R v Tarantino (No 5) - [2019] NSWSC 1056

Supreme Court

New South Wales

Medium Neutral Citation: R v Tarantino (No 5) [2019] NSWSC 1056
Hearing dates: 16 August 2019
Date of orders: 16 August 2019
Decision date: 16 August 2019
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
Evidence rejected

Catchwords: EVIDENCE – detective’s notes from an unrecorded interview with the accused in 1999 – whether evidence excluded by operation of s 281 of the Criminal Procedure Act 1986 – no reasonable excuse for not conducting a recorded interview confirming the admission – evidence rejected
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: Nicholls v The Queen [2005] HCA 1
R v Tarantino (No 4) [2019] NSWSC 1055
Category: Procedural and other rulings
Parties: Regina (Crown)
Vinzent Tarantino (Accused)
Representation:
Counsel:
P Barrett; V Garrity (Crown)
B Rigg SC; P Coady (Accused)
Solicitors:
Office of the Department of Public Prosecutions (Crown)
Watsons Solicitors (Accused)

File Number(s): 2016/347591
Publication restriction: Not to be published prior to the conclusion of the proceedings at first instance

EX TEMPORE Judgment

(Revised from Transcript)

The Crown seeks to lead evidence from Christopher Powell, a former detective in the New South Wales Police Force, in relation to part of an interview conducted with the accused on 22 July 1999. In the relevant part of the interview, Mr Powell stated that the accused denied that around the time of Ms Diec's disappearance he had ever "borrowed a white van through [Geoffrey] Maurer or Maurer's cousin Daniel, or the person Roger”, instead saying he had, "hired a van to move furniture from his family home in Edgecliff, to his father's home at 10 Second [Street], Granville".
The Crown seeks to adduce this evidence on the basis that it can establish that those statements were false, and that they establish a consciousness of guilt.
Senior Counsel for the accused, Ms Rigg SC, objects to the admission of this evidence, not on the basis of relevance. Instead Ms Rigg submitted it should be excluded by the operation of s 281 of the Criminal Procedure Act1986
Section 281 relevantly provides:

281 Admissions by suspects
(1)   This section applies to an admission:
(a)   that was made by an accused person who, at the time when the admission was made, was or could reasonably 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 can be dealt with summarily without the consent of the accused person.

(2)   Evidence of an admission to which this section applies is not admissible unless:
(a)   there is available to the court:
(i)   a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii)   if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tarantino (No 5)

Details

AGLC: R v Tarantino (No 5) [2019] NSWSC 1056
Case: [2019] NSWSC 1056
Decision Date: 16 August 2019

CaseChat Overview and Summary

In the case of R v Tarantino (No 5), the defendant, Tarantino, was before the court on charges related to the 1999 murder of a woman. The primary issue in dispute was the admissibility of evidence derived from an unrecorded interview conducted with the defendant in 1999. Specifically, the court had to consider whether the detective's notes from this interview were admissible and whether the exclusion of this evidence was appropriate under section 281 of the Criminal Procedure Act 1986. The central legal issue was whether the prosecution had a reasonable excuse for not conducting a recorded interview to confirm the admission made by the defendant during the unrecorded interview.

The court addressed the matter by examining the legislative framework and the practicalities of the case. It noted that under section 281 of the Criminal Procedure Act, evidence obtained through an unrecorded interview is inadmissible unless there is a reasonable excuse for not recording it. The court considered the circumstances surrounding the unrecorded interview, including the availability of recording equipment and the rationale behind the decision not to record the interview. The court found that no reasonable excuse was provided for not recording the interview, leading to the exclusion of the detective's notes as evidence. The court concluded that the exclusion of this evidence was necessary to uphold the integrity of the legal process and to ensure that the defendant's rights were protected.

Ultimately, the court rejected the evidence from the unrecorded interview due to the lack of a reasonable excuse for not recording it. This decision was made to adhere to the statutory requirements and to ensure that the trial proceeded on a fair and reliable basis. The exclusion of this evidence was pivotal in the proceedings, as it deprived the prosecution of a significant piece of evidence that could have impacted the outcome of the case. The court's ruling underscores the importance of following legal procedures, particularly in the context of evidence obtained through police interviews.

Orders