R v Bullock

[2005] NSWSC 825

CITATION:	R v Bullock [2005] NSWSC 825
HEARING DATE(S):	01/08/2005, 02/08/2005
JUDGMENT DATE :	19 August 2005
JUDGMENT OF:	Buddin J
DECISION:	Ruling on admissibility of evidence.

CATCHWORDS:	Admissibility of admissions not tape-recorded originally - admissions subsequently adopted in ERISP - "reasonable excuse" why admissions not tape-recorded - whether unfair to accused to use the evidence - whether probative value outweighed by unfair prejudice
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995
CASES CITED:	Kelly v R (2004) 205 ALR 274 Nicholls & Coates v The Queen (2004) 213 ALR 1 R v EM [2003] NSWCCA 374 R v Horton (1998) 45 NSWLR 426 R v Reid [1999] NSWCCA 258 R v Sharp (2003) 143 A Crim R 344 R v Schiavini (1999) 108 A Crim R 161
PARTIES:	Regina Ari Hayden Bullock
FILE NUMBER(S):	SC 2005/4469
COUNSEL:	D Howard SC (Crown) Ms L Flannery (Accused)
SOLICITORS:	S Kavanagh (Crown) Legal Aid Commission (Accused)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 19 AUGUST 2005

2005/469 – REGINA v ARI HAYDEN BULLOCK

JUDGMENT – Application to exclude evidence

1 HIS HONOUR: Before the jury was empanelled, objection was taken on behalf of the accused to parts of a conversation which he had with a Constable Monaghan. Subject to one matter I overruled the objection. These are my reasons for so ruling.

2 In order to put the material to which objection is taken into context, it will be necessary to refer to some background material. The accused is charged with the murder of Tapua Taria at Lakemba on 11 July 2004. Upon being arraigned he pleaded not guilty to that charge but guilty of manslaughter. I have been informed that the sole issue in the trial will be whether the Crown can prove that he was not acting under provocation at the time when he caused the death of Mr Taria.

3 The material before me indicates that the accused was drinking in the Lakemba Hotel in the early hours of the morning on which the fatal incident occurred. At some time after 2 am the deceased, who had also been drinking in the hotel, attacked the accused and occasioned to him significant facial injuries. It seems that the attack upon the accused was entirely unwarranted and unprovoked. It clearly angered the accused who shortly thereafter left the hotel. From there he went to his father’s house which was nearby, where he obtained two knives. He then returned to the vicinity of the hotel where he attacked and killed the deceased.

4 It is convenient to now make reference to the evidence of Constable Monaghan who responded to a call to attend the scene. The following material emerges from his statement which was placed before me on the voir dire:

About 3.05 am on Sunday 11th July, 2004 I was at Campsie Police Station when I heard a priority 2 radio broadcast which indicated that 2 males and a female were fighting on Haldon Street, Lakemba in the vicinity of the Lakemba Hotel. Constable Syed and I responded to the broadcast along with a number of other police. En route to Haldon Street, Lakemba I heard another message which indicated one of the males was armed with a knife.
About 3.10 am Constable Syed and I arrived at Haldon Street. As we drove south along Haldon Street I noticed a group of males standing near the entrance of the Lakemba Hotel, they were pointing along the footpath in a southerly direction. About 50 metres south from this location and on the western footpath opposite the Dominos pizza store I observed 4 people, 3 males and 1 female. As I got close I parked the police vehicle adjacent to the eastern curb about 20 metres short of the group. At this time I noticed the victim was lying on his side on the footpath and appeared motionless, a male and female were kneeling around him. The other male who I now know to be the accused, Ari Bullock was standing between the victim and police.
Another police vehicle driven by Constables Tate and Wang had stopped in the rear vicinity. Constables Wang, Tate, Syed and myself approached the group. As we neared the group the accused said, “It was me, I did it.” He then placed his hands on his head, I could see that his hands were empty. I said, “Get down on the ground.” The accused dropped to his knees and then lay prone on the footpath whilst keeping his hands behind his head. I approached the accused and placed one foot firmly on his back in the vicinity of his shoulder blades. I took out my handcuffs and attached one to his right wrists, I said, “Put your hands behind your back.” At the same time I attempted to bring both of the accused’s hands together behind his back. I was joined by Constable Murphy who assisted in applying the second handcuff. Once the accused was secured I left him in the custody of Constable Murphy for a moment while I checked on the victim. I spoke to a male who was kneeling over the victim, I instructed him to move back and allow the police to assist. The male did so. I was then able to get a better look at the victim who was lying on his lefthand side. I could see a wound around the throat area and a large amount of blood about his neck and on the footpath. The victim was motionless with his eyes open. Constable Wang had begun to administer first aid by applying pressure to the neck wound .

