R v Reid

[1999] NSWCCA 258

CITATION:	Regina v Reid [1999] NSWCCA 258
FILE NUMBER(S):	CCA 60620/98
HEARING DATE(S):	25 May 1999
JUDGMENT DATE:	25 August 1999
PARTIES :	Regina v Stephen John Reid
JUDGMENT OF:	Spigelman CJ at 1; Greg James J at 11; Smart AJ at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/11/0547
LOWER COURT JUDICIAL OFFICER:	Naughton DCJ

COUNSEL:	Appellant: R Burgess Respondent: P G Berman
SOLICITORS:	Appellant: T A Murphy Respondent: C K Smith
CATCHWORDS:	Criminal Law; Incorrect refusal of adjournment to locate witness Crown intended calling; Correct construction of s424A of Crimes Act
ACTS CITED:	Crimes Act, 1900 Evidence (Consequential & Other Provisions) Act 1995 Evidence Act 1995
CASES CITED:	R v Horton, CCA unreported, 2 November 1998 R v Birks (1990) 19 NSWLR 67
DECISION:	Appeal allowed conviction quashed; New trial ordered

IN THE COURT
OF CRIMINAL APPEAL

60620/98

SPIGELMAN CJ
GREG JAMES J
SMART AJ

Wednesday, 23 August 1999

REGINA v Stephen John REID

HEADNOTE

R was convicted of maliciously inflicting grievous bodily harm with intent. The victim was behaving very aggressively and threatened and assaulted another man. R contended that the victim threatened to kill or seriously harm him. R armed himself with a golf club and struck the victim a number of times. The victim suffered serious injuries. The issue at the trial was whether the Crown had negatived that the accused had used no more force than was reasonably necessary.

F provided substantial support for R. The Crown had intended to call F but did not advise the accused until the morning of the trial that it had been unable to locate F and proposed to proceed without him. The judge refused to grant the accused an adjournment so he could have the opportunity to locate F.

HELD: The judge had erroneously exercised his discretion and applied the wrong test.

During the trial the Crown led evidence of statements made by R to the investigating police which included lies on material matters. Although an ERISP was held later R was never asked about these.

R's counsel at trial did not object to evidence being led as to the lies because she overlooked s424A of the Crimes Act. The Crown relied on the lies as evidencing a consciousness of guilt.

HELD: (1) Applying R v Horton, CCA, unrep. 2 November 1998 the lies were admissions within s424A of the Crimes Act, 1900.

(2) The words "not admissible" in the clause "Evidence of an admission is not admissible unless" in s424A(2) should be construed as meaning "not admissible over objection".

ORDERS: Appeal allowed; conviction quashed, new trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

60620/98




SPIGELMAN CJ
GREG JAMES J
SMART AJ

Wednesday 25 August 1999



REGINA v Stephen John REID

JUDGMENT

1    SPIGELMAN CJ: In this matter I have had the advantage of reading the judgment of Smart AJ in draft. I adopt his Honour’s outline of the circumstances of the alleged offence. For the reasons his Honour gives the appeal must be allowed on the ground that the trial judge erred in refusing an adjournment by reason of the unavailability of Mr Fagen as a witness.

2    His Honour also indicates the significance of the evidence of alleged admissions given by the Appellant to the police which admissions were not recorded. I would add to his Honour’s analysis in this respect, the fact that the trial judge in his summing-up to the jury went through this evidence at considerable length which included commentary by his Honour of the following character:

“So the accused gave a false answer. He in fact he gave false answers to the police in stating that he did not know what had happened and did not see anyone than Paul and George involved.”

And:

“That was the third occasion on which the accused denied to police knowing what had happened to Paul Smith.”

And:

“Now the false information given by the accused to the police on the morning of Wednesday 10 June 1996 was inconsistent with what the accused told the police in his electronically recorded interview that afternoon. You have got the transcript of that interview. It is ‘Exhibit L’. You are entitled to take those inconsistencies, and any others in the accused’s evidence, into account in assessing what weight you give to the accused’s evidence generally. That is you are entitled to take into account on the issue of the accused’s general credibility inconsistencies in what he told the police and any other inconsistencies in his evidence.”

3 The legislative history and significance of s424A of the Crimes Act is set out by Wood CJ at CL in R v Horton (1998) 45 NSWLR 426. The section was cognate with, and commenced operation at the same time as, the new Evidence Act (NSW) 1995. Section 424A represents an important public policy, which this Court will enforce.

