R v Gojanovic
[2002] VSC 117
•5 March 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1494 of 2001
| THE QUEEN |
| v. |
| DENNIS GOJANOVIC |
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JUDGE: | COLDREY, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20-22, 25-28 FEBRUARY; 1 MARCH 2002 | |
DATE OF RULING: | 5 MARCH 2002 | |
CASE MAY BE CITED AS: | R. v. GOJANOVIC | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 117 | First revision 5/9/03 |
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CATCHWORDS: Ruling – Admissibility of recorded interview with accused – Issues of voluntariness (overbearing of suspect's will) - Unfairness and public policy discretions – Breach of s.464H of Crimes Act 1958 – Held: interview voluntary and no enlivening of the unfairness and public policy discretion.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.L. leckie SC | P. Fowler, Solicitor for Public Prosecutions |
| For the Accused | Mr. A. Lewis | M. Brugman |
HIS HONOUR:
The deceased, Angela Farnsworth, met her death on 12 March 2001 at her home at 68 Pavo Street, Belmont. The cause of her death was strangulation, effected with a dressing gown cord. A number of head injuries had also been inflicted, some at least being consistent with a blow from a rubber mallet.
Based on the evidence of Ms Farnsworth's next-door neighbours, the Hills, who heard her screaming, the time of her death was placed at shortly after 4.15 a.m. Additionally, phone calls to the premises after that time were not answered.
The accused, Denis Gojanovic, had been in a de facto relationship with Ms Farnsworth. She had recently terminated it. There was a child of that relationship, named Nicholas, who was two years old at the time of his mother's death. On 11 March he was effectively in the custody of his father, spending that day and the ensuing night at the house of the accused's sister, Ms Assia Baban, at St Leonards.
It appears that during the early evening there were discussions between the accused and his sister and mother, Mrs Graziella Gojanovic, about the future of Nicholas. The accused expressed a disinclination to return him to his mother, being critical of her parenting practices.
According to Ms Baban, the accused left the house about ten o'clock that evening, having indicated that he intended to go fishing, apparently for squid. She next saw him when he returned to the premises at about 5.00 a.m. The clothes drier was operating and the accused told her he had got squid ink on his pants. Later that morning the accused took his son Nicholas to the deceased's Pavo Street premises, arriving about 9.45 a.m.
He indicated to investigating police that he had come to return Nicholas to his mother and, in response to an enquiry as to his whereabouts the previous night, indicated that he had gone fishing alone some time after 10.00 p.m.
The accused was requested to attend at the Geelong Police Station to make a statement. This he did. That statement, which was taken by Detective Senior Constable Mark Colbert and concluded at 2.10 p.m., was acknowledged as being true and correct and signed by the accused. In summary, it contained information about the relationship of the accused and the deceased and purported to detail the accused's movements on the previous night and early morning.
Following further enquiries, the investigating police determined to conduct a videotaped interview with the accused. This interview commenced at 4.10 p.m. on
12 March 2001. At its conclusion, the accused was charged with the murder of Angela Farnsworth.
The admissibility of that record of interview is the subject of a challenge by the defence. It was submitted, firstly, that it should be excluded from evidence because it was not a voluntary interview. Secondly, it was asserted that it failed to meet the criteria of admissibility set out in s.464H of the Crimes Act 1958 (the Act).
Thirdly, it was put that the interview should be excluded in the exercise of the fairness discretion, particularly having regard to the accused's health, he being a diabetic; and fourthly, it was argued that as a matter of public policy the interview should not be admitted into evidence.
The submissions of Mr Lewis, who appeared on behalf of Mr Gojanovic, were directed principally at what occurred after a break in the interview at 6.40 p.m. in so far as the issues of voluntariness, non-compliance with s.464H and the public policy discretion were concerned, but I will not treat him as conceding the voluntariness of the earlier portions of the police questioning. The fairness issue certainly encompassed the whole interview.
The law relating to the admissibility of confessional evidence is relatively well settled. In R v. Li & Anor (1993) 2 V.R. 80 I endeavoured to set it out. A similar exercise was undertaken in R v. Heaney & Welsh (1998) 4 V.R. 636, following upon the High Court decision in R v. Swaffield; Pavic v. R (1998) 192 C.L.R. 159. For the purposes of this ruling, it is not necessary to succumb to the temptation to quote my own words. The principles are there for all to read.
Both Mr Lewis and counsel for the Crown, Mr Leckie, agreed that the applicability of the principles enunciated depended upon an assessment of the nature of the questioning, the accused's response to it, and findings of fact as to what occurred during an untaped five and a half minute break in the interview.