5 Shortly afterwards Constable Monaghan and another officer placed the deceased in the rear of a caged police vehicle. The constable then proceeded to have the following conversation with the accused:

I said “You are under arrest, you don’t have to say or do anything unless you wish. Do you understand that?”
He said “Yeah”.
I said “Anything you say or do may be recorded and used in evidence, do you understand that?”
He said “Yeah”. …
The accused said “The knives are over there”.
I said “What happened”?
He said “He attacked me in the pub and I came back and got him, simple as that.”
I said “What do you mean by that?”
He said “I came back and got him, he attacked me for no reason, so I came back and got him for no reason….Die, Fuckin die.”
I said “The knives, what did they have to do with the matter”.
He said “Sorry mate, I’m not ready to say anything about the matter.”
I said “How did the male get the injuries?”
He said “I done it to him mate…Can you call my father, Roger Bullock 972508295”.
I said “Can you tell me how you did it?”
He said “Yeah, I had one knife in one hand one in the other hand and I kept repeatedly stabbing him. Mind you I came out with the intention of harming him…I’m in a lot of trouble aren’t I?”
I said “Possibly.”
…
He said “He deserved it anyway”.
I said “Where did you get the knives from?”
He said “They’re just kitchen knives bro, just the sharpest, shiniest things that I could see. I just picked them up and came right down”.
I said “Where did you get the knives from?”
He said “My father’s place, just walked into my dad’s, picked up the knives, came back to the pub and stabbed the fuck out of him”.
I said “What relationship is this male to you?”
He said “No relationship”.
I said “How long have you known this male?”
He said “I couldn’t really tell you off the top of my head, months that’s all I can say. I want to lay down now because I think I’m about to pass out”. …
I said “Can you tell me where the knives that you used to stab this make are now?”
He said “They should be on the footpath, one was just a little bit bigger than a steak knife, the other is a meat knife too, only bigger. They’re outside the hairdresser’s there.”
I said “Do you know the name of the male?”
He said “Actually, no I don’t. All I know is his first name starts with a “T””.
I said “Where does your father live?”
He said “Sproule Street..4/28 Sproule Street, Lakemba 9708295”.

6 It is that conversation to which objection is taken. Constable Monaghan recorded the conversation in his notebook as it was taking place. When space in his own notebook ran out, he used a colleague’s notebook in order to complete the recording of the interview.

7 Following that conversation the accused was taken to Burwood police station which is the nearest station that has facilities available for charging persons suspected of having committed offences. Responsibility for the accused was placed in the hands of the custody manager who then attended to the necessary formalities. Some time later Constable Monaghan made available to Detective Wood the notebook entries of the conversation which he had conducted at the scene with the accused.

8 In due course Detective Wood interviewed the accused by way of an ERISP. That interview formed part of the Crown case on the voir dire. There was a problem with the audio component of that recording. Accordingly, I listened to the audio recording of the interview and then viewed the video (that is without any sound) separately. In that interview, Detective Wood asked the accused about the conversation which Constable Monaghan had earlier conducted with him. He went through it with him line by line. It can be fairly said that the accused adopted the entirety of the earlier conversation as having been accurately recorded.

