R v Armstrong

[2010] NSWSC 483

Reported Decision: 202 A Crim R 478

New South Wales

Supreme Court

CITATION:	R v Armstrong [2010] NSWSC 483
HEARING DATE(S):	15/03/2010, 31/03/2010
JUDGMENT DATE :	21 May 2010
JUDGMENT OF:	Buddin J
DECISION:	Objection upheld - evidence excluded.
CATCHWORDS:	Criminal law - trial - murder - objection to evidence being led of a conversation between the accused and police in which admissions are alleged to have been made - no recording made of conversation - whether "reasonable excuse" established by Crown pursuant to s 281 of the Criminal Procedure Act 1986 for not recording conversation - whether accused "refused" to have questioning electronically recorded - consideration of ss 85, 90 and 138 of the Evidence Act 1995
LEGISLATION CITED:	Crimes Act 1900 Criminal Code (WA), Criminal Procedure Act 1986 Evidence Act
CATEGORY:	Procedural and other rulings
CASES CITED:	Carr v Western Australia [2007] HCA 47; 232 CLR 138 Kelly v the Queen [2004] HCA 12; 218 CLR 216 Nicholls & Coates v the Queen [2005] HCA 1, 219 CLR 196 R v Gu [2009] NSWSC 1305 R v Horton (1998) 45 NSWLR 426 R v Naa [2009] NSWSC 851 R v Reid [1999] NSWCCA 258 R v Rowe (2001) 50 NSWLR 510 R v Sharp (2003) 143 A Crim R 344 R v Schiavini (1999) 108 A Crim R 161 R v Taouk [2005] CCA 155
PARTIES:	Crown Paul Darcey Armstrong
FILE NUMBER(S):	SC 2009/63851
COUNSEL:	M Cunneen SC (Crown) A Haesler SC (Accused)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) (Crown) Legal Aid Commission of NSW (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 21 MAY 2010

2009/63851 – R v PAUL DARCEY ARMSTRONG

JUDGMENT

HIS HONOUR :
Introduction

1 Objection is taken by Mr Haesler SC, who appears on behalf of the accused, to the admission into evidence of the terms of a conversation which was conducted between the accused and the police at Parklea Detention Centre on 24 December 2008. Although the issue was initially raised before the jury was empanelled, the parties agreed that it was convenient to defer consideration of it until later in the trial. As matters transpired, by the time oral submissions were made in relation to the issue, the Crown case was all but complete. I should record that I also had the benefit, in ruling upon the objection, of written submissions from the parties.

2 In order to put the present matter into some sort of context, it will be necessary to sketch some background details about the Crown case. The accused is charged with having murdered Felipe Flores on 2 September 1991. The attention of police did not focus upon the accused until sometime in 2008 when DNA material, located under the deceased’s fingernails and on the shirt which he was wearing, was matched with the DNA of the accused. Mr Haesler has indicated that there is no issue that the DNA which was located is in fact that of his client. He also indicated that in due course the accused will make a formal admission to that effect.

3 Detectives Hungerford and Hyde from the NSW Police Force interviewed the accused on 4 December 2008 at the police station in Launceston, Tasmania that being where the accused was then living. At the time of the fatal incident he had been living in Sydney. During the course of the interview the accused was shown a photograph of the deceased but told police that he had no recollection of ever having met him. He was then asked to explain the presence of his DNA upon the deceased. He said, in effect, that at the time he had been living a promiscuous life style as a gay male and intimated that he was unable to recall some of his sexual partners from that time. The implication, as I understand it, is that he may have had a sexual encounter with the deceased although he had no memory of having done so.

4 The body of the deceased, who was also a sexually active gay man, was located just off Lincoln Crescent in Woolloomooloo at about 3.30 am on 2 September 1991. It was discovered by a security officer named Robert Small. The deceased, who had been brutally bashed, had been last seen by friends at about 3 am at the Exchange Hotel on Oxford Street. He had been seen by a friend to be in the company of a man, whom it is common ground, was the accused. The evidence indicates that the pair were conducting themselves in a fashion which suggested that they were about to engage in a sexual encounter. Apart from that body of evidence, the Crown relies upon the observations of Mr Small, who was patrolling the vicinity of Lincoln Crescent on the night in question. He gave evidence that he saw a man getting into a vehicle at a point which was close to where the deceased’s body was located. The Crown case is that that person was the deceased’s killer. It seeks to establish that that person is the accused by reason of the fact that at the time the accused was the owner of a vehicle which, it is asserted, matches the description of the vehicle observed by Mr Small. The Crown also relies upon the evidence of Ms Jacinta Webber, who was the accused’s live-in male partner during 1991. Since then she has become a woman. She gave evidence that during the relevant time period she saw the accused arrive home one evening covered in blood and with scratch marks on his face and body. She also gave evidence that during the relevant time period the accused made admissions to her that he had attacked the deceased on the night in question. It may be noted that Ms Webber first spoke to police in September 2009 and so her evidence did not form part of the Crown case at the time of the conversation to which objection is taken.

5 On 24 December 2008 Detectives Hungerford and Packham went to the Parklea Detention Centre where the accused was being held on remand following his extradition from Tasmania. Detective Hungerford gave evidence that he had been requested to do so by a Crown Prosecutor who had asked him to serve documentation upon the accused. The documentation related to a decision by the Director of Public Prosecutions to proceed by way of an ex-officio indictment against the accused in respect of an unrelated sexual assault. As I understand it, the accused had been tried for that matter some time in the 1990s but the jury had been unable to agree. It seems that once the accused was back in NSW, the decision was taken to revive those proceedings.

The evidence to which objection is taken

6 The Crown seeks to lead the contents of the conversation which the police officers had with the accused on that date. On 31 March 2010 I upheld the objection taken on behalf of the accused and indicated that I would provide reasons for doing so at a later time. These are the reasons for that ruling.

7 Set out below is the conversation as it appears in the statement of Detective Hungerford:

About 11.15 am on the 24 December 2008 Detective Senior Constable Packham and I attended Parklea Detention Centre. There I served on the accused Paul ARMSTRONG a copy of the Ex-officio indictment for the sexual assault on [PM] that occurred in 1992. The accused and I had a short conversation about the [PM] matter in relation to the court date and that it was separate court date to that of the murder of Felipe FLORES.
The accused said, “I do not want to be interviewed about the matter”.
I said, “No, I am not asking you to I am just serving the charge papers.”
I said, “However in relation to the murder of Felipe FLORES I want to ask you if you have had time to think about telling me why you killed Felipe FLORES. I want you to understand that you do not have to say or do anything. But anything that you do say or do may be used in evidence. Do you understand that?”
He said “If I was to tell you something off the record”.
I said “I would right (sic) it down and ask you to sign it or I have a video here and I would record it. Otherwise you could say it and no one would believe me that it was said.”
He said “If I was to tell you off the record that him and I went down there and had oral sex and he then told me that he had HIV and I just lost it and bashed him. I did not mean to kill him and I left him there he was still alive. What would happen to me then?”
I said “Why didn’t you tell me that in the interview?”
He said “I was taking legal advice and if you remember when got to the questions about the murder I said no comment.”
I said “How did you know that he died?”
He said “I heard it on the news”.
I said “I have a video here and would like to record what you just said”.
He said “No I am not speaking on camera until I speak with my lawyer”.
I said “I will write down what you said and will you sign it?”
He said “I am not signing anything until I speak with my lawyer or talking (sic) about it any more until I talk to my lawyer. I will talk to you after I have spoken to my lawyer.”
I said “Are you happy to talk to me about this matter after you speak with you (sic) lawyer and tell me formally what you have just said?”
He said “Yes, but not until then”.
I said “When are you talking to your lawyer?”
He said “I don’t know when”.
I said “I have an appointment with Corrections to talk to you again on the 28/01/2009 can you talk to your lawyer about it before then or otherwise I will arrange for you to speak with your lawyer on the 28/01/2009.”

