R v Rowe

[2001] NSWCCA 1

Reported Decision: 50 NSWLR 510

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Rowe [2001] NSWCCA 1
FILE NUMBER(S):	CCA 60763/98
HEARING DATE(S):	20 July 2000
JUDGMENT DATE:	19 January 2001
PARTIES :	Robert James Rowe v Regina
JUDGMENT OF:	Fitzgerald JA at 1; Ireland J at 22; Smart AJ at 23

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/12/0046
LOWER COURT JUDICIAL OFFICER :	Viney DCJ

COUNSEL :	(A) - (R) C K Maxwell QC
SOLICITORS:	(A) Stephen Hodges (R) S E O'Connor
CATCHWORDS:	Crimes Act 1900 - admissibility of evidence - meaning of "relates to an indictable offence" in s424A(4) - hearing of summary offence.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995
CASES CITED:	R v Madden (1995) 85 A Crim R 367 R v Alexandroaia (1995) 81 A Crim R 286 R v Schiavine [1999] NSWCCA 165 R v Horton NSWCCA, unrep 2/11/98 R v Reid (1999) NSWCCA 258 McKenney & Judge v The Queen (1990-1991) 171 CLR 468 DPP v Farr (2001) NSWSC 3
DECISION:	(By majority) The question submitted is answered: The evidence of the conversation between the appellant and Detective Michael Fitzgerald held at Maroubra Police Station is inadmissible by reason of s424A of the Crimes Act 1900.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60763/98
DC 97/12/0046

FITZGERALD JA

SMART AJ

IRELAND AJ

Friday, 19 January 2001

REGINA v ROWE

JUDGMENT


1   FITZGERALD JA: On 16 December 1996, the appellant Robert James Rowe was convicted at Waverley Local Court of an offence against s 527C of the Crimes Act 1900 in that he had in his custody at Randwick on 14 October 1995 two Queensland pensioner rail travel passes and one pension concession card, all in the name of Wayne S Kavanagh (Cavanough), which might reasonably be suspected of being stolen or otherwise unlawfully obtained. The appellant was fined $400 and ordered to pay court costs of $50.

2   The appellant appealed to the District Court, where he objected to evidence from Detective Senior Constable Michael Fitzgerald concerning a conversation which he said he had with the appellant on 14 October 1995 at Maroubra Police Station. After a voire dire, during which the appellant gave evidence denying that the conversation had occurred, the Judge decided to admit Fitzgerald’s evidence.

3 At the appellant’s request, his Honour agreed to state a case pursuant to s 5B of the Criminal Appeal Act 1912 to allow his decision to admit Fitzgerald’s evidence to be challenged. The District Court appeal was then adjourned and has not been determined.

4   The case stated by his Honour submitted the following question for determination:

“Did I err in law in not exercising my discretion to exclude the evidence of the conversation between the appellant and Detective Michael Fitzgerald held at Maroubra Police Station?”


5   At about 10.00pm on 14 October 1995, police officers (including Fitzgerald) arrested the appellant, charged him with knowingly harbouring an escaped prisoner and took possession of his wallet, which contained two Queensland pensioner rail travel passes and one pension concession card, all in the name of Wayne S Kavanagh (Cavanough). When the appellant was cautioned, he declined to speak with police and said that he wanted to speak to his solicitor. He was taken to Maroubra Police Station, where he was provided with a telephone which he used to contact his solicitor. His evidence was that, after his telephone call, he informed Fitzgerald that his solicitor would arrive in less than an hour and again told Fitzgerald that he would not speak to him until he had spoken to his solicitor, and that he did not speak to Fitzgerald again before his solicitor’s arrival.