9 The adoption process itself is worthy of comment. On some occasions the accused’s answers went beyond a mere acceptance of the accuracy of the recording. On other occasions the accused confirmed that events had taken place precisely as he had earlier suggested. For example, his answer to Q 53 was “Yeah, mate, ‘cause that’s exactly how it was”. On still other occasions he furnished additional information. After the adoption process was completed, the interview then continued in relation to other matters.

10 The accused also takes objection to those parts of the ERISP in which he adopted the conversation conducted with him by Constable Monaghan. The objection is based upon s281 of the Criminal Procedure Act 1986 which is in the following terms:

(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.

11 The mischief which s 281 seeks to address is patently clear. In Kelly v R (2004) 205 ALR 274, Gleeson CJ, Hayne and Heydon JJ observed:

Though for many years before the 1960s legal rules had been developed in some detail to regulate the proof of confessions to police officers, from the 1960s on concern about that topic increased. The key questions, from case to case, were whether a confession was made; if so, in what terms; whether it was to be excluded as involuntary; whether it was to be excluded in the court's discretion either as having been obtained unfairly, or as having been obtained illegally or improperly; and whether it was reliable. All these issues were capable of being affected by the means by which the confession was perceived, recorded or recollected, and then transmitted to the court.
Particular concern was directed to allegedly fabricated confessions. …
But the problem went well beyond possible fabrication.
Disputes could arise in circumstances including the following:
(a) where an oral confession was not noted down;
(b) where an oral confession was noted down, whether contemporaneously (for example, by a police typist laboriously recording each question and answer) or otherwise, and whether by a single police officer, or by two or more police officers acting separately or collaboratively;
(c) where an oral confession was reduced to writing but not signed by its maker;
(d) where an oral confession was reduced to writing by police officers before being signed by its maker; and
(e) where a confession was written out by its maker.
The disputes could turn on questions not only of fabrication, but also of misunderstanding, misrecollection, coercion, or oppression in a broad sense. Considerable amounts of court time were taken up, generally in the absence of the jury, in resolving disputes about confessions. Considerable amounts of police time, too, were taken up in interviews slowly recorded by officers operating typewriters or writing in notebooks. Grave allegations were commonly made suggesting police perjury, brutality and pressure. Unfounded though many of these allegations may have been, they were damaging to public confidence in the criminal justice system. Over time the courts, law reform agencies and legislatures began to respond to this state of affairs. In particular, as audio recording became more common in commercial and social life, and as the necessary equipment became more efficient, easier to operate, and cheaper, it was increasingly suggested that, either as a matter of sensible practice or as a precondition to admissibility, police interviews in criminal investigations should be electronically recorded. Pilot studies were conducted which suggested the utility of this technique. It was hoped that the introduction of a reliable means of recording confessions would not only save police and court time directly, and reduce the need for police officers to spend long periods at court, but also encourage more, and earlier, pleas of guilty. All this would save public money as well as improving the integrity of the trial process and the efficiency of the police.
…
As a result, it came to be viewed as a commonplace, not only in circles favourable to defence interests but also in police circles, that, despite its financial cost, the electronic recording of police interviews, particularly video-recording, would generate real advantages. It would be useful in providing a means of establishing exactly what was said; in proving that requirements for cautioning and other formalities had been complied with; in narrowing the time within which it could be alleged that threats had been made; in helping to estimate the fairness and propriety of the questioning; and in helping to evaluate, by assessment of the demeanour and manner of the interviewee in responding, the reliability of what was said. (pars 22-25, 29)

12 McHugh J made observations to similar effect. His Honour said:

Acting on the recommendations and findings of various Commissions and Inquiries, all Australian legislatures have enacted legislation that seeks to protect the rights of accused persons during a period when their rights are vulnerable by reason of the mistaken recollection or lies of police officers. The enactments of the various legislatures are broadly similar in principle although they differ in detail. In general, they identify the period of vulnerability as commencing with the time when the facts raise a suspicion of the accused's guilt. In most jurisdictions, the period is thereafter open-ended. The enactments recognise that miscarriages of justice may occur when there is no mechanical record confirming an allegation by police officers that the accused has confessed to a crime or made a damaging admission after he or she was or ought reasonably to have been seen as a suspect. The evident policy of the enactments is that it is against the interests of justice to admit evidence of such confessions or admissions unless there is a mechanical record of such confession or admission or an acknowledgment of it, or in some jurisdictions that exceptional circumstances justify the admission of the evidence. (par 96)