8 Detective Hungerford and Packham each gave evidence in which they confirmed the accuracy of what was contained in that statement.

The balance of the evidence adduced on the voir dire

9 The Crown also tendered the transcript of a lawfully intercepted telephone conversation between the accused, who was still in custody, and his father on 6 April 2009. It is to the following effect:

Accused The lawyer came out and saw me last Tuesday.
Peter Oh right
Accused Monday or Tuesday I didn’t know it was her all I was told it was legal. When I got out there I said to the female officer is it the lawyer or the police.
Peter Yeah.
Accused Just to be on the safe side because you never know with the coppers. She said, Not (sic) it is you (sic) mother. I said, that’s a bit strange my Mum has been gone for 5 years. She was trying to be a smart arse and it backfired.
Peter Yeah so you have to wait until the 19 ^th June
Accused Yeah
Peter That’s a long way away.
Accused Yeah about 10 weeks. The prosecutors are trying to get all there (sic) shit together apparently my lawyer already has a Q.C. barrister lined up. Apparently there is a partial DNA on this persons shirt 1 in 180 thousand – then apparently fairly common. But under the fingernails is 1 in 580 thousand.
Peter Oh.
Accused But they don’t know what type.
Peter Oh.
Accused and previously there was 2 other suspects and they are both since deceased.
Peter Two more.
Accused Two other suspects they are both since deceased, passed on, dead.
Peter Oh so
Accused According to my lawyer the only thing they have is the DNA so my lawyer is going to check out what type it is, the validity of it how it was stored for the last 17 to 18 years.
Peter Oh right, yeah they might had nothing on you then mater.
Accused Yeah they probably want to strike up a bargain, like drop it from Murder down to Manslaughter.
Peter You are not having that are you.
Accused Well we have not plead anything yet, because we do not know the strength of the DNA
Peter You wont plead guilty to nothing at the moment
Accused No
Peter No
Accused Because when Hungerford came out I told him hypothetically if I did this rather, rather, rather he wanted to put that down on video tape and I said not until I have spoken to my lawyer, that was Christmas Eve. He then went on and wrote it in his notebook after he left the jail and got his mate to sign the bottom of it to say I was cautioned and that did a hypothetical rather, rather, rather and that was a load of crap.

10 It is contended on behalf of the accused that the impugned conversation on 24 December 2008 contravened s 281 of the Criminal Procedure Act 1986. It was also submitted that the evidence should be excluded pursuant to ss 85, 90 and 138 of the Evidence Act.

11 As I have said, Detective Hungerford gave evidence on the voir dire. He said that he recorded the impugned conversation in his official notebook upon his return to the police station from Parklea Gaol. He agreed that he had not recorded the conversation in his notebook at the gaol and nor had he sought to video-record it.

12 As I have also said, the accused had been interviewed by Detective Hungerford on 4 December 2008 in Launceston. At the outset of that interview, which was electronically recorded, Detective Hungerford and the accused had had the following exchange:

Q As I’ve already explained to you, Sergeant Hyde and I are making inquiries in relation to the murder of Felipe Flores on the 2 ^nd of September, 1991. I’m going to ask you a number of questions about that matter. Do you understand that?
A Yes
Q You do not have to say or do anything but anything you do say or do will be electronically recorded and may later be used in evidence. Do you understand that?
A Yes.
Q Do you agree that prior to the commencement of this interview I told you I intended asking you further questions about this matter and that my questions and any answers you gave to those questions would be electronically recorded on DVD as the interview took place?
A Yes.

13 In cross-examination Detective Hungerford gave the following evidence about that interview:

Q. In Tasmania you made arrangements to meet with Mr Armstrong so that he might be interviewed in relation to the matter?
A. Yes.

Q. And it was a lengthy record of interview?
A. Yes.

Q. And it was not until the very conclusion of the interview that you mention the fact that DNA said to match Mr Armstrong had been found on the deceased?
A. Towards the end of the interview, yes.

Q. And soon after you were aware that the accused had received some legal advice prior to participating in the interview?
A. Yes.

Q. And at the very end of the interview the accused indicated no further comment, "no comment" is what he said?
A. Right at the end of the interview?

Q. Yes?
A. Yes.

Q. And apart from asking him some formal questions about search warrants and the like, you regarded the accused as having terminated the interview?
A. Yes.

Q. And that you regarded it no longer appropriate for you to continue in the interview in the light of him saying "no comment"?
A. Yes.

Q. While arrangements were being made to obtain a search warrant, that is after the interview had concluded, you asked the accused if he would wait, and he said "can I have a cigarette while we wait?"
A. Yes.

Q. He was not then under arrest, was he?
A. No, he wasn't under arrest.

Q. You and Detective Nemeth and the accused went outside while he had a cigarette?
A. Yes.

Q. And you initiated a conversation with Mr Armstrong about his criminal history?
A. Yes.

Q. Then you said:

“Paul, just because we have finished the interview does not mean we cannot interview you again if we don't want to.”


A. If we want to?

Q. "If we want to", sorry?
A. Yes.

Q. And you said:

“Continue on, if there is some reason why you killed Felipe Flores, we would like you to tell us?"


A. Yes.

Q. And you, in that conversation, were initiating an off the record questioning of Mr Armstrong, weren't you?
A. Not at that stage, no.

Q. You asked him a specific question:

If there is some reason why you killed Felipe Flores, we would like you to tell us?"


A. Yes, I did.

Q. And if he had've responded you would have been in no position to record his response?
A. Not at that precise moment, no.

Q. So he having said he wished (sic) no formal comment and you having terminated the interview, while he was having a cigarette you asked him a specific question where there was no recording available about the murder of Felipe Flores?
A. Yes.
…

Q. You were present on 7 December when Mr Armstrong's case was mentioned in the Local Court - the first return date in New South Wales?
A. Yes, yes, I was.

Q. And Mr Armstrong was represented by a solicitor?
A. Yes.

Q. And you were aware that that was a solicitor from the Legal Aid Commission?
A. Yes.
Q. You were aware from the 7th that the brief had to be served on Mr Armstrong's solicitors?
A. Yes.

…

Q. And he had solicitors?
A. Yes.

14 Detective Hungerford gave evidence that he had taken with him to the gaol a hand-held video-recorder. He then gave the following evidence:

Q. [Y]ou took a video with you intending, if possible, to interview the accused about both the [PM] and the Flores matters?
A. I took a video with me in case the accused wanted to talk about the Flores murder.

Q. About the Flores matter?
A. Mainly about the Flores matter, yes.

Q. You intended to ask him some questions about the Flores matter?
A. I intended to ask him the question that I did ask him.

