he was a resident and he was inside the house as well. He did not have any prior knowledge of the accused or his family and he was not told anything on the way to the fire about them.

10. It was accepted by the Crown that the statements contained in paragraphs 11 and 17 were admissions by reason of the definition contained in the dictionary to the Evidence Act 1995 (NSW) and as a result of what was said in Horton v R (1998) 45 NSWLR 426 at 439.

11. The Crown submitted that the meaning of the phrase “could reasonably have been suspected” was made clear in Regina v Taouk [2005] NSWCCA 155; 154 A Crim R 69 and that suspicion is something more than mere idle wondering or mere surmise. The Crown submitted that simply because the police officer cautioned the accused, it did not follow automatically that he gave the caution because he suspected the accused had been involved in setting the fire. The Crown submitted that the factors the Court would look at were: why the police officer questioned the accused and, what one would expect a reasonable police officer to do to find out more about how the fire happened. The Crown submitted that there would be a real concern that there might be somebody else in the premises. In that way it was important for the protection of the community that the police officer get further information. The Crown accepted that as time went on there might be more reason for a reasonable suspicion.

12. Senior counsel for the accused submitted that both parts of s 281(1)(a) were established; that is, that the accused person was actually suspected by the police officer, alternatively, that he could reasonably have been suspected by the police officer. Senior Counsel submitted that there was sufficient evidence to point to a reasonable suspicion because the accused was a resident of the house and there was woman inside. The police officer was not asking the questions to satisfy his own curiosity. Rather, he was asking it for a purpose because he thought at a future time the information might be of use. The result must be, it was submitted, that the officer had a slight opinion but without sufficient evidence at that stage.

13. Senior counsel submitted that it could inferred that the police officer went on to ask the accused about his sons and in doing so was trying to establish some information that might assist him, not in putting the fire out or finding the woman inside, but whether the accused may have had some involvement in the fire. Senior counsel submitted that the threshold to trigger s 281 was a very low one.

14. In R v Taouk Hall J said:

[158] The “trigger” for the application of the protections afforded by s.281 is the moment when a police officer to whom a confession or admission has been made, suspected or could reasonably have suspected the appellant to have committed an offence. Accordingly the legislation excludes from protection confessional statements made before that level of suspicion is reached. In Kelly [Kelly v The Queen [2004] HCA 12; (2004) 78 ALJR 538], Kirby, J. stated:-

“… whilst it is true that this ‘trigger’ would exclude from protection confessional statements made before that level of suspicion was reached (and hence would not protect a statement blurted out by a person at a crime scene or on the telephone before suspicion attached), the initiation of the obligation is significant …”

[159] The meaning and content of the phrase in s.281(1) “could reasonably have been suspected” may be considered in light of authorities in other fields where “reasonable suspicion” or the expression “reasonably suspects” as concepts have been examined. Whilst those authorities have arisen in different legislative contexts, some guidance may be obtained although due caution must be made having regard to the particular terms of s.281 and its evident legislative purpose.

(i) As to the word suspected” in s.281(1)(a), a “suspicion” that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust amounting to “a slight opinion, but without sufficient evidence” : Queensland Bacon Pty. Limited v. Rees (1965-1966) 115 CLR 266, 303 per Kitto, J.

(ii) As to the word “reasonably” in s.281(1)(a), it has been observed that a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence: Queensland Bacon (supra) at 303. In the context of the legislation there in question (s.95(4) of the Bankruptcy Act 1924-1960 (Cth)) “reason to suspect” was taken as referring to something which, in all the circumstances, would create in the mind of the reasonable person in the person in the position of the payee in that case an actual apprehension or fear that the situation of the payer is the actual fact which the provision described (a mistrust of the payer’s ability to pay his debts). (I note here the possible significance in this formulation of the word “would” as distinct from “could” in s.281(1)(a).

(iii) As to the statutory provision for the issue of a search warrant under s.679(b) of the Criminal Code (Q) – in particular the phrase “there are reasonable grounds for suspecting that there is in any house …” etc.

• “Suspicion” in its ordinary meaning is a state of conjecture or surmise where proof is lacking.

• Some factual basis or foundation must exist under the provision to ground the suspicion: Walsh v. Loughnan [1991] 2 VR 351.

[160] It is also necessary to identify the subject matter of suspicion. The basis of the suspicion referred to in s.281(1)(a) is the state of mind of an investigating official. That state of mind is more than mere surmise. Applying a similar approach as has been applied with respect to search warrant legislation, it is one arrived at on the basis of material that is capable of supporting the formation of an opinion, even if only a slight opinion, that the person in question (the accused) could have committed an offence. As to this approach generally, see George v. Rockett (1990) 170 CLR 104, 115-116. See also Regina v. Rondo (2001) 126 A. Crim. R. 562, 576.