13 See also R v Horton (1998) 45 NSWLR 426 at 438.

14 Counsel for the accused also relied upon the decision of the Court of Criminal Appeal in R v Reid [1999] NSWCCA 258 in which the operation of s 424A of the Crimes Act, the predecessor to s 281 of the Criminal Procedure Act, was considered. Smart AJ, who delivered the leading judgment, said:

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 recorder, 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 s424A 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 in a police notebook, whether signed or unsigned. These occur before any ERISP and sometimes in substitution for an ERISP. (pars 65-69)

15 Spigelman CJ observed:

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. (par 6)

16 It is common ground that the requirements of subs(1) of s 281 have been satisfied. Accordingly, the admissions are prima facie inadmissible unless it is established that subs (2) has operation. Ultimately, it is agreed between the parties that the fate of the present application depends upon whether or not sub par (2)(a)(ii) is engaged. It is clear that the admissions were adopted. However, in addition to that matter the prosecution must also establish that there is “a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made”. The language of the section favours such an interpretation. There is also support for it in the decision of Howie J in R v Sharp (2003) 143 A Crim R 344. In that case his Honour found that there was no reasonable excuse for a failure by police to record a conversation which had taken place between them and the accused at a police station in circumstances where there was video-recording equipment present. His Honour said:

Detective Hall gave evidence before me, which I accepted, that at the time of the conversation he gave no thought to the fact that it was questioning that fell within the ambit of the equivalent provision then in force. In any event, at that time he had the understanding that, provided that the admission was adopted on a later electronic recording, compliance with the section would take place regardless of the reason for failing to electronically record the admission at the time it was made. Unfortunately he was mistaken in that view. There was no reasonable excuse for failing to record the conversation between him and the accused and any admissions made by her during it are inadmissible. (par 11)

17 It may be observed that there was no subsequent endeavour made in Sharp to have the admissions adopted. Nor were counsel able to point to any other decision in which a challenge of the kind presently under consideration had been made, that is in circumstances in which the admissions had been subsequently adopted.

18 Constable Monaghan gave evidence that he did not have with him any means of recording the conversation at the scene. He also said that such a recording device had not been provided to him at any stage whilst he had been performing his duties as a police officer. Chief Inspector Birch from the Campsie Local Area Command gave evidence to similar effect. He said that none of the officers within that Command had access to hand held tape recorders or similar devices. He said that it would, in any event, have been very difficult for Constable Monaghan to have obtained such a device at 3.00 am. The only personnel of whom he was aware who had such devices were highway patrol officers. There is nothing to suggest that any such officer was involved in the present matter. In essence, he suggested that obtaining such a device would, in the circumstances, have been at the very least a time consuming exercise.

19 The accused accepts that no such equipment was available to Constable Monaghan at the scene. What is ultimately contended however is that Constable Monaghan should have waited until the accused was returned to Burwood Police Station, where the conversation with him could have been recorded. It was submitted that any delay in transporting the accused to that facility could have been easily accommodated within the 4 hour period permitted by the legislature for the detaining of suspects for interrogation. It was further submitted that paragraph (c) of the definition of “reasonable excuse” provided some support for this argument.