6   According to Fitzgerald, he went to the interview room at Maroubra Police Station where the appellant was being held after he had made his telephone call to his solicitor, and, despite the appellant’s statement that he did not wish to speak to police before his solicitor arrived and without any further caution, he interrogated the appellant in relation to the offence of knowingly harbouring an escaped prisoner with which he had been charged. No other police officer was present. The question submitted for determination by the stated case concerns Fitzgerald’s account of the final part of his conversation with the appellant, in which he asked the appellant questions relating to the pensioner cards and pension concession card. According to the stated case, the conversation was as follows:

“Detective Fitzgerald said “How come you have got a Queensland pensioner card and vouchers in the name of Wayne Kavanagh?
The Appellant said “My solicitor and barrister told me to get new ID”.
Detective Fitzgerald said “Why?”
The Appellant said “I want to start a new life in Queensland”.
Detective Fitzgerald said “Where did you get the ID from?”
The Appellant said “I got them from my solicitor and barrister”.
Detective Fitzgerald said “What were their names?”
The Appellant said “I am not going to give them up. I’ll speak to them”.


7 There was equipment at Maroubra Police Station for tape recording “official questioning” as defined in s 424A(4) of the Crimes Act . At the time of the conversation between Fitzgerald and the appellant, the equipment was being used to record an interview with a woman who had been with the appellant when he was arrested but who was not charged. There was no suggestion that there would have been a substantial delay before Fitzgerald could use the equipment and there was no urgency unless Fitzgerald wished to interrogate the appellant before his solicitor arrived despite the appellant’s statement that he was unwilling to speak to police before he had spoken to his solicitor.

8   According to Fitzgerald, after he charged the appellant with the offence to which this proceeding relates, he made a note of his conversation with the appellant, although not in his official note book. After the appellant’s solicitor arrived at the police station, both the appellant and his solicitor refused to sign, look at, or even accept a copy of Fitzgerald’s notes, and the opportunity for a tape recorded interview, which had not been offered earlier, was declined.

9   A case stated is often a limited and unsatisfactory procedure. In the present case, the written submissions of both parties impermissibly referred to numerous matters outside the stated case. R v Madden (1995) 85 A Crim R 367. Further, the question asked by the Judge is inappropriate. The Judge did not have a discretion to admit Fitzgerald’s evidence if, as the appellant submitted, it was not admissible by virtue of s 424A of the Crimes Act . The appellant also submitted that the appellant’s statements had been obtained improperly within the meaning of s 139 of the Evidence Act and unfairly within the meaning of s 90 of the Evidence Act [At least in this case, the submission that the appellant’s statements were made involuntarily added nothing to the submission that they were made unfairly. All the matters relied on to establish that the statements were involuntary were also relied on to establish unfairness, and if they were involuntary, they could be used to establish unfairness]. . If it is necessary for the appellant to challenge the Judge’s decision on the ground that his discretion miscarried, some specific error must be identified. His Honour’s decision could not be held to be so unreasonable or plainly unjust that a failure properly to exercise the discretion is to be inferred. R v Alexandroaia ( 1995) Crim R 286. However, it is unnecessary to consider the discretionary exclusion of Fitzgerald’s evidence.

10 The Judge held that Fitzgerald’s evidence of the appellant’s statements was not made inadmissible by s 424A of the Crimes Act . In this Court, the prosecution did not dispute that what the appellant said was an “admission” as defined in s 424A(4) if s 424A(4)(c) was satisfied, or that the offence with which the appellant had been charged at the time, knowingly harbouring an escaped prisoner, was an indictable offence that could not be dealt with summarily without his consent within the meaning of s 424A(4)(c) of the Crimes Act .

11 However, the prosecution sought to uphold the Judge’s conclusion that Fitzgerald’s evidence of the appellant’s alleged statements was not made inadmissible by s 424A of the Crimes Act for the reasons given by his Honour, namely:


(a) the appellant’s statements did not “relate to” the offence of knowingly harbouring an escaped prisoner for which the appellant had been arrested but to the offence to which the present proceedings relates; and

(b) in any event there was a “reasonable excuse” as to why a tape recording which satisfied either s 424A(2)(a) and (b) of the Crimes Act could not have been made.