Q. That question being:

“I want to ask you if you've had time to think about telling me why you killed Felipe Flores"


A. Yes.

Q. A direct question about the Flores matter?
A. Yes.

Q. You intended to ask him that question before you went to Parklea?
A. Yes.

Q. That was why you had the video recorder with you?
A. Yes.

Q. You did not advise Mr Armstrong's solicitor that you intended to ask him Mr Armstrong questions about the Flores matter?
A. Mr Armstrong didn't have a specific solicitor to talk to at that stage.

Q. Did you contact the Legal Aid Commission?
A. Yes, I did.

Q. And what did they tell you?
A. That he didn't have a lawyer appointed to him at that stage.

Q. Did you then say to yourself Well I had better wait before I ask him questions until he has a solicitor?
A. Originally I was to interview - sorry, I was originally to go to the gaol on 28 January and I'd made an appointment with Corrective Services and that was the date originally I was going to serve the ex officio indictment, but the Crown Prosecutor advised me that it couldn't wait until that time and had to be served immediately.

Q. Who did you speak to when you contacted Legal Aid?
A. I couldn't tell you.

Q. Did you make a note of that conversation?
A. I don't recall.
…

Q. You then are given a copy of the ex officio indictment on 23 December 2008?
A. Yes.

Q. And you were asked to serve that?
A. Yes.

Q. And serve it before the 16th; that's the return date?
A. Yes. But I was going on leave, actually I was on leave as of the 23rd was my last day so I came back on my leave to serve this.

Q. And you've told us that you took the video because it may be necessary to speak to Mr Armstrong on video when you went out to serve the ex officio indictment?
A. Well I took the video in case he wanted to respond to my question in relation to the Felipe Flores matter.

Q. And you had formed that intention before you left the police station, otherwise you wouldn't have taken the video with you?
A. Correct.

Q. And at that time you did not again attempt to contact Legal Aid to see if Mr Armstrong was represented?
A. Correct.

Q. You did not attempt to contact Legal Aid to see if they would consent to you interviewing him?
A. That's correct.

Q. You did not contact Legal Aid to see if they wanted to participate or sit in on any potential interview?
A. That's correct.

Q. You did not contact Legal Aid to see if they would accept service of the ex officio indictment?
A. I'm not sure if I had that in mind because I was advised that it should be served in person and I'm not sure if that was an option.

Q. Surely the advice was that it be served in person and not simply served on those representing him?

A. I'm sorry?

Q. Are you sure the advice from Mr Calvert was that it must be served in person?
A. I believe it was, yes.

Q. You believe it was. Was it or wasn't it?
A. I don't know if I actually questioned him on whether there was another option.

Q. All Mr Calvert said was make sure it was served?
A. No, he told me to serve it to him at the gaol but I don't know if there was another option and I didn't ask him.

Q. As I understand, you were aware Mr Armstrong was represented when you went out to the gaol?
A. Yes.

Q. You were aware at the end of his first interview he'd said "no comment"?
A. Yes.

Q. You were aware that when you asked him questions outside the Tasmanian police station while he was having a cigarette he responded with silence?
A. Yes.

15 Detective Hungerford acknowledged in cross-examination that when he initiated the conversation he did not have his video-recorder ready to record anything that may have been said. Nor did he have it ready to record the caution. Detective Hungerford agreed that he was aware that he did not need to obtain the accused’s permission in order to record his “refusal” to have the conversation recorded. His awareness was based upon the New South Wales Police Code of Practice for Crime which specifies that a police officer “should, if possible, electronically record a refusal to consent to the recording of an interview connected to an offence the person is suspected of having committed.”

16 The accused’s solicitor, Robyn Clark, also gave evidence on the voir dire. She said that the accused’s file was assigned to her in mid-December. She said that she first received instructions from the accused on 16 January 2009 when she appeared on his behalf in the District Court at which time the ex-officio indictment in respect of the sexual assault matter was presented. A few days later she spoke to Detective Hungerford. Detective Hungerford gave the following evidence about that conversation:

A. In January, late January I had a message when I returned from leave to contact Robyn Clark from Legal Aid. I called her and she called me back. She asked me had I had a conversation with the accused, Paul Armstrong, on 24 December 2008 where he had told me certain things about the offence and I said yes. And Robyn Clark advised me that I wasn't to speak him any further unless I had her permission. And I had some discussion with her about whether that was an instruction from her or an instruction from the accused and she advised me it was an instruction from the accused. She also asked me if I'd made an appointment to see him at a further date late in January and I said yes and she said could I cancel that appointment and I said I would, and the day before the appointment she rang me again to confirm that I had cancelled that appointment.

17 He also maintained that he told Ms Clark that he wanted to put the impugned conversation to the accused on video. He gave evidence that he also said to her that if what the accused had told him was true then it may well be a case of manslaughter, although that would be a matter for the DPP to determine.

18 Ms Clark made a file note of their conversation which took place on 20 January 2009. The relevant parts are set out below:

I told him that I have advised my client not to participate in an interview, and my client has accepted my advice. My client has instructed me to let Hungerford know that he will waste his trip if he attends gaol to conduct an interview.
Det Hungerford said he will not attend for interview. He will serve brief on a Disc in first instance, and paper brief when full. I said I will get instructions from client on interview with Police after I have looked at brief. …
Det Hungerford said he had conducted an informal interview with client (after caution) and client admitted the killing (he “lost it” when deceased told him he was HIV). Hungerford suggests this is in keeping with deceased (sic) history and that it may be manslaughter (although matter for DPP).

19 It can be seen that there is a degree of common ground between the two versions although Ms Clark denied that Detective Hungerford had, in effect, indicated that he wanted to put the impugned conversation to the accused so that he could “formally” respond to it.

20 Although the accused did not give evidence on the voir dire, there is apparently a dispute as to some parts of the impugned conversation. First, it is not accepted that Detective Hungerford cautioned the accused. Secondly, it is disputed that the accused said that he wanted to speak “off the record”. The accused’s position, as I understand the situation, is that what he said to the police was put as a hypothetical. In other words, his version of the conversation appears in what he told his father in their telephone conversation of 6 April 2009.

21 Section 281 is in the following terms:

Admissions by suspects
(1) This section applies to an admission:
(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and
(b) that was made in the course of official questioning, and
(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.
(2) Evidence of an admission to which this section applies is not admissible unless:
(a) there is available to the court:
(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or
(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.
(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).
(4) In this section:
investigating official means:
(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or
(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.
official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.
reasonable excuse includes:
(a) a mechanical failure, or
(b) the refusal of a person being questioned to have the questioning electronically recorded, or
(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.
tape recording includes:
(a) audio recording, or
(b) video recording, or
(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.

The authorities

22 Although the particular issue which arises in the present case has not been previously decided, there has nonetheless been considerable attention devoted to an analysis of various aspects of the section in the authorities.