20 The ultimate question is of course whether there exists a “reasonable excuse” as to why a tape-recording could not be made. In R v Schiavini (1999) 108 A Crim R 161, Studdert J, with whom Spigelman CJ and Adams J agreed, observed that “[t]he use of the word “could” introduces a concept of impracticability in order to excuse the lack of a tape-recording”. (at 168)

21 In considering this question, it is appropriate to have regard to the conduct of the police. In Nicholls & Coates v The Queen (2004) 213 ALR 1, McHugh J observed, albeit in the context of considering a differently worded provision in comparable Western Australia legislation, that:

[t]he 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". (par 106)

22 It is thus important to put into context the overall circumstances which confronted Constable Monaghan. First of all, he arrived at the scene in response to a priority two call concerning a fight. Such a call required an urgent response. Furthermore, he had no reason to anticipate at that stage that he would be confronting a scene in which a homicide had just occurred. Given the urgent circumstances in which he was called to the scene (and what he could reasonably have expected to find there, given the sparse information with which he had been provided) it was not unreasonable for him not to have had a tape recording device with him.

23 It is also clear that Constable Monaghan was confronted with a chaotic situation. A number of matters required his attention including crowd control, preserving the crime scene, ascertaining the whereabouts of the knives and securing them, as well as determining the condition of the accused and the deceased respectively.

24 Nor, given the evidence to which I earlier referred, would it have been practicable for Constable Monaghan to have required that a tape-recording device be brought to him at the scene, assuming of course that one could have been made immediately available.

25 As I indicated earlier the submission advanced on behalf of the accused essentially entails the proposition that any interviewing of the accused should not have taken place at the scene and that it should have been deferred until his arrival at Burwood Police Station. In my view, that submission is not sustainable in all the circumstances of this case, particularly given the fact that the accused not only initiated the conversation with police but appeared to be anxious to volunteer information to them about his participation in the incident. Moreover, it is pertinent to observe that the legislature could have provided for the exclusion of all interviews which are not tape-recorded but that it chose not to do so.

26 In my view the Crown has established, on the balance of probabilities, that there was a “reasonable excuse” as to why a tape recording could not be made, even if it was not able to establish any one of the matters specifically referred to in the definition of “reasonable excuse”. The term “reasonable excuse” is, it may be recalled, defined inclusively rather than exhaustively. Nor do I regard what Constable Monaghan did as involving any contravention of the principles enunciated in Reid. Although it may be a matter for fine judgment, I do not accept that the initial interrogation went beyond what Smart AJ referred to in Reid as “essential questions”. A number of the questions which were asked were designed to ascertain the whereabouts of the knives which was an important consideration given that there were a number of civilians in the vicinity. Other questions were clearly designed to assist the on-going investigation.

27 That said, I endorse what Smart AJ said in Reid, and particularly the passage in which his Honour said that “ 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” (par 66). Furthermore, I see no reason why such devices should not be made generally available to police officers in the performance of their duties. Nevertheless, the fact that there may have been a preferable course open does not mean however that a failure to pursue it requires the conclusion to be drawn that the conduct in question was thus unreasonable. As I have said, in the exigent circumstances which prevailed in the present case, in my view Constable Monaghan’s conduct was not unreasonable.

28 I referred earlier to the fact that counsel for the accused placed some reliance upon that part of the definition of “reasonable excuse” which refers to the “the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned”, in support of the contention that any interviewing should have been deferred until the accused arrived at the police station.

29 It is not immediately apparent what the legislature had in mind in including that consideration in the definition. In Horton (supra) the Court of Criminal Appeal in seeking illumination of the legislative intention in enacting s 424A of the Crimes Act (now repealed), referred to the Second Reading Speech which accompanied the introduction of that legislation. In it the Minister referred to a 1986 report of the Criminal Law Review Division of the Attorney-General’s Department.

30 That report is entitled “A Proposed System of Electronically Recording Police Interviews with Suspected Persons”. Part 4.3 of the Report is entitled “The Reasonable Excuse Test”. Part 4.3.4 is entitled “Delays Before the Interview can be Recorded”. The following extracts are taken from Part 4.3.4 of the report:

The effect of making the electronic recording of interviews mandatory in certain cases will be to extend, in some instances, the length of time persons are held in custody. This is so because there may, on occasions, not be enough recording equipment to interview persons immediately upon their arrival at a police station.

