R v Parlov; R v Mena; R v Roberts
[2022] ACTSC 121
•25 May 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Parlov; R v Mena; R v Roberts |
Citation: | [2022] ACTSC 121 |
Hearing Date(s): | 24 May 2022 |
DecisionDate: | 25 May 2022 |
Before: | Norrish AJ |
Decision: | See [44]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for audio-visual police interview to be treated as evidence-in-chief – whether the witness is a complainant when the witness is a suspect at the time of police interview – whether the witness’ police interviews are audio-visual recordings for the purposes of s 51 of the Evidence (Miscellaneous Provision) Act 2011 (ACT) – meaning of “relevant proceeding” |
| Legislation Cited: | Crimes Act 1900 (ACT) s 187 Crimes Act 1924 (Cth) pt 1C Evidence (Miscellaneous Provisions) Act 2011 (ACT) s 37, s 40, s 42, s 43, s 45, s 46, s 51, s 52, s 53, s 56 |
Texts Cited: | Explanatory Statement, Crimes (Domestic Family Violence) Legislation Amendment Act 2015 (ACT) Explanatory Statement, Sexual and Violent Offences Legislation Amendment Act 2008 (ACT) |
Parties: | The Queen (Crown) Rebecca Parlov (Co-accused) Sugimatatihuna Mena (Co-accused) Bradley Roberts (Co-accused) |
Representation: | Counsel T Hickey (Crown) T Lee (Parlov) J Sabharwal (Mena) M Keaney (Roberts) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Parlov) Armstrong Legal (Mena) Michael Lalor (Roberts) | |
File Number(s): | SCC 205 of 2021 SCC 206 of 2021 SCC 208 of 2021 |
Norrish AJ:
Introduction
The Crown proposes to arraign the three accused in this court in respect of a particular allegation set out in four counts in the indictment.
In respect of the accused, Mr Mena, the Crown propose to arraign him on a charge of attempted murder of a person named Stephen Vinecombe. Alternatively, that he did intentionally inflict grievous bodily harm on that person. The third count on the indictment alleges that the three accused, on 11 March 2021, the same date and at the same place as the previous allegations, entered or remained in a building in Spence, in the ACT, as trespassers with intent to commit an offence that involved causing harm or threatened to cause harm to anyone in the building and were in company of each other, or at the time had an offensive weapon, or both. This is shortly described as ‘aggravated burglary’, and it is an offence, as I understand it, brought pursuant to s 312 of the Criminal Code 2002 (ACT). The fourth count in the indictment, alleges against, Mr Mena only, that he intentionally and unlawfully discharged a loaded firearm (namely, a sawn-off .22 calibre rifle) so as to cause another person reasonable apprehension for his or her safety. The wording, particularly, of count three and the character of that charge and, perhaps, count four, are of particular pertinence to matters that I am about to address.
The trial is listed in this Court, I am advised, in early August. Application has been made by the prosecution, with proper notice, given to the accused, for a pre-trial ruling in respect of the admissibility of evidence. The evidence in question is evidence contained within recorded interviews conducted with a person who was present, allegedly, at the time of the wounding of the alleged victim on 11 March 2020. That person, Ms Smith, was the occupant and, as I understand it, the lease holder of the premises at which the offences are alleged to have been committed and are the relevant premises, or building, so far as count 3 are concerned. The circumstances of Ms Smith’s alleged connection with at least counts 3 and potentially, count 4, is her presence within her own home at the time of the alleged wounding of Mr Vinecombe by one of the accused. I refer to count 4 as having some possible relevance, because she may be a relevant person described in count 4. But the matter proceeds on the basis that the relevant interpretation of the legislation to which the parties have referred in their submissions is essentially concerned with count 3 in the indictment.
The Crown has asked that two questions of law be answered. To paraphrase them:
(1) Is Ms Smith a ‘complainant’ for the purposes of s 43 of the Evidence (Miscellaneous Provisions) Act 2011 (ACT) (‘the Act’)?
(2) Are her interviews with police, “audio-visual recordings” for the purposes of s 51 of the Act?