12   The prosecution argument accepted that the appellant’s statements were made in answer to questions asked during his official questioning in relation to the offence of knowingly harbouring an escaped prisoner for which he had been arrested. However, it was submitted the statements would not be admissible at the appellant’s trial on that charge because they would be relevant only to his credibility and not to any fact in issue Evidence Act , s 55 and 102. and therefore did not “relate to” that offence.

13   Because of the case stated procedure, this Court is unaware of the conversation between the appellant and Fitzgerald which preceded the statements by the appellant which are the subject of the question submitted for determination, and of course is unaware of the other evidence which has been, or might be, given at the appellant’s trial for knowingly harbouring an escaped prisoner. In my opinion the court should not conclude that notwithstanding that the questions which the appellant answered were asked in the course of interrogating him in relation to the offence for which he had been arrested, that is, knowingly harbouring a prisoner, statements which he made in answer to those questions to the effect that he had obtained false documentation from his lawyers to “start a new life in Queensland” could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in a trial to determine whether or not he was guilty of that offence. Evidence Act s 55(1). For example, the appellant’s admissions, at least in combination with other evidence, might rationally affect (directly or indirectly) the assessment of the probability that he knew that the person he was accused of harbouring was an escaped prisoner.

14   In any event, the prosecution submission confuses relevance (s 55 of the Evidence Act) with admissibility (s 56 and, so far as presently material, 102 of the Evidence Act ). Section 102 of the Evidence Act provides one of the exceptions which s 56(1) expressly envisages, but does not indicate that evidence which relates only to credibility is not only inadmissible (subject to the exceptions in Part 3.7 of the Evidence Act ) but irrelevant notwithstanding s 55(2)(a) of the Evidence Act .

15 An even more fundamental reason for rejecting the prosecution argument is that, mistakenly in my opinion, it equates the relationship which is the test under s 424A(4)(c) of the Crimes Act with relevance according to s 55 of the Evidence Act .

16 Having regard to the policy underlying s 424A of the Crimes Act , the words “relates to” in s 424A(3)(c) of the Crimes Act should be construed liberally. In my opinion, answers given to questions asked in relation to an offence by a person who is officially questioned “relate to” that offence within the meaning of s 424A of the Crimes Act .

17 The Judge did not explain in either his reasons or the stated case why he thought that there was a “reasonable excuse” for not making a tape recording of the conversation between Fitzgerald and the appellant or, for that matter, of the later conversation at which the appellant’s solicitor was present. The Judge also made no mention of the definition of “reasonable excuse” in s 424A(4) or of the combined operation of s 424A(2)(b) and (c) of the Crimes Act .

18 The prosecution submitted in this Court that the “reasonable excuse” for Fitzgerald’s failure to make a tape recording was that, at the time, Fitzgerald “had no cause.. to suspect that [the appellant] had committed [the] offence [to which the present proceeding relates].” In my opinion, that submission should be rejected. Fitzgerald’s questioning of the appellant related to the offence of knowingly harbouring a prisoner, for which he had been arrested, and was undertaken despite his request to speak with his solicitor before he spoke to police. Section 424A of the Crimes Act expresses a plain legislative policy, which Fitzgerald disregarded, that official questioning in relation to such an offence should be tape recorded. His lack of suspicion that the appellant had also committed another, less serious offence, could not provide a “reasonable excuse” for his obligation to comply with s 424A in relation to the indictable offence to which his interrogation of the appellant related.