….

…It must be remembered that the solution is not simply to purchase more of the prescribed equipment. The major constraint on the number of recording installations for each station is the availability of a dedicated interview room. It is pointless providing two sets of equipment if only one room is available.

….

If the requirement to electronically record did not provide for any exceptions then it is possible that, even with a comprehensive distribution of equipment, suspects could be kept in custody for lengthy periods whilst awaiting the opportunity to participate in an interview. This could hardly be described as a desirable result of the introduction of the system…

There is also the prospect of the detention becoming unlawful if the waiting time is excessive. Where this occurs the court could exclude the electronically recorded interview from evidence.

For these reasons an exemption from the mandatory recording requirement should be provided where the length of detention awaiting an opportunity to record an interview would be excessive. Police should consider taking the suspect to the nearest available station with the equipment installed, but if this is not reasonably possible then police should not have to record the interview in the prescribed manner.

This exemption is another situation where our reasonable excuse test could operate. The fact that it appeared that the recording equipment would be unavailable for some time should be a reasonable excuse for not recording. Again the onus of showing this should be on the prosecution.

Recommendation

18. Where a suspect is being held in custody only because the recording equipment is not reasonably available at the time then the prospect of that period of custody becoming excessive should be a reasonable excuse for not recording the interview by the prescribed method. (emphasis added)

31 This material provides a clear explanation for the inclusion of the particular provision in the definition of “reasonable excuse”. It provides little support however for the construction of the provision which is advanced by the accused.

32 The accused then relies upon s 90 of the Evidence Act as providing an alternative basis for the exclusion of the admissions. Section 90 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.

33 In R v EM [2003] NSWCCA 374, the Court of Criminal Appeal described in the following terms the test which is to be applied:

Section 90 in effect confers on the trial judge a discretion to reject evidence of admissions where to admit them would result in an unfair trial for the accused. It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated; Swaffield at [78]. There may be an overlap between issues of voluntariness, reliability, fairness to the accused and the public policy discretion; ibid at [74]. (par 104)

34 The circumstances which are relied upon to support the submission that it would be unfair to the accused to use the evidence in the present case are as follows:

(i) the fact that the accused was suffering at the relevant time from facial injuries which had been inflicted upon him by the deceased;

(ii) the fact that he was affected by intoxicating liquor at the time;

(iii) the fact that he had indicated that he had not properly understood the caution administered by Constable Monaghan; and

(iv) the fact that the conversation at the scene was not recorded meant that the jury would be deprived of the opportunity to “observe his tone of voice, his manner of speaking and his level of intoxication”.

35 The first matter upon which the accused relied for present purposes was the state of his physical condition at the time of each of the interviews. The evidence clearly establishes that the accused had sustained injuries by reason of an assault upon him by the deceased in the hotel. Indeed, it was that attack which, as I have said, apparently precipitated the accused into going to his father’s place to get the knives with which he then inflicted the fatal attack. His injuries are clearly visible in photos which were taken of him when he was placed into custody. They are also apparent during the course of the ERISP which was conducted with him by police.

36 Detective Sergeant Wood described the accused’s injuries in the following terms. He said that “his nose was swollen and bloody, his face was swollen and it looked like he had been badly assaulted, his left eye was shut, the left side of his face was puffy and distorted”. In addition Constable Monaghan also observed that the right side of his jaw was swollen. The accused was treated for those injuries by ambulance officers who attended the scene of the incident. It appears that the accused was also examined at Prince Henry Hospital two days after he was taken into custody. The clinical notes from the hospital report that he had “severe facial contusion”. The report goes on to say that “[t]here is a recent fracture of the nasal bone. Underlying deformity of the nasal bone suggests that there has also been a previous fracture in this area. No other facial fractures are demonstrated.”