I have indicated earlier that I answer those questions in the affirmative.
The answering of these questions in the context of the way the matter was litigated will go some way to dealing with the essence of the Crown’s application. The essence of the Crown’s application is that the police audio-visual recordings of interviews conducted on 30 March 2021 and 31 March 2001 be admitted as her evidence-in-chief at the trial. There is no objection to the Court making a pre-trial ruling as I understand the way the matter was conducted.
The determination of admissibility will require a consideration of s 52 of the Act and possibly various provisions of the Evidence Act 2011 (ACT) after the Crown has undertaken the editing process to which reference was made in the hearing of the application. This was foreshadowed by the Crown from the outset. A reason for delivering my answer to the questions sooner than I delivered the judgment was to keep the matter moving along. The accuseds’ legal representatives must be given adequate time of course, to consider the matter further.
Background
Ms Smith was at particular times after the alleged shooting of Mr Vinecombe, a suspect. The police believed that, when interviewing her on 30 and 31 March 2021, she had acted to conceal evidence with intent to pervert the course of justice. The interviews conducted with her on those dates were electronically recorded and have been transcribed and I have read the transcribed versions. I have not viewed the electronic recordings. They are sought to be produced at the trial, as I foreshadowed from the Crown’s application, as her evidence-in-chief, subject to editing of the transcripts and the recordings and subject to the possibility of the need to ask her further questions in her evidence-in-chief in the presence of the jury to explain matters that had been edited out.
I will return to the relevant legislative provisions later, but it suffices to point out that for a relevant electronically recorded interview to be admitted into evidence as the evidence-in-chief of a particular witness, the interview must be conducted by a “prescribed person”. The complication in this matter is that the two interviews, the subject of the Crown’s application were conducted in the presence of one “prescribed person”, the other police officer present was not a “prescribed person”.
I am not suggesting that there is anything sinister about this. It appears to have been an oversight where an otherwise qualified police officer participated in an interview not having undertaken the relevant training to be a prescribed person. I am advised in a statement that has been evidenced to me that the person who was not a prescribed person has undertaken the relevant training, but that aspect of the matter is not relevant to this determination. The Crown seeks to overcome this “difficulty” by editing out of those interviews, if those interviews satisfy the conditions set out in ss 51 and 52 of the Act, questions asked by the unqualified officer and answers to those questions as well as any other interjections by that officer.
I have read the Crown Case Statement which sets out, in far greater detail than required here, the Crown case against each of the accused. It is alleged in essence that the three accused attended the residence of Ms Smith. After some interchange over a period of time between her and at least one of the accused via Facebook and by telephone. The Crown case is that the three accused persons presented themselves at her house. The accused, Parlov and the accused Roberts entered the house first and did so without Ms Smith’s permission. The accused, Mena, was the last person to enter and he – in the presence of the other accused, as I understand the Crown case – confronted the complainant in relation to counts 1 and 2 in the kitchen. He pulled out a sawn-off .22 calibre rifle on the Crown case, from his waistband and shot Mr Vinecombe in the stomach and then shot him in the face after reloading the firearm, again, in the presence of the co-accused. Ms Smith was present during these events and I understand that she gave no permission for any of the accused to enter her premises. The three accused then left the scene. All these events occurred, as I understand the chronology, shortly after 5:00 am on the morning of 11 March 2021, although there were quite a number of events occurring over the evening of 10 March 2021 and the morning of 11 March 2021, particularly as between Ms Smith and Ms Parlov and to a lesser extent, Mr Roberts. Ms Smith remained in the premises assisting the wounded man and ultimately, a person called Christopher Parlov, who I understand is the brother of the accused, picked the wounded man up. Mr Parlov was told by Ms Smith that he had “been shot and needed help”, and Mr Parlov took the wounded man in company with another person to a hospital – Calvary Hospital in Bruce, a suburb of Canberra.