I turn to the interview and the events surrounding it. Prior to the commencement of the interview the accused was seen by a Dr Cameron Profitt, a part time forensic medical officer. In the course of his examination, which occurred around 3.00 p.m., a blood sugar test was performed and showed a reading of 6.3 which is well within the optimum range of 4 to 8. According to Dr Profitt the accused informed him he had eaten lunch shortly before the examination. Certainly, in the accused's own account during the voir dire he stated that he had been given chocolate prior to the doctor's visit. Further, Dr Profitt expressed the opinion that the accused's mental state was normal and that he was fit to be interviewed.
The interview, as I have said, commenced at 4.10 p.m. It was conducted by Detective Senior Constable Timothy Day and Detective Senior Sergeant Ron Iddles. Present operating the video camera was Senior Constable Vincent Costanzo.
It could not, I think, be argued that the accused was unaware of his rights as they were detailed to him; indeed, he conceded this in cross-examination. Moreover, his alertness may be gauged, for example, by his noting that his statement, which he was asked to identify, was a photocopy rather than the original. As to his state of health, the accused described himself as pretty much okay, and expressed a willingness to go through his earlier statement.
I have had the advantage of viewing the videotaped interview both in the course of the voir dire and in chambers, and also of comparing the accused's performance in the interview room with that in the court room. Taking first that portion of the interview up until 6.40 p.m., my view is that the accused was quite capable of handling the questions asked and his will was certainly not overborne by the interrogators. Whilst some of his responses tended to be rambling and he needed to be brought back to the point, this was a characteristic he also exhibited in the witness box.
The accused was also confronted with the need, and on occasions the difficulty, of explaining his movements that night and reconciling his account in the interview with the version he had given in the earlier signed statement.
At 5.10 p.m. the interview was suspended when the accused requested something sweet, like chocolate, because of an apprehension that he may start trembling: (Question 580 ff.).
Subsequently, at about 5.20 p.m. the accused described himself as already feeling a little bit better, and that prior to the break he had started feeling a bit sort of vagueish.
A viewing of the video tape does not reveal any discernible incapacity in his responses immediately prior to the suspension when he spoke, inter alia, of his intention of travelling to Portarlington on this evening, and described the clothes he was wearing.
Upon resumption of the interview the accused was again asked if he understood that he was not obliged to say anything to the police. He answered emphatically in the affirmative: (Questions 592 and 593).
As the interview progresses the accused is pressed about his version of events. For example, Question 925 and following, and Question 1057 and following. Once again his will is not overborne by the nature of the questioning.
On one occasion, at Question 1084, he is shown as laughing. And on another he denies the correctness of an assertion said to have been made by his sister and mother as to the future of Nicholas: (Questions 1033 and following).
At 6.18 p.m. the interview is again suspended while the tapes are changed. On its resumption at 6.27 p.m. no further caution is given. None is required in terms of s.464C of the Act, and in my view, given the accused's clearly expressed understanding of his rights, none was necessary.
Further, turning off the video camera, as was done during periods of suspension of this interview, does not in my view carry any necessarily sinister connotation.
Although not addressed in detail by counsel I have examined the passages in the interview from Question 925 onwards to determine whether the questioning could be said to infringe the principles enunciated in R v. Pritchard [1991] 1 V.R. 84. This is still a relevant authority, albeit the effect of a video taped interrogation on an accused person's now obsolete right to give sworn evidence (being one matter which concerned the appellant court in that case), is no longer a consideration.
Although the questions were probing of the accused's account, even to the extent of suggesting that the accused was present and involved in an argument with the deceased, at 68 Pavo Street, they do not, in my view, cross the line into impermissibility.
At about 6.40 p.m. the interview was again suspended. It was resumed some five and a half minutes later. As to what occurred during this interval in time, there was a vast evidentiary conflict.
Before examining this aspect of the voir dire I should refer briefly to the subsequent examination of the accused by Dr Profitt. This occurred at 7.40 p.m. shortly after the conclusion of the interview. At that time the accused interacted appropriately with the doctor, made no complaint about feeling hypoglycaemic, and gave no indication of being so affected.
Moreover, at 8.09 p.m. the accused, according to his own records on the Glucometer, tested at 7.2. That is within the ambit of the levels of which the accused told the court he functioned best, namely 4.5 to 7 or 8. His general practitioner, Dr John Sowerby, placed the normal range as between four and eight. It is perhaps interesting to note that on the test records produced to the court for the periods 20 February 2001 up to and including 12 March 2001, the accused operated in the community outside those optimum parameters 78 per cent of the time.