37 I accept that the accused would have been inconvenienced and, to some extent at least, hampered by those injuries when he was interviewed by Constable Monaghan. During the ERISP he is seen on occasions to wipe his nose with a tissue which was provided to him. He also took the opportunity, several times apparently, to rinse blood out of his mouth and to spit it out. Nevertheless, I am unable to detect any other visible signs to suggest that he was otherwise distressed. Nor did the accused indicate that he was. He did however, towards the end of the ERISP, request treatment for his eye. Other than on that occasion there is nothing to suggest that his condition was such as to prevent him being able to participate in the interviewing process in a manner that was fair and appropriate. I might also observe that the accused did not himself give evidence during the course of the voir dire. I am not persuaded that the evidence concerning the accused’s physical condition warrants the conclusion that “it would be unfair to [the accused] to use the evidence”.

38 Next, the accused relied upon the fact that he was affected by intoxicating liquor at the time when he made the admissions to Constable Monaghan. It is not easy to gauge from the material which is before me exactly how much alcohol the accused consumed that evening. The accused told police that he estimated that he had had 7 or 8 full strength schooners of beer. It is however clear that he had been drinking for an extended period which had lasted for many hours. I heard evidence from Constable Monaghan, Detective Sergeant Wood and Louise Whatman as to their opinions concerning the extent to which the accused was affected by alcohol. The custody manager’s assessment was that at 4.23 am he was “well affected by alcohol”. I am content to proceed upon the basis of the custody manager’s assessment of the situation.

39 The three witnesses to whom I have just referred each gave evidence to the effect that they had no difficulty in communicating with the accused when they spoke to him. The evidence revealed that he talked “non-stop” and that he was a “bit excited”. There was no indication however that he was slurring his words or rambling or that he was unsteady on his feet. Ms Whatman described him as being “orientated” and “in good spirits,” although she did also say that he was “not very compliant”. Detective Wood formed the view that he was fit enough to be interviewed. It can be inferred that the custody manager shared that view. Detective Wood described the accused as being co-operative during the course of the ERISP although I appreciate that that interview took place some time after the conversation with Constable Monaghan. Nevertheless, it was at that stage that the earlier conversation was adopted and so in the circumstances it is appropriate to have regard to what it reveals.

40 Having listened to the audio tape and having viewed the video recording, it appears to me that the accused showed no signs of having had any particular difficulty in participating in that interview. In particular, it does not appear to me that he was unduly hampered by reason of the alcohol which he had drunk. His answers were responsive to the questions asked of him. He did not require questions to be repeated and his responses were spontaneous. His answers were also appropriate and coherent and revealed that he had no difficulty in comprehending what was being asked of him. On a number of occasions he can be seen to nod his head as if to suggest that he understood what was happening. He was also able to give an apparently logical account of the events that had occurred in the hotel. This suggests that his memory had not been affected, at least not to any significant degree, by the alcohol which he had consumed. Moreover, his account of those events was consistent with the versions provided by other patrons in the hotel. He was also sufficiently sober to find his way to his father’s house and then return to the scene with the knives and he was able to describe to police in some detail exactly which route he had taken to get there. None of this conduct suggests that it would be unfair to the accused to admit the admissions which he made because he may have been intoxicated.

41 In the ERISP the accused agreed that he had been cautioned by Constable Monaghan. He said however that he “only understood the caution to a certain degree mate, because … I was in, you know, in a state … and so really, well, I was sick, and I’m really better now but, yeah, that’s how it was”.

42 Constable Monaghan gave evidence that the accused acknowledged at the scene that he did understand the caution. In my view the evidence falls well short of showing that the accused’s physical condition was such as to prevent him from understanding the caution. Furthermore, when the accused indicated that he wanted to lay down, the interview was stopped to enable him to obtain treatment from ambulance officers.

43 Finally, the fact that the jury would not be in a position to make an assessment of the accused’s demeanour when he made admissions at the scene does not, in my view, provide a sufficient basis upon which the operation of s 90 should be attracted. It cannot be simply assumed that such material if it were to be available, would necessarily be favourable to the accused.