Whilst those persons were away from the premises, Ms Smith continued the task she had commenced earlier of cleaning up the premises. It was her action in the cleaning of the premises in general terms after the alleged shooting that purportedly gave rise to the suspicion on the part of the police that she had concealed evidence with intent to pervert the course of justice. The wounded man, who was in hospital until 19 March 2021 was kept in an induced coma until a day before his discharge, 18 March 2021. He was interviewed by police that day whilst in hospital and gave what in the Crown case is summarised as “an account of the shooting”, and said that he knew both the accused, Mr Roberts and the accused, Ms Parlov, but not the other accused “well”, having met the accused, Mr Mena once or twice and understanding that he was dating Ms Parlov.
Ms Smith was arrested at her home, the location of the shooting, on 30 March 2021, taken into custody and taken to what is described as “the watchhouse”. She said at the time of her arrest, “I need to try and get my kids back, how can I do that when I have someone running through my house shooting people.” That statement of hers to the police would indicate to the police, bearing in mind at that time they were investigating the circumstances of the shooting of Mr Vinecombe, that she had first-hand knowledge of the events relating to Mr Vinecombe.
In both interviews, which were conducted under caution and otherwise satisfied the requirements of Pt 1C of the Crimes Act 1914 (Cth) which was incorporated into ACT law by s 187 Crimes Act 1900 (ACT), she made some admissions against interest, but more particularly during the second interview. She admitted on 30 March 2021 in the first interview that she had cleaned up the property, but declined to give details about the surrounding circumstances. Naturally, I have read that interview. In her second interview on 31 March 2021, she requested to be interviewed again, telling the police that she had “changed her mind” and purported to tell the police about the events surrounding the wounding of the complainant relevant to counts one and two, although they are expressed, in the alternative, and counts three and four. During the course of that interview, she said she knew all three accused. The Crown relies upon her evidence, in part, to identify the persons who came into the house prior to the discharge of the firearm that led to the wounding of Mr Vinecombe.
They were, at least partially, as my understanding of the Crown case stands, disguised or sought to cover their faces. But it appears, based upon the Crown's statement of facts, there were various ways of identifying particular people. The issue of identification, of course, is not a matter of my concern. Ms Smith said that she had met Roberts and Mena through the accused Ms Parlov, who she had known for three years. She said she had seen the accused, Mr Roberts, about six to ten times and had spoken to him on Facebook, but had seen the accused, Mr Mena fewer times.
Mr Mena, was s arrested on 22 March 2021 and charged in relation to the shooting of Mr Vinecombe and related matters. Although I don't have the details of those particular charges, I would understand it would include the unlawful entering of the premises of Ms Smith. But that does not matter, to my mind, one way or the other.
Ms Parlov was relevantly arrested and charged on 15 April 2021. I understand Mr Roberts was interviewed on 31 March 2021, the date of the second interview of Ms Smith and claimed an alibi. His alibi witness, his mother, was interviewed on 23 April 2021. I could not see in the Crown Case Statement, and again I may have missed it, the particular date that he was charged in relation to matters with which I am now concerned. But I am assuming that that occurred after the interviews with Ms Smith. Transcripts of the two relevant interviews unedited and a statement from Senior Constable Dobson, one of the interviewing officers who was a prescribed person, have been exhibited to me. The statement of Mr Dobson sets out the circumstances of his status as a prescribed person, which occurred in March 2016 and some other information not of great moment.
Legislation
In order for audio-visual recordings to be available as evidence-in-chief of a particular witness, the applicant has to establish that Ms Smith was relevantly “a complainant” for the purposes of the Act in a “relevant proceeding” answering questions from a “prescribed person” in relation to the investigation of an offence “the subject of the proceeding”.
Section 51(1) sets out the meaning of audio-visual recording and it provides this in the subsection:
… an audio-visual recording is an audio-visual recording that is of a witness in a relevant proceeding answering questions of a prescribed person in relation to the investigation of an offence the subject of the proceedings.
Further, in order for that recording to be admissible as evidence-in-chief, there are certain requirements set out in ss 51(2) and (3). My understanding is those formalities, important though they are, have been complied with in this particular matter. The key issue is whether section 51(1) has been satisfied in the circumstances of this case.