In any event, the effects of hyperglycaemia, that is, high blood sugar levels, on the accused, as recounted by him, include nervousness, eyes going out of focus and ultimately severe thirst. The accused agreed that in this state he was able to address problems and think clearly.
In relation to the symptoms of hypoglycaemia, the accused described, not in any order, sweatiness, eyesight being affected, shakiness, confusion, agitation and phasing in and out of reality. The accused, referring to a reading of 2.4 at 11.36 a.m. on 12 March, categorised it as a minor problem.
In relation to the interview, the accused was invited to point to any questions indicative of thought disorder. He responded, in effect, that he did not know what was going through his mind at the time and could not answer the question. Earlier in evidence-in-chief he had stated that he recalled only bits and pieces of the whole interview.
Having regard to the circumstances surrounding the interview, and having appraised the interview itself, it is my opinion that the accused's health was not an operative factor adversely affecting him during this interrogation. Accordingly, it would not be unfair to admit the interview into evidence on the basis of the accused's diabetic condition.
The evidence of all of the police as to the post 6.40 p.m. events was that during the break Messrs Iddles and Day left the interview room, inter alia, to obtain forensic procedure forms, whilst Mr Costanzo remained in the room with the camera.
It was the evidence of Mr Iddles that prior to leaving the room the accused asked him if he could arrange for his son to come and see him and that Iddles responded that he would see what he could do.
This evidence was supported by Mr Day and it was also the recollection of Mr Costanzo, although he did not have the advantage of having made any notes of this or any subsequent conversations.
The likelihood of this conversation having occurred is enhanced by the reference to arranging a meeting with the son found later in the interviews: (Question 1348).
Mr Iddles' account of what occurred on his return to the interview room, which he specifically qualified as being from memory and without recourse to his written statement, was that the accused, in effect, had his head in his hands. When asked by the detective if he was ready to proceed, the accused said words to the effect: "You don't understand". Iddles said: "What do you mean?", and the accused responded: "I've done this because of my son Nicholas". He then made reference to the deceased's gambling problem. Mr Iddles said he sat down beside the accused and indicated to Mr Costanzo to operate the video recorder.
The evidence of Mr Day was of the accused having his head in his hands. To Mr Day he appeared to be sobbing. The accused said that it was not meant to be that way and that he had done it for Nicholas. According to Mr Day the accused commenced to explain that Angela had gambling problems and his role in her death.
At this point, Mr Iddles had indicated to Mr Costanzo to run the tape, and it captured the accused speaking in mid-sentence. Mr Costanzo confirmed Mr Day's account that on the detectives' return to the interview room the accused was sobbing, but otherwise had no memory of what was said by the parties. It is clear, of course, that something was said by the accused and indeed was still being said at the time the video recording resumed.
The accused's version of events was that following the announcement of the suspension of the interview, there was a gap, after which he heard what he assumed to be the sound of Mr Iddles smashing his hand on to the interview room table.
Iddles then pointed to the video camera and said that the jury would not believe what the accused was saying. He said he had been in the force for a long time and had seen this sort of thing happen. He suggested that an argument had occurred with Angela, followed by a wrestle. Further, according to the accused, Mr Iddles spoke of surveillance tapes on the Portarlington Road which would show the accused in Geelong. The accused responded by stating, in effect, that such tapes would show that he was not in Geelong. After a period of silence reference was made by the detective of surveillance tapes at the Lord of Isles Hotel, as well as witnesses to the accused's presence there.
At one stage Mr Iddles mentioned that he would be spending a long time in gaol, but that he, Iddles, could arrange that it be of shorter duration. In this context, Mr Iddles asked him if he wanted to see his son again.
I do not purport to use the accused's exact words. Indeed there is some variation between his account in evidence-in-chief and the written instructions he gave to Mr Lewis: (Exhibit C). As to the effect upon him of this conduct, the accused was asked questions about it in evidence-in-chief. At p.303 he was asked:
"Having heard what he" [that is Iddles] "said, what did you do?"
Answer: "There was a bit of a pause and a lot of things went through my head. I just couldn't believe it but I had to say something. I don't know. I wasn't going - it didn't look like I was going to get out of there".
Question: "What did you do as a result of that feeling? Anything?"
Answer: "Not anything straight away".
"Did you say anything as a result of that feeling?"