4 The operative words in s424A(2) are “Evidence of an admission is not admissible unless …”. The submission was made that this provision operated in accordance with its literal meaning, and accordingly, should be given effect even though no objection to the admission of the evidence was taken on behalf of the accused at the trial.

5    The Parliament was well aware, particularly in the context of legislation cognate with the general amendments to the scheme of evidence contained in the Evidence Act 1995, that the usual course of proceedings in trials under the adversary system requires objection to be taken to evidence. The words “is not admissible” should be construed as meaning “is not admissible over objection”. The usual practice in the course of trials was part of the total context in which Parliament used these words and the narrow literal interpretation propounded on behalf of the Appellant is not appropriate.

6 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.

7 In the present case, the significance of the evidence which was adduced contrary to the policy reflected in s424A was such that leave under rule 4 of the Criminal Appeal Rules should be granted. It was not suggested by the Crown in its submissions that the accused could have received any tactical advantage from the failure on the part of his counsel to take any objection. However, this Court has always been slow to allow an appeal on the basis of an error of judgment by counsel representing the accused at trial. Counsel who appeared at the trial filed an affidavit in which she indicated that s424A had been overlooked. In view of the decision of the Court that a new trial should be ordered on the ground of appeal first addressed in the judgment of Smart AJ, it is not necessary to express a final view whether this error, either alone or in combination with other matters, satisfied the test propounded in R v Birks (1990) 19 NSWLR 677.

8 Counsel for the Appellant submitted that the appropriate order would be to direct a verdict of acquittal, rather than order a new trial under s8 of the Criminal Appeal Act. A number of subjective aspects of the Appellant’s position were put before the Court, together with the fact that he has served seven months and 19 days in custody, of a total period of a three year minimum term and an two year additional term.

9    The proportion of the sentence already served is not so substantial as to warrant the exercise of a discretion in the Appellant’s favour. Nor are the other considerations raised. Notwithstanding the additional evidence of Mr Fagan to be adduced at a new trial, the other evidence available to the Crown about the attack is of considerable force.

10    I agree with the order proposed by Smart AJ.

11    GREG JAMES J: I too have had the advantage of reading rh draft judgment of Smart. AJ. I agree with the orders proposed and the reasons of his Honour, subject to the qualifications and matters raised by the Chief Justice, with which I agree.

12    SMART AJ: Stephen John Reid appeals against his conviction of maliciously inflicting grievous bodily harm upon Paul David Smith with intent to do grievous bodily harm to him at Manly on 10 January 1996. He was sentenced to a minimum term of three years and an additional term of two years.

13    The appellant complains that he was wrongly refused an adjournment of his trial to locate an important missing witness (Mr Fagan) whom the Crown had intended to call, that erroneous directions were given and that evidence of alleged admissions by the appellant to some police officers was erroneously admitted. It is not necessary to deal with all the grounds of appeal. I shall confine myself to the refusal of the adjournment and the admissions to the police.

The Circumstances of the Alleged Offence

14    The alleged offence occurred a little after midnight at cheap fibro premises which were divided into about six flats or flatettes. Smith, the victim, who had had a lot to drink, had lived at the premises but no longer did so. However, he continued to visit them as he knew some of the residents. Earlier in the evening Smith made a very objectionable nuisance of himself. He then engaged in extensive verbal abuse, attacked a resident called George Anderson and ripped the wire screen door off the entrance to Anderson’s flat.

15    Ms Nicole Hess was staying in the appellant’s flat and noted all this and Smith breaking open the door to Anderson’s flat and pushing it right in. She saw Smith standing at the doorway to Anderson’s flat looking through the door which he had broken open, saying, “See piece of piss.” Anderson had picked up a cricket bat and was trying to hit Smith. He taunted Anderson with missing.

16    Ms Hess heard glass smash, some scuffling and then Anderson ask “What have you done?” He sounded very upset. She was scared and said to the appellant “He (Smith) is going to kill George. We can’t sort of leave him out there. We’ve got to do something.” The appellant telephoned the police. Ms Hess continued that she said to the appellant “We’ve got to get George in. We can’t leave him out there”. There was a sense of urgency. She saw George in the yard outside the appellant’s flat. He appeared to be worried and said to call the police. He was calling for help.