In order to determine that matter, one has to have regard to the “Definitions” provision in Pt 4 of the Act for the words “relevant proceeding” and “witness”. In relation to those matters, s 46 of the Act states that a relevant proceeding in the provisions of that Part, “means a proceeding to which the provision applies under section 43”. “Witness” means in the provision that concerned with, “a witness to whom the provision applies under section 43”.
One then turns one's attention to s 43 of the Act and the Table attached thereto. It states inter alia, “[a] provision mentioned in Column Three of the Table for a proceeding applies to the kind of witness mentioned in Column Two of the Table for the proceeding". The Table in s 43.3 relating to “serious violent offence proceeding” identifies the kind of witness under Column Two as “a complainant” and sets out in Column Three the special requirements in relation to such witnesses including the use of audio-visual recordings of police interviews with no other further description.
I am advised and it has not been suggested otherwise that s 312 of the Code, particularly, falls within the category of a “serious violent offence” proceeding. Sections 40 and 42 define serious violent offence proceeding and complainant. Section 42 particularly relating to the expression “complainant” defines that word to mean “a person against whom the offence is alleged or has been found to have been committed”. With regard to the definition of “serious violent offence proceeding” "it includes a proceeding for an offence against any of the following provisions of the Criminal Code2002 (ACT)” and particularly, it refers to s 312.
If the complainant was in the building at the time of the offence (count three is an allegation of aggravated burglary and Ms Smith was in the building at the time of the offence)whether she was a complainant or not relevantly is one of the matters I have to resolve. Arising out of the reference to these matters, is the ultimate fact that a complainant or a relevant complainant in relation to a relevant proceeding is permitted to give evidence-in-chief through an audio-visual recording of a police interview.
In aid of construction of the sections, the Crown draws attention to the detail, in particular, of the Explanatory Statements related to the introduction of the legislation in its current form. One such Explanatory Statement reflects upon the amendment of the definition of “serious violent offence” to include a complainant who was in the building at the time of the offence: Explanatory Statement, Crimes (Domestic Family Voilence) Legislation Amendment Act 2015. Which the Crown submits, Ms Smith clearly was. Another Explanatory Statement relating to the policy concerning the admissibility of pre-recorded audio-visual recordings being used as evidence-in-chief notes that this is done without 'derogation' of any 'human rights' that might exist in relation to protections for an accused person: Explanatory Statement, Sexual and Violent Offences Legislation Amendment Act 2008 (ACT). I will refer later in the course of dealing with the submissions or consideration of those matters, and to ss 37, 45, 52 and 53 of the Act, but I need not set out those matters in detail.
Submissions
Both the Crown and Counsel for Ms Parlov provided helpful written submissions and supplemented them with further helpful oral submissions. There is no need to detail those submissions except when considering particular aspects of the matter. Counsel for Mr Mena and Mr Roberts supported the principal arguments advanced on behalf of the co-accused but raised also supplementary issues of which only some I need specifically address. I have, however, taken into account all that has been written and said by the parties.
The Crown's position is essentially that a proper construction of the relevant legislation demonstrates that Ms Smith is a complainant and thus a “witness” contemplated by the operation of s 51 of the Act. This is so because the clear expression in the legislation describes her situation. The purpose of the conduct of the interviews in circumstances where Ms Smith was then under arrest is irrelevant to the recorded interviews’ reception as evidence-in-chief, it is submitted. In any event, it is submitted even if the purpose of the interview was to obtain admissions from her as a suspect in respect of a crime that is not 'a relevant proceeding' the interviews had a dual purpose. Firstly to examine her alleged offending the subject of her arrest, and further to obtain information relevant to the wider investigation of the circumstances of the entering of her premises and the shooting of the complainant in relation to counts 1 and 2 (in respect of counts 1 and 2 and count 4, she has not been charged. Clearly she could not be charged in relation to count 3 being the lawful occupier of the premises.) These matters are so, it is submitted, bearing in mind two matters: the investigation of the surrounding circumstances of the shooting require consideration of how the complainant Mr Vinecombe had been shot inside Ms Smith's home; and that investigation was ongoing at 30 March 2021 and 31 March 2021 with only one suspect arrested at that point. These circumstances were directly relevant to understanding, it is submitted, whether in fact Ms Smith had concealed evidence with intent to pervert the course of justice. Thus, the interview was concerned with matters beyond simply investigating her own role, but also the alleged involvement of others.