Answer: "Well, he saw me, I suppose, in a sort of sobbing state, I suppose, a bit of a mess, and he asked me, 'Well, tell us about things', and I suppose that's when I was telling him about how difficult she was in the household and I don't know why I said that. I just thought, you know, some possible explanation of things. I don't know. I don't know".
Later at p.323 the witness was asked:
"There's the break, it starts recording and you're emotionally upset and you're recorded as saying, 'Five years. Five years she's done it. It's just been impossible' and then Mr Iddles starts questioning".
Answer: "Do I remember from that point onwards?"
Question: "Yes".
Answer: "Bits and pieces, but it went for a long time. I couldn't remember the order of things or anything but I was just answering his questions."
Question: "Your answers to those questions were very different from the answers to the questions before, where basically it's said that you were not there or you had no recollection of being at Miss Farnsworth's, and afterwards you admit being there. Why did you answer differently the second time round?"
Answer: "Well, what had happened which I thought was on the tape, it was being recorded but I found out much later on that it wasn't on there, that there was a lot missing". That, of course, is really not a responsive answer and the cross-examination then turned to other topics.
Whilst it might be said that all this is somewhat vague, the accused was then cross-examined by Mr Leckie. Mr Leckie said: "Well, the question asked by Mr Lewis was, 'Why did you answer differently?'"
I intervened to say, "After the break".
The witness answered: "After the break I had thought about what had happened and I thought I'd better - I better answer something that would be acceptable".
Question: "I'm not sure I follow that. What do you mean acceptable?"
Answer: "Well, basically I had no choice but to either spend a long time in gaol or say that some sort of wrestle happened, a fight, and that Mr Iddles would arrange something that would make it so I don't spend time in gaol".
Question: "What, no time at all?"
Answer: "No, no, much less".
All this may be regarded as asserting involuntariness as a consequence of police pressure, principally by way of inducement, and I treat it in that way.
In the course of a lengthy cross-examination, which I do not propose to detail, Mr Leckie elicited from the accused a number of matters which it was conceded emanated from him and not the police. These included the method by which the accused gained access to the deceased's premises, the position where the wrestle with the deceased took place, (being the hallway of her premises), and the original source of and position in the premises of a rubber mallet.
Another matter of significance in my assessment of the reliability of the accused's evidence was the reference by him to camera surveillance on the Portarlington Road purportedly mentioned by Mr Iddles during the break. This was not originally put to the police officers and was not contained in any of the detailed written instructions tendered to the court by Mr Lewis. Moreover, further instructions as to what occurred during the break were said by the accused to have been prepared by him the previous day, prior to his giving evidence. These matters are indicative, in my view, of an ongoing factual embroidering.
Criticisms were made of the police evidence, and in particular it was put that it was significant in assessing the credibility of Mr Iddles that he did not mention the phrase: "It wasn't meant to be that way", in his evidence-in-chief. I note that his account was given with the disclaimer that he did not have access to his notes and the assertion that the statement appeared therein. This claim was not challenged. More importantly, the phrase was immediately repeated by him and attributed to the accused upon the resumption of the interview. Consequently, I do not regard that contention as having substance.
Attention was also drawn to the phrase "just when we finished" in the commencing question of the resumed interview: "Like I know, as you just explained just when we finished, 'Look, it wasn't meant to be that way'". This was explained by Mr Iddles as referring to the completion of the first part of the interview. Although the terminology used is not particularly felicitous, I do not draw the inference that it indicates the police officers did not leave the interview room.
Although it may be regarded as just a straw in the wind, an examination of the video depicting the police documentation on the interview table immediately before the termination and immediately after the recommencement of the record of interview, in particular the altered position of the books and papers of Mr Day, strongly suggest that the police did in fact leave the interview room. Moreover, given the circumstances in which the accused found himself, where he realised that the police were persisting with the matter and where his own denial of involvement at Question 1205; namely: "I have to say no, because I can't remember anything", is somewhat equivocal, a rethinking by him of his position is highly probable.
The accused's account, after the interview was resumed, has a high level of spontaneity and I do not accept his assertion that it was a deliberately false version of events, designed to be acceptable to the interviewing police.
I also reject the accused's evidence of a lack of recall of his encounter with Sergeant Dennis Green, the police officer who deposed to speaking with the accused in the interview room at 8.59 p.m. and recording his lack of complaint about his treatment by the interviewing police.
I note also that the accused made no complaint about his treatment when seen by Dr Profitt at 7.42 p.m., shortly after the completion of the interview.