19 The prosecution did not submit, and could not have credibly submitted, that the need either to delay the appellant’s questioning for a comparatively brief period or interrupt the questioning of the woman who was being interviewed if Fitzgerald’s questioning of the appellant before his solicitor arrived was to be tape recorded provided a reasonable excuse for the course which Fitzgerald adopted. If such a matter constituted “reasonable excuse”, then the entire conversation between Fitzgerald and the appellant would be admissible on his trial for the indictable offence of knowingly harbouring a prisoner. That would seriously subvert the legislative intent expressed in s 424A of the Crimes Act See R v Schiavine NSWCCA 165. . As this Court has indicated, that should not occur. R v Horton (NSWCCA, unreported, 2/11/1998); R v Reid (1999) NSWCCA 258

20 It is unnecessary to consider the appellant’s other arguments. The evidence of his conversation with Fitzgerald should have been held to be inadmissible by virtue of s 424A of the Crimes Act .

21   I would answer the question submitted:
The evidence of the conversation between the appellant and Detective Michael Fitzgerald held at Maroubra Police Station is inadmissible by reason of s 424A of the Crimes Act 1900.


22   IRELAND AJ : I agree with Fitzgerald JA.

23   SMART AJ: This case stated involves a point of some difficulty touching upon the construction and application of s 424A of the Crimes Act 1900. That section governs the reception into evidence of admissions made (or allegedly made) by an accused that relate to indictable offences. Absent a reasonable excuse for there being no tape recording, evidence of an admission is not admissible that relates to an indictable offence other than an indictable offence that may be dealt with summarily without the consent of the accused. There is no similar provision as to summary offences.

24   The applicant was charged and convicted by a magistrate of the offence that on 14 October 1995 at Randwick he had in his custody two Queensland pensioner rail travel passes and one X pension concession all in the name of Wayne SD Cavanough, reasonably suspected of being stolen or otherwise unlawfully obtained. The applicant appealed to the District Court. At an early stage there was a challenge to the admissibility of certain admissions allegedly made by the applicant to Det Michael Fitzgerald. The question of law submitted by the judge for the determination of this Court is:

"Did I err in law in not exercising my discretion to exclude the evidence of the conversation between the Appellant and Detective Michael Fitzgerald held at Maroubra Police Station?"

25   The judge held a voir dire hearing to determine the admissibility of the material in contention. In his judgment he made a minimum number of findings presumably so as not to risk prejudging the evidence at the trial.

26   The judge recorded that Det Snr Const Fitzgerald gave evidence of the following:

(i) At 10.00 pm on 14 October 1993 he along with other police officers arrested the Appellant at the intersection of Anzac Parade and Carlton Street Randwick.
(ii) Shortly after his arrest the Appellant stated "I want to speak to a solicitor". The Appellant was conveyed to Maroubra Police Station and at this police station was provided with a phone on which he had a conversation.
(iii) In the Detective's office at Maroubra Police Station Detective Fitzgerald examined the Appellant's wallet in which he located a Queensland Pensioner Concession card and two Queensland Pensioner Rail travel vouchers. The Appellant was then taken to an interview room.
(iv) Detective Fitzgerald then had a conversation with the Appellant with no other police officer being present. That conversation principally concerned an allegation that the Appellant had been involved in an indictable offence, being the harbouring of an escaped prisoner. The Appellant had been originally arrested in relation to that indictable offence. The last part of the conversation between Detective Fitzgerald and the Appellant was as follows:

Detective Fitzgerald said "How come you have got a Queensland pensioner card and vouchers in the name of Wayne Kavanagh?"

The Appellant said: "My solicitor and barrister told me to get new ID.

Detective Fitzgerald said: "Why?"

The Appellant said: "I want to start a new life in Queensland".


Detective Fitzgerald said: "Where did you get the ID from?"

The Appellant said: "I got them from my solicitor and my barrister".

Detective Fitzgerald said: "What were their names?"

The Appellant said: "I am not going to give them up. I'll speak to them".

(vi) Shortly after this conversation a solicitor, Mr George Hovan arrived at the Police Station and had a conversation with the Appellant. The Appellant then refused to be further interviewed and was subsequently charged. Prior to being charged Detective Fitzgerald's notes were offered to the Appellant and his solicitor but they declined to read them or even look at them, nor accept a copy of them.
(vii) The Appellant had been arrested in relation to the harbouring of an escapee which is an indictable offence. The conversation between Detective Fitzgerald and the Appellant was conducted at Maroubra Police Station where there was an ERISP facility. At the time of the conversation the ERISP facility was being used for the interviewing of Ms Busic, a woman in the presence of the Appellant at the time of his arrest. Ms Busic was not charged.