23 A convenient starting place is R v Horton (1998) 45 NSWLR 426 which was concerned with s 424A of the Crimes Act 1900, the predecessor to s 281. Wood CJ at CL, who delivered the leading judgment, made the following observations about that provision:

The mischief to which s 424A was addressed appears in the Second Reading Speech (Hansard Proceedings of the Legislative Council 24 May 1995) concerning the Evidence (Consequential & Other Provisions) Bill. It was there said:
‘In closing I wish to make brief comments on the two Bills which are cognate with the Evidence Bill. The first of these, the Evidence (Consequential and Other Provisions) Bill will repeal the Evidence Act 1898 and the Evidence (Reproductions) Act 1967. In addition, it will make amendments to various other Acts which will be required as a consequence of the enactment of the Evidence Bill. It also makes an amendment to the Crimes Act 1900, making the tape-recording of admissions to police compulsory where an accused person is suspected of an indictable offence that may not be tried summarily without the defendant's consent.
The Police Service has already introduced a system for the electronic recording of interviews, implementing the 1986 report of the criminal law review division of the Attorney General's Department. That report set out four objectives for adopting an electronic recording system:
“1. To provide the Courts with a reliable account of statements made by persons accused of crime whilst in police custody.
2. To provide an objective means of resolving disputes about the conduct and substance of police interviews.
3. To deter and/or prevent the use of unfair practices by the police prior to, during and after interviews;
4. To deter the making of unfair and false allegations of improper behaviour by police.”
This bill implements one of the recommendations of that report by providing that any unreasonable failure to adhere to the system will result in the inadmissibility of the evidence. The courts are thereby enabled to supervise the operation of the system.’
It was, in my view, directed to the very mischief that Jordan CJ identified in Jeffries (47 SR 284 at 289) to ensure the integrity of the evidence of police witnesses concerning representations of any form attributed to accused persons, and to provide an objective means of resolving any dispute concerning that kind of evidence. In this respect it provides, for NSW, an additional protection to that arising under Pt 3.4 of the Evidence Act, which is concerned with ‘admissions’ in the extended sense defined in the Dictionary to that Act.” (at 438-9)

24 Those remarks were cited with approval by Smart AJ in R v Reid [1999] NSWCCA 258. His Honour went on to say:

It was submitted by the Crown that s424A was designed to deal with cases where there is a dispute as to what was said and done. However, it has the deeper and more fundamental purpose of endeavouring to ensure the integrity of the evidence of police officers as to admissions . The method adopted is to make the recordings of admissions to police compulsory. To avoid the requirement of taped recordings the Crown must prove that there was a reasonable excuse why a tape recording could not be made. If a tape recording could reasonably have been made and was not, it will not assist the Crown that some truly independent person heard what was said as between the police and the accused .
…
Police officers attending a crime scene frequently ask those present what happened and the responses of those present often determine the future course of police investigations. An accused may make important admissions at the scene in such circumstances. The police officers may not have a pocket audio tape recorder with them. I refrain from making any general comment as to whether a judge should find a "reasonable excuse" as much will depend upon the circumstances.
The strongly preferable course is that, in cases of serious crime, interviews with questions asked and answers given at crime scenes be recorded by an audio tape reorder, albeit that it is a pocket one and only one recording can be made. I am assuming, based on experience, that the police and the prosecution will seek to rely on any admissions.
It is important that, if no adequate recording is made at the scene, the admissions alleged to have been made there and intended to be adduced in evidence are put to the accused in a fully recorded interview as early as possible for his acceptance or denial. Failure to do so would be critical unless, of course, the accused declined to participate in such an interview.
If the investigating police officers do not have an audio tape recorder at the scene they should, apart from essential questions, directly affecting the ongoing investigation, conduct their interviews with an accused where tape recording equipment is available if evidence of the admissions is intended to be led.
Attempts to circumvent s24A (sic) will not be tolerated. The stratagems so far used have included interviews at the scene or in a police car or at a police station and of the recorded (sic) in a police notebook, whether signed or unsigned. These occur before any ERISP and sometimes in substitution for an ERISP. (paras 63, 65-69) (emphasis added)

25 Spigelman CJ said:

Smart AJ makes a number of comments as to the application of s424A and what is desirable conduct on the part of police with respect to these matters. His Honour’s remarks are based on an assumption that the prosecution will seek to rely on any admissions. Police investigations may proceed in accordance with such inquiries as they may properly pursue. However, if it is sought to tender admissions made in the course of such investigations, then the precise and rigorous requirements of s424A must be satisfied . (para 6) (emphasis added)

26 In R v Schiavini (1999) 108 A Crim R 161 the accused was spoken to by investigating police and cautioned. He was informed that the conversation would be recorded in the officer’s notebook and replied “Okay”. He was asked if he wished to be interviewed by electronic means – that is by way of audio and visual recording, to which he replied “No thanks”. He then made admissions that were recorded in the officer’s notebook and which he duly signed. The evidence disclosed that the accused was not offered the opportunity to have only an audio recording of the interview. The trial judge, in those circumstances, indicated that he would have excluded the admissions pursuant to s 424A but nonetheless decided to admit the evidence pursuant to s 86 of the Evidence Act. The Court of Criminal Appeal held that his Honour was in error in doing so.

27 Studdert J, who delivered the leading judgment, observed:

The Crown has submitted however that the trial judge was wrong in concluding that s 424A compelled the exclusion of the evidence. It was submitted that to construe what the police officer said to the appellant, namely “Do you wish to be interviewed by electronic means, by that I mean audio and visual recording” as meaning only a combined audio and visual recording, was artificial and that the response could reasonably have been taken to amount to a refusal to be interviewed by either means. Having regard to the object intended to be served by s 424A, prudence requires that any interviewing officer explain to a person being interviewed in relation to an indictable offence the alternative forms of “tape recording” available. It is conceivable that a person being interviewed may be prepared to be interviewed by way of audio recording but not by way of video recording. However even assuming the correctness of the Crown submission it would not follow that s 424A(2) was satisfied in the circumstances of this case.
Detective Constable Olsson, who had been present on 10 November 1997 when Det. Inspector Rees conducted his interview with the appellant, carried out a further interview with the appellant on 1 June 1998. On this occasion the interview was recorded by means of an ERISP machine, although the video apparently malfunctioned, and what was recorded was on the audio tape which was admitted into evidence without objection. In the course of this later interview the appellant was not asked about what had been said on 10 November 1997 and he was not asked to admit that he had said what was attributed to him on that earlier occasion.
The Crown has submitted that the later ERISP ought to be regarded as being directed only at one of the offences, being the offence charged in the second count in the indictment, and that what was reasonable for the purposes of admissibility had to be assessed in the particular circumstances of the case. It was argued that it was not reasonable to expect the police officer conducting the later interview to traverse the subject matter of the earlier interview again, and that the facts established reasonable excuse for the absence of a relevant tape recording. It was material, it was submitted, that the relevant entries in the inspector’s notebook had been signed; that there was no suggestion at the trial that the evidence that the admissions had been made was false or that the admissions had not been freely made; and that the provisions of s 86 of the Evidence Act had been satisfied in relation to the tender.
Nevertheless effect must be given to the language of the section. (paras 17-20)