17    Ms Hess became scared at an earlier stage when Smith threw a toilet roll through the window of the appellant’s flat and even more scared when Smith put his hands through that window.

18    After these events and Ms Hess’s urgings the appellant, according to Ms Hess, stood at the door of his flat, golf club in hand. She opened the door and the appellant went out. Smith was opposite that door. She closed the door as she was scared for herself. After a short pause she opened the door again. She said that she saw the appellant strike Smith with the club. She believed that the appellant hit Smith four times. She described Smith as being drenched in blood. After Smith sank to the ground she saw Anderson kicking Smith’s head.

19    The Crown case was that the appellant had lost control of himself and used excessive force. On no basis could the striking of Smith with a golf club be justified, and certainly not four times. After the first striking, Smith was no longer capable of posing a real threat to anyone.

20    The appellant gave evidence that he did not intend to cause Smith the serious harm which he did and that he never intended to inflict upon Smith the serious injuries which he received. After the attack the appellant realised that the injuries which he had inflicted were very serious, as indeed they were. The appellant affirmed that his record of interview was correct. He told the police that he believed that the safety of Ms Hess, Anderson and himself was being threatened and that they were in danger. He believed that Smith was acting totally irrationally and that Anderson was being severely beaten by Smith. Ms Hess was hysterical. She urged him (the appellant) to go out and stop Smith. The appellant regarded Smith as a bit of a madman when he gets going. The appellant believed that he had heard a metallic noise and that Smith was hitting Anderson with a metallic object such as some chains. The appellant painted a picture of much violence and severe threats on Smith’s part. He had tried to get into the appellant’s flat through the window which opened onto the yard. The appellant had called the police twice. He feared that Smith was killing Anderson.. Ms Hess said “He’s killing George.” George was screaming and it sounded as if he was dying. Smith was a bigger man than the appellant. Objects had been flung around. The appellant thought that Smith was armed and was afraid of being clobbered.

21    The appellant said that before he went outside Smith was threatening and said “Come on out, I’ll beat you up” and “I’m gunna fuckin kill ya. Come on.” The appellant said that Smith issued similar threats to a man called Rudi. Further, about three weeks earlier in another incident Smith had bashed Rudi's head on a window and threatened to kill him.22    After arming himself with a golf club the appellant went out of the door of his flat into the yard. Smith turned around and came charging at him. Smith threw an ashtray at him which glanced off the side of his head and said “I’m gunna kill you, you cunt.” The appellant said that that was when he produced the club and hit Smith. The appellant said that Smith kept on coming so he hit him another couple of times and then he (Smith) went down. The appellant described Smith’s actions to the police in his ERISP thus:

“He came at me like a charging bull. His eyes were wild. His hands were up like that. He was gunna, he was gunna come and throttle me.”

23    The appellant said that at one stage Smith was carrying a screw driver.

24    On the appellant’s version Smith was exceedingly aggressive and required stern and forceful action to stop him attacking the appellant and others, including Ms Hess.

25    It is not necessary to refer to the other evidence in the Crown case. Much of it supported the evidence of Ms Hess and the proposition that the appellant had used excessive force.

Mr Fagan's Statement

26    Amongst the statements in the Crown brief was one by Anthony Hugh Fagan made on 13 January 1996. As at 9/10 January 1996 he lived in flat one of the Manly premises. He arrived home about 00.10 am on 10 January 1996 and saw Smith walking around between the appellant’s flat and Anderson’s flat. Smith was yelling something and Mr Fagan walked out the back of the premises and asked him to be quiet and he quietened down straight away. Mr Fagan went to bed.