(viii) At the time of the conversation between Detective Fitzgerald and the appellant no other person was present. The conversation between Detective Firzgerald and the Appellant was recorded in a notebook, however not an official Police service notebook.

(ix) At the time of his arrest the Appellant was cautioned in relation to the charge of harbouring an escapee however he was never given a caution in relation to the charge of goods in custody, nor was he cautioned before he was interviewed at Maroubra Police Station.
27   The judge recorded that the applicant gave evidence on the voir dire of the following:

(i) He agreed that he was cautioned at the time of his arrest in relation to the offence of harbouring an escapee. He responded by saying to Detective Fitzgerald "I have nothing to say to you until I speak to a solicitor". He was subsequently taken to a police station where he was given the opportunity to ring a solicitor.
(ii) The Appellant then phoned Mr George Hovan solicitor and spoke to him. After his conversation with Mr Hovan he then said to Detective Fitzgerald "I have nothing to say to you until I speak to a solicitor".

(iii) The Appellant was then placed in a room and made to wait. He waited in that room until Mr Hovan arrived where he was lead to another room to speak to Mr Hovan.
(iv) The Appellant gave evidence that during the time he was waiting in that room he had had no conversation with Detective Fitzgerald.

28   The judge's grounds of judgment were expressed thus in the Stated Case:
(i) In my reasons for judgment I noted that as the Appellant had stated that there was no conversation between himself and Detective Fitzgerald there was consequently no question of importuning, pressure or the like.
(ii) I found the fact that the Appellant said at the outset that he wanted to speak to a solicitor first is not conclusive of the right of the police to ask questions. If the Appellant is willing to answer questions then unless there is some impropriety or other, I cannot see why the evidence of the conversation is not admissible.
(iii) I found that there was no requirement for a caution in relation to the goods in custody charge until Detective Fitzgerald had reasonable cause to suspect and did suspect that the Appellant was guilty of this offence. I further found that at the time of the conversation, that situation had not arisen.
(iv) I found that Detective Fitzgerald was not required pursuant to Section 424A of the Crimes Act to conduct the interview by way of ERISP facility. I further found that even if the ERISP facility should have been used for the purpose of the interrogation, there was reasonable cause in this case for that procedure not to be followed.
(v) I found that the evidence of the conversation was not improperly obtained because it was not in an official notebook, nor because an independent officer was not called in.
(vi) I found that there was no impropriety nor unfairness in the procedure adopted.

29   The judge annexed a copy of his reasons for judgment to the Stated Case. In these reasons the judge said, amongst other things:

"The appellant said there was no interview at all, so questions of importuning, pressure and so forth do not come into it. It comes down to whether the conversation is admissible otherwise"
and

"As to the appellant not being cautioned about the charge, clearly the requirement of a caution did not arise until the detective had reasonable cause to suspect and did suspect that the appellant was guilty of this offence. As I recall his evidence Detective Fitzgerald said at the time he asked these questions, or at the time of the conversation, that situation had not arisen. I accept Detective Fitzgerald when he says that when he got to the documents in the wallet and said "How come you've got these in your wallet?" - I think that was the general thrust of what the question was - it was a genuine inquiry to see if the appellant had a reason for possessing the documents.
I do not accept the interview should have been done on the ERISP as required under the Crimes Act. This was a summary offence. But even if one follows the argument of Mr Goldberg that the original questioning was not dealing with the question of these documents, but the movements of the appellant earlier in the day and therefore might be said to come under the cloak of the requirement for the ERISP facility to be used where the indictable offence was being the subject of interrogation, I accept that there was reasonable cause in this case in any event for that procedure not to be followed.
I accept that the earlier conversation was in regard to the movements of the accused in and about the motel. That may well be relevant to the harbouring charge, but I am not dealing with that charge. To my mind it is relevant to the goods in custody charge."