In summary, having assessed the evidence of the witnesses and their demeanour, and viewed the videotaped record, I accept the police version of what occurred in the interview room after 6.40 p.m. On that account these events were sudden and unexpected, and the decision to video tape the outpourings of the accused was made on the spur of the moment.
On the whole of the evidence I am satisfied that the Crown has discharged the onus of proving that the confessional material was voluntary.
In light of my findings of fact it is unnecessary for any recourse to be had to s.149 of the Evidence Act 1958 in determining the issue of admissibility.
I turn next to the defence submission that the interview was inadmissible because of non compliance with s.464H of the Act.
The sub-section relied upon is sub-section (1)(d). It makes a confession or admission inadmissible unless:
"(d)if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person was tape recorded."
The ambit of this provision has been considered in such cases as Pollard v. R (1992) 176 C.L.R. 177 and Heatherington v. R (1994) 179 C.L.R. 370. In both cases attention was directed by the appellate judges as to what constituted a relevant period of questioning which might attract the operation of the section.
In Pollard's case the majority, Mason CJ and Deane, Toohey and McHugh JJ held that failure to tape an earlier interview at one police station did not render a later video taped interview at a second police station inadmissible. There were, of course, other issues in that case.
In Heatherington's case the same majority held that an earlier unrecorded interview (sometimes characterised as a lead-up conversation), did not render inadmissible a subsequent taped interview at the same police station.
In both cases the periods of questioning were found to be separate and discrete. This was a finding of fact by the majority judges. In each case various of the judges remarked as to the difficulty of construing s.464H, a sentiment which, with respect, I associate myself.
Heatherington's case may be seen as proffering a further explanation of the law as stated in Pollard v. R. In the joint judgment of Mason CJ and Deane and McHugh JJ there was reference to two legal propositions relating to the application of s.464H(1)(d).
Their Honours state, at p.375/6:
"The narrower proposition is that when one has different periods or stages of questioning at different places, a confession made at one place is not rendered inadmissible because an earlier period or stage of questioning at the other place was not recorded. That narrower proposition should, in our view, be seen as a particular instance of the more general proposition, accepted by Mason CJ and Toohey J in Pollard, namely that in a case where there have been different periods or episodes of interrogation the requirement that the questioning which yields a confession be recorded relates to the particular period or episode during which the confession was made.
As a matter of language, the reference in s.464H(d) to questioning during which a confession or admission was made can readily be construed in a case where there have been two or more different periods or episodes of questioning as designating the relevant period or episode of questioning. That construction of the words of paragraph (d) is strongly supported by the consideration that curious and obviously unintended results would flow from the construction of the reference to questioning in paragraph (d) as designating in such a case not only the period of questioning during which the confession or admission was made, but every material question which has earlier been asked or which is subsequently asked of the subject at the particular place."
The court goes on to list a number of the unintended results which it says would flow from any other type of interpretation. I do not intend to prolong this ruling by quoting them, but they appear also on p.376.
Also forming the majority in this case was Toohey J. At p.384/85 he ventured the following view:
"A confession or admission made by a suspect during questioning, which was tape recorded, is not rendered inadmissible merely because of earlier questioning which was not so recorded. As was accepted in Pollard v. R there may be more than one questioning of a suspect for the purposes of s.464H(1)(d) of the Act."
Later His Honour remarked, at p.385:
"Pollard recognises that the questioning of a suspect may take place on more than one occasion and at more than one place. If that other questioning is fairly to be regarded as part of the questioning under challenge, s.464H(1)(d) requires that the whole of the questioning be tape recorded for any part to be admissible, assuming of course that tape-recording facilities were available at each place. In other words, nothing in paragraph (d) requires, as a matter of law, that any confession or admission made by a person in custody which is tape recorded is inadmissible unless all answers made by the suspect to all questions asked at any time and at any place are tape recorded in accordance with the Act.
The Act has its difficulties as Pollard made clear. But again, as Pollard made clear, while the policy underlying the Act was that universal tape recordings of suspects would have substantial benefits for the administration of justice, the Act does not provide for universal tape recording. Its scheme is to make a confession or admission inadmissible in evidence unless certain requirements are complied with.
It is well accepted that the tape recording of police interviews has done much to reduce the occasion for a lengthy voir dire which often takes place when a record of interview is challenged. In Pollard, I said that: 'a trial judge should be astute to ensure that investigating officials did not try to avoid the operation of s.464H(1) by fragmenting their questioning as to both time and place'. At the same time, the operation of the Act would be seriously affected if any question asked of a suspect whenever and wherever asked and however casual, and even in response to some remark initiated by the suspect, should lead inevitably to the exclusion of a later record of interview tape recorded in accordance with the Act.