27    Paragraphs 6 to 8 of his statement read:

“6. About fifteen minutes later I could hear music blaring from Rudi’s unit, which is unit number five. I got up and went to his unit and saw that Paul was standing in the kitchenette of Rudi’s unit. Paul turned to me and said something like, ‘I’ll get you Steve.’ He had his fists raised towards me. Paul then saw that it was me, and lowered his fists. I asked him to turn the music down and he did so. I went back to bed again.
7. There was no noise for about fifteen or twenty minutes. I then heard George’s voice. I heard Paul raving on about Steve. There was loud abuse, I could hear Paul calling, ‘Come out Steve.’ I could then hear George call Paul, ‘Idiot.’ It then started to get really loud and then I dialled 013 and got the phone number for Manly Police. I then called Manly Police and asked them to come around.
8. There was a lot of crashing going on out the back, and it sounded like someone was throwing the pot plants around. I then distinctly remember Paul saying. ‘I live here, I can do anything.’ Then things started flying everywhere. I could hear Paul and George arguing at the rear of the house and then it sounded like George fell over. Then I heard Paul say, ‘Steve, I’ll get you now.’
I then heard this whack, it was a dull sounding whack. I only heard the one sound. As soon as I heard the whack I heard George say, ‘No Paul no.’ I also heard Nicole screaming. I also heard George saying, ‘Stay down Paul, stay down.’ I then got back on the phone and pushed the redial and called Manly Police. About two minutes later two Police cars turned up.”

28    This provides support for the version given by the appellant that Smith was very aggressive and threatening to attack him and harm him. If Mr Fagan's evidence is accepted it would provide a basis for the appellant using substantial force. It was important evidence. Mr George Anderson is dead.

Refusal of Adjournment

29    Before the trial started the appellant applied for an adjournment on the basis that Anthony Hugh Fagan was not present and the appellant wished to have the opportunity to find him and have him attend. When the trial had been listed for hearing in May 1997 the Crown had sought an adjournment as Smith was not available due to ill health. At that stage the list of Crown witnesses to be called included Mr A. Fagan. On 9 February 1998 there was a joint application by the Crown and the appellant to adjourn the trial so that a number of missing witnesses including Mr Fagan could be located by the Crown.

30  A fresh trial date was fixed, namely 27 July 1998. The Crown had intended to call Mr Fagan. The Crown could not locate him and he was not present. The Crown had not told the appellant of the position until 10 am on the morning of the trial.

31    Counsel for the appellant told Judge Naughton that the appellant believed that he would be able to track down Mr Fagan. The appellant had spoken to his parents in the past and had a good rapport with them and with other persons who may know Mr Fagan’s address.

32    The Crown Prosecutor said of Mr Fagan:

“It has always been the Crown’s intention to call him. There is really no other witness that heard or saw anything which could take this matter any further. So Mr Fagan….is a fairly crucial witness next to Nicole Hess.
The added difficulty the Crown now faces is the possibility that he may well be attempting to run from the police….
…Fagan is a witness who takes the case somewhat forward, particularly in relation to the defence which has been raised by the accused within hours of the incident.”

33    The Crown Prosecutor opposed the adjournment on the basis that efforts had been made to locate Mr Fagan for two trial dates and had failed. In his reasons for judgment the judge found that attempts had been made over several months by the police to contact Mr Fagan. The judge stated:

"Overall I am not convinced that the absence of Fagan will unduly prejudice the accused in this trial, and I am not persuaded that the accused will be unfairly prejudiced if I refuse an adjournment. It has not been made apparent to me that the witness can be located by or on behalf of the accused, if an adjournment is granted. Indeed, there is some suggestion that the witness may well be seeking to avoid giving evidence at the trial because of his own possible implication in criminal matters not related to that which is presently before myself."

34    The judge ruled that it was in the interests of justice that the trial proceed. It was not
.

35    There are three errors in the judge's approach. Firstly he applied the wrong test when he seemed to hold that the appellant had to satisfy the court that Mr Fagan could be located by or on behalf of the appellant if the adjournment were granted. What the appellant sought was the opportunity to locate Mr Fagan. He and his advisors knew the Crown intended calling Mr Fagan and having him at Court. Neither the police nor the prosecution told the appellant or his solicitor some 7 to 14 days before the trial that Mr Fagan could not be located, that he may not be at the trial and that the Crown proposed to proceed in his absence. If the appellant or his solicitor had been alerted in ample time they could have tried to locate Mr Fagan.

36    Secondly, Mr Fagan was an important witness and the appellant wished him called as Mr Fagan could support the gravity of Smith's attacks and his threats to the appellant. It was not for the judge to restrict the way in which the appellant conducted his case or the evidence which he wished to adduce. The judge was wrong in holding that the appellant had to persuade him that the appellant would be unfairly or unduly prejudiced.

37    Thirdly, the judge exercised his discretion unreasonably. In the circumstances it was not reasonably open to the judge to refuse the adjournment.