It is correct to note, as was pointed out in the course of oral submissions on behalf of the accused, that the interviewee was told during the course of the interviews that the subject of the interviews could be used as her evidence-in-chief in any subsequent proceedings. But she was also told other things in the course of the introduction to each interview. She was told, amongst other things, that any disclosure by her could be used against her and that she had the right to silence and had the right not to be interviewed in the absence of a legal representative. She was also told in the first interview as well as the second interview that she did not have to say anything as it may be used “in evidence” without further explanation: Interview of 30 March 2021 at question 13 and Interview of 31 March at question 3.
In the context of the Crown's written submissions which took the Court through the various legislative provisions, and in response to the written submissions of the accused Parlov, it was submitted orally by the learned Crown Prosecutor that s 51 of the Act neither required establishment of, nor addressed the issue of, the intention of the interviewing police in the conduct of a relevant recorded interview or, for that matter, the purpose of such an interview. He submitted that the purpose of interview, as submitted by the accused, was not the sole purpose of the interview, that the second interview particularly, clearly was directed at obtaining information from Ms Smith about the circumstances surrounding the wounding of the man, the identity of the people involved, and was involved with the consideration of events clearly relevant to the charges in the indictment. Finally, he submitted orally that, the submissions in writing of the accused Parlov would suggest that if the purpose of the interviews was solely to investigate the criminality of Ms Smith, it would lead to the “absurd” result that, at a subsequent time when it was established that the interviewee was not to be charged in respect of the matters set out in the indictment, the police would have to undertake a further recorded interview to have the witness repeat (if she wished to) what she had already told the police in the previous interviews. This was absurd, it was submitted, because to do so would defeat the purpose of the legislation was to spare a witness repeating over and over traumatic events.
Learned Counsel for Ms Parlov submitted in the context of her written submissions that the purpose of the interviews with Ms Smith was not to interview her as a witness but as a suspect. When she ceased to be a suspect in respect of any relevant proceeding it was open to the police to conduct further interviews of her, making it clear to her that she was being interviewed for the purpose of providing evidence of proceedings involving the other people. It was submitted that the proper interpretation of the legislation would lead to the conclusion that the interviews were not relevantly audio‑visual recordings as defined by s 51(1) of the Act because the interviews conducted required establishing that they were recordings with a “direct connection between the instant proceeding and the offence which was the subject of that proceeding”. It was submitted that the interview with Ms Smith was concerned with a different offence and a different proceeding than the relevant proceeding with which this Court was now concerned.
The relevant proceeding for the purposes of s 51, it must be said, is the proceeding in respect of the indictment earlier summarised dated 6 October 2021 involving the three current accused and the charges to which I refer. It was submitted that both recordings were created for the purpose of investigating Ms Smith for “perverting the course of justice.” Whilst that offence shared a circumstantial relationship to the offences subject to the proceeding, it cannot be said that the audio‑visual recordings were created in relation to the investigation of an offence the subject of the proceeding.
A relevant proceeding, it was submitted, must be concerned with the specific indicted offences. It is clear that this is so from other legislation and procedural rules, it was submitted. The definition of “proceeding” requires not only a direct link in the subject matter of the interview with the relevant offence, but also “the alleged offender.” It was submitted that the submissions of the Crown fly in the face of “common sense” and “fly against the protections of a witness as advanced through Ch 4 of the Act.” It is submitted that the difference in the investigative purpose of the recording, that is between the interviewing of a suspect and the interviewing of a person that was not a suspect, goes to the voluntariness of this communication that occurs or occurred in the course of the recorded interviews.