30 Some of the reasons advanced before the judge for excluding the material in dispute involved the exercise of the judge's discretion, but the argument as to s424A did not. The question asked therefore needs to be re-framed so far as s424A is concerned.

31 The applicant advanced other arguments in support of his submission that the disputed conversation should not be admitted. The majority have found it unnecessary to deal with these because they have taken the view that s424A precludes the admission of that material. I take a different view as to the operation of s424A. However, there is no point in my dealing with the applicant's other arguments in a minority judgment.

32 On the skimpy materials available to this Court it appears that the judge's finding that there was a reasonable excuse for the disputed conversation not being tape recorded was based on the ERISP facility at Maroubra Police Station being used at the time of the alleged conversation to interview Ms Busic who was present at the time of the appellant's arrest. Ms Busic was not charged. That is an inadequate reason. The interview could surely have waited until the interview with Ms Busic was completed. Further, in the metropolitan area there could have been a transfer to another police station. It should not have been a case of pressing on with the questioning before the appellant's solicitor arrived at the police station. On the limited material before this Court, it was not open to the judge to find that there was a reasonable excuse for the disputed conversation not being tape recorded. Section 424A does not require ERISP (video and audio recording). An audio recording suffices, for example, an operative hand held audio recorder or a belt tape audio recorder could, inter alia, have been used.

33 For many years prior to the insertion of s424A into the Crimes Act 1900 the Courts received evidence of oral admissions allegedly made by accused persons to police officers, subject to various principles including that of unfairness. Not infrequently the "oral admissions" covered a gap in the police case. Such admissions were received into evidence as to summary and indictable offences. There were often spirited disputes as to whether such admissions had been made. In McKinney & Judge (1990-1991) 171 CLR 468 a majority of the High Court held that whenever police evidence of confessional statements allegedly made by an accused while in police custody is disputed and its making is not reliably corroborated, the judge should, as a rule of practice, warn the jury of the danger of convicting on the basis of that evidence alone. The basis of this principle lies in the special vulnerability of an accused to fabrication whenever he is involuntarily held in police custody, in that his detention will have deprived him of the possibility of any corroboration of a denial of the making of all or part of an alleged confessional statement.

34   At the time of the decision of McKinney & Judge arrangements were being made for audio/visual recording of police interviews and that was noted in the majority judgment. The Australian Law Reform Commission had dealt with the problem of fabrication of police evidence in its reports in 1975.

35   In the Attorney-General's Second Reading Speech, Hansard Legislative Council, 24 May 1995 at 117, column 2, dealing with the Evidence (Consequential and Other Provisions) Bill it was said:
"… it also makes an amendment to the Crimes Act 1900, making the tape recording of admissions to police compulsory where an accused person is suspected of an indictable offence that may not be tried summarily without the defendant's consent.

The Police Service has already introduced a system for the electronic recording of interviews, implementing the 1986 report of the criminal law review division of the Attorney General's Department. That report set out four objectives for adopting an electronic recording system:
1. To provide the court with a reliable account of statements made by persons accused of crime whilst 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 police.

This bill implements one of the recommendations of the 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 the system".


36   After a comprehensive review as to the reception of oral admissions to the police had been carried out, the Legislature, in relation to indictable offences, required (except where there was a reasonable excuse) any admissions to be tape recorded if that were to be admissible in evidence It did not enact similar provisions as to summary offences. The former law remained as to them subject to the matters to be mentioned.

37 Section 424A of the Crimes Act 1900 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 investigating 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 investigation under the orders of a superior), or

(b) a person appointed by or under the 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.

"reasonable excuse" includes:

(a) a mechanical failure, or
(b) the refusal of a person being questioned to have the questioning electronically recorded, or
(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

"tape recording" includes:

(a) audio recording, or
(b) video recording, or
(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.