38    During the trial the Crown and the appellant tried to locate Mr Fagan and have him attend at Court. Their efforts failed. Nobody seemed to give much thought to Mr Fagan requiring reasonable notice to attend at the hearing. With all the exigencies and pressure of a trial, an accused person, especially one who is going to give evidence, would be hard pressed to start searching for a witness during his trial.

39    After the trial Mr Fagan was located. He has stated that in 1997 and 1998 he attended Court several times expecting to give evidence. On those occasions the trial was adjourned. He stated that he was not advised by anyone of the hearing date of 27 July 1998 prior to the hearing. He said that he normally used his parents' address as a contact address. So far as he knew no contact was made with them prior to the hearing. Mr Fagan explained that he was frequently away for short periods doing contract work. He recalled that on a day of the trial he received a telephone call from either a barrister or a policeman advising that he was required in Court that day or the next day. Mr Fagan said that he told the caller that it was impossible for him to attend as he was in the middle of an epoxy floor and could not leave until the job was completed. He would have been prepared to attend and give evidence if he had been advised and given sufficient notice prior to the trial. It appears from other evidence that the caller was probably a police officer. Det Snr Constable Wilkinson thought Det Kehoe had spoken with Mr Fagan.

40    Mrs S Fagan, the ex-wife of Mr Fagan, said that Mr Fagan had irregular but frequent contact with their son. Usually he contacted her once per week, although occasionally there would be a couple of weeks between contacts. During 1997-1998 she would normally have been able to pass a message to Mr Fagan within a couple of weeks. She recalled being telephoned by the police on two occasions but could not fix the dates. She said that on the second time she was telephoned by a policeman who told her that Mr Fagan was required as a witness in Stephen Reid's trial. The date given was only a couple of days away. She was not able to contact Mr Fagan within the short time before the hearing date.

41    The refusal of the adjournment contributed to a miscarriage of justice. There must be a new trial.

Alleged Admissions to Police

42    Evidence was led of the statements made by the appellant to Det Wilkinson in the presence of Det Kehoe.

43    According to Det Kehoe the appellant, when awoken and spoken to about 9am on 10 January 1996 by Det Wilkinson said he knew nothing and was asleep when the incident occurred and repeated that statement after he had dressed to accompany the police to the police station. He also allegedly said at the flat that all he knew was that there was a fight and that Smith was in hospital. He continued: "Basically I was asleep. Nicole was here and I called the police. Paul was on the ground outside my door." Det Wilkinson asked the appellant a series of questions about George Anderson and his whereabouts. The appellant was asked a series of questions about his movements earlier in the night. He stated that he arrived home about 9.30 and went straight to bed having spent the previous four hours in a hotel, consuming four or five schooners. The appellant said, "I heard some conversation between George and Paul and I called the police … [I was] inside my unit." The appellant stated that he called the police from Chad's flat and Nicole called the ambulance. He gave his name and told the triple 0 operators there was a fight.

44    Detective Wilkinson gave evidence to the same effect. It was not put to Det Kehoe or Det Wilkinson that the conversations at the appellant's flat were incorrectly stated or did not occur. This was because the appellant said that he was not sure what was said. In answer to questions in cross-examination Det Wilkinson stated that initially when he spoke to the appellant, he was somewhat evasive and would change his mind. Later, he was much more forthright.

45    The appellant said in cross-examination that he was not sure about the terms of the conversations he had with the police at his flat. He remembered that there were conversations. He had been woken up and was still in a bit of a daze. He could not recall what was said. He had a very general and vague recollection of what occurred and what was said. He denied that he tried to give police the impression that it was Anderson who inflicted the injuries to Smith.

46    Det Wilkinson was permitted, apparently with the appellant's consent, to give the terms of a discussion between Sgt Bainbridge and the appellant at Manly Police Station about 1.24 am on 10 January 1996. The appellant allegedly said "I was in bed and I heard Paul and George arguing outside. I don't know what happened but it got pretty serious and I called the police."

47    In cross-examination the appellant stated that he probably could have said something like that. Sgt Bainbridge recorded that the appellant said he did not see anyone else involved in the argument apart from Paul and George. The appellant stated that he may have said those words. The appellant said that he did not recall Sgt Bainbridge asking what had happened.

48 Objection was not taken to the admission of the evidence of Dets Kehoe and Wilkinson as to the conversations held and admissions made at the appellant's flat nor to the admission of the conversation between Sgt Bainbridge and the appellant. Counsel for the appellant at the trial has stated that she overlooked s424A of the Crimes Act 1900 and that there was no tactical treason for not objecting to this evidence.