28 After citing with approval the passage in Horton (supra) to which reference was made earlier, his Honour continued:

The strict requirements of s 424A(2) reflect the legislative purpose as recognised in Horton . The sub-section requires that there be a tape recording which satisfies either sub-s (2)(a) or (2)(b). Otherwise evidence of an admission is not admissible unless the prosecution establishes “that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made” . The use of the word “could” introduces a concept of impracticability in order to excuse the lack of a tape recording .
If it be accepted that there was a reasonable excuse for the lack of a tape recording in respect of the 1997 admissions because of the appellant’s response at that time, the appellant did nevertheless submit to a recorded interview in 1998, and the evidence is not capable of supporting a finding that it was not possible at that time to make a recording of the type contemplated in s 424A(2)(b). The later interviewing officer had been present at the earlier interview so he had knowledge as to what had then occurred. His evidence was that he was the officer in charge of the appellant’s case and he had also participated in the interviews about three of the six offences charged against the appellant. …
In my opinion, having regard to the evidence concerning the later electronically recorded evidence, the prosecution here failed to establish that there was a reasonable excuse as to why it was not possible for the type of recording contemplated in s 424A(2)(b) to have been made in June 1998. This being so, the strict requirements for admissibility under s 424A(2) were not satisfied and it follows that the evidence here challenged was wrongly admitted. (paras 21, 22 and 24) (emphasis added)

29 In R v Rowe (2001) 50 NSWLR 510 the Court of Criminal Appeal dealt with a stated case in which the admissibility of evidence of an unrecorded admission of a summary offence was considered in circumstances in which the offender was being officially questioned in relation to an indictable offence. There was tape-recording equipment available at the station but it was being used to interview someone else. The suspect indicated that he did not wish to be interviewed until his solicitor arrived but the interrogation, during the course of which the admission was made, went ahead. When the offender’s solicitor arrived, he and his solicitor declined to sign the notes of the conversation which had been made by the police officer. The opportunity for a tape recorded interview, which had not been offered earlier, was declined. The Court of Criminal Appeal held that the primary judge had erred in concluding that the admissions were not inadmissible by reason of s 424A of the Act. Fitzgerald P, with whom Ireland AJ agreed (Smart AJ dissenting but on a different ground) observed that:

The judge did not explain in either his reasons or the stated case why he thought that there was a “reasonable excuse” for not making a tape recording of the conversation between Fitzgerald and the appellant or, for that matter, of the later conversation at which the appellant's solicitor was present. The judge also made no mention of the definition of “reasonable excuse” in s 424 A (4) or of the combined operation of s 424 A (2)(b) and s 424 A (2)(c) of the Crimes Act .
The prosecution submitted in this Court that the “reasonable excuse” for Fitzgerald's failure to make a tape-recording was that, at the time, Fitzgerald “had no cause … to suspect that [the appellant] had committed [the] offence [to which the present proceeding relates]”. In my opinion, that submission should be rejected. Fitzgerald's questioning of the appellant related to the offence of knowingly harbouring a prisoner, for which he had been arrested, and was undertaken despite his request to speak with his solicitor before he spoke to police. Section 424 A of the Crimes Act expresses a plain legislative policy, which Fitzgerald disregarded, that official questioning in relation to such an offence should be tape-recorded . His lack of suspicion that the appellant had also committed another, less serious offence, could not provide a “reasonable excuse” for his obligation to comply with s 424 A in relation to the indictable offence to which his interrogation of the appellant related.
The prosecution did not submit, and could not have credibly submitted, that the need either to delay the appellant's questioning for a comparatively brief period or interrupt the questioning of the woman who was being interviewed if Fitzgerald's questioning of the appellant before his solicitor arrived was to be tape-recorded provided a reasonable excuse for the course which Fitzgerald adopted. If such a matter constituted “reasonable excuse”, then the entire conversation between Fitzgerald and the appellant would be admissible on his trial for the indictable offence of knowingly harbouring a prisoner. That would seriously subvert the legislative intent expressed in s 424 A of the Crimes Act : see R v Schiavini (1999) 108 A Crim R 161. As this Court has indicated, that should not occur: R v Horton (1998) 45 NSWLR 426; R v Reid [1999] NSWCCA 258 :
It is unnecessary to consider the appellant's other arguments. The evidence of his conversation with Fitzgerald should have been held to be inadmissible by virtue of s 424 A of the Crimes Act . (at 514-5) (emphasis added)

30 Kelly v the Queen [2004] HCA 12; 218 CLR 216 concerned the scope of the phrase “in the course of official questioning” in a broadly similar Tasmanian provision. It was held by a majority of the High Court that a statement made by the accused some time after the conclusion of the video-recorded interview was not made in “the course of official questioning”. Considerable attention was however devoted to the problems created by confessions alleged to have been by suspects to the police: see Gleeson CJ, Hayne and Heydon JJ (at paras 22-40); McHugh J at paras 86-97; Kirby J at paras 136-137.

31 In Nicholls & Coates v the Queen [2005] HCA 1, 219 CLR 196 the High Court considered the operation of s 570 D of the Criminal Code (WA), which is also in broadly comparable terms to the New South Wales legislation. The issue to be determined was whether or not there existed a “reasonable excuse” for police officers not having tape-recorded admissions allegedly made by the accused Coates during a break that occurred in the course of a interview. The accused had consented to the interview itself being videotaped and, up until the time at which the break was taken, had made no admissions. The trial judge found that the accused had requested the break and that he had not consented to the videotaping of what had occurred during it. However, no request was made for him to adopt the admissions when the interview resumed. The evidence of the confessional material was nevertheless held to be admissible. The High Court decided, in a majority decision, that there was no “reasonable excuse” for the failure to record the “off-camera” conversation. Each of the judges in the majority referred, with approval, to what had been said in Kelly (supra) about the legislative purpose in enacting provisions such as the one under consideration in that case. McHugh J went on to say:

Both the natural and ordinary meaning of "interview" and the purposive construction of s 570D favour interpreting that term in s 570D(4) to cover the entire time during which Coates spoke with and was questioned by the police. The term "interview" is used only in s 570D(4): the rest of the section refers to "any admission" or "the admission" or "an admission" without specifying that the admission must be made in the course of an interview, that is, without designating the occasion of the admission. The policy of the section is that no admission is admissible unless it falls within one of the three paragraphs in s 570D(2). Paragraph (b) -- the reasonable excuse exception -- is the relevant exception in the present case. That paragraph declares that "evidence of any admission ... shall not be admissible unless ... the prosecution proves ... that there is a reasonable excuse for there not being a recording on videotape of the admission". Reasonable excuse includes that the accused "did not consent to the interview being videotaped".
The natural meaning of "interview" in s 570D is the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a "serious offence". …
A purposive construction also supports interpreting "interview" to mean the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a "serious offence". Such a construction assists in having a record of the entire discussion between the police officer and the accused on a particular day at a particular place instead of records of parts of the discussion. In accordance with the policy of the section, it also reduces -- although it cannot eliminate -- the occasions for disputes between accused persons and police officers as to what was said in "interviews", particularly interviews at police stations. A purposive construction also provides an incentive to police officers to have off-camera admissions recorded or at all events referred to when recording resumes.
Hence, by interpreting "interview" to cover all exchanges between Coates and the police while he was under caution, s 570D applies to the times when filming was suspended. Because Coates did not withhold consent to the entire series of exchanges being videotaped, his refusal to consent to some of the exchanges being videotaped (if he did) did not fall within the meaning of "reasonable excuse" as defined in s 570D(4)(c).
Nor do the circumstances of the disputed admissions warrant their admission under the umbrella of "reasonable excuse" independently of the inclusive exceptions in s 570D(4). The focus of any inquiry directed to the application of the "reasonable excuse" exception must take account of the conduct of the police, as well as the fairness or otherwise to the accused of permitting the admissions to be admitted. In construing similar provisions in MDR, Wicks J held that the conduct of the police officers was relevant to the question whether it would be "in the interests of justice" to admit evidence of admissions by the accused. His Honour thought relevant matters included whether non-compliance with the provisions was deliberate or the product of a reckless disregard of the provisions or was inadvertent or otherwise excusable. Such matters are also relevant in determining whether there was a "reasonable excuse" for not recording the admission. Most importantly of all, however, is whether the officers attempted to have the off-camera admission recorded. If, on-camera, the accused denies making an off-camera admission, it will be highly relevant in determining whether there was a "reasonable excuse" "for there not being a recording on videotape of the admission" (s 570D(2)(b)). …
In this case, Hawley admitted in cross-examination that he had encouraged Coates to speak off-camera, that he deliberately chose to continue the interview off-camera and that this was not proper or careful practice. Hawley also admitted that it would have been possible during the second break in videotaping to have the video turned on and the disputed conversations recorded. Hawley did not say that Coates refused permission to do so. Moreover, there was apparently no attempt by the police, once the videotaping resumed, to have Coates confirm his admissions on tape. The police made no contemporaneous notes of the off-camera conversations, and the notes that Hawley and Hutchinson wrote the following morning were later lost or mislaid. These circumstances indicate a departure from proper police procedure. …
Moreover, even if the off-camera statements constituted an "interview" to whose recording Coates did not consent, the above circumstances made an overpowering case for the trial judge to exercise his general discretion concerning evidence unfairly obtained to exclude the evidence. The Legislature has set its face against admitting unrecorded admissions by suspects except in special circumstances. When interviewing police officers encourage the making of off-camera admissions, despite the presence of recording equipment, and then fail to refer to the admissions when the recording resumes, the policy of the legislation points strongly to excluding the admissions even though, if the officers' evidence is accepted, the case comes within an exception specified in s 570D(2). Given the legislative policy of recording interviews of suspects wherever possible so that disputes concerning admissions can be reduced to a minimum, attempts to avoid the effect of that policy should be perceived as unfair attempts to obtain evidence and such evidence should be excluded. (footnotes omitted) (paras 102, 104-108)