44 For those reasons, I see no basis for excluding the admissions pursuant to s 90 of the Evidence Act.

45 The final basis upon which it is sought to exclude the evidence is pursuant to s 137 of the Evidence Act. That section is in the following terms:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

46 In R v EM (supra) Howie J observed:

Section 137 is only engaged where the probative value of the evidence is outweighed by its unfairly prejudicial effect. Unfair prejudice under the section arises where there exists the probability that the jury might misuse the evidence in some way other than for the purpose for which it was placed before them R v BD (1997) 94 A Crim R 131 at 139; R v Serratore (1999) 48 NSWLR 101 at [31] Papakosmas v R (1999) 196 CLR 297 at [91]-[93]. If the evidence is relevant and if there is no likelihood of the jury misusing the evidence in some way, then its probative value, or its lack of probative value, is a matter for the jury.
I accept that the section also applies where the jury may give more weight to a particular piece of the evidence than it deserves: R v Yates [2002] NSWCCA 520 at [252]. But that consideration is not based simply upon the assessment of the probative value of the evidence. There must be some prejudice emanating from the evidence that will be likely to cause the jury to over-react to it in an illogical or irrational manner: Papakosmas at [92] or to rely upon it on a basis that was logically unconnected to the issues in the case: R v Taylor [2003] NSWCCA 194 at [93]. In exercising the power contained in the section, the trial judge should have regard to what warnings or directions might be given to the jury to ensure that such prejudice does not arise. (pars 120-1)

47 The submission which is advanced is that the admissions have little probative value. That contention has its foundation in the fact that because the accused concedes by his plea that he acted with at least an intention to cause grievous bodily harm, then the admissions take the matter no further.

48 I do not accept the submission. The Crown has the onus of proving that the accused was not acting under provocation. The admissions are relevant to the ultimate facts in issue because they provide an evidentiary basis from which inferences can be drawn as to the accused’s state of mind at the relevant time.

49 It was then contended that the jury would be likely to give the admissions undue weight in the absence of having had had the opportunity “to hear how the accused sounds when he made [them]”, and that accordingly the evidence would be unfairly prejudicial. For reasons which I have just given, that submission must also be rejected.

50 I said at the outset of these reasons that there was one aspect of the conversation in respect of which I had upheld the objection. I ruled that the words “Die, fucken die”, which appear at the end of the accused’s answer to the second question asked of him by Constable Monaghan would be excluded. The words are preceded by a series of dots which suggests either that the officer was not able to record everything that was said, which is not unlikely given how quickly the accused spoke, or alternatively that the accused paused before uttering those words. I am unable to tell from the evidence quite what is intended by the way in which the remarks are recorded and that is of itself a matter of some concern. Furthermore, the words themselves are somewhat ambiguous on their face. It is not clear whether they were words which the accused said that he uttered at the time to the deceased, or whether they are simply some form of comment. Indeed, there may be some other explanation for them. It is difficult in those circumstances to determine the probative value of the words. Nevertheless, their prejudicial effect is likely to be high and for those reasons I excluded that part of the evidence.

51 Objection was also taken to part of the answer to Q 151 of the ERISP in which the following words appear:

And his mate said he was gunna fuckin’ try and do me in, and I come back with something like, of, well, look how far that got your mate.

52 I upheld that objection upon the basis that it also attracted the operation of s 137. It appears to me that the concluding words, to which particular objection was taken, are inherently ambiguous. It is to be observed that they are a response by the accused to a remark made by a friend of the deceased, in the context of a highly charged environment. They may suggest a degree of bravado on the part of the accused arising from his fear of being attacked. This matter, in my view, raises a collateral issue and is of little probative value upon the critical issue of the accused’s state of mind. On the other hand, its prejudicial effect is high. It is quite capable of being used, as the Crown’s submission highlighted, as a form of propensity evidence. The essence of that submission was that the remarks by the accused should be interpreted as meaning “don’t mess with me, I am a dangerous man”. I might add that there is no evidence from any of the witnesses about this exchange. It was for those reasons that I excluded that part of the accused’s answer in the ERISP.

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