49    The evidence led by the Crown as to these conversations with the appellant undermined his credibility and made it appear that he had told lies. The appellant was cross-examined effectively by the Crown on what he had said to Dets Wilkinson and Kehoe and to Sgt Bainbridge. The judge in summing-up referred to these matters at some length and in a very pointed fashion.

50    In the ERISP held on the afternoon of 10 January 1006 the appellant agreed that the questioner, Det Wilkinson, had first spoken to him at 14 Smith Street, Manly, but the appellant added that his recollection was vague, that he had just got out of bed and that there were so many faces, "about 7 police officers". The appellant agreed that Det Wilkinson said at the time of the home visit that he was there to investigate a serious assault on Paul Smith. The ERISP lasted from 2.06 pm to 3.47 pm and extends over 66 pages. The appellant was closely and competently questioned as to the events at 14 Smith Street, Manly, the part he played, the background and the various residents and persons involved.

51    At no stage was the appellant reminded of what he had said at the flat to the detectives or to Sgt Bainbridge and asked to confirm, deny, qualify or comment upon what he had allegedly said. There were indications that he was likely to say that he had only a vague recollection. He may not have remembered what he allegedly said earlier in the day.

52    Leave was sought to argue Appeal Ground 4A which read:

"His Honour erred in not excluding under s424A of the Crimes Act 1900 evidence of admissions made to Detectives Wilkinson and Kehoe at the appellant's flat and to Sergeant Bainbridge at Manly Police Station on 10 January 1996."

53 Section 424A relevantly reads:

"(1) This section applies in relation to evidence of an admission within the meaning of this section.
(2) Evidence of an admission is not admissible unless:
(a) there is available to the court a tape recording made by an investigation official of the interview in the course of which the admission was made, or
(b) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made, there is available to the court a tape recording of an interview with the person who made the admission 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
(c) the prosecution establishes that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made.
(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of a tape recording as mentioned in subsection (2).
(4) In this section:
"admission" means an admission:
(a) that was made by a defendant who at the time when the admission was made, was, or ought reasonably to 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 may be dealt with summarily without the consent of the accused.
"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) and whose functions include functions in respect of the prevention or investigation of offences, prescribed by the regulations for the purposes of this definition.
"official questioning" means
questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence."

54    This section and its history was reviewed comprehensively by Wood CJ at CL in R v Horton, CCA, unreported 2 November 1998. Sully and Ireland JJ concurred. I have drawn extensively from the Chief Judge's review.

55 Section 424A was introduced into the Crimes Act 1900 by the Evidence (Consequential and Other Provisions) Act 1995, an ancillary Act to the Evidence Act 1995 which contained a number of provisions governing the proof or reception of admissions. The former section 410 of the Crimes Act was omitted.

56    In the Second Reading Speech (Hansard, Legislative Council 24 May 1995) it was said of the Evidence (Consequential and Other Provisions) Bill that by amendment to the Crimes Act 1900 the tape recording of admissions to police was made compulsory where an accused person is suspected of an indictable offence that may not be tried summarily without the defendant's consent. Reference was made to the four objectives for adopting an electronic recording system in the 1986 report of the Criminal Law Review Division -

1. To provide the Courts with a reliable account of statements made by persons accused of crime, while in police custody;
2. to provide an objective means of resolving disputes about the conduct and substance of police interviews;
3. to deter and/or prevent the use of unfair practices by the police prior to, during and after interviews;
4. to deter the making of unfair and false allegations of improper behaviour by the police.
The Minister continued:
"This bill implements one of the recommendations of that report by providing that any unreasonable failure to adhere to the system will result in the inadmissibility of the evidence. The Courts are thereby enabled to supervise the operation of that system."

57    At 22 Wood CJ at CL said

"It was, in my view, directed to the very mischief that Jordan CJ identified in Jeffries , to ensure the integrity of the evidence of police witnesses concerning representations of any form attributed to accused persons, and to provide an objective means of resolving any dispute concerning that kind of evidence. In this respect it provides, for NSW, an additional protection to that arising under Part 3.4 of the Evidence Act, which is concerned with 'admissions' in the extended sense defined in the Dictionary to that Act."