32 Gummow and Callinan JJ in a joint judgment said:

If claims by interviewing police officers, that they "did not initiate" an alleged off-camera interview were enough to constitute "reasonable excuse" for a failure to record admissions on camera, the purpose of the legislation could easily be frustrated. The decision of the Court of Criminal Appeal does leave open the possibility that police officers may choose to continue an interview off-camera (without seeking to have an accused afterwards repeat on-camera an admission then made) and seek to secure the admission of the unrecorded evidence on the basis of a contention that they believed the accused was "anxious" to speak off-camera, and that he had initiated the conversation .
There is also substance in the submission that the approach of the Court of Criminal Appeal of Western Australia would add to the definition of "reasonable excuse" a definition neither stated nor intended by the legislature, such as, "an admission made during an interview not initiated by the police" or "an admission that a person was anxious to make off-, but not on-camera," a definition which, if adopted, would defeat the purpose of s 570D . …
What occurred in this case answers none of the explicit descriptions of reasonable excuse contained in s 570D(4)(a), (b), (c) or (d). The appellant did not refuse to consent to his interview being videotaped. We do not overlook that "reasonable excuse" is inclusively defined, and that therefore circumstances not within the explicit definition might still give rise to a reasonable excuse. In our opinion, however, what occurred falls so far short of, and is so different from, any of the defined circumstances that it could not amount to a reasonable excuse; nor could it be objectively regarded as a reasonable excuse. No attempt was made by any police officer to have Coates repeat on-camera what he was alleged to have said off-camera even though there was a reference to what he might say when the video resumed. It has been submitted however that the admission was made when it was not practicable to videotape it. We disagree.
The fact, if it be a fact, that Coates "was anxious to speak off-tape" cannot of itself provide a "reasonable excuse". Anxiety to speak off-tape, especially during a suspension of a lengthy interview on tape, in the absence of unwillingness to consent to the videotaping of the "interview", could not of itself, as here, possibly constitute a reasonable excuse. (footnotes omitted) (paras 152-3, 156-7)

33 In a separate judgment Kirby J, agreed with Gummow and Callinan JJ that the evidence of the police officers did not provide a “reasonable excuse” as to why the off-camera conversation had not been recorded.

34 In Carr v Western Australia [2007] HCA 47; 232 CLR 138 the accused participated in a video-taped interview during the course of which he made no admissions. The interview then ended to enable the accused to have a lawyer present. Whilst routine administrative tasks were being undertaken, the accused and the police engaged in conversation during the course of which the accused did make admissions. The accused was unaware that the conversation was being recorded. In a joint judgment, Gummow, Heydon and Crennan JJ, rejected a submission that the conversation was not an “interview” for the purposes of the relevant legislation. Their Honours said:

The vice to which the appellant’s construction leads is that police
officers could attempt to evade the statute by informal off-camera
discussions with suspects during which unrecorded admissions were made, in the belief that the requirement of videotaping did not apply to “informal” discussions and that the circumstances would provide a “reasonable excuse” within the meaning of para (b) of s 570D(2).
The appellant’s challenge based on the definition of “interview” fails. The Court of Appeal was correct in determining that the meaning of “interview” encompassed any conversation between a member of the Police Force and a suspect, and included an informal conversation initiated by the suspect . (paras 61-2) (emphasis added)

35 In R v Naa [2009] NSWSC 851, police had been called to attend a scene at which the accused had stabbed and killed his estranged wife. The accused was armed and was acting in a threatening fashion. During the course of a “stand-off” with police the accused made various admissions. After embarking upon an exhaustive analysis of the relevant authorities, Howie J concluded that the conversation was not “in connection with the investigation…of the commission of an offence” and that accordingly, the section did not apply. His Honour also found that there was, in any event a “reasonable excuse” for the failure to record the conversation. It lay in the exigencies of the situation and arose from the fact that the officers’ primary focus was upon providing protection for themselves and others who were at risk of being injured by the accused. His Honour also was referred to his own earlier decision in R v Sharp (2003) 143 A Crim R 344. Although that decision turned largely upon the meaning of the expression “official questioning”, his Honour observed:

But it seems to me that, because the legislation does not require that all admissions be electronically recorded, police should be able to determine with some degree of certainty what is and what is not "official questioning" for the purposes of the section and thus know when it is that they should takes steps to have a conversation electronically recorded to preserve any admission made by the suspect. However, where a police officer engages a suspect in conversation on any matter touching the investigation of an offence without recording the conversation, the officer takes a real risk that a court will find it to be official questioning regardless of the belief of the officer on that subject. As with Detective Hall in the present matter, if the police officer ought to have known that he or she was engaged in official questioning at the time an admission is made, a reasonable excuse for a failure to record an admission will not arise simply because the police officer might not have realised that the conversation was "official questioning" for the purpose of the section.
I hesitate to attempt to give any more meaning to the words of the section that arise from the definitions contained in it and the policy behind the legislation. But the word used is "questioning" and it seems to me that it at least implies that the police officer is attempting to elicit from the person a response that the officer foresaw might provide information relevant to the investigation of the commission of an offence or possible offence, or be to the person's prejudice in that regard. …
I wish to emphasise that, in my opinion, the court is required to make an objective assessment of the circumstances surrounding the making of the alleged admission in determining both whether it was made during official questioning and whether there is a reasonable excuse in failing to electronically record it . If my view of official questioning is correct, it would follow that, if the police officer did not foresee that a response might be given to the statement or question made to the suspect but ought to have done so, the conversation would amount to "official questioning". To that extent the conduct of the police officer is subject to the court's review so far as the admissibility of any admission allegedly made by the accused is concerned. (emphasis added) (paras 19-21)

Consideration

36 It is common ground that what the accused said during the course of the impugned conversation amounted to the making of admissions. It is also common ground that since the requirements of s 281(1) had been satisfied, the evidence of the accused’s admissions is inadmissible unless it falls within one of the exceptions in ss(2). There was of course no tape-recording made of the interview within the meaning of ss 2(a)(i). What the Crown sought to establish is that “there was a reasonable excuse as to why a tape-recording … could not be made”. “Reasonable excuse” is defined inclusively in ss(4). The Crown endeavoured to show that ss 4(b) was engaged, insofar as there had been, what was submitted to be a “refusal of a person being questioned to have the questioning electronically recorded”.