It was also submitted that the interests of justice and the rights of the accused cannot be protected with the interpretation invited by the Crown and that the formal interview of a person under arrest cannot be considered a reasonable substitute for the live testimony of a witness in respect of what is described “a different ... proceeding.” These various matters, with no disrespect to the skill of learned Counsel, were largely repeated in oral submissions by her. For completeness essentially, it was submitted that Ms Smith's circumstances did not identify her as a person referred to in the table at s 43 of the Act at the time of the interview given the purpose of the interview and the character of the offence for which she was then arrest. At the heart of the matter was the fact that when she was spoken to, she was not spoken to as a witness but as a suspect and a suspect in relation to another proceeding. Thus, the purpose of the interview was very relevant to the interpretation of the provision.
Mr Sabharwal, learned Counsel for Mr Mena, in adopting the submissions of Ms Lee for Mr Parlov, pointed out that his client had already been arrested in relation to the shooting incident, a matter I had confirmed at the Bar table, I checked the date of that from the Crown case statement after the submissions were finished. He also submitted a relevant issue to determine in relation to this matter, and that is as to whether it was an investigation of an offence the subject of the proceedings and whether Ms Smith was a witness in the relevant proceeding included a consideration of the fact that Mr Mena had already been charged. Further, he directed the Court's attention to the impact of the involvement of a non-prescribed person, Police Officer Pugsley, which tainted the character of the interview. This led to a discussion, as I foreshadowed earlier, referring to of the operation of s 52 of the Act. This is cited in the Crown's submissions but had not been the subject of specific discussion up to that point. A consideration of that provision is relevant to the admissibility of the recorded interviews. However, the determination of that matter could not be concluded until the legal questions were answered and, if need be, the character of the editing required or sought by the Crown was known to all the parties.
Learned Counsel for Mr Roberts submitted the Act addressed separate consideration for different persons, accused persons, victims and witnesses and that on any view the recorded interviews with a suspect fell exclusively within the requirement of the Act or other Acts relating to the interviewing of suspects. It was submitted that the interviews did not serve a dual purpose and that the interviewee, that is, Ms Smith, did not fit within the category of a special class of witness at the time of interview required under s 51 and related provisions. In any event, it was submitted the proceedings referred to in s 51 were relevantly those proceedings contemplated at the time of the interview for which he was subsequently charged. I was informed from the Bar table that she was charged with concealing evidence with intent to pervert the course of justice. That charging clearly is not a 'relevant proceeding' it must be conceded.
Consideration
The starting point of a consideration of these issues in this matter is a determination as to the meaning of s 51 of the Act. In the course of oral submission, I expressed some preliminary views about this matter which, in my opinion, have been confirmed on further consideration. The section should be interpreted to mean, that a relevant audio-visual recording complying otherwise with this section, particularly the provisions in s 51(2) and (3), is an audio-visual recording of an interview conducted with a person who is, at the time of the production of the recording for the proceeding, a witness in the proceeding in which the proposed audio-visual recording is to be used as evidence-in-chief, as required pursuant to s 52 of the Act and Ch 4.3 of the Act, generally. It is a provision concerned not with the timing of the interview, but the timing of the proceeding. The relevant proceeding is the proceeding arising from the filing of the indictment in this matter not any potential charge that may be laid against the interviewee, that is Ms Smith, arising from the interview.
What is critical in the interpretation of the meaning of s 51 is understanding that the determination of whether a recording is a relevant audio-visual recording turns upon a consideration of the status of the interviewee at the time that the audio-visual recording is sought to be adduced as the evidence of that person as a witness in the trial, not at the time of the answering of questions by a prescribed person in relation to the investigation of another offence. This must be so if the relevant “proceeding” is the proceeding that follows upon the filing of the indictment. The plain language of the subsection makes this clear and it is conceded, as I understand it by the parties, that the relevant proceeding is, in fact, the proceeding relating to the filing of the indictment. The point being taken is that “relevant proceeding” for the purposes of considering the interviews should be seen to be any proceeding relating to the charging of Ms Smith. It makes no sense, nor would be practical to establish the status of the interviewee at the time of the interview because, as is usually the case, until the interview is completed, and consideration of it has been given by a relevant person or appropriate authority, it would not be known whether a person was, in fact, potentially a witness or an accused in relation to any further potential proceedings. There were no relevant proceedings on foot at the time of the interview of this particular suspect, despite the prior charging of Mr Mena. The interpretation of the section advocated by the respondents to the application, in my view, confuses the “investigation” with what is to be regarded as a “relevant proceeding”.