(5) This section does not apply to an admission made before the commencement of this section.

38   The applicant submitted that the alleged conversation with Det Fitzgerald was related to an indictable offence. The applicant was arrested by Fitzgerald and charged with harbouring an escapee. Fitzgerald searched the appellant's wallet, counted the money in it and was in the applicant's company (alone) for a considerable period of time and was engaged in inquiries relating to the indictable matter. The alleged conversation concerned items bearing the name of Cavanough found on the appellant. It was theoretically possible that the cards could have been connected with the harbouring charge. It was submitted that the conversations held "relate to" the arrest for the indictable offence. On the prosecution of the harbouring offence the Crown would wish to rely on the applicant having cards in the name "Cavanough". This and the conversation about them went to the applicant's credibility.

39 Section 424A operates in a variety of circumstances. In some cases the summary offences come first and indictable offences arise at a later stage. These may or may not be connected with the initial summary offences or be a progression from or of them. On the other hand the summary offences may come to the notice of the police after the indictable offences. In some instances admissions may be made about the summary offences which are probative of the indictable offence. A good example is DPP v Farr 2001 NSWSC1.

40 These further points should be made about s424A:

(a) Parliament has attached the qualification that the section only relates to an indictable offence (other than one that may be dealt with summarily without the consent of the accused) to the definition of "admission". The qualification is not attached to the proceedings or the nature of the proceedings, for example, by inserting words such as "except in summary proceedings" in s424A.

(b) The critical time is when the admission is made. The police officer has to make an on the spot decision whether to record the conversation. He has to decide what offences he suspects.
(c) Section 424A applies to an admission 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. This covers where the accused was actually suspected by the investigating official (police officer) and where the investigator ought reasonably to have suspected that the defendant had committed an offence and the admission relates to an indictable offence. This latter provision overcomes the difficulty of a police officer being naïve or stating that he did not suspect an offence where he should reasonably have done so. This provides important protection for the accused. The suspicion need relate only to an offence. It does not have to be an indictable offence..

41 Section 424A only applies to an admission that relates to an indictable offence other than an indictable offence that may be dealt with summarily without the consent of the accused. An admission which does not relate to an indictable offence does not have to be tape recorded. In a prosecution for a summary offence, an admission made as to the commission of such an offence or of facts constituting such an offence or one or more of the elements of such an offence does not have to be tape recorded. An admission includes where lies have been deliberately told which give rise to an implied admission. The fact that in a prosecution for an indictable offence evidence could be led of the admission as to the summary offence, if tape recorded, does not render that admission, if not tape recorded, inadmissible on the hearing of the summary charge. They are different exercises.

42 I am conscious of the importance of the words "relates to" in S424A(4) "admission" (c) and of the distinction between summary and indictable offences and the evident intention of the legislature not to insist on tape recording before admitting admissions as to summary offences on the hearing of summary offences. Driving offences constitute a significant portion of summary offences.

43   Having to make tape recordings of admissions as to these could well have been regarded as impractical, being not worth the effort and the cost. However, if on the hearing of a summary offence the prosecution sought to lead evidence of an admission relating to an indictable offence and that admission had not been tape recorded, evidence of such an admission could not be received.

44 Further, if on the hearing of a count charging an indictable offence the prosecution sought to lead evidence of an admission as to a summary offence and that admission had not been tape recorded then subject to s424A(2)(c) that admission could not be received into evidence. That would be an admission relating to an indictable offence.

45 In my opinion s424A does not prevent the reception into evidence on the hearing of the summary charges of admissions made as to the summary offences, and the judge was correct to rule accordingly. However, the Crown would not be able to lead evidence on the hearing of the summary offences of admissions made relating to an indictable offence.

46 The question asked in the stated case should be answered "No, so far as s424A of the Crimes Act 1900 is concerned".

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