37 Counsel for the accused made a number of submissions about the construction of the section. At the forefront of his submissions was a contention that the Crown had to establish that the “reasonable excuse” upon which it relied, namely the refusal to have the questioning electronically recorded, had to occur before the interrogation process itself began. To permit any other course, so it was submitted, would have the consequence that the purpose of the legislation would be subverted. It was contended that the police should have indicated to the accused from the outset that they had a video-recorder with them and that they intended to ask him further questions about the Flores matter which they wished to record electronically. The procedure which, it was submitted, that they should have pursued was the one that they had adopted when they conducted the electronically recorded interview with the accused in Launceston. In other words, it was contended that when police first engaged in speaking to the accused about the Flores matter, they should have then and there ascertained whether he consented to having any subsequent conversation recorded. Only then, it was submitted, could it be determined whether he had, in fact, refused to have it electronically recorded. In essence, it was submitted that by electing not to seek the accused’s consent (and possible refusal) from the outset, the police had failed to comply with the section. In support of his argument, counsel placed considerable reliance upon the various authorities which, as has been indicated, highlight the mischief which s 281 seeks to address. In particular, counsel emphasised that the authorities to which reference has been made demonstrate the need to observe the strict requirements of the provision.

38 In that vein, it was submitted, that to conclude that the facts of the present case provided a “reasonable excuse” would be to ignore what Gummow and Callinan JJ said in Nicholls and Coates (supra) [at paras 152-153] in the passage which I have underlined. It was submitted that similar reasoning should be applied in the present case.

39 Counsel submitted that what occurred was that the police officers commenced an interrogation of the accused, in circumstances in which it may reasonably have been anticipated that he would respond, without first ascertaining the accused’s attitude to having the interview recorded. If the accused had then refused to consent to the interview being recorded, then according to the Code of Practice, they could in any event have recorded that refusal, even if the accused did not give his permission for that to occur.

40 Counsel sought to underscore his submissions by referring to part of the evidence of Detective Hungerford in which he said that he did not know that the accused was going to refuse to have the interview recorded. The short answer to that proposition, so it was contended, is that the police officer found himself in that situation precisely because he had not asked the accused at the outset as to whether he consented to have what he said recorded.

41 Counsel also emphasised that it is incumbent upon the Crown to establish that there was a “reasonable excuse”. In Schiavini (supra) Studdert J observed that the “use of the word ‘could’ introduces a concept of impracticability in order to excuse the lack of a tape-recording” [at para 21]. Clearly enough there was no practical impediment to the use of the recording equipment since Detective Packham had it in his hands.

42 The definition of “reasonable excuse” provides for three different possibilities. In the present case, as I have said, recording equipment was available. Nor did any issue of mechanical failure arise. Putting aside the situation in which there is a mechanical failure but one which occurs only during the course of the interrogation process, ordinarily the question of mechanical failure, and the unavailability of recording equipment are matters that would be apparent from the outset of the interview process. Such a state of affairs would lend support to the proposition that the question of the suspect’s consent (and possible refusal) should also be dealt with at the outset.

43 It was also submitted that the highest that the Crown could put its case was that it could be implied from what the accused had said, that he would refuse to consent to the interview being recorded if he were to be asked. That, it was submitted, would not satisfy the statutory mandate. In other words, it would be wrong to construe an apparent reluctance to speak other than “off the record” as being sufficient to constitute a refusal to have the questioning electronically recorded. Moreover, it was submitted that even if what the accused said did constitute a “refusal” to having the questioning electronically recorded, it amounted to no more that a conditional refusal. The refusal was conditional upon his retaining legal advice, which, it was submitted was an entirely appropriate position for him to take in all the circumstances.

44 In NAA (supra) Howie J pointed out in the passage that is underlined that “the court is required to make an objective assessment of the circumstances surrounding the making of the alleged admission in determining … whether there is a reasonable excuse in failing to electronically record it” [at para 21]. That being so, it was submitted that the following combination of circumstances were relevant to the making of that assessment:

(a) the accused had previously exercised his right to silence when confronted about his possible involvement in the killing of the deceased in the interview conducted with him in Launceston;

(b) that interview had then been “terminated”;

(c) the accused had maintained his position even when police endeavoured to speak to him after the interview had been “terminated” and the conversation was no longer being recorded;

(d) the police arrived unannounced on 24 December to speak to the accused whilst he was being held on remand having already charged him with the murder of the deceased;

(e) the accused was not accompanied by a lawyer when he was spoken to on that occasion and nor was offered the opportunity to have one present;

(f) the police were aware that the accused had received legal advice prior to the Launceston interview and that he had been represented by the Legal Aid Commission when the matter had been before the Local Court following the accused’s extradition from Tasmania;

(g) the police officers saw the opportunity to further interview the accused, whom as I have said they had already charged, about the matter whilst attending upon him for an apparently unrelated purpose;

(h) notwithstanding the circumstances which I have just outlined, the police officers nevertheless made no endeavour to contact the Legal Aid Commission to ascertain if it was still acting for the accused, or otherwise seek to make any contact with a solicitor to seek permission to further interview the accused.

45 The Crown submitted that the mischief with which s 281 was concerned was adequately addressed in the present case. That was because, it was contended, the conversation which the accused had with his father corroborated, in most respects, the police officer’s version of what occurred during the impugned conversation. However, as I have already indicated, there still remained some points of contention. Moreover, as Smart AJ pointed out in Reid (supra) “[i]f a tape recording could reasonably have been made and was not, it will not assist the Crown that some truly independent person heard what was said as between the police and the accused” (at para 63).

46 The Crown then sought to draw comfort from the remarks of McHugh J in Nicholls and Coates (supra). One of the factors to which his Honour referred in determining that the “reasonable excuse” requirement had not been satisfied in that case, was that the officers had not endeavoured to have the “off-camera” admissions recorded when the interview was resumed. It was submitted that the conduct of the police officers in the present case was quite different. So much may be accepted. That factor is not sufficient of itself, in my view, to require a different outcome in the present case. First, the Western Australia legislation whilst similar to s 281 of the New South Wales Act, is far from identical with it. Moreover, the facts of that case are considerably removed from those which prevailed in the present case. That case was concerned with what occurred during the course of a break in an interview that had until then, been recorded with the consent of the accused. Here, there had been an earlier recorded interview which had been terminated. It was the evident desire of the police to then embark upon an entirely fresh interrogation of the accused in respect of a matter concerning which he had already been charged.