[161]   In summary, the suspicion must be one which could reasonably have been held by an investigating officer at the relevant point in time, namely, the time when the admission was made. Whether the suspicion satisfies the specified requirement as to reasonableness, is to be determined by the existence of grounds for the suspicion, which grounds must be based on or sourced in facts that do or tend to implicate the accused in possible criminal conduct of the relevant kind, an indictable offence, and that therefore are capable of giving rise to or supporting the requisite state of mind. It follows that a mere possibility that a person referred to in s.281(1)(a) could have committed an offence is insufficient.

15. In Taouk a police officer, Constable Munro, gave evidence of a conversation he said he had had with the appellant on the morning of the day the victim was shot. Constable Munro’s evidence was that he was on duty as a station officer at Burwood Police Station. A male person whom he subsequently came to know as the appellant came into the police station. Constable Munro’s evidence was :

I approached the counter and the defendant (that is, the accused) said to me ‘I want to report a disturbance at my house’. I said: ‘what’s happened?’ He said: ‘I have just shot someone at my house. I had an argument with my brother and he had a gun. I took it off him and I fired a few shots’. I said: ‘Is anyone hurt?’ He said: ‘I don’t know’. I said: ‘What’s the address’? He said: ‘61 Redmyre Road Strathfield.’

16. Justice James, with whom Hislop J agreed, said:

[73] However, in my opinion, even accepting that a purposive interpretation should be given to s 281, it is necessary that some regard be had to the actual language of s 281 and some effect be given to the word “reasonably” in the expression “could reasonably have been suspected”. A person could not reasonably have been suspected by a police officer of having committed an offence, unless something has been said or done which would provide some grounds for a police officer reasonably suspecting that the person has committed an offence.

[74]   In my opinion, the attendance by the appellant at a police station, even in the early hours of the morning, and the saying by the appellant to a police officer of words to the effect that the appellant wished to report some untoward occurrence which had happened at his house did not provide any grounds on which the police officer could reasonably have suspected that the person had committed an offence. The police officer could reasonably have formed the view that the appellant was seeking to report an occurrence at his house of which he had been the victim or which he had witnessed but not an occurrence involving the commission by the appellant himself of some offence. It is common for members of the public to report to police crimes of which they have been the victims. It is much less common for members of the public to report to police crimes which they have themselves committed.

[75]   After the appellant had told Constable Munro that he wished to report a disturbance, Constable Munro asked the appellant a completely non-leading question “what’s happened?” and the appellant in a few, very brief sentences, uninterrupted by any further question from Constable Munro, told Constable Munro what had happened. Like the trial judge and like counsel for the appellant at the trial, I consider that the appellant could not reasonably have been suspected by Constable Munro of having committed an offence, until after the appellant had completed giving his brief account of what had happened at his house. (emphasis added)

17. In the first place, I accept Senior Constable Totakil’s evidence that he did not in fact suspect the accused of having committed any offence. I do not find it at all improbable that he would have issued a caution to the accused in the absence of a suspicion, since the accused was an obviously relevant person for further enquiry. It was his house that was on fire, the accused had been inside the house and he said that his wife was still inside the house. It is almost inconceivable that the accused would not have been interviewed at a later time.

18. Further, that bare information does not seem to me to reach the standard that is spoken of in Queensland Bacon Pty Limited v Rees (1966) 115 CLR 266. There simply was nothing to elevate any reasonable belief beyond mere surmise or mere idle wondering. I note that the police officer’s enquiry commenced in paragraph 11 after the caution with an entirely open question, “What’s happened?” There is nothing in that question which could give rise to a conclusion by the Court that the accused could reasonably have been suspected of committing any offence. In expressing that opinion I take on board what was said by Bell J in an unreported judgment in R v Crowther-Wilkinson NSWSC 70096/01; unreported 8 May 2002 and cited by James J in Taouk at [54]:

“It may be that the class of persons who “could reasonably have been suspected by an investigating official of having committed an offence” is broader than the class of persons who “ought reasonably to have been suspected by an investigating official of having committed an offence”.

19. In my opinion, nothing that Senior Constable Totakil had seen or been told prior to his conversation with the accused as recorded in paragraph 11 could lead to the conclusion that the accused was or could reasonably have been suspected by the police officer of having committed an offence. I consider that the accused could not reasonably have been suspected by Senior Constable Totakil of having committed an offence at least until after the accused gave his account of events to that officer.