58    Relevantly, that Dictionary provides that "admission" means a previous representation made by a defendant adverse to that person's interest in the outcome of the proceeding. In Horton at 15, Wood CJ at CL relied on a compelling line of Victorian authority characterising untrue exculpatory statements relied upon as evidencing a consciousness of guilt as being implied admissions. I respectfully agree.

59 The untrue statements made by the appellant to the detectives at his flat and to Sgt Bainbridge and relied upon as evincing a consciousness of guilt were admissions within s424A of the Crimes Act. The other qualifying conditions in s424A(4) have been satisfied.

60 Before this Court the debate was confined. The appellant submitted that s424A was "self executing" and that no objection to the admissibility of the material here in question need be taken by him. He contended that the Crown had an obligation in each case to demonstrate that the requirements of s424A had been met and that the material should be admitted. As the Crown had not done so the material should have been rejected. The Statute provides that evidence of an admission is not admissible unless the pre-conditions are met.

61 However, s424A was enacted against the long standing and well known practice of the Court generally not to reject evidence led by a party until a legitimate objection is taken by the other party. On occasions the Court of its own motion may intervene if a witness is being led in such a way that the evidence will be of little value, or if the evidence is scandalous or unfair or if it is being led for an ulterior motive or is irrelevant, or unnecessary or unduly prolix. The list is not exhaustive and these examples and the Court's intervention, absent an objection by a party tend to be the exception and not the rule. The reason for the Court's usual approach is that the judge does not have the same knowledge of the issues as counsel nor what evidence is in dispute. Generally, the parties are left to select the way in which they (or each) wishes to conduct their cases (or his or her case). They should know what is important. Sometimes a party is prepared to admit material to save time or to reduce expense, or avoid even more damaging evidence or to capitalise on it in cross-examination or in the conduct of the defence by using it, if possible, to destroy the prosecution case. Further, an accused may know that there is a reasonable excuse why a tape recording could not be made.

62 Generally, and subject to all just exceptions, where the Crown desires to lead evidence of admissions within s424A of the Crimes Act which are not the subject of a tape recording it should enquire via the judge whether there is any objection. If not, the evidence of the admissions should be led by the Crown. If objection is taken evidence will have to be led by the Crown to establish that a tape recording or recordings, as the case may be, could not be made. The legal representatives of the accused have the responsibility of objecting to the evidence in a timely fashion. If the accused is unrepresented the judge will need to explain the point. In many instances the safe course with unrepresented accused will be to require the Crown to lead the evidence which would make the admissions admissible.

63 It was submitted by the Crown that s424A was designed to deal with cases where there is a dispute as to what was said and done. However, it has the deeper and more fundamental purpose of endeavouring to ensure the integrity of the evidence of police officers as to admissions. The method adopted is to make the recordings of admissions to police compulsory. To avoid the requirement of taped recordings the Crown must prove that there was a reasonable excuse why a tape recording could not be made. If a tape recording could reasonably have been made and was not, it will not assist the Crown that some truly independent person heard what was said as between the police and the accused.

64 Under s424A(4)

"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 questioned,"
Under s424A(4)
"A tape recording includes audio recording or video recording or a video recording accompanied by a separately but contemporaneously recorded audio recording."

65    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.

66    The strongly preferable course is that, in cases of serious crime, interviews with questions asked and answers given at crime scenes be recorded by an audio tape reorder, albeit that it is a pocket one and only one recording can be made. I am assuming, based on experience, that the police and the prosecution will seek to rely on any admissions.

67    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.

68    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.

69    Attempts to circumvent s24A 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.

70 Because of the importance of s424A of the Crimes Act 1900 and its correct construction leave to raise the point should be granted and it was apt for this Court to indicate how s424A should be approached and construed. Because there has to be a new trial on the basis of the refusal of the adjournment and this point would not alter the outcome of the appeal it is unnecessary to take the matter further.

71    The appellant submitted that the appropriate order would be to direct a verdict of acquittal rather than order a new trial. I do not agree. The evidence in support of the Crown case was cogent, especially that of Ms Hess. If her account is correct there was considerable criminality on the part of the appellant and his attack upon the victim far exceeded what was reasonably necessary by way of self-defence. The appellant who has served seven months 19 days in custody has relied on this and some subjective features. These could not and do not justify or warrant a verdict of acquittal.

ORDERS

72    I propose that the appeal be allowed the conviction quashed and a new trial ordered.

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