It is true that paragraph (d) requires not only that questioning, but anything said by the person questioned to be tape recorded, but the paragraph is concerned with a confession or admission made during questioning. The reference to anything said must mean during questioning, otherwise every remark volunteered by a suspect, if not tape recorded, would render a confession or admission, inadmissible."
I do not take these various pronouncements to be authority for the proposition that where, as in the instant case, a confession or admission has been tape recorded in a single record of interview, the fact that exchanges between police and suspect may have occurred during periods when the tape recorder was inoperative automatically vitiates any tape recorded confession or admission.
There are a number of instances where this situation may occur. For example, a tape recorder may be turned off pending the replacement of an expended tape or where a suspect requires refreshment or a toilet break, or where police wish to temporarily pursue further enquiries. Would a non-material discussion automatically render inadmissible a subsequently taped confession or admission? Further, are the provisions of the sub-section infringed where an admission is volunteered by a suspect during a brief interval in the questioning at a time when a tape recorder is not operating and where that admission is spontaneously expanded upon when the tape recorder is re-activated?
A practical reading and application of the sub-section would simply result in rendering inadmissible only those confessions or admissions made during questioning, but not tape recorded.
I appreciate there are good legal reasons for formulating a policy requiring the tape recording of everything that occurs in an interview setting in order to limit the frequency and ambit of disputes as to the voluntariness and fairness of confessional material.
Logically this would also require the tape recording of a suspect from the time of entry into a police station or even into custody, since allegations may arise of threats of violence or of inducements preceding any taped interrogation. Such allegations would currently be dealt with on a voir dire, as would similar allegations relating to any periods of time during an interview when a tape recorder is not operating.
In those cases which are video taped, the depiction of the demeanour and of the rapport of the parties provides a significant insight into the viability of claims of involuntariness or unfairness. In the present case, it was during the period of questioning that the confession or admission was made. That confession or admission was tape recorded, albeit that words which may be construed as an admission or a putative confession were used by the accused during a break in the tape recording process. In such a situation, I prefer to interpret both the words of the sub-section and the judicial pronouncements of the majority of High Court judges upon them as permitting the admission of the confessional material into evidence, albeit this interpretation would not appear to represent the minority view in Pollard and Heatherington. If I am wrong in this approach, then I would in this instance have recourse to s.464H(2) of the Act. That section reads:
"A court may admit evidence of a confession or admission otherwise inadmissible by reason of sub-s.(1), if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances - (a) are exceptional and (b) justify the reception of the evidence."
I regard the evidence as showing that the information provided by the accused was essentially volunteered by him rather than being elicited by questioning. The initial words used did not constitute a specific confession by the accused but suggested an intention by him to make one. It was a spontaneous outpouring which was both sudden and unexpected.
Once the senior police officer, Iddles, realised what was occurring, he immediately signalled for the re-activation of the video camera. Thereafter the accused freely proffered a version of the events surrounding Angela Farnsworth's death.
Given my findings of fact I am quite satisfied on the balance of probabilities that the circumstances are exceptional and justify the reception of the video recorded post 6.40 p.m. confessional material into evidence.
In the course of legal argument, criticism was made of the failure of the interviewing police to re-caution the accused at or about the commencement of the post
6.40 p.m. segment of the interview. As I earlier indicated, given the accused's obvious awareness of his right to remain silent, no such caution was required.
Further, having regard to the content of the subsequently recorded confessional material, there was no necessity to put to the accused what had occurred during the five and a half minute interval in the interview. Again, as I have previously indicated, there was nothing unusual or sinister about the police failing to keep the video recorder operating during the suspension of the interview. It is a common practice.
Usually interviewing police take the very sensible precaution of eliciting on the taped record that no questioning on the subject of the offence occurred during this period of suspension. Understandably, this was not done given the exigencies of the current case. It is also my view that there was nothing in the police conduct in this instance designed to circumvent the law.
It follows from what I have said that I do not regard the accused as having demonstrated that it would be unfair to permit this interview to be placed before the jury. Nor was there anything in the method by which the confessional material was elicited by interviewing police which could be categorised as unacceptable in light of prevailing community standards so as to enliven the public policy discretion.
For all these reasons the videotaped interview is admissible.
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