20. The position with paragraph 17 of the statement appears to me to be different. By the time Inspector Kirby spoke to the accused in Senior Constable Totakil’s presence, Senior Constable Totakil had relayed to his supervising officer, Sergeant Byatt, what the accused had told him in relation to being alerted to the fire and what happened to his wife. After that had been relayed Sergeant Byatt instructed Senior Constable Totakil to stay with the accused and told him not to allow the accused to drink water or wash his hands after Sergeant Byatt had seen him do that already. Further, he also told Senior Constable Totakil to caution him. Despite Senior Constable Totakil informing Sergeant Byatt that he had cautioned him earlier, it appears that he was required to caution him again and did so.

21. Sergeant Byatt’s evidence was not before me on this application so I do not know what other information he might have had, nor if Sergeant Byatt had formed a suspicion that the accused might have committed an offence. However, even on the basis of the facts as I have stated them, an inference is open that Sergeant Byatt did suspect or could reasonably have suspected that the accused had committed an offence. It appears to me also to be of some significance that it was the police inspector that at that stage questioned the accused.

22. In my view, that combination of factors lead to the conclusion that it was more than mere surmise on Sergeant Byatt’s part that the accused could reasonably have been suspected by him of having committed an offence. The section does not require it to be the same investigating official who suspects as the official who asks the questions.

23. Where I have now determined that the evidence in paragraph 17 is an admission that falls within s 281(1)(a), the question arises whether it is otherwise admissible under any of the exceptions in sub-s (2). It is not suggested that the matter falls within sub-paragraph (2)(a)(ii), because it appears to be accepted that the accused’s subsequent ERISPs did not deal with the admission in paragraph 17.

24. I was first inclined to think that paragraph (2)(b) might be relevant because of the evidence of Senior Constable Totakil that he did not have a tape recorder and it was not usual practice for a police officer to have a tape recorder in circumstances such as obtained in the present case. I do not consider my preliminary view is correct.

25. The reference in paragraph (b) is not confined to sub-paragraph (a)(i). If it were so confined, no regard would need to be had to what is contained in sub-paragraph (a)(ii). In that way, it would be irrelevant if, at a subsequently recorded interview, there was no reference made to the unrecorded admission.

26. However, paragraph (b) embraces what is contained in sub-paragraph (a)(ii). In that way, for paragraph (b) to be satisfied, it would have to be established that there was a reasonable excuse as to why the subsequently recorded taped interview did not contain the acknowledgment of the unrecorded admission.

27. That view seems to be supported by what was said by Studdert J (Spigelman CJ and Adams J agreeing) in R v Schiavini (1999) 108 A Crim R 161 at 168 when the Court there dealt with s 424A of the Crimes Act 1900 (NSW) which was the prior enactment of s 281. Subsection (2) of s 424A was drafted slightly differently. It read:

(2) Evidence of an admission is not admissible unless:

(a) there is available to the court a tape recording made by an investigating official of the interview in the course of which the admission was made, or

(b) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in para(a) could not be made, there is available to the court a tape recording of an interview with the person who made the admission 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

(c) the prosecution establishes that there was a reasonable excuse as to why the tape recordings referred to in para(a) and para(b) could not be made.

28. The difficulty with the present wording arises because it refers to “a tape recording” in (a), whereas the prior wording more clearly refers to “the tape recordings” in (a) and (b). However, there is nothing to suggest that any change was intended by the re-drafting of sub-s(2). The enquiry as to reasonableness is concerned with both the time of the unrecorded interview as well as the time of the subsequently recorded interview. Unless there is a reasonable excuse for the failure to make the tape recordings referred to in both sub-paragraphs (a)(i) and (a)(ii), paragraph (b) is not established.

29. There was, prima facie, evidence suggesting a reasonable excuse for the absence of a tape recording at the accused’s home. However, no evidence has been offered on the present application going to why the ERISPs did not contain questions about what had been said in the unrecorded interview at the home concerning the accused’s attempts to get his wife out of the house in circumstances where she fell to the ground, and his inability to get back in after removing the children because he would be killed, presumably, by the fire. There was no evidence, for example, that the accused was shown the relevant entries in Senior Constable Totakil’s notebook in the course of the ERISPs, and was asked to adopt the Senior Constable’s written account of his admissions for the benefit of the tape.

30. Accordingly, the exception contained in paragraph (b) is not established by the Crown.

31. The result is that evidence may be given of the conversation in paragraph 11 of Senior Constable Totakil’s statement but not the conversation in paragraph 17.

**********

Amendments

26 July 2018 - Publication restriction removed.

Decision last updated: 26 July 2018