It was pointed out, in fact, in the written submissions on behalf of Ms Parlov, that the issue of what is a proceeding is defined in s 37 of the Act. And in her submissions, as I just earlier pointed out, it was conceded that for the purposes of determining a relevant proceeding for a consideration of s 51, it must be a proceeding that occurred with the filing of the indictment or the presenting of the indictment on 6 October 2021. The section is not concerned with the circumstances which give rise the conduct of the interview. Although the circumstances of the conduct of the interview and subsequent events to the interview may be relevant to determining compliance with either s 51(2) and (3) as well as ss 52 and 56. The interview with Ms Smith was in respect of an investigation of her involvement in a specific offence which required also investigation of the circumstances of the wounding of Vinecombe which occurred in her home. Relevant events, it is to be said, based upon the Crown Case Statement in respect of counts one, two, three and/or four. In its terms, count three rendered her a complainant. There was no relevant proceeding, as I've said, in place until ultimately at the conclusion of the investigation and after all three accused were charged and an indictment filed. As Ms Smith was not charged in relation to the counts on the indictment, nor was she joined in the indictment as having committed some other offence that was connected in time to the counts set out in the indictment, her connection with the circumstances giving rise to the counts in the indictment relevantly made her a complainant pursuant to the terms of ss 40, 42, 43 and 46 in a 'relevant proceeding'. This was because, as was pointed out earlier, she was the lawful occupier of the premises where the events giving rise to the counts in the indictment occurred. She was present and saw relevant events occur and she was not alleged to be part of any joint criminal enterprise to commit the offences set out in the indictment on or within her premises. On the Crown case, as I have already pointed out, she had not given permission for the intruders to enter. Hence the pleading in count three.
Returning to some of the other matters that were identified in the submissions, I agree with the submission of the Crown that s 51 does not, in its terms, either expressly or implicitly refer to the purpose of the interview conducted or the character of the interview conducted, so long as its formalities comply with other subsections within the section. These interviews, the subject of this application, otherwise comply with the requirements of the section, save, as I said earlier, for the issue of the presence of a non-prescribed person being involved in the conduct of the interview. Whilst Counsel for Mr Mena, Mr Sabharwal, suggested the integrity of the interview was compromised by the presence of a non-prescribed person that is, in my view, a matter relevant to s 52 of the Act. It is correct in the second interview the person who was not permitted to ask questions asked a large number of questions, almost as many as the prescribed officer. The Crown proposed not to press the questions asked by Ms Pugsley and it submits that it is open to permit the use of the questions asked by the prescribed officer for the purposes of s 51 of the Act and related provisions. I cannot see, if the Crown does not press the questions asked by the non-prescribed person, that the section prohibits reliance upon questions asked by a prescribed person. Subject, I hasten to say, to consideration of issues that arise under s 52 of the Act or, for that matter, matters that arise under the Evidence Act2011 (ACT).