47 The Crown submitted that it was unrealistic for the police to have ascertained from the accused what his attitude to recording the conversation was from the outset and that, in any event, the accused had made clear from the very first words which he uttered his desire to have an “off the record” conversation. It was submitted that the accused had, in effect, “blurted out” his response whilst the police were in the process of introducing the subject matter about which they wished to speak. There are, of course, examples of cases in which a person volunteers admissions in circumstances in which the legislature readily recognises that the Crown may subsequently rely upon them. As s 281(1) itself recognises, such a situation may arise where, for example, the admissions are made other than “in the course of official questioning” or if the person could not reasonably have been suspected at the time of having committed an offence. As I have said, neither of those situations existed in the present case. Nor do I accept that it is fair to characterise the reaction which the accused is asserted to have made, analogous to a situation in which the accused has simply “blurted out” an admission: see R v Taouk [2005] CCA 155.

48 The Crown then drew to my attention the decision of R v Gu [2009] NSWSC 1305. In that case, the accused was charged with murder and remanded in custody. He subsequently sent a message through Corrective Services officers indicating that he wished to speak to the investigating police. Police officers entered an interview room in which there was an ERISP machine with its display lights on. The accused told police to “Turn that off”. Before he began speaking he looked around the room for recording equipment (he having previously been interviewed). The equipment was duly turned off whereupon one of the police officers opened his notebook. The accused then said “No writing” and went on to insist that there be no recording of the conversation. The accused then attempted to negotiate a deal which would enable him to speak to his family in China and to a friend in Sydney. He wanted to be provided with a written guarantee as to the sentence which he would receive before he was prepared to provide police with information concerning the location of the deceased’s body. He was told that no deals would be made and was then cautioned. The conversation, which was not recorded, continued in similar vein. The accused then made various admissions. He was offered the opportunity to have what he had said electronically recorded. The accused said: “No, no more video”. The matter proceeded by way of a special hearing which was conducted by judge alone. The trial judge indicated that he intended to rely upon the admissions made by the accused. As far as I can discern, the issue which arose for determination was the reliability of the admissions given that the accused was suffering from a mental illness. It is quite apparent that no issue was taken by the accused in relation to s 281 of the Criminal Procedure Act. That was presumably because the factual scenario which obtained in that case, which is well removed from the present case, may well have constituted a “reasonable excuse” within the meaning of the section. In those circumstances, the decision provides no assistance for present purposes.

49 In all the circumstances, I accept the submissions made on behalf of the accused that the Crown has failed to establish that there was a “refusal” on the part of the accused to have the “questioning electronically recorded”. It follows that the Crown has not demonstrated that there was a “reasonable excuse” as to why a tape recording within the meaning of s 281(2)(a)(i) could not be made. The Crown did not contend that any other kind of “reasonable excuse” could be made out. That being so, there is no further work in the circumstances of the present case for either ss (2)(a)(ii) or (b) to do.

50 Given the conclusion at which I arrived, it is unnecessary for me to resolve the question of whether a so-called “conditional” refusal will attract the protection of s 281. Nor, for similar reasons, is it necessary to resolve that aspect of the evidence in which the recollection of Detective Hungerford and Ms Clark differed.

51 In view of the conclusion which I have reached about the operation of s 281 of the Act, I can deal briefly with the other submissions which were advanced on behalf of the accused in relation to the Evidence Act.

52 Counsel for the accused next contended that s 85 of the Evidence Act had been contravened. That provision is in the following terms:

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or
(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and
(b) if the admission was made in response to questioning:
(i) the nature of the questions and the manner in which they were put, and
(ii) the nature of any threat, promise or other inducement made to the person questioned.

53 Counsel pointed to what was contended to be an inducement offered by police during the course of questioning. The inducement was said to lie in the officer’s statement that “I would write it down and sign it or I have a video here and would record it, otherwise you could say it and no-one would believe that it was said” in response to the accused’s alleged enquiry about telling the officer “something off the record”.

54 It was submitted that the comment operated to undermine the caution which had just been given and that the accused would have been induced to believe “that no reliance would be placed on what was said. Those circumstances would adversely affect the reliability of what was said.” I do not accept the submission because I am unable to discern that anything in what Detective Hungerford said could amount to an inducement of the kind which is asserted. Nor do I accept that the caution was, in any sense, undermined by what was said subsequently.

55 I accept that there is an issue as to exactly what the accused said, and in particular whether what he said was “off the record” or whether it was put as a “hypothetical”. Nevertheless, in my view, there is substance in the Crown’s submission that, even upon the accused’s version of events, it is hard to imagine that a person knowing that a DNA profile matching their own had been found on the deceased’s body, would not provide truthful information in setting out a hypothetical scenario. That was especially so if a person was seeking to explain their conduct in a more favourable light than might otherwise appear to be the case. Be that as it may, no reason has been advanced which would persuade me that the terms of s 85 of the Act have been engaged.

56 Section 90 of the Evidence Act is in the following terms:

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

57 It was submitted that the combination of factors to which I referred [at paragraph 44] lent weight to the contention that it would be unfair to the accused to use the evidence.

58 I remind myself that I am not here concerned with the reliability of the words uttered by the accused. That said, in my view there is some substance in the accused’s submissions although given my conclusion in relation to the point raised in respect of s 281 of the Criminal Procedure Act, it is unnecessary to finally determine it.

59 Counsel finally relies upon s 138 of the Evidence Act which is in the following terms:

(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,
is not to 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 he or she 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 he or she 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 is to 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.

60 Once again counsel relied upon the combination of matters to which reference was made earlier to support the proposition that the police conduct, viewed in its entirely, was both deliberate and improper. It was submitted that to admit the material would serve to encourage police to continue such conduct, and that to enable them to do so would be inimical to the public interest.

61 As I have previously indicated, the impugned evidence is not admissible because it has not been established that there was proper compliance with the requirements of s 281 of the Criminal Procedure Act. But even if I had been of a contrary view, I would still have considered it unnecessary to determine whether the conduct of the police could properly be characterised as being improper. That is because the factors identified in ss (3) of s 138 make it readily apparent that the desirability of admitting the evidence would otherwise outweigh the undesirability of admitting evidence obtained in that way.

62 Counsel also contended that no caution had been administered to the accused. The failure to caution would, so it was submitted, constitute a further impropriety. As I have said, the accused did not give evidence during the course of the voir dire. On the other hand, the two police officers with whom he had the conversation gave evidence that the accused had been cautioned. I am not persuaded, were it otherwise necessary to decide the issue, that that evidence should be rejected upon the basis of what appears in the accused’s phone call to his father, which occurred some months later. On the contrary I am satisfied, upon the evidence which was before me on the voir dire, that the accused was cautioned by police officers at the outset of the impugned conversation.

63 It was also submitted that the comment by Detective Hungerford that “no one would believe me that it was said” was untrue and, as such, should attract the operation of ss (2). It was said to be untrue in that the police officer must have known that his version of events “was more likely to be believed and accepted than an accused criminal in police custody”. I do not accept the submission that the statement was untrue in the sense which I have just described. In any event, I accept the detective’s evidence that he was simply seeking to explain why it was desirable to have a recording of the conversation.

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