R v Olden

[2001] VSC 81

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1430 of 2000

THE QUEEN

v.

KYM OLDEN

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JUDGE:	COLDREY, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	21 FEBRUARY 2001
MEDIUM NEUTRAL CITATION:	[2001] VSC 81

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CATCHWORDS: Evidence – Admissibility of video taped interview – Quality of sound and use of transcript discussed – Whether sufficient compliance with s.464A(2)(a) Crimes Act 1958 requiring suspect to be informed of the circumstances of the offence – Interview admissible.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G. Horgan	Office of Public Prosecutions
For the Accused	Mr. J. Desmond	Victoria Legal Aid

HIS HONOUR:

1. It has been submitted by Mr Desmond on behalf of the accused that part of a videotaped interview between the accused Kym Olden and investigating police, namely questions 1 to 118, should be excluded in evidence in the exercise of the fairness discretion.  Two bases were advanced for the adoption of this course.  Firstly, it was submitted that the quality of the video recording was of so poor as to warrant its exclusion.  It was argued that reliance on any transcript to help remedy this defect should not be permitted as it would give undue prominence to what was designed as an aide-memoire and which, in any event, was incomplete and possibly inaccurate.  The authority of R v. Smith & Ors (1990) 50 A.Crim.R. Was cited as setting out the principles applicable to the use of transcripts. 

1. I should say immediately that there was nothing in that case (see particularly pp.451-2) which prohibits the use of transcripts to assist a jury where the quality of the original recording is poor.

1. In the present case, having listened to the impugned recording, I have concluded that virtually all of the taped conversation can be discerned with the aid of the transcript.  Providing the standard directions for the use to which the transcript may be put are given to the jury, I would see no unfairness in admitting this portion of the interview into evidence.  This is even without its further potential enhancement by the Crown utilizing infrared equipment.

1. Secondly, it was submitted that there was a failure to comply with s.464A(2)(a) which, in effect, requires the interviewing police to inform the suspect in custody "of the circumstances of the offence". It is clear on the videotape that the interviewing police officer told the accused: "I intend to interview you about the death of Paul Lisinski." A formulation of this type is cited in R v. Lancaster (1998) 4 V.R. 550, a decision of the Court of Appeal, as generally satisfying the requirements of s.464A(2)(a) - (see Tadgell JA at 555 and Batt JA at 557).

1. I interpolate that this case is also authority for the proposition that noncompliance with s.464A(2)(a) does not automatically lead to the inadmissibility of any ensuing record of interview, but attracts the possible exercise of the fairness or public policy discretions.

1. In my view, what the police told the accused at the commencement of the interview was, in all the circumstances of this case, particularly having regard to her own activities in the deceased man's room, quite sufficient to comply with s.464A(2)(a). An additional factor which could, if necessary, be relied upon by the Crown, was the concession by counsel for the accused that in a conversation with Ms Olden, which occurred at the Esquire Hotel in St Kilda prior to any interview, the accused was specifically informed that she was under arrest for the murder of Paul Lisinski; was given the standard caution; and informed of her rights.

1. A submission that there had been a failure to comply with s.464G because the caution required by s.464A(3) was inadequately linked to information about the circumstances of the offence must, in the light of my ruling upon s.464A(2)(a), also be rejected.

1. It was put generally that Ms Olden was confused about her status in the first portion of the interview.  Reference was made to the accused speaking of a belt being used by her on the deceased, whereas the forensic evidence was to the effect that the deceased was strangled with a bathrobe cord.  Whether this account, which permeates both sections of the record of interview stems from confusion or deceit is a matter for the jury in their assessment of the reliability of Ms Olden's account.  What it does not demonstrate, in my view, is any confusion about her situation as a suspect in relation to the death of Paul Lisinski.  Accordingly, the defence has failed to discharge the onus cast upon it of satisfying the court that it would be unfair to admit this portion of the record of interview into evidence.

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CERTIFICATE

I certify that this and the 2 preceding pages are a true copy of the reasons for ruling of Coldrey, J. of the Supreme Court of Victoria delivered on 21 February 2001.

DATED: this 21st day of February 2001.

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Associate