I do not accept the argument that the law provides different provisions for different categories of police interview that are electronically recorded. It is submitted, as I understood the submission on behalf of Mr Roberts, s 51 prohibits an electronically recorded interview of a suspect for the purposes of investigating a matter whether it is another proceeding or the relevant proceeding in respect of which the interview is sought to be tendered. The Act has other provisions, it is submitted, in relation to other categories of person who are the subject of electronic interview. The section does not expressly refer to this differentiation between the class of people at the time of interview and such provisions as relate to the admissibility of electronically recorded interviews of suspects in criminal trials where the interviewee becomes the accused are not found in this Act. Construing the provisions in this Act does not require consideration of other legislative provisions. But construing this provision in the context of the Act in which it appears, it is clear that Ch 4 of the Act, or Pt 4 as it is also described, in part at least, is concerned with methods of adducing evidence-in-chief from witnesses in relation to family violence, less serious violent offending, serious violent offending and alleged sexual assault offending which enable evidence-in-chief to be given without having to repeat out-of-court representations. So long as they are electronically recorded in circumstances that satisfy particular provisions in the Act. The Chapter or Part in the Act generally are concerned with various means of adducing evidence in court either by pre-recording or audio-visual link within the court complex or from outside the complex including outside the Territory and related provisions. The recordings are described as electronically recorded police interviews.
The interpretation of s 51 to which I have referred is entirely consistent with those purposes of the Act which are made clear in their terms and also in the Explanatory Statements. Although I do not accept that the purpose of the interview is relevant to establishing an electronic interview as an audio-visual recording for the purposes of section 51, it is clear that the police were seeking information in relation to the surrounding circumstances of the events that occurred at the interviewee's home, which included circumstances of the wounding of the alleged victim, circumstances of the people being inside the home of Ms Smith and other matters that go beyond any alleged criminal conduct by Ms Smith. These matters were obviously relevant to establishing whether Ms Smith had committed a particular offence but relevant also to what was obviously a wider investigation that was being undertaken. Not just in relation to Ms Smith but as to the circumstances in which Mr Vinecombe had been injured. By definition police had to establish in what way Ms Smith may have concealed evidence to pervert the course of justice. Thus, the investigation of the matters giving rise to the counts in the indictment which, at that stage had not been framed was integral to the investigation of her conduct.
I should point out there is no issue that arises in the current matter concerning compliance with the “notice” provisions in s 53. The interviews conducted with Ms Smith were relevantly police interviews by way of audio-visual recording; see s 56 of the Act. Also, apart from relevant compliance with s 51 there would, on the face of it, appear to be compliance with the terms of s 56, there has been no complaint at the moment that there was no such compliance. It is conceded in the course of the submissions that the character of the interview complied with a s 187 Crimes Act, thus, incorporating the protections under Pt 1C of the Commonwealth Crimes Act. In my view, the terms of s 56 in themselves may be seen to be consistent with the submission by the Crown that the purpose of the police electronically recorded interview is irrelevant to a consideration of s 51 of the Act.
I note the contents of paragraph 15 of the written submissions provided by Ms Lee for Ms Parlov. The complaint, therein contained could just as easily be directed at any form of pre-recording of evidence such as occurs in domestic violence matters, sexual assault matters, offences relating to children and the like. Noting that, the very spirit of the Act contemplates the production of evidence by prerecording and substitution of evidence-in-chief being led orally. But such disadvantage as claimed to be existing out of that has been anticipated by the legislature to some extent and is, in fact, partly addressed in the Explanatory Statement. It is recognised that the right of cross-examination still exists. Compliance with the Act, however, is a precondition to admissibility and in a practical way courts have the power to direct editing of documents as well as have specific legislative power and other obligations to warn juries about use to be made of pre-recorded evidence and all evidence given by audio-visual link as a protection against what is complained about in paragraph 15.
Finally, I note the terms of s 45 of the Act, but at this point that does not arise for consideration and nobody has sought to invoke it. However, obviously the terms of s 52, and as I said, perhaps other provisions in the Evidence Act may be relevant and will need to be considered to finally resolve the fundamental issue I am concerned with. That is, whether the Crown should be permitted to produce edited versions of the electronic interviews with Ms Smith on 30 March and 31 March 2021 as her evidence-in-chief.
Conclusion
At this stage I answer both questions of law in the affirmative and I leave the issues of admissibility to be resolved on the basis discussed. I make the following orders:
(1) The questions of law raised by the Crown in its application of 27 April 2022 are determined in the affirmative;
(2) The admissibility of the relevant interviews is to be determined at a later date; and
(3) Liberty to be granted for the parties to apply.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Norrish. Associate: